CUSIP No. |
89268C 10 3 |
Page | 2 |
of | 7 Pages |
1 | NAMES OF REPORTING PERSONS Crestview Capital Master, LLC |
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2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
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(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
WC | |||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 2,035,293 (See Item 5) | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
2,035,293 (See Item 5) | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
2,035,293 (See Item 5) | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
14.2%* | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
OO |
CUSIP No. |
89268C 10 3 |
Page | 3 |
of | 7 Pages |
1 | NAMES OF REPORTING PERSONS Crestview Capital Partners, LLC |
||||||||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) |
||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
WC | |||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Illinois | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 2,035,293 (See Item 5) | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
2,035,293 (See Item 5) | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
2,035,293 (See Item 5) | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
14.2%* | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
OO |
Cusip No. 89268C 10 3 | 13D | Page 4 of 7 Pages |
(a) | This Schedule 13D is filed as a joint statement pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act), by each of the Reporting Persons. The Reporting Persons are making a joint filing due solely to (i) the ownership by Crestview of more than 5% of the Common Stock, (ii) the beneficial ownership of shares of Common Stock by Crestview Partners and (iii) the relationships between the Reporting Persons. As reported in Item 5 hereof, each of Stewart Flink, Robert Hoyt and Daniel Warsh are 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. | |
(b) | The business address for each Reporting Person, and for each of Messrs. Flink, Hoyt and Warsh, is c/o Crestview Capital Funds, 95 Revere Drive, Suite A, Northbrook, Illinois 60062. | |
(c) | The principal business of each Reporting Person is purchasing, selling, trading and investing in securities, and the principal business of each of Messrs. Flink, Hoyt and Warsh is working for Crestview. | |
(d) | No Reporting Person, and none of Messrs. Flink, Hoyt or Warsh, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years. | |
(e) | Except as set forth below, no Reporting Person, and none of Messrs. Flink, Hoyt or Warsh, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. | |
On February 26, 2007, the Securities and Exchange Commission (the SEC) filed a civil complaint against Crestview Partners and Mr. Flink alleging that they made a materially false representation in relation to each of two registered direct offerings in 2003 and 2004 by entering into subscription agreements containing a representation that Crestview-related funds had not engaged in short sales of the securities being offered during the ten days prior to the signing of the subscription document even though such Crestview-related funds had in fact engaged in such short sales. Without admitting or denying the allegations in the SECs complaint, Crestview Partners and Mr. Flink agreed to settle this matter. As a result, a final judgment was entered by the court on February 26, 2007, permanently enjoining Crestview Partners and Mr. Flink from violating Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. Crestview agreed to pay $197,320 in disgorgement of profits and a civil penalty in the same amount, plus interest, and Mr. Flink agreed to pay a civil penalty in the amount of $120,000. Crestview Partners also agreed to retain an independent consultant to monitor Crestview Partners compliance procedures and to report to the staff of the SEC with respect thereto. The SEC did not seek or impose any administrative bars or suspensions against Crestview Partners or Mr. Flink. | ||
(f) | Crestview is a Delaware limited liability company. Crestview Partners is an Illinois limited liability company. Each of Messrs. Flink, Hoyt and Warsh is a United States Citizen. |
Cusip No. 89268C 10 3 | 13D | Page 5 of 7 Pages |
(a) - (b) | As of the date hereof, Crestview owns 2,035,293 shares of Common Stock (excluding shares underlying certain securities that have 4.99% or 9.99% beneficial ownership limitations, as described below), representing approximately 14.2% of the total number of issued and outstanding shares of Common Stock. The calculation of the foregoing percentage is based upon 14,317,165 issued and outstanding shares of Common Stock as disclosed by the Issuer to the Reporting Persons on December 6, 2007. As of the date hereof, Crestview also owns (i) Series B 9% Convertible Preferred Shares of the Issuer (Series B Preferred Stock) that are convertible into a total of 6,747,766 shares of Common Stock, (ii) Series C 7% Convertible Preferred Shares of the Issuer (Series C Preferred Stock) that are convertible into a total of 2,500,000 shares of Common Stock, (iii) Common Stock Purchase Warrants to purchase a total of 6,229,507 shares of Common Stock (the Series B Warrants) and (iv) Common Stock Purchase Warrants to purchase a total of 625,000 shares of Common Stock (the Series C Warrants and, collectively with the Series B Warrants, the Warrants). The terms of the Series B Preferred Stock, the Series C Preferred Stock and the Warrants contain restrictions that prevent them from being converted or exercised, as applicable, if the number of shares of Common Stock to be issued pursuant to such conversion or exercise (as applicable) would cause Crestview together with its affiliates to own in excess of 4.99% or, if the foregoing restriction is waived, with |
Cusip No. 89268C 10 3 | 13D | Page 6 of 7 Pages |
respect to the Series C Preferred Stock and the Series C Warrants, 9.99%, of the issued and outstanding Common Stock immediately after giving effect to such conversion or exercise (as applicable). Since Crestview beneficially owns 14.2% of the outstanding shares of Common Stock, such shares of Series B Preferred Stock and Series C Preferred Stock and such Warrants currently are not convertible or exercisable (as applicable) and the underlying shares of Common Stock have not been included in the calculations of beneficial ownership of the Reporting Persons or the aggregate number of outstanding shares of Common Stock of the Issuer. Reference is made, however, to the disclosure set forth in the second paragraph of Item 4 above, which is incorporated into this Item 5 by this reference. The Series B Preferred Stock, the Series C Preferred Stock and the Warrants reported in this Item 5 were acquired from the Issuer in the transactions disclosed in the Forms 8-K filed by the Issuer with the SEC on January 31, 2005 and October 5, 2006, to which reference is hereby made. | ||
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. | ||
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. | ||
(c) | Not applicable. | |
(d) | Not applicable. | |
(e) | Not applicable. |
Cusip No. 89268C 10 3 | 13D | Page 7 of 7 Pages |
CRESTVIEW CAPITAL MASTER, LLC | ||||||
By: | CRESTVIEW CAPITAL PARTNERS, LLC, its sole Manager | |||||
By: | ||||||
/s/ Robert Hoyt |
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Name: | Robert Hoyt |
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Title: | Manager | |||||
CRESTVIEW CAPITAL PARTNERS, LLC | ||||||
By: | ||||||
/s/ Robert Hoyt |
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Name: | Robert Hoyt |
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Title: | Manager |
Exhibit 99.1 | Joint Filing Agreement, dated as of December 7, 2007, between the Reporting Persons. |