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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 1)
Under the Securities Exchange Act of 1934
CHEMBIO DIAGNOSTICS INC.
(Name of Issuer)
Common Stock, $0.01 par value per share
(Title of Class of Securities)
89268C 10 3
(CUSIP Number)
Adam Blonsky
c/o Crestview Capital Master, LLC
95 Revere Drive, Suite A
Northbrook, IL 60062
(847) 559-0060
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 19, 2007
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this schedule because of
§§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. x
Note: Schedules filed in paper format shall include a signed original and five copies of the
schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons
initial filing on this form with respect to the subject class of securities, and for any subsequent
amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed
for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject
to the liabilities of that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
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CUSIP No. |
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89268C 10 3 |
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Page |
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2 |
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of |
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8 |
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1 |
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NAMES OF REPORTING PERSONS
Crestview Capital Master, LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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WC |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Delaware
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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24,145,310 (See Items 4 and 5) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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24,145,310 (See Items 4 and 5) |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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24,145,310 (See Items 4 and 5) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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36.2%* |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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OO |
* Based upon 60,537,534
issued and outstanding shares of Common Stock as disclosed by the
Issuer to the Reporting Persons on December 20, 2007 plus 6,169,056 shares
of Common Stock issuable upon exercise of the remaining Series B Warrants held by Crestview.
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CUSIP No. |
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89268C 10 3 |
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Page |
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3 |
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of |
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8 |
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1 |
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NAMES OF REPORTING PERSONS
Crestview Capital Partners, LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(a) o |
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(b) o |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS (SEE INSTRUCTIONS) |
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WC |
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5 |
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |
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o |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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Illinois
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7 |
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SOLE VOTING POWER |
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NUMBER OF |
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0 |
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SHARES |
8 |
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SHARED VOTING POWER |
BENEFICIALLY |
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OWNED BY |
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24,145,310 (See Items 4 and 5) |
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EACH |
9 |
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SOLE DISPOSITIVE POWER |
REPORTING |
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PERSON |
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0 |
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WITH |
10 |
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SHARED DISPOSITIVE POWER |
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24,145,310 (See Items 4 and 5) |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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24,145,310 (See Items 4 and 5) |
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12 |
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |
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o
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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36.2%* |
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14 |
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) |
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OO |
* Based upon 60,537,534 issued and outstanding shares of Common Stock
as disclosed by the Issuer to the Reporting Persons on December 20, 2007 plus
6,169,056 shares of Common Stock issuable upon exercise of the remaining Series B Warrants held by Crestview.
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Cusip No. 89268C 10 3
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13D/A
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Page 4 of 8 Pages |
This Amendment No. 1 relates to the Statement of Beneficial Ownership on Schedule 13D filed
jointly by Crestview Capital Master, LLC (Crestview) and Crestview Capital Partners, LLC
(Crestview Partners) (each, a Reporting Person and, collectively, the
Reporting Persons) with the Securities and Exchange Commission (the Commission)
on December 7, 2007 (the Schedule 13D).
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Schedule 13D is hereby amended to add the following information:
All funds used for the purchases of the securities of the Company set forth on Schedule A to this Amendment
No. 1 on behalf of the Reporting Persons have come directly from the assets controlled by such
Reporting Persons and their affiliates, which may, at any given time, include margin loans made by
brokerage firms in the ordinary course of business. The aggregate amount of funds for such
purchases reflected on Schedule A to this Amendment No. 1
was approximately $365,180.54. These
amounts are in addition to the amounts previously reported.
Item 4. Purpose of Transaction.
Item 4 of the Schedule 13D is hereby amended to add the following information:
After 5 pm eastern time on December 19, 2007, Crestview consented to the amendments to the terms of
the Series B Preferred Stock (as defined below), the Series C Preferred Stock (as defined below),
the Series B Warrants (as defined below) and the Series C
Warrants (as defined below). The material
terms of the amendments are described below, and the amendments are attached hereto as Exhibit 99.13 and
incorporated herein by reference. With respect to the Issuers amendments to the Series B and
Series C Preferred Certificates of Designations, which are set forth on Exhibit 99.13, the
Issuers counsel made technical corrections to the amendments to
such certificates of designation to provide
that the automatic conversion of the preferred stock would occur immediately following the
effectiveness of such amended certificates filed with the State of Nevada instead of at 4:01 pm
eastern time. Such technical corrections are not reflected on Exhibit 99.13. Prior to Crestview giving
its consent to the amendments, the Issuer and Crestview discussed an amendment to the Issuers
bylaws regarding the Issuers opt out of Nevadas control share acquisition statute, and the Issuer
confirmed to Crestview such amendment had been adopted by the Board of Directors of the Issuer and
the Issuer also confirmed various other matters to Crestview, including as to having obtained all
required approvals and there being no other restrictions on Crestview related to the consummation
of the Transaction, including under any so-called poison pills, charter or bylaw provisions, state
takeover laws or the like, all of which confirmations are set forth on Exhibit 99.14 and which are
incorporated herein by reference.
Following
delivery of Crestviews consent to the Issuer, the Issuer, on
December 19, 2007, consummated the transactions
disclosed in the Form 8-K filed by the Issuer with the Commission on December 20, 2007 (and as
previously disclosed by the Issuer in Forms 8-K filed with the Commission on October 19, 2007,
December 5, 2007 and December 6, 2007) (collectively, the Transaction). Simultaneously
with the Issuers consummation of the Transaction, (i) the
82.32274 shares of Series B 9% Convertible
Preferred Shares of the Issuer (Series B Preferred Stock) held by Crestview immediately
prior to the consummation of the Transaction automatically converted into 10,290,342 shares of
Common Stock, (ii) the 40 shares of Series C 7% Convertible Preferred Shares of the Issuer
(Series C Preferred Stock) held by Crestview
immediately prior to the consummation of the
Transaction automatically converted into 4,166,666 shares of Common Stock, (iii) Crestview
exercised a portion of Common Stock Purchase Warrants held by it to purchase a total of 60,451 shares of
Common Stock for an aggregate purchase price of $24,180.40 (the Series B Warrants), (iv)
Crestview exercised all of its Common Stock Purchase Warrants held by
it to purchase a total of 625,000 shares
of Common Stock for an aggregate purchase price of $250,000 (the Series C Warrants), (v)
the
Issuer
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Cusip No. 89268C 10 3
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13D/A
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Page 5 of 8 Pages |
issued
Crestview 442,484 shares of Common Stock as a stock dividend on the Series B Preferred Stock and (vi) the Issuer issued Crestview 139,351 shares of Common Stock as a stock dividend on the Series C Preferred Stock.
Immediately following the consummation of the Transaction, Crestview purchased 216,667 shares of
Common Stock in block trade for an aggregate purchase price of
$91,000.14 pursuant to the written agreement attached hereto as
Exhibit 99.15. The Issuer confirmed
and acknowledged it would comply with its obligations under such purchase agreement. This confirmation and acknowledgement is attached as
Exhibit 99.15 and incorporated by reference herein.
The terms of the Series B Preferred Stock were amended simultaneously with the consummation of the
Transaction to, among other things, (i) lower the conversion price of the Series B Preferred Stock from $0.61 to $0.40,
(ii) provide for the automatic conversion of all the Series B Preferred Stock into shares of Common
Stock immediately following the effectiveness of the amended
Series B Preferred Certificate of Designation
filed with the State of Nevada and (iii) permit the issuance of shares of Common Stock upon
automatic conversion of all the Series B Preferred Stock notwithstanding the beneficial ownership
limitation provision contained in the Series B Certificate of Designation.
The terms of the Series B Warrants were amended simultaneously with the consummation of the
Transaction to, among other things, lower the exercise price from $0.61 to $0.40 for cash exercises and to $0.45 for
cashless exercises beginning at 4:01 pm eastern time on the date the Transaction was consummated.
The amendment to the Series B Warrants also provided that (i) the exercise price would be $0.45
(for cash and on a cashless basis) beginning at 10 pm eastern time on the date the Transaction was
consummated through 9:59 pm eastern time on the date that is six months and twelve days following the
date the Transaction was consummated (the Outside Date) if the holder exercised at least
10% of all of its warrants and options on the date the Transaction was consummated for cash and
$0.61 if the holder did not exercise for cash at least 10% of all of its warrants and options on
the date the Transaction was consummated; (ii) beginning at 10 pm eastern time on the Outside Date,
the exercise price would be $0.61 for the then-remaining unexercised portion of the Series B
Warrants. The amendment further provided that (1) the cashless exercise feature could be exercised
at all times (instead of during the period while a registration statement covering the warrant
shares was not effective), provided that the cashless feature may not be exercised by holders
through the Outside Date who failed to exercise at least 10% of all
of such holders warrants and options for
cash on the date the Transaction was consummated; (2) the cashless exercise feature assumes a
market price equal to the greater of (a) $0.53 and (b) the volume weighted average trading price for
the 10 trading period ending on the second trading day immediately
preceding the applicable date of the
exercise notice; and (3) shares of Common Stock issuable upon exercise of the Series B Warrants
could be issued in connection with the Transaction through the Outside Date notwithstanding the
beneficial ownership limitation provision contained therein.
The terms of the Series C Preferred Stock were amended simultaneously with the consummation of the
Transaction to, among other things, (i) lower the conversion price of the Series C Preferred Stock from $0.80 to $0.48,
(ii) provide for the automatic conversion of all the Series C Preferred Stock into shares of Common
Stock immediately following the effectiveness of the amended
Series C Preferred Certificate of Designation
filed with the State of Nevada and (iii) permit the issuance of shares of Common Stock upon
automatic conversion of all the Series C Preferred Stock notwithstanding the beneficial ownership
limitation provision contained in the Series C Certificate of Designation.
The terms of the Series C Warrants were amended simultaneously with the consummation of the
Transaction to, among other things, lower the exercise price from $1.00 to $0.40 for cash exercises and to $0.45 for
cashless exercises beginning at 4:01 pm eastern time on the date the Transaction was consummated.
The amendment to the Series C Warrants also provided that (i) the exercise price would be $0.45
(for cash and on a cashless basis) beginning at 10 pm eastern
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Cusip No. 89268C 10 3
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13D/A
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Page 6 of 8 Pages |
time on the date the Transaction was consummated through 9:59 pm eastern time on the Outside
Date if the holder exercised at least 10% of all of its warrants and options on the date the
Transaction was consummated for cash and $1.00 if the holder did not exercise for cash at least 10%
of all of its warrants and options on the date the Transaction was consummated; (ii) beginning at
10 pm eastern time on the Outside Date, the exercise price would be $1.00 for the then-remaining
unexercised portion of the Series C Warrants. The amendment further provided that (1) the cashless
exercise feature could be exercised at all times (instead of during the period while a registration
statement covering the warrant shares was not effective), provided that the cashless feature may
not be exercised by holders through the Outside Date who failed to exercise at least 10% of all of
such holders warrants and options for cash on the date the Transaction was consummated; (2) the cashless
exercise feature assumes a market price equal to the greater of (a)
$0.53 and (b) the volume
weighted average trading price for the 10 trading period ending on the second trading day
immediately preceding the applicable date of the exercise notice; and (3) shares of Common Stock issuable upon
exercise of the Series C Warrants could be issued in connection with the Transaction through the
Outside Date notwithstanding the beneficial ownership limitation provision contained therein.
Other than as set forth herein, the Reporting Persons have no plans or proposals which relate to or
would result in any of the actions set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D.
The Series B Preferred Stock, the Series C Preferred Stock, the Series B Warrants and the Series C
Warrants reported in this Item 4 were acquired from the Issuer in the transactions disclosed in the
Forms 8-K filed by the Issuer with the Commission on January 31, 2005 and October 5, 2006, to which
reference is hereby made, pursuant to the forms of agreements attached to this Amendment No. 1 as
Exhibits 99.2 through 99.11.
Item 5. Interest in Securities of the Issuer.
Item 5 of the Schedule 13D is hereby amended to add the following information:
(a) - (b) |
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As of the date hereof as a result of the consummation of the Transaction, Crestview
beneficially owns 24,145,310 shares of Common Stock, which includes 6,169,056 shares of Common
Stock issuable upon exercise of the remaining Series B Warrants held by Crestview. The
foregoing represents beneficial ownership of 36.2% of the total number of issued and
outstanding shares of Common Stock and is based upon 60,537,534 issued and outstanding shares
of Common Stock as disclosed by the Issuer to the Reporting Persons
on December 20, 2007 plus
the 6,169,056 shares of Common Stock issuable upon exercise of the remaining Series B Warrants
held by Crestview. As described above, the terms of the Series B Warrants were amended
simultaneously with the consummation of the Transaction to permit the issuance of shares of
Common Stock upon exercise of such warrants from the date of consummation of the Transaction
through the Outside Date notwithstanding the beneficial ownership limitation contained in such
warrants. |
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Crestview Partners is the sole manager of Crestview, and as such has the power to vote and to
dispose of investments beneficially owned by Crestview, including the Common Stock, and thus
may also be deemed to beneficially own the above-described shares of Common Stock
beneficially owned by Crestview. |
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Currently, Messrs. Flink, Hoyt and Warsh are the managers of Crestview Partners, and as such
may be deemed to share the power to vote and to dispose of investments beneficially owned by
Crestview Partners, including the Common Stock; however, each expressly disclaims beneficial
ownership of such shares of Common Stock. |
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(c) |
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Except for the transactions described in this Amendment No. 1 and the transactions described
on Schedule A
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Cusip No. 89268C 10 3
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13D/A
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Page 7 of 8 Pages |
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attached hereto, there have been no transactions in the Shares since the filing of the
Schedule 13D. |
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of
the Issuer.
Item 6 of the Schedule 13D is hereby amended to add the following information:
The matters referred to in Item 4 of this Amendment No. 1 are hereby referenced in this Item 6.
Pursuant to Rule 13d-1(k)(1) promulgated under the Exchange Act, the Reporting Persons previously
entered into an agreement with respect to the joint filing of the Schedule 13D, and any amendment
or amendments thereto. Reference is made to Items 3, 4 and 5 of this Amendment No. 1, which are
incorporated by reference herein, for a description of the contracts and arrangements between
Crestview and the Company and of the relationships between the Reporting Persons.
Item 7. Material to be Filed as Exhibits.
Item 7 of the Schedule 13D is hereby amended to add the following information:
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Exhibit 99.2
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Form of Securities Purchase Agreement, dated as of January 26, 2005 |
Exhibit 99.3
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Form of Registration Rights Agreement, dated as of January 26, 2005 |
Exhibit 99.4
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Form of Warrant, dated as of January 26, 2005 |
Exhibit 99.5
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Form of Certificate of Designation of Series B 9% Convertible Preferred Stock |
Exhibit 99.6
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Form of Amended and Restated Certificate of Designation of Series B 9% Convertible Preferred Stock |
Exhibit 99.7
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Form of Securities Purchase Agreement, dated as of September 29, 2006 |
Exhibit 99.8
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Form of Registration Rights Agreement, dated as of September 29, 2006 |
Exhibit 99.9
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Form of Warrant, dated as of September 29, 2006 |
Exhibit 99.10
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Form of Certificate of Designation of Series C 7% Convertible Preferred Stock |
Exhibit 99.11
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Letter of Amendment, dated as of October 5, 2006 |
Exhibit 99.12
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Form of Amended and Restated Certificate of Designation of Series C 7% Convertible Preferred Stock |
Exhibit 99.13
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Consent of Crestview to Amendments to Series B Preferred Stock, Series B Warrants, Series C Preferred Stock and |
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Series C Warrants |
Exhibit 99.14
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Confirmation delivered to Crestview by the Issuer on December 19, 2007 |
Exhibit 99.15
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Confirmation and Acknowledgement delivered to Crestview by the Issuer on December 19, 2007 |
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Cusip No. 89268C 10 3
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13D/A
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Page 8 of 8 Pages |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
Dated: December 20, 2007
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CRESTVIEW CAPITAL MASTER, LLC |
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By: |
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CRESTVIEW CAPITAL PARTNERS, LLC, its sole Manager |
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By: |
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/s/ Robert Hoyt |
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Name:
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Robert Hoyt |
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Title:
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Manager |
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CRESTVIEW CAPITAL PARTNERS, LLC |
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By: |
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/s/ Robert Hoyt |
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Name:
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Robert Hoyt |
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Title:
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Manager |
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SCHEDULE A
This schedule sets forth information with respect to each purchase and sale of Shares which
was effectuated on behalf of the Reporting Persons since the filing of the Schedule 13D.
Purchase (Sale) of Shares effected by Crestview in a block trade
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Number of Shares |
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Aggregate |
Date |
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Purchased (Sold) |
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Price Per Share($) |
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Price($)(1) |
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12/19/2007 |
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216,667 |
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0.42 |
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$ |
91,000.14 |
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(1) |
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Excludes all execution-related costs. |
Purchase (Sale) of Shares effected by Crestview pursuant to exercises of Series B Warrants and
Series C Warrants
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Number of Shares |
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Aggregate |
Date |
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Purchased (Sold) |
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Price Per Share($) |
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Price($)(1) |
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12/19/2007 |
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625,000 |
(2) |
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0.40 |
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$ |
250,000 |
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12/19/2007 |
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60,451 |
(3) |
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0.40 |
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$ |
24,180.40 |
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(1) |
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Excludes all execution-related costs. |
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(2) |
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Exercise of all Series C Warrants held by Crestview |
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(3) |
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Exercise of a portion of Series B Warrants held by Crestview |
Shares
received by Crestview upon automatic conversion of Series B Preferred Stock and Series C
Preferred Stock
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Number of Shares |
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Received upon Automatic |
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Aggregate |
Date |
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Conversion |
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Price Per Share($) |
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Price($)(1) |
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12/19/2007 |
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10,290,342 |
(2) |
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$ |
0.40 |
(3) |
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$ |
4,116,137 |
(4) |
12/19/2007 |
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4,166,666 |
(5) |
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$ |
0.48 |
(6) |
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$ |
2,000,000 |
(7) |
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(1) |
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Excludes all execution-related costs. |
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(2) |
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Automatic conversion of 82.32274 shares of Series B
Preferred Stock held by Crestview pursuant to terms of amended
Series B Preferred Certificate of Designation |
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(3) |
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Conversion price of Series B Preferred Stock held by
Crestview pursuant to terms of amended Series B Preferred
Certificate of Designation |
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(4) |
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Stated value of Series B Preferred Stock held by Crestview |
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(5) |
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Automatic conversion of 40 shares of Series C Preferred
Stock held by Crestview pursuant to terms of amended Series C
Preferred Certificate of Designation |
|
(6) |
|
Conversion price of Series C Preferred Stock held by
Crestview pursuant to terms of amended Series B Preferred
Certificate of Designation |
|
(7) |
|
Stated value of Series C Preferred Stock held by Crestview
|
Shares
received by Crestview upon stock dividend issued by Issuer on Series B Preferred Stock and
Series C Preferred Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Shares |
|
|
|
|
|
|
|
|
Received Upon |
|
|
|
|
|
Aggregate |
Date |
|
Stock Dividend |
|
Price Per Share($) |
|
Price($)(1) |
|
12/19/2007 |
|
|
442,484 |
(2) |
|
$ |
0.40 |
(3) |
|
$ |
176,993.60 |
(4) |
12/19/2007 |
|
|
139,351 |
(5) |
|
$ |
0.48 |
(6) |
|
$ |
66,888.48 |
(7) |
|
|
|
(1) |
|
Excludes all execution-related costs. |
|
(2) |
|
Issuance of stock dividend on Series B Preferred Stock held by Crestview |
|
(3) |
|
Price used by the amended Series B Preferred Certificate
of Designation to determine number of shares issuable as stock
dividend on Series B Preferred Stock held by Crestview |
|
(4) |
|
Value of accrued and unpaid dividend on Series B Preferred Stock held by Crestview
at time of stock dividend |
|
(5) |
|
Issuance of stock dividend on Series C Preferred Stock held by Crestview |
|
(6) |
|
Price used by the amended Series B Preferred Certificate
of Designation to determine number of shares issuable as stock
dividend on Series C Preferred Stock held by Crestview |
|
(7) |
|
Value of accrued and unpaid dividend on Series C Preferred Stock held by Crestview
at time of stock dividend |
EXHIBIT INDEX
|
|
|
Exhibit 99.2
|
|
Form of Securities Purchase Agreement, dated as of January 26, 2005 |
Exhibit 99.3
|
|
Form of Registration Rights Agreement, dated as of January 26, 2005 |
Exhibit 99.4
|
|
Form of Warrant, dated as of January 26, 2005 |
Exhibit 99.5
|
|
Form of Certificate of Designation of Series B 9% Convertible Preferred Stock |
Exhibit 99.6
|
|
Form of Amended and Restated Certificate of Designation of Series B 9% Convertible Preferred Stock |
Exhibit 99.7
|
|
Form of Securities Purchase Agreement, dated as of September 29, 2006 |
Exhibit 99.8
|
|
Form of Registration Rights Agreement, dated as of September 29, 2006 |
Exhibit 99.9
|
|
Form of Warrant, dated as of September 29, 2006 |
Exhibit 99.10
|
|
Form of Certificate of Designation of Series C 7% Convertible Preferred Stock |
Exhibit 99.11
|
|
Letter of Amendment, dated as of October 5, 2006 |
Exhibit 99.12
|
|
Form of Amended and Restated Certificate of Designation of Series C 7% Convertible Preferred Stock |
Exhibit 99.13
|
|
Consent of Crestview to Amendments to Series B Preferred Stock, Series B Warrants, Series C Preferred Stock and
Series C Warrants |
Exhibit 99.14
|
|
Confirmation delivered to Crestview by the Issuer on December 19, 2007 |
Exhibit 99.15
|
|
Confirmation and Acknowledgement delivered to Crestview by the Issuer on December 19, 2007 |