-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KnBVnoTmyngrDvaDDwB1/qu8tgTqocxXSvmtrmPKk8JDzDz6jt6THRowoZRz5QUt RBnf7rUQsen4wHeQQztapw== 0000891836-09-000173.txt : 20090819 0000891836-09-000173.hdr.sgml : 20090819 20090819170131 ACCESSION NUMBER: 0000891836-09-000173 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20090819 DATE AS OF CHANGE: 20090819 GROUP MEMBERS: RONALD D. FISHER GROUP MEMBERS: SOFTBANK CAPITAL ADVISORS FUND LP GROUP MEMBERS: SOFTBANK CAPITAL LP GROUP MEMBERS: SOFTBANK CAPITAL PARTNERS LP FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SOFTBANK CAPITAL PARTNERS LP CENTRAL INDEX KEY: 0001091819 IRS NUMBER: 043475351 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 10 LANGLEY ROAD STREET 2: SUITE 403 CITY: NEWTON CENTRE STATE: MA ZIP: 02159 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GSI COMMERCE INC CENTRAL INDEX KEY: 0000828750 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 042958132 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40244 FILM NUMBER: 091024778 BUSINESS ADDRESS: STREET 1: 935 FIRST AVE CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 BUSINESS PHONE: 6104917000 MAIL ADDRESS: STREET 1: 935 FIRST AVE CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 FORMER COMPANY: FORMER CONFORMED NAME: GLOBAL SPORTS INC DATE OF NAME CHANGE: 19971223 SC 13D/A 1 sc0076.txt SCHEDULE 13D, AMENDMENT NO. 7 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D/A (RULE 13D-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A). (AMENDMENT NO. 7)* GSI COMMERCE, INC. - -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, $0.01 PAR VALUE PER SHARE - -------------------------------------------------------------------------------- (Title of Class of Securities) 36238G102 ----------------------------------------------------------- (CUSIP Number) - -------------------------------------------------------------------------------- RONALD D. FISHER SOFTBANK CAPITAL PARTNERS LLC 1188 CENTRE STREET NEWTON CENTER, MA 02459 (617) 928-9300 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) AUGUST 18, 2009 ---------------------------------------------------------- (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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box |_|. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. *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 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). SCHEDULE 13D/A - --------------------------- --------------------------- CUSIP NO. 36238G102 PAGE 2 OF 15 PAGES - --------------------------- --------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS SOFTBANK CAPITAL PARTNERS LP - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (A) |_| (B) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) WC - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH ------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER WITH 0 ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) PN - -------------------------------------------------------------------------------- 2 of 15 SCHEDULE 13D/A - --------------------------- --------------------------- CUSIP NO. 36238G102 PAGE 3 OF 15 PAGES - --------------------------- --------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS SOFTBANK CAPITAL LP - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (A) |_| (B) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) WC - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH ------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER WITH 0 ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) PN - -------------------------------------------------------------------------------- 3 of 15 SCHEDULE 13D/A - --------------------------- --------------------------- CUSIP NO. 36238G102 PAGE 4 OF 15 PAGES - --------------------------- --------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS SOFTBANK CAPITAL ADVISORS FUND LP - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (A) |_| (B) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) WC - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH ------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER WITH 0 ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) PN - -------------------------------------------------------------------------------- 4 of 15 SCHEDULE 13D/A - --------------------------- -------------------------- CUSIP NO. 36238G102 PAGE 5 OF 15 PAGES - --------------------------- --------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS SOFTBANK CAPITAL PARTNERS LLC - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (A) |_| (B) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (SEE INSTRUCTIONS) AF - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 0 SHARES ------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH ------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER WITH 0 ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) HC, OO - -------------------------------------------------------------------------------- 5 of 15 SCHEDULE 13D/A - --------------------------- -------------------------- CUSIP NO. 36238G102 PAGE 5 OF 15 PAGES - --------------------------- --------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS RONALD D. FISHER - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) (A) |_| (B) |_| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - -------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 75,000 SHARES ------------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 EACH ------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER WITH 75,000 ------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 0 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) |_| - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - -------------------------------------------------------------------------------- 6 of 15 This Amendment No. 7 to Schedule 13D, filed by SOFTBANK Capital Partners LP ("SB Capital Partners"), SOFTBANK Capital LP ("SB Capital"), SOFTBANK Capital Advisors Fund LP ("Advisors Fund"), SOFTBANK Capital Partners LLC ("SB CP LLC") and Ronald D Fisher ("Fisher", together with SB Capital Partners, SB Capital, Advisors Fund and SB CP LLC the "Reporting Persons") with respect to shares of Common Stock, $0.01 par value per share (the "Common Stock"), of GSI Commerce, Inc. (formerly known as Global Sports, Inc.) (the "Company") amends and supplements the Schedule 13D filed by the Reporting Persons on June 6, 1999 as amended and supplemented by Amendment No. 1 thereto filed on May 1, 2000, Amendment No. 2 thereto filed on May 4, 2000, Amendment No. 3 thereto filed on October 24, 2000, Amendment No. 4 thereto filed on December 28, 2001, Amendment No. 5 thereto filed on February 21, 2003 and Amendment No. 6 filed on June 2, 2005. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended and restated in its entirety as follows: The purpose of the acquisition of the shares of Common Stock by the Reporting Persons described herein was to make an investment in the Company. Pursuant to the Purchase Agreement, dated as of June 10, 1999 (the "1999 Purchase Agreement") (attached hereto as Exhibit C), between the Company and SOFTBANK America ("SOFTBANK America"), SOFTBANK America purchased an aggregate of 6,153,850 shares of Common Stock from the Company for a purchase price of $13.00 per share. The total consideration paid by SOFTBANK America to the Company for the shares was $80,000,050. In July 1999, SOFTBANK America assigned 6,069,542 shares of the Company's Common Stock to SB Capital Partners and 84,308 shares of the Company's Common Stock to Advisors Fund (as defined in Item 5), and all of its rights with respect to those shares under the Registration Rights Agreement and the 1999 Purchase Agreement, each as described in this Item 4, thus reducing SOFTBANK America's holdings to zero. Pursuant to the Purchase Agreement, dated as of April 27, 2000 (the "2000 Purchase Agreement") (attached hereto as Exhibit I), by and among the Company, SB Capital Partners and Advisors Fund, SB Capital Partners and Advisor Fund purchased 2,464,250 shares of Common Stock and 35,750 shares of Common Stock, respectively, on May 1, 2000 for a purchase price of $8.00 per share. In addition, SB Capital Partners and Advisors Fund were each issued a warrant to purchase 1,232,125 shares of Common Stock (attached hereto as Exhibit L) and 17,875 shares of Common Stock, respectively, at an exercise price of $10.00 per share (the "SB Capital Partners Warrant"). The SB Capital Partners Warrant was exercisable on and after May 1, 2000 and expired on April 30, 2003 without being exercised. The 2000 Purchase Agreement provides, among other things, that on and after the closing date, SOFTBANK Capital Partners and SOFTBANK Capital Advisors, together, will have the right, (i) (A) so long as the Purchasers and the SOFTBANK Entities (each as defined therein) collectively own 50% or more of the Common Stock (on an as if exercised basis) held immediately after consummation of the Purchase (as defined therein), to designate three (3) members of the Company's Board of Directors, (B) so long as the Purchasers and the 7 of 15 SOFTBANK Entities collectively own 25% or more of the Common Stock (on an as if exercised basis) held immediately after consummation of the Purchase, to designate two (2) members of the Company's Board of Directors, and (C) so long as the Purchasers and the SOFTBANK Entities collectively own 5% or more of the Common Stock (on an as if exercised basis) held immediately after consummation of the Purchase, to designate one (1) member of the Company's Board of Directors (collectively, the "2000 Board Composition Requirement"); and (ii) so long as the Purchasers and the SOFTBANK Entities collectively own 35% or more of the Common Stock (on an as if exercised basis) held immediately after consummation of the Purchase, to designate one (1) member of each committee of the Company's Board of Directors. SB Capital Partners and Advisors Fund also are parties to a Registration Rights Agreement, dated as of June 10, 1999, as amended on May 1, 2000 (the "Registration Rights Agreement")(attached hereto as Exhibit D), with the Company which grants SB Capital Partners and Advisors Fund "demand" and "piggy-back" registration rights with respect to the shares of Common Stock purchased pursuant to the 1999 Purchase Agreement and the 2000 Purchase Agreement. In conjunction with the execution of the 1999 Purchase Agreement, SOFTBANK America entered into the Subordinated Loan Agreement, dated as of June 10, 1999 (the "Subordinated Loan Agreement")(attached hereto as Exhibit G), with the Company pursuant to which, on such date, SOFTBANK America loaned the Company $15 million. The loan was evidenced in the form of a convertible subordinated note (the "Convertible Subordinated Note")(attached hereto as Exhibit H). Interest on the Convertible Subordinated Note accrued on the outstanding principal amount of the loan at the rate of 4.98% per annum. All unpaid principal and accrued but unpaid interest due on the Convertible Subordinated Note was automatically converted into a number of shares of Common Stock equal to the total amount of unpaid principal and accrued but unpaid interest divided by $13.00. Subject to the provisions of the 1999 Purchase Agreement and the 2000 Purchase Agreement, each of SB Capital Partners and Advisors Fund may sell, transfer, assign or pledge all or any part of the shares they acquire pursuant to the 1999 Purchase Agreement and 2000 Purchase Agreement to any of their affiliates or those of SOFTBANK, including, without limitation, any partnership or other entity of which any direct or indirect subsidiary of SOFTBANK is a general partner or has investment discretion, or any employees of any of the foregoing. Neither SB Capital Partners nor Advisors Fund have any specific plans to make such transfers. Michael G. Rubin, the principal stockholder of the Company holding in the aggregate approximately 43.2% of the shares of Common Stock outstanding as of April 27, 2000 ("Rubin") entered into a Voting Agreement, dated as of June 10, 1999 (the "Rubin Voting Agreement")(attached hereto as Exhibit E), in favor of SOFTBANK America. Pursuant to the Rubin Voting Agreement, Rubin agreed that he will, at any meeting of stockholders of the Company, or in connection with any written consent of stockholders of the Company, vote or cause to be voted all shares of Common Stock then held of record or beneficially owned by him (i) against any action or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the Purchase Agreement; (ii) in favor of election to the Board of Directors of the directors which 8 of 15 SOFTBANK America is, together, entitled to designate upon consummation of the Second Purchase and which have been identified by SOFTBANK America as nominees for such purpose; and (iii) except as otherwise agreed to in writing in advance by SOFTBANK America against the following actions (other than the Second Purchase and the transactions contemplated by the Purchase Agreement): (A) a dissolution of the Company or (B) any material change in the present capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws, in each case, which is intended, or could reasonably be expected, to impede, delay or adversely affect the transactions contemplated by the Rubin Voting Agreement and the Purchase Agreement. Rubin also agreed that he will not enter into any agreement or understanding with any person or entity the effect of which would be inconsistent or violative of the provisions and agreements contained in the Rubin Voting Agreement and delivered to SOFTBANK America an irrevocable proxy to vote all of the shares of Common Stock beneficially owned by him, together with any shares acquired by him in any capacity after the date thereof, in the manner and with respect to the matters set forth in the Rubin Voting Agreement. In addition, Rubin agreed not to take any action to remove, with or without cause, any director of the Company designated by SOFTBANK America. Notwithstanding the foregoing, SOFTBANK America has the right at all times to remove, with or without cause, any or all of the directors designated by it. SOFTBANK America, as an inducement and a condition to consummating the 1999 Purchase Agreement, entered into a Voting Agreement, dated as of June 10,1999 (the "SOFTBANK America Voting Agreement")(attached hereto as Exhibit F), in favor of Rubin. Pursuant to the SOFTBANK America Voting Agreement, SOFTBANK America agreed that it will, at any meeting of stockholders of the Company, or in connection with any written consent of stockholders of the Company, vote or cause to be voted all shares of Common Stock then held of record or beneficially owned by it with respect to all directorships other than those which SOFTBANK America is entitled to designate pursuant to the 1999 Purchase Agreement (i) in favor of any member of the Board of Directors of the Company who was a member of the Board prior to the date of the 1999 Purchase Agreement, and any director who is thereafter chosen to fill any vacancy on the Board of Directors or who is elected as a director (a "Continuing Director") and who, in either event, is not a director designated by SOFTBANK America pursuant to the 1999 Purchase Agreement and in connection with his or her initial assumption of office is recommended for appointment or election by a majority of the Continuing Directors then on the Board of Directors, and (ii) against the election of any directors other than those directors specified in clause (i) of this sentence. In addition, SOFTBANK America agreed not to take any action to remove, with or without cause, any director of the Company other than the SOFTBANK America designees. Rubin entered into a Restated Voting Agreement, dated as of May 1, 2000 (the "2000 Rubin Voting Agreement") (attached hereto, as Exhibit J), in favor of SB Capital Partners and Advisors Fund, pursuant to which, Rubin agreed that he will, at any meeting of stockholders of the Company, or in connection with any written consent of stockholders of the Company, vote or cause to be voted all shares of Common Stock then held of record or beneficially owned by him (i) against any action or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company under the 2000 Purchase Agreement; (ii) in favor of election to the Board of Directors of the directors which SB Capital Partners and Advisors Fund are, together, entitled to designate upon 9 of 15 consummation of the Purchase (as defined in the 2000 Purchase Agreement) and which have been identified by SB Capital Partners and Advisors Fund as nominees for such purpose; and (iii) except as otherwise agreed to in writing in advance by SB Capital Partners and Advisors Fund against the following actions (other than the Purchase and the transactions contemplated by the 2000 Purchase Agreement): (A) a dissolution of the Company or (B) any material change in the present capitalization of the Company or any amendment of the Company's certificate of incorporation or by-laws, in each case, which is intended, or could reasonably be expected, to impede, delay or adversely affect the Purchase and the transactions contemplated by the voting agreement and the 2000 Purchase Agreement. The voting agreement also provides that Rubin agrees that he will not enter into any agreement or understanding with any person or entity the effect of which would be inconsistent or violative of the provisions and agreements contained in this voting agreement and will deliver to SB Capital Partners and Advisors Fund, if requested, an irrevocable proxy to vote all of the shares of Common Stock beneficially owned by him, together with any shares acquired by him in any capacity after the date thereof, in the manner and with respect to the matters set forth in this voting agreement. In addition, Rubin agreed not to take any action to remove, with or without cause, any director of the Company designated by SB Capital Partners and Advisors Fund. Notwithstanding the foregoing, SB Capital Partners and Advisors Fund have the right at all times to remove, with or without cause, any or all of the directors designated by SB Capital Partners and Advisors Fund. SB Capital Partners and Advisors Fund, as an inducement and a condition to consummating the 2000 Purchase Agreement, also entered into a restated voting agreement in favor of Rubin, dated as of May 1, 2000 (the "2000 SOFTBANK Voting Agreement") (attached hereto as Exhibit K), relating to the election of directors designated by Rubin. Pursuant to the 2000 SOFTBANK Voting Agreement, SB Capital Partners and Advisors Fund agreed that they will, at any meeting of stockholders of the Company, or in connection with any written consent of stockholders of the Company, vote or cause to be voted all shares of Common Stock then held of record or beneficially owned by them with respect to all directorships other than those which SB Capital Partners and Advisors Fund are entitled to designate pursuant to the 2000 Purchase Agreement (i) in favor of any member of the Board of Directors of the Company who was a member of the Board prior to the date of the 2000 Purchase Agreement, and any director who is thereafter chosen to fill any vacancy on the Board of Directors or who is elected as a director (a "Continuing Director") and who, in either event, is not a director designated by SB Capital Partners and Advisors Fund pursuant to the 2000 Purchase Agreement and in connection with his or her initial assumption of office is recommended for appointment or election by a majority of the Continuing Directors then on the Board of Directors, and (ii) against the election of any directors other than those directors specified in clause (i) of this sentence. In addition, SB Capital Partners and Advisors Fund agreed not to take any action to remove, with or without cause, any director of the Company other than the SB Capital Partners and Advisors Fund designees. In connection with a registered offering of 3,707,469 shares of Common Stock to the public (the "2005 Registered Offering"), which was consummated on June 1, 2005, pursuant to an underwriting agreement (the "2005 Underwriting Agreement") (attached hereto as Exhibit Q), dated May 25, 2005, SB Capital Partners sold to the several underwriters named therein (the "2005 Underwriters") 248,950 shares of Common Stock at a price of $14.0238 per share, SB Capital sold to the 2005 Underwriters 244,700 shares of Common Stock at a price of $14.0238 10 of 15 per share and Advisors Fund sold to the 2005 Underwriters 6,350 shares of Common Stock at a price of $14.0238 per share. Pursuant to the 2005 Underwriting Agreement, SB Capital Partners, SB Capital and Advisors Fund agreed with the 2005 Underwriters that during the period beginning on May 25, 2005 and continuing to and including the date 90 days after May 25, 2005, (i) not to offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or file, or make any demand for or exercise any right with respect to any of the foregoing (the "Lock-up Securities") or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing agreement does not apply to (a) the sale of any Common Stock to the 2005 Underwriters pursuant to the 2005 Underwriting Agreement; (b) transactions relating to shares of Common Stock or other securities of the Company acquired in open market transactions after the completion of the 2005 Registered Offering; or (c) the exercise of any stock option, warrant or other right to acquire shares of Common Stock, the conversion of a security convertible into Common Stock, or any disposition of shares of Common Stock (i) in lieu of payment of the exercise or conversion price thereof or (ii) to the Company to satisfy any withholding tax obligation in connection with such exercise or conversion. In connection with a registered offering of 11,850,000 shares of Common Stock to the public (the "2009 Registered Offering"), which was consummated on August 18, 2009, pursuant to a purchase agreement (the "2009 Underwriting Agreement") (the form of which is incorporated by reference as Exhibit R hereto and the final form of which was negotiated among the parties and contains no material changes relating to the disposition of the shares from the form of agreement other than to increase the total number of shares of Common Stock sold from 10,000,000 shares to 11,850,000 shares), dated August 12, 2009, SB Capital Partners sold to the several underwriters named therein (the "2009 Underwriters") 4,060,226 shares of Common Stock at a price of $16.2775 per share, SB Capital sold to the 2009 Underwriters 3,990,398 shares of Common Stock at a price of $16.2775 per share and Advisors Fund sold to the 2009 Underwriters 103,226 shares of Common Stock at a price of $16.2775 per share. Other than as described herein, the Reporting Persons have no present plans or proposals which relate to or would result in: (i) the acquisition by any person of additional securities of the Company or the disposition of securities of the Company; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (iv) any change in the present Board or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board; (v) any material change in the present capitalization or dividend policy of the Company; (vi) any other material change in the Company's business or corporate structure; (vii) changes in the Company's certificate of incorporation or by-laws or other actions which may impede the acquisition of control of the Company by any persons; (viii) causing a class of securities of the Company to be delisted from a national securities exchange or to cease 11 of 15 to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (ix) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or (x) any action similar to those enumerated above (collectively, the "Specified Actions"). However, the Reporting Persons intend to evaluate the proposed investment in the Company on an ongoing basis, and, depending on their evaluation of the business and prospects of the Company and other factors that they may deem relevant, the Reporting Persons may determine to dispose of the securities of the Company or their contractual rights to acquire such securities, acquire additional securities of the Company or take other actions if market conditions or other business considerations, in the judgment of the Reporting Persons, warrant. Such additional acquisitions or dispositions may be effected through open market purchases or sales, privately negotiated transactions, tender offers to existing holders or direct negotiation with the Company. Such further acquisitions, dispositions or other actions may or may not result in the Specified Actions. All references to the 1999 Purchase Agreement, the 2000 Purchase Agreement, the Registration Rights Agreement, the Subordinated Loan Agreement, the Convertible Subordinated Note, the Rubin Voting Agreement, the SOFTBANK America Voting Agreement, the 2000 Rubin Voting Agreement, the 2000 SOFTBANK Voting Agreement, the SB Capital Partners Warrant, the 2005 Underwriting Agreement and the 2009 Underwriting Agreement are qualified in their entirety by the full text of such agreements, copies of which are attached or incorporated by reference as Exhibits hereto and are incorporated by reference herein. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is hereby amended and restated in its entirety as follows: Each of SB Capital Partners, SB Capital and Advisors Fund is an investment fund managed by its sole general partner, SB CP LLC; accordingly, securities owned by SB Capital Partners, SB Capital or Advisors Fund may be regarded as being beneficially owned by SB CP LLC. Pursuant to an amendment, dated October 1, 2007, to the Limited Liability Company Agreement of SB CP LLC, all investment decisions on behalf of SB CP LLC must be approved by Ronald D. Fisher; accordingly, securities beneficially owned by SB CP LLC may be regarded as being beneficially owned by Ronald D. Fisher. TOTAL OUTSTANDING SHARES. According to the Final Prospectus relating to the 2009 Registered Offering, there will be 52,780,368 shares outstanding following the consummation of a registered offering of 11,850,000 shares of Common Stock on August 18, 2009. OWNERSHIP BY REPORTING PERSON OTHER THAN FISHER. As of the date of this statement, SB Capital Partners holds and may be deemed to be the beneficial owner of 0 shares of Common Stock, SB Capital holds and may be deemed to be the beneficial owner of 0 shares of Common Stock, Advisors Fund holds and may be deemed to be the beneficial owner of 0 shares of Common Stock and SB CP LLC holds and may be deemed to be the beneficial owner of 0 shares of Common Stock. 12 of 15 MR. FISHER. Mr. Fisher beneficially owns 75,000 shares of Common Stock issuable upon exercise of options that are currently exercisable. Each of the Reporting Persons ceased to be the beneficial owner of more than five percent of the Common Stock on August 18, 2009. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby supplemented to include the following: Exhibit A Agreement of Joint Filing Exhibit R Form of Common Stock Purchase Agreement (incorporated by reference to Exhibit 1.1 to Amendment No. 1 on Form S-3 (Registration No. 333-161001) of the Company filed on August 7, 2009). 13 of 15 SIGNATURES 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. August 19, 2009 SOFTBANK CAPITAL PARTNERS LP By: SOFTBANK CAPITAL PARTNERS LLC, its General Partner By: /s/ Steven J. Murray ------------------------------ Name: Steven J. Murray Title: Administrative Member SOFTBANK CAPITAL LP By: SOFTBANK CAPITAL PARTNERS LLC, its General Partner By: /s/ Steven J. Murray ------------------------------- Name: Steven J. Murray Title: Administrative Member SOFTBANK CAPITAL ADVISORS FUND LP By: SOFTBANK CAPITAL PARTNERS LLC, its General Partner By: /s/ Steven J. Murray Name: Steven J. Murray Title: Administrative Member SOFTBANK CAPITAL PARTNERS LLC By: /s/ Steven J. Murray -------------------------------- Name: Steven J. Murray Title: Administrative Member 14 of 15 RONALD D. FISHER /s/ Ronald D. Fisher ----------------------------------- 15 of 15 EX-99.A 2 ex-a.txt EXHIBIT A -- JOINT FILING AGREEMENT EXHIBIT A: JOINT FILING AGREEMENT The undersigned hereby agree to the joint filing of Amendment No. 7 to the Schedule 13D to which this Agreement is attached. August 19, 2009 SOFTBANK CAPITAL PARTNERS LP By: SOFTBANK CAPITAL PARTNERS LLC, its General Partner By: /s/ Steven J. Murray ------------------------------ Name: Steven J. Murray Title: Administrative Member SOFTBANK CAPITAL LP By: SOFTBANK CAPITAL PARTNERS LLC, its General Partner By: /s/ Steven J. Murray ------------------------------- Name: Steven J. Murray Title: Administrative Member SOFTBANK CAPITAL ADVISORS FUND LP By: SOFTBANK CAPITAL PARTNERS LLC, its General Partner By: /s/ Steven J. Murray Name: Steven J. Murray Title: Administrative Member SOFTBANK CAPITAL PARTNERS LLC By: /s/ Steven J. Murray -------------------------------- Name: Steven J. Murray Title: Administrative Member RONALD D. FISHER /s/ Ronald D. Fisher ----------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----