SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D**
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
eGain Communications Corporation
(Name of Issuer)
Common Stock, Par Value $.001 Per Share
(Title of Class of Securities)
28225C103
(Cusip Number)
David K. Lakhdhir, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
(212) 373-3030
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
N/A
(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 which is the subject of this Schedule
13D, and is filing this schedule because of ss.ss. 240.13d-(e), 240.13d-1(f) or
240.13d-1(g), check the following box [_].
*The remainder of this cover page shall be filled out for a reporting person's
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 total number of shares of Common Stock reported herein is 11,633,452, which
would constitute approximately 26.5% of the 43,824,688 shares of Common Stock
that would be outstanding if all of the shares of Series A Preferred Stock (as
defined below) referred to herein were converted on February 15, 2001. See Item
5(a) herein for a description of the calculation of the Common Stock conversion
ratio. All ownership percentages set forth herein are based on there being
36,216,659 shares of Common Stock outstanding unless otherwise specified herein.
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 (the "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).
1. Name of Reporting Person:
Oak Hill Capital Partners, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: OO
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
4,916,770 (1)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 12.0% (2)
14. Type of Reporting Person: PN
------------------------
1 Represents the shares of Common Stock that would be beneficially owned upon
conversion of the Issuer's 6.75% Series A Cumulative Convertible Preferred
Stock, par value $.001 per share (the "Series A Preferred Stock"), on
February 15, 2001 and Warrants to purchase 1,370,018 shares of Common
Stock. On conversion, 4,916,770 shares of Common Stock will be owned
directly by Oak Hill Capital Partners, L.P., through its general partner,
OHCP GenPar, L.P., through OHCP GenPar, L.P.'s general partner, OHCP MGP,
LLC. See Item 5(a) herein.
2 Assumes that there are 41,133,429 shares of Common Stock outstanding.
2
1. Name of Reporting Person:
Oak Hill Capital Management Partners, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: OO
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
126,017 (3)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 0.3% (4)
14. Type of Reporting Person: PN
------------------------
3 Represents the shares of Common Stock that would be beneficially owned upon
conversion of the Series A Preferred Stock on February 15, 2001 and
Warrants to purchase 35,129 shares of Common Stock. On conversion, 126,017
shares of Common Stock will be owned directly by Oak Hill Capital
Management Partners, L.P., through its general partner, OHCP GenPar, L.P.,
through OHCP GenPar, L.P.'s general partner, OHCP MGP, LLC. See Item 5(a)
herein.
4 Assumes that there are 36,342,675 shares of Common Stock outstanding.
3
1. Name of Reporting Person:
OHCP GenPar, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
5,042,787 (5)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 12.2% (6)
14. Type of Reporting Person: PN
------------------------
5 Represents the shares of Common Stock that would be beneficially owned upon
conversion of the Issuer's Series A Preferred Stock on February 15, 2001
and Warrants to purchase 5,042,787 shares of Common Stock. On conversion,
OHCP GenPar, L.P. will beneficially own the following shares of Common
Stock: (i) 4,916,770 shares of Common Stock of Oak Hill Capital Partners,
L.P. in its capacity as general partner; and (ii) 126,017 shares of Common
Stock of Oak Hill Capital Management Partners, L.P. in its capacity as
general partner. See Item 5(a) herein.
6 Assumes that there are 41,259,445 shares of Common Stock outstanding.
4
1. Name of Reporting Person:
OHCP MGP, LLC
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
5,042,787 (7)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 12.2% (8)
14. Type of Reporting Person: OO
------------------------
7 See footnote (5) to page relating to OHCP GenPar, L.P. Power is exercised
in its capacity as general partner of OHCP GenPar, L.P.
8 Assumes that there are 41,259,445 shares of Common Stock outstanding.
5
1. Name of Reporting Person:
Oak Hill Venture Fund I, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: OO
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
930,997 (9)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 2.5% (10)
14. Type of Reporting Person: PN
------------------------
9 Represents the shares of Common Stock that would be beneficially owned upon
conversion of the Issuer's Series A Preferred Stock on February 15, 2001
and Warrants to purchase 259,412 shares of Common Stock. On conversion,
930,997 shares of Common Stock will be owned directly by Oak Hill Venture
Fund II, L.P., through its general partner, OHVF GenPar I, L.P., through
OHVF GenPar I, L.P.'s general partner, OHVF MGP I, LLC. See Item 5(a)
herein.
10 Assumes that there are 37,147,656 shares of Common Stock outstanding.
6
1. Name of Reporting Person:
OHVF GenPar I, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
930,997 (11)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 2.5% (12)
14. Type of Reporting Person: PN
------------------------
11 Represents the shares of Common Stock that would be beneficially owned upon
conversion of the Issuer's Series A Preferred Stock on February 15, 2001
and Warrants to purchase 259,412 shares of Common Stock. Power is exercised
in its capacity as general partner to Oak Hill Venture Fund I, L.P. and
through its general partner, OHVF MGP I, LLC.
12 Assumes that there are 37,147,656 shares of Common Stock outstanding.
7
1. Name of Reporting Person:
OHVF MGP I, LLC
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
930,997 (13)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 2.5% (14)
14. Type of Reporting Person: OO
------------------------
13 See footnote (11) to page relating to OHVP GenPar, L.P. Power is exercised
in its capacity as general partner to OHVP GenPar, L.P. and through its
sole member, FW Group GenPar, LLC.
14 Assumes that there are 37,147,656 shares of Common Stock outstanding.
8
1. Name of Reporting Person:
FW Group GenPar, LLC
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
930,997 (15)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 2.5% (16)
14. Type of Reporting Person: OO
------------------------
15 See footnote (13) to page relating to OHVF MGP I, LLC. Power is exercised
in its capacity as sole member of OHVF MGP I, LLC.
16 Assumes that there are 37,147,656 shares of Common Stock outstanding.
9
1. Name of Reporting Person:
FW Investors V, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: OO
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,629,245 (17)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 4.3% (18)
14. Type of Reporting Person: PN
------------------------
17 Represents the shares of Common Stock that would be beneficially owned upon
conversion of the Issuer's Series A Preferred Stock on February 15, 2001
and Warrants to purchase 453,971 shares of Common Stock. On conversion,
1,629,245 shares of Common Stock will be owned directly by FW Investors V,
L.P., through its general partner, FW Management II, LLC. See Item 5(a)
herein.
18 Assumes that there are 37,845,904 shares of Common Stock outstanding.
10
1. Name of Reporting Person:
FW Management II, LLC
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 0
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 0
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,629,245 (19)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 4.3% (20)
14. Type of Reporting Person: OO
------------------------
19 See footnote (17) to page relating to FW Investors V, L.P. Power is
exercised in its capacity as general partner to FW Investors V, L.P.
through its sole member, J. Taylor Crandall.
20 Assumes that there are 37,845,904 shares of Common Stock outstanding.
11
1. Name of Reporting Person:
Robert M. Bass
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: United States
Number of Shares 7. Sole Voting Power: 2,833,154
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 2,833,154
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
2,833,154 (21)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 7.8%
14. Type of Reporting Person: IN
------------------------
21 Represents the shares of Common Stock that are beneficially owned as a
result of the distribution from FW Ventures I, L.P.
12
1. Name of Reporting Person:
Capital Partnership
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Texas
Number of Shares 7. Sole Voting Power: 707,278
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 707,278
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
707,278 (22)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 2.0%
14. Type of Reporting Person: PN
------------------------
22 Represents the shares of Common Stock that are beneficially owned as a
result of the distribution by FW Ventures I, L.P. Power is exercised
through its managing partner, Margaret Lee Bass 1980 Trust.
13
1. Name of Reporting Person:
David G. Brown
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: United States
Number of Shares 7. Sole Voting Power: 161,664
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 161,664
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
161,664 (23)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 0.4%
14. Type of Reporting Person: IN
------------------------
23 Represents the shares of Common Stock that are beneficially owned as a
result of the distribution by FW Ventures I, L.P.
14
1. Name of Reporting Person:
Mark A. Wolfson
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: United States
Number of Shares 7. Sole Voting Power: 161,664
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 161,664
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
161,664 (24)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 0.5% (25)
14. Type of Reporting Person: IN
------------------------
24 Represents 161, 664 shares of Common Stock that are beneficially owned as a
result of the distribution by FW Ventures I, L.P. and 5,000 shares of
Common Stock that would be beneficially owned upon exercise of director
options held by Mr. Wolfson.
25 Assumes that there are 36,221,659 shares of Common Stock outstanding.
15
1. Name of Reporting Person:
Group III 31, LLC
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 40,416
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 40,416
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
40,416 (26)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 0.1%
14. Type of Reporting Person: OO
------------------------
26 Represents the shares of Common Stock that are beneficially owned as a
result of the distribution by FW Ventures I, L.P.
16
1. Name of Reporting Person:
J. Taylor Crandall (in the capacity described herein)
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 1,669,661
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 1,669,661
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
1,669,661 (27)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 4.4% (28)
14. Type of Reporting Person: IN
------------------------
27 (i) Solely in his capacity as the sole member of Group III 31, LLC with
respect to 40,416 shares of Common Stock, which represents the shares of
Common Stock that are beneficially owned as a result of the distribution by
FW Ventures I, L.P.; and (ii) solely in his capacity as the sole member of
FW Management II, LLC with respect to 1,629,245 shares, see footnote 19 to
page relating to FW Management II, LLC.
28 Assumes that there are 37,845,904 shares of Common Stock outstanding.
17
1. Name of Reporting Person:
Woodside Partners, L.P.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 121,247
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 121,247
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
121,247 (29)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 0.3%
14. Type of Reporting Person: PN
------------------------
29 Represents the shares of Common Stock that are directly owned by Woodside
Partners, L.P. as a result of the distribution by FW Ventures I, L.P.
Woodside Partners, L.P. owns the shares through its general partner,
Tonandowah, L.L.C., of which the sole member is Caroline Jean Crandall 1998
Trust, of which John Fant is the sole trustee.
18
1. Name of Reporting Person:
Tonandowah, L.L.C.
2. Check the Appropriate Box if a Member of a Group:
(a) [_]
(b) [X]
3. SEC Use Only
4. Source of Funds: Not applicable
5. Check box if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e):
[_]
6. Citizenship or Place of Organization: Delaware
Number of Shares 7. Sole Voting Power: 121,247
Beneficially 8. Shared Voting Power: 0
Owned By Each 9. Sole Dispositive Power: 121,247
Reporting Person 10. Shared Dispositive Power: 0
With
11. Aggregate Amount Beneficially Owned by Each Reporting Person:
121,247 (30)
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares:
[_]
13. Percent of Class Represented by Amount in Row (11): 0.3%
14. Type of Reporting Person: OO
------------------------
30 Solely in its capacity as the general partner of Woodside Partners, L.P.
See footnote 29 to page relating to Woodside Partners, L.P.
19
AMENDMENT NO. 1 TO SCHEDULE 13D
This Amendment No. 1 to Schedule 13D is filed by the
undersigned to amend Schedule 13D, filed on August 18, 2000 (the "Original
Filing"). Unless otherwise indicated, all capitalized terms shall have the same
meaning as provided in the Original Filing.
Item 3. Source and Amount of Funds or Other Consideration.
SECTION (I) OF ITEM 3 IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
(i) With respect to the New Investors, the purchase of an
aggregate of 19.44 shares of Series A Preferred Stock of the Issuer, 470.55
shares of Series B Cumulative Convertible Preferred Stock, par value $.001 per
share ("Series B Stock"), and Warrants to purchase an aggregate of 2,118,530
shares of Common Stock by OHCP, OHCMP, OHVF and FWI, all as more fully described
in Item 5(a) below, pursuant to the Securities Purchase Agreement, by and among
OHCP, OHCMP, OHVF, FWI, other parties named therein and the Issuer, dated August
8, 2000 (the "Securities Purchase Agreement"). Pursuant to an approval of the
shareholders of the Issuer, and without any action by the Issuer or any holder
of the Series B Stock, all shares of Series B Stock converted on a one-to-one
basis into shares of Series A Preferred Stock. The source and amount of the
funds used by the New Investors to purchase shares of the Common Stock are as
follows:
REPORTING PERSON SOURCE OF FUNDS AMOUNT OF FUNDS
OHCP Contributions from $31,687,500
Partners
OHCMP Contributions from
Partners $812,500
OHCP GenPar Not Applicable Not Applicable
OHCP MGP Not Applicable Not Applicable
OHVF Contributions from $6,000,000
Partners
OHVF GenPar Not Applicable Not Applicable
OHVF MGP Not Applicable Not Applicable
FWI Contributions from $10,500,000
Partners
FWM Not Applicable Not Applicable
FW Group Not Applicable Not Applicable
20
Item 4. Purpose of Transaction.
ITEM 4 IS HEREBY AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS:
The Reporting Persons acquired and continue to hold the shares
of the Common Stock reported herein for investment purposes. The Reporting
Persons intend to review continuously their equity position in the Issuer.
Depending upon future evaluations of the business prospects of the Issuer and
upon other developments, including, but not limited to, general economic and
business conditions and money market and stock market conditions, each of the
applicable Reporting Persons may determine (i) to convert or to not convert the
Series A Preferred into Stock and/or (ii) to increase or decrease its equity
interest in the Issuer by acquiring additional shares of the Stock (or other
securities convertible or exercisable into shares of the Stock) or by disposing
of all or a portion of its holdings, subject to any applicable legal and
contractual restrictions on its ability to do so. Mr. Wolfson, who is a
Reporting Person hereunder and an officer and manager of several Reporting
Persons as indicated in Item 2 above, is a director of the Issuer and, as such,
may be deemed to have influence over the Issuer. Gunjan Sinha, who is a director
and officer of the Issuer and a purchaser under the Securities Purchase
Agreement, is a limited partner of a limited partner of OHCMP and, as such, has
an indirect passive limited partnership interest in OHCMP. Mr. Brown, who is a
Reporting Person hereunder and a manager of several Reporting Persons as
indicated in Item 2 above, is a director of the Issuer and, as such, may be
deemed to have influence over the Issuer.
Except as set forth in this Item 4, the Reporting Persons have
no present plans or proposals that relate to or that would result in any of the
actions specified in clauses (a) through (j) of Item 4 of Schedule 13D of the
Act.
21
Item 5. Interest in Securities of the Issuer.
ITEM 5(A) IS HEREBY AMENDED AND RESTATED TO READ IN ITS ENTIRETY AS FOLLOWS:
(a) THE NEW INVESTORS
The number of shares of Common Stock into which shares of the
Series A Preferred Stock are convertible increases on a daily basis and is
calculated as described below. Each share of Series A Convertible Preferred
Stock has an initial stated value of $100,000 as of August 8, 2000. Such value
increases and accumulates on a daily basis from such date at an annual rate
equal to 6.75% and compounds on a semi-annual basis on June 30 and December 31
of each year. The conversion price per share of Series A Preferred Stock is
$9.2517, such conversion price may be subject to adjustment pursuant to certain
market conditions or certain actions by the Issuer, such as recapitalization and
issuances below market price, all as more fully described on the Certificate of
Designations of the Series A Preferred Stock, a copy of which is incorporated
herein by reference to the Issuer's Form 8-K as filed with the Securities and
Exchange Commission on August 15, 2000. The number of shares of Common Stock
into which a share of Series A Preferred Stock is convertible is determined by
dividing the value of the share of Series A Preferred Stock on the date of the
conversion by the conversion price. For purposes of the following calculations,
we have assumed that there were no changes to the conversion price of $9.2517.
As of the date hereof, (i) OHCP directly owns 316.87 shares of Series A
Preferred Stock, (a) if such shares were to be converted on February 15, 2001,
they would be convertible into 3,546,752 shares of Common Stock, (b) if such
shares were to be converted on June 30, 2001, they would be convertible into
3,634,557 shares of Common Stock, (ii) OHCMP directly owns 8.12 shares of Series
A Preferred Stock, (a) if such shares were to be converted on February 15, 2001,
they would be convertible into 90,888 shares of Common Stock, (b) if such shares
were to be converted on June 30, 2001, they would be convertible into 93,138
shares of Common Stock, (iii) FWI directly owns 105 shares of Series A Preferred
Stock, (a) if such shares were to be converted on February 15, 2001, they would
be convertible into 1,175,274 shares of Common Stock, (b) if such shares were to
be converted on June 30, 2001, they would be convertible into 1,204,369 shares
of Common Stock, and (iv) OHVF directly owns 60 shares of Series A Preferred
Stock, (a) if such shares were to be converted on February 15, 2001, they would
be convertible into 671,585 shares of Common Stock, (b) if such shares were to
be converted on June 30, 2001, they would be convertible into 688,211 shares of
Common Stock.
Among other possible adjustments to the conversion price, if
122% of the average closing bid price per hare of Common Stock quoted on the
National Association of Securities Dealers, Inc. Automated Quotation System (the
"NASDAQ") or, if not then traded on NASDAQ, such other exchange, market or
system on which the Common Stock is then listed or traded, on the twenty (20)
consecutive trading days immediately preceding and including August 8, 2001 (the
"Market Value") is less than the conversion price at such time, the conversion
price will be adjusted to the greater of (x) 122% of the Market Value, and (y)
$5.6875. Assuming that the conversion price will be adjusted to
22
$5.6875, if the shares set forth above were to be converted on August 9, 2001:
(i) OHCP's 316.87 shares of Series A Preferred Stock would be convertible into
5,955,969 shares of Common Stock, (ii) OHCMP's 8.12 shares of Series A Preferred
Stock would be convertible into 152,626 shares of Common Stock, (iii) FWI's 105
shares of Series A Preferred Stock would be convertible into 1,973,607 shares of
Common Stock, and (iv) OHVF's 60 shares of Series A Preferred Stock would be
convertible into 1,127,775 shares of Common Stock.
As of the date hereof, (i) OHCP beneficially owns 4,916,770
shares of the Common Stock or 12.0% of the issued and outstanding shares of the
Common Stock; (ii) OHCMP beneficially owns 126,017 shares of the Common Stock or
0.3% of the issued and outstanding shares of the Common Stock; (iii) OHCP
GenPar, because of its position as general partner of each of OHCP and OHCMP
may, pursuant to Rule 13d-3 of the Act, be deemed to beneficially own 5,042,787
shares of Common Stock or 12.2% of the issued and outstanding shares of the
Common Stock; (iv) OHCP MGP, because of its position as general partner of OHCP
GenPar may, pursuant to Rule 13d-3 of the Act, be deemed to beneficially own
5,042,787 shares of Common Stock or 12.2% of the issued and outstanding shares
of the Common Stock; (v) OHVF beneficially owns 930,997 shares of the Common
Stock or 2.5% of the issued and outstanding shares of the Common Stock; (vi)
OHVF GenPar, because of its position as general partner of OHVF may, pursuant to
Rule 13d-3 of the Act, be deemed to beneficially own 930,997 shares of Common
Stock or 2.5% of the issued and outstanding shares of the Common Stock; (vii)
OHVF MGP, because of its position as general partner of OHVP GenPar may,
pursuant to Rule 13d-3 of the Act, be deemed to beneficially own 930,997 shares
of Common Stock or 2.5% of the issued and outstanding shares of the Common
Stock; (viii) FWI beneficially owns 1,629,245 shares of the Common Stock or 4.3%
of the issued and outstanding shares of the Common Stock; (ix) FWM, because of
its position as general partner of FWI may, pursuant to Rule 13d-3 of the Act,
be deemed to beneficially own 1,629,245 shares of the Common Stock or 4.3% of
the issued and outstanding shares of the Common Stock; and (x) FW Group, because
of its position as sole member of OHVF MGP may, pursuant to Rule 13d-3 of the
Act, be deemed to beneficially own 930,997 shares of the Common Stock or 2.5% of
the issued and outstanding shares of the Common Stock.
23
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: February 16, 2001
OAK HILL CAPITAL PARTNERS, L.P.
By: OHCP GenPar, L.P.,
its general partner
By: OHCP MGP, LLC,
its general partner
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
OAK HILL CAPITAL MANAGEMENT
PARTNERS, L.P.
By: OHCP GenPar, L.P.,
its general partner
By: OHCP MGP, LLC,
its general partner
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
OHCP GENPAR, L.P.
By: OHCP MGP, LLC,
its general partner
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
24
OHCP MGP, LLC
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
OAK HILL VENTURE FUND I, L.P.
By: OHVF GenPar I, L.P.,
its general partner
By: OHVF MGP I, LLC,
its general partner
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
OHVF GENPAR I, L.P.
By: OHVF MGP I, LLC,
its general partner
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
OHVF MGP I, LLC
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
25
FW INVESTORS V, L.P.
By: FW Management II, LLC,
its general partner
By: /s/ J. Taylor Crandall
-----------------------------
Name: J. Taylor Crandall
Title: President
FW MANAGEMENT II, LLC
By: /s/ J. Taylor Crandall
-----------------------------
Name: J. Taylor Crandall
Title: President
FW GROUP GP, LLC
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
ROBERT M. BASS
By: /s/ Robert M. Bass
-----------------------------
CAPITAL PARTNERSHIP
By: Margaret Lee Bass 1980 Trust,
Managing Partner
By: Panther City Investment Company,
Trustee
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
26
GROUP III 31, LLC
By: /s/ J. Taylor Crandall
-----------------------------
Name: J. Taylor Crandall
Title: Sole Member
/s/ David G. Brown
----------------------------------
David G. Brown
/s/ Mark A. Wolfson
----------------------------------
Mark A. Wolfson
/s/ J. Taylor Crandall
----------------------------------
J. Taylor Crandall
Woodside Partners, L.P.
By: Tonandowah, L.L.C.,
its general partner
By: /s/ W. R. Cotham
-----------------------------
Name: W. R. Cotham
Title: Vice President
Tonandowah, L.L.C.
By: /s/ John H. Fant
-----------------------------
Name: John H. Fant
Title: Trustee of the Caroline Jean
Crandall 1998 Trust, sole member
of Tonandowah, L.L.C.