Amendment #1

-----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, PytDAYM7iP8TsV8lp2Mw6wYeVqU56c0XIzwXxrwGzeVeZFoY9ckzo8h5qV4OikXX a1RVhemsHw6oJZezbcHnqA== 0001193125-04-073656.txt : 20040429 0001193125-04-073656.hdr.sgml : 20040429 20040429140341 ACCESSION NUMBER: 0001193125-04-073656 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040429 GROUP MEMBERS: MICHAEL J. HAGAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NUTRI SYSTEM INC /DE/ CENTRAL INDEX KEY: 0001096376 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-CATALOG & MAIL-ORDER HOUSES [5961] IRS NUMBER: 233012204 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-58605 FILM NUMBER: 04764017 BUSINESS ADDRESS: STREET 1: 202 WELSH RD CITY: HORSHAM STATE: PA ZIP: 19044 MAIL ADDRESS: STREET 1: 202 WELSH RD CITY: HORSHAM STATE: PA ZIP: 19044 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HJM HOLDINGS LLC CENTRAL INDEX KEY: 0001212461 IRS NUMBER: 233014041 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 202 WELSH ROAD CITY: HORSHAM STATE: PA ZIP: 19044 BUSINESS PHONE: 2157065300 SC 13D/A 1 dsc13da.htm AMENDMENT #1 Amendment #1

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO

13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A)

(Amendment No. 1)

NutriSystem, Inc.

(Name of Subject Company (Issuer))

COMMON STOCK

(Title of Class of Securities)

67069D 10 8

(CUSIP Number of Class of Securities)

HJM Holdings, LLC

202 Welsh Road

Horsham, PA 19044

Attn: Michael J. Hagan

President and Manager

(Name, address and telephone number of person authorized to receive

notices and communications )

With a copy to:

James A. Lebovitz, Esq.

Dechert LLP

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, Pennsylvania 19103

Telephone: (215) 994-4000

April 28, 2004

(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), (f) or (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 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).

SCHEDULE 13D


CUSIP No. 67069 D 10 8		13D		Page 2 of 5



1.	Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) HJM Holdings, LLC (83-0344408)

2.	Check the Appropriate Box if a Member of a Group (a) ¨ (b) x

3.	SEC Use Only

4.	Source of Funds WC/PF

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

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

15,313,500

9. Sole Dispositive Power

10,522,092

10. Shared Dispositive Power


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 15,313,500

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) 53%

14.	Type of Reporting Person (See Instructions) IN

SCHEDULE 13D


CUSIP No. 67069 D 10 8		13D		Page 3 of 5



1.	Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only) Michael J. Hagan

2.	Check the Appropriate Box if a Member of a Group (a) ¨ (b) x

3.	SEC Use Only

4.	Source of Funds PF

5.	Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)	¨

6.	Citizenship or Place of Organization Pennsylvania

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7. Sole Voting Power

8. Shared Voting Power

2,593,715*

9. Sole Dispositive Power

10. Shared Dispositive Power

2,593,715*


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 2,593,715*

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) 9%

14.	Type of Reporting Person (See Instructions) CO

* SEE INSTRUCTION BEFORE FILLING OUT

* These shares are owned directly by HJM Holdings, LLC, of which Mr. Hagan is the president and manager, and represent Mr. Hagan’s proportionate interest in the total shares owned by HJM Holdings, LLC and disclosed on the immediately preceding page of this Schedule 13D. Mr. Hagan disclaims beneficial ownership of the shares held by HJM Holdings, LLC other than his proportionate interest.


CUSIP No. 67069 D 10 8		13D		Page 4 of 5

This Amendment No. 1 to Schedule 13D amends and supplements the Schedule 13D filed on December 20, 2002. The Schedule 13D is hereby amended and supplemented as follows:

Item 4.

Purposes of the Transaction.

Item 4 of the Statement is hereby amended and supplemented to include the following:

In order to release HJM Holdings, LLC and NewSpring Ventures, L.P. from the terms and provisions of the Stockholders’ Agreement, including the contractual prohibitions on the sale and transfer of the Common Stock and any voting agreements, HJM Holdings, LLC and NewSpring Ventures, L.P. entered into the Termination of Stockholders’ Agreement, dated and effective as of April 28, 2004 (the “Termination”). In connection with the Termination, HJM Holdings, LLC intends to distribute half of the Common Stock owned by HJM Holdings, LLC; or 5,261,046 shares, to its members on or about May 7, 2004 (the “Initial Distribution Date”), with the remainder distributed to its members no later than ninety (90) days following the Initial Distribution Date. Subject to applicable laws and regulations, the members of HJM Holdings, LLC may begin selling the Common Stock distributed to each member, respectively, on the distribution dates enumerated in the preceding sentence. A copy of the Termination is attached hereto as Exhibit 3 and incorporated herein by reference.

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to the Securities of the Issuer.

Item 6 of the Statement is hereby amended and supplemented to include the following:

In connection with the Termination, Mr. Hagan and Mr. Jankovic intend to enter into an agreement with NewSpring Ventures, L.P. and the Company pursuant to which Mr. Hagan, Mr. Jankovic and NewSpring Ventures, L.P. will agree not to sell (a) with respect to Mr. Hagan and Mr. Jankovic, any of the Common Stock of the Company attributable to each of them, and (b) with respect to NewSpring Ventures, L.P., any of the Common Stock of the Company owned by NewSpring Ventures, L.P., prior to December 20, 2004, provided that certain sales of such Common Stock will be permitted during such lock up period upon the occurrence of certain events, including: (i) any merger or consolidation of the Company with or acquisition of the Company by, another corporation, (ii) the sale or other disposition of all or substantially all the assets of the Company, and/or (iii) any private placement or registered offering of shares by the Company. In addition, Mr. Hagan, Mr. Jankovic, NewSpring Ventures, L.P. and the Company intend to enter into an agreement pursuant to which the Company will agree to grant Mr. Hagan, Mr. Jankovic and NewSpring Ventures, L.P. piggy back registration rights through December, 20, 2004 thereby permitting Mr. Hagan, Mr. Jankovic and NewSpring Ventures, L.P. the right to add their shares for resale to certain registration statements filed by Company.

Item 12.

Material to Be Filed as Exhibits.



Exhibit 1		Joint Filing Agreement dated December 30, 2002.*

Exhibit 2		Stockholders’ Agreement dated December 20, 2002 between HJM Holdings, LLC and NewSpring Ventures, L.P. *

Exhibit 3		Termination of Stockholders’ Agreement dated April 28, 2004 between HJM Holdings, LLC and NewSpring Ventures, L.P.

*	Denotes Exhibit has been previously filed with the Securities and Exchange Commission.


CUSIP No. 67069 D 10 8		13D		Page 5 of 5

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment is true, complete and correct.


HJM HOLDINGS, LLC

By:		/s/ Michael J. Hagan

Name:		Michael J. Hagan
Title:		President and Manager

MICHAEL J. HAGAN

By:		/s/ Michael J. Hagan

Name:		Michael J. Hagan

Dated: 4/29/04

EX-3 2 dex3.htm TERMINATION OF STOCKHOLDERS' AGREEMENT Termination of Stockholders' Agreement

Exhibit 3

TERMINATION OF STOCKHOLDERS’ AGREEMENT

This TERMINATION OF STOCKHOLDERS’ AGREEMENT (this “Termination”), is made as of April 28, 2004, by and among HJM Holdings, LLC, a Delaware limited liability company, having an address at 202 Welsh Road, Horsham, PA 19044, Attention: Michael J. Hagan, Facsimile: 215/706-5325 (the “LLC”) and NewSpring Ventures, L.P., a Delaware limited partnership, having an address at 500 North Gulph Road, Suite 500, King of Prussia, PA 19406, Attention: Managing Partner, Facsimile: 610/567-2388 (“NSV”; together with the LLC, collectively, the “Stockholders”).

RECITALS

WHEREAS, the Stockholders entered into that certain Stockholders’ Agreement (the “Stockholders’ Agreement”), dated as of December 20, 2002, to provide for certain rights and obligations related to, among other things, the voting of shares of Common Stock owned and controlled by each respective Stockholder.

WHEREAS, the Stockholders desire to terminate the Stockholders’ Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereto agree as follows:

1.	Termination. Upon the Effective Date hereof, the Stockholders’ Agreement shall terminate and be of no further force and effect without any further action required by the Stockholders.

Severability. In case any provision of this Termination shall be invalid, illegal, or unenforceable, such provision shall be deemed to have been modified to the extent necessary to make it valid, legal, and enforceable. The validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

3.	No Modification Except in Writing. None of the terms of this Termination may be modified, waived, altered, amended, supplemented, extended, consolidated, replaced, exchanged or otherwise changed except upon the prior written consent of each Stockholder.

4.	Effective Date. This Termination shall be effective on the date set forth above and no additional act or notice shall be required, and if required, are hereby waived, under the Stockholders’ Agreement.

5.	Miscellaneous.

(a)

This Termination constitutes the entire agreement among the parties concerning its subject matter.

(b)

This Termination shall inure to the benefit of and be binding upon the parties and their respective heirs, successors and assigns.

(c)

This Termination may be executed in two or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(d)

This Termination has been duly authorized, executed and delivered by the parties hereto and constitutes a legal, valid and binding obligation of each party, enforceable against each party in accordance with their terms, subject to bankruptcy, insolvency, moratorium, reorganization, and other similar laws affecting creditors’ rights generally and to equitable principles relating to enforceability.

(e)

The construction, validity and interpretation of this Termination will be governed by the internal laws of the State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each party hereto each hereby irrevocably (a) submits itself to the non-exclusive jurisdiction of the state and federal courts sitting in the State of Delaware and (b) waives the right and hereby agrees not to assert by way of motion, as a defense or otherwise in any action, suit or other legal proceeding brought in any court, any claim that it, he or she is not subject to the jurisdiction of such court, that such action, suit or proceeding is brought in an inconvenient forum or that the venue of such action, suit or proceeding is improper. EACH PARTY HERETO HEREBY IRROVECABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS TERMINATION OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION AND ENFORCEMENT HEREOF.

(f)

Each party hereto also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in the following manner. All such notices and communications shall be in writing and shall be deemed given if delivered personally or by commercial overnight courier (with confirmation of receipt) or sent via facsimile to the parties at the address or facsimile number for such party as set forth herein. Notice given by telecopier shall be effective upon

actual receipt if received during the hours of 9 AM to 5 PM EST on a business day, or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. All notices by telecopier shall be confirmed promptly after transmission in writing by certified mail or personal delivery. Any party may change any address or facsimile number to which notice is to be given to it by giving notice as provided in this section of such change of address or facsimile number.

[Signatures commence on the following page]

IN WITNESS WHEREOF, the parties hereto have caused this TERMINATION OF STOCKHOLDERS’ AGREEMENT to be duly executed by their duly authorized representatives.


LLC: HJM HOLDINGS, LLC

By:		/s/ Michael J. Hagan

Name:		Michael J. Hagan
Title:		President


NSV: NEWSPRINGVENTURES, L.P.

By:	Progress Capital II, L.P. its General Partner

	By:	Progress Capital II, Inc. its General Partner

		By:	/s/ Marc R. Lederman


		Name:	Marc R. Lederman
		Title:	Vice President and Secretary

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