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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP OF SECURITIES Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940 |
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| Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly. | |||
| Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. | SEC 1474 (9-02) | ||
| 1. Title of Derivative Security (Instr. 3) |
2. Conversion or Exercise Price of Derivative Security | 3. Transaction Date (Month/Day/Year) | 3A. Deemed Execution Date, if any (Month/Day/Year) | 4. Transaction Code (Instr. 8) |
5. Number of Derivative Securities Acquired (A) or Disposed of (D) (Instr. 3, 4, and 5) |
6. Date Exercisable and Expiration Date (Month/Day/Year) |
7. Title and Amount of Underlying Securities (Instr. 3 and 4) |
8. Price of Derivative Security (Instr. 5) |
9. Number of Derivative Securities Beneficially Owned Following Reported Transaction(s) (Instr. 4) |
10. Ownership Form of Derivative Security: Direct (D) or Indirect (I) (Instr. 4) |
11. Nature of Indirect Beneficial Ownership (Instr. 4) |
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| Code | V | (A) | (D) | Date Exercisable | Expiration Date | Title | Amount or Number of Shares | ||||||||
| Warrant | $ 5.08 | 12/21/2009 | J(1) | 642,840 | 06/21/2010 | 12/21/2012 | Common Stock | 642,840 | (1) | 642,840 | I | See Footnote (2) | |||
| Convertible Promissory Note | $ 5.33 | 12/21/2009 | J(1) | 1,650,000 (3) | 12/21/2009 | 12/21/2012(4) | Common Stock | (3) | (1) | 309,568 (3) (5) | I | See Footnote (5) | |||
| Series A Preferred Stock | (6) | 12/21/2009 | J(1) | 330 (6) | 11/12/2012 | (7) | Common Stock | (6) | $ 5,000 | 0 | I | See Footnote (8) | |||
| Reporting Owner Name / Address | Relationships | |||
| Director | 10% Owner | Officer | Other | |
| Doherty Patrick G MARINER PRIVATE EQUITY, LLC 13545 BARRETT PARKWAY DRIVE, SUITE 330 ST. LOUIS, MO 63021 |
X | |||
| /s/ Patrick Doherty | 12/22/2009 | |
| **Signature of Reporting Person | Date |
| * | If the form is filed by more than one reporting person, see Instruction 4(b)(v). |
| ** | Intentional misstatements or omissions of facts constitute Federal Criminal Violations. See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). |
| (1) | On October 29, 2009, the registrant entered into an agreement with the holders of all of the registrant's outstanding Series A preferred stock to exchange outstanding shares of Series A preferred stock for other securities of the registrant (the "Exchange"). Pursuant to the Exchange, certain of the Bicknell Reporters (as defined below in footnote 2) exchanged their Series A preferred stock for the warrants and convertible promissory notes being reported in this Form 4. |
| (2) | Includes 58,440 warrants owned by XXL Investments, LLC ("XXL"), 525,960 warrants owned by the Bicknell Family Holding Company, LLC ("Bicknell Holding"), and 58,440 warrants owned by Martin C. Bicknell ("Bicknell"). As reported in a Schedule 13G/A jointly filed with the SEC on July 10, 2009 (the "Bicknell 13G") by XXL, Bicknell Holding, Bicknell, the Bicknell Family Management Company, LLC, the Bicknell Family Management Company Trust, Mariner Wealth Advisors, LLC, and Mariner Capital Ventures, LLC (each, a "Bicknell Reporter" and together, the "Bicknell Reporters"), the Bicknell Reporters are acting as a group pursuant to SEC Rule 13d-5(b)(1). Each Bicknell Reporter is deemed a beneficial owner of the warrants. The reporting person is the president of Mariner Private Equity, LLC. Mariner Private Equity, LLC is the general partner of Mariner Capital Ventures, LLC. The reporting person disclaims beneficial ownership of the warrants. |
| (3) | At any time prior to repayment of the convertible promissory note (the "Note"), the holder may elect, in lieu of repayment, to convert all or a portion of the outstanding principal on the Note into that number of shares of the registrant's common stock equal to the quotient obtained by dividing 100% of the amount of principal on the Note being converted by $5.33. |
| (4) | December 21, 2012 is the maturity date of the Note. |
| (5) | XXL is the holder of a convertible promissory note issued by the registrant in the principal amount of $150,000, Bicknell Holding is the holder of a convertible promissory note issued by the registrant in the principal amount of $1,350,000, and Bicknell is the holder of a convertible promissory note issued by the registrant in the principal amount of $150,000. As reported in the Bicknell 13G, the Bicknell Reporters are acting as a group pursuant to SEC Rule 13d-5(b)(1). Each Bicknell Reporter is deemed a beneficial owner of the convertible promissory notes. The reporting person is the president of Mariner Private Equity, LLC. Mariner Private Equity, LLC is the general partner of Mariner Capital Ventures, LLC. The reporting person disclaims beneficial ownership of the convertible promissory notes. |
| (6) | XXL owns 30 shares of Series A preferred stock, Bicknell Holding owns 270 shares of Series A preferred stock, and Bicknell owns 30 shares of Series A preferred stock. At the option of the holder, the Series A preferred stock is convertible at any time commencing four years after November 12, 2008 into shares of the registrant's common stock at a conversion price equal to (A) the sum of the stated value, which is $5,000 per share, of the Series A preferred stock plus all accumulated dividends on the Series A preferred stock, divided by (B) the greater of (i) $6.59 (the market value of the common stock immediately preceding the entering into of the Preferred Stock and Warrant Purchase Agreement dated November 11, 2008 plus a value of $0.125 for each share of common stock purchasable with a common stock purchase warrant) and (ii) the market value of the common stock at 4:00 p.m. EST on the conversion date. |
| (7) | The Series A preferred stock has no expiration date. |
| (8) | Prior to the Exchange, XXL, Bicknell Holding and Bicknell owned the shares of Series A preferred stock identified in footnote 6 above. As reported in the Bicknell 13G, the Bicknell Reporters are acting as a group pursuant to SEC Rule 13d-5(b)(1). Prior to the Exchange, each Bicknell Reporter was deemed a beneficial owner of the Series A preferred stock. The reporting person is the president of Mariner Private Equity, LLC. Mariner Private Equity, LLC is the general partner of Mariner Capital Ventures, LLC. The reporting person disclaimed beneficial ownership of the Series A preferred stock. |