Amendment 3 to Schedule 13D

-----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, DJq2NXSYx9J61OKoYwD3L2ixOdstgPrQ24wmlYJCVfUzLEu9glWB6nVczIC/bc9A TBR+RzYI2PrYHzViUOh5Iw== 0001193125-04-075524.txt : 20040430 0001193125-04-075524.hdr.sgml : 20040430 20040430161546 ACCESSION NUMBER: 0001193125-04-075524 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040430 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VYYO INC CENTRAL INDEX KEY: 0001104730 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATIONS EQUIPMENT, NEC [3669] IRS NUMBER: 943241270 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-59113 FILM NUMBER: 04770019 BUSINESS ADDRESS: STREET 1: 4015 MIRANDA AVENUE STREET 2: FIRST FLOOR CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 6503194000 MAIL ADDRESS: STREET 1: 4015 MIRANDA AVENUE, FIRST FLOOR STREET 2: C/O VYYO INC CITY: PALO ALTO STATE: CA ZIP: 94304 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GILO DAVIDI CENTRAL INDEX KEY: 0000939286 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 100 WHY WORRY LN CITY: WOODSIDE STATE: CA ZIP: 94052 BUSINESS PHONE: 4158519034 MAIL ADDRESS: STREET 1: 100 WHY WORRY LN CITY: WOODSIDE STATE: CA ZIP: 94052 SC 13D/A 1 dsc13da.htm AMENDMENT 3 TO SCHEDULE 13D Amendment 3 to Schedule 13D


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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D/A

Under The Securities Exchange Act of 1934

(Amendment No. 3)*

Vyyo Inc.

(Name of Issuer)

Common Stock, Par value $.0001 Per Share

(Title of Class of Securities)

918458 20 9

(CUSIP Number)

Lonnie Goldman

Vyyo Inc.

4015 Miranda Avenue, First Floor

Palo Alto, California 94304

Telephone (650) 319-4000

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

April 1, 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 that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-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 Section 240.13d-7 for other parties to whom copies are to be sent.

The remainder of this cover page shall be filled out for a reporting 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 the disclosures provided in a prior cover page.

The information required in 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).

(Continued on the following pages)

(Page 1 of 6 Pages)

CUSIP No. 918458 20 9



1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Davidi Gilo

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) OO

5.	Check 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

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH:

7. Sole Voting Power

6,296,658

8. Shared Voting Power

9. Sole Dispositive Power

5,637,725

10. Shared Dispositive Power


11.	Aggregate Amount Beneficially Owned by Each Reporting Person 6,296,658

12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)	¨

13.	Percent of Class Represented by Amount in Row (11) 48%

14.	Type of Reporting Person (See Instructions) IN

SCHEDULE 13D/A

The following statement on Schedule 13D (the “Statement”) with respect to the common stock, par value $.0001 per share (the “Common Stock”), of Vyyo Inc. (the “Issuer”) is being filed on behalf of Davidi Gilo.

ITEM 1.

SECURITY AND ISSUER

This Statement relates to the common stock, $.0001 par value per share, of the Issuer, Vyyo Inc. The Issuer’s principal executive offices are located at 4015 Miranda Avenue, First Floor, Palo Alto, CA 94304.

ITEM 2.

IDENTITY AND BACKGROUND

(a) This Statement is being filed on behalf of Davidi Gilo.

(b) The business address of Davidi Gilo is 4015 Miranda Avenue, First Floor, Palo Alto, CA 94304.

(c) Davidi Gilo’s principal employment is with the Issuer where he currently is the Chairman of the Board and the Chief Executive Officer. The address of the Issuer is 4015 Miranda Avenue, First Floor, Palo Alto, CA 94304.

(d)-(e) Davidi Gilo has not, during the last five years, been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors), nor during such period, been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding been subject to any 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.

(f) Citizenship: United States.

ITEM 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

The issuer has granted Mr. Gilo options to purchase shares of Vyyo, Inc. Common Stock, as previously disclosed in the Schedules 13D/A filed by Mr. Gilo on October 17, 2002 and November 13, 2003.

All of the other shares held by Mr. Gilo and his affiliated entities were purchased at various times prior to the initial public offering of Vyyo Inc.’s Common Stock effected in April 2000, or were acquired prior to, and were previously disclosed in, the Schedule D filed by Mr. Gilo on June 9, 2000 or the Schedules 13D/A filed by Mr. Gilo on October 17, 2002 and November 13, 2003.

ITEM 4.

PURPOSE OF THE TRANSACTION.

This Statement is being filed in connection with the sale by the Gilo Family Trust U/A/D 1/18/91 of 66,000 shares of Vyyo, Inc. Common Stock pursuant to a Rule 10b5-1 Sales Plan, for which Form 4s were filed with the Securities and Exchange Commission on March 2, 2004 and April 5, 2004, and to provide updating information. Other than such 10b5-1 sales plans, Davidi Gilo has no proposal or plan which would result in any of the transactions or events enumerated in paragraphs (a) through (j) of this Item 4. Notwithstanding the foregoing, Davidi Gilo

reserves the right at any time or from time to time to acquire additional shares of the capital stock of the Issuer or to dispose of any shares of capital stock of the Issuer on terms deemed appropriate by Davidi Gilo.

ITEM 5.

INTEREST IN SECURITIES OF THE ISSUER.

(a) As of the date of this Statement, Davidi Gilo beneficially owns an aggregate of 6,296,658 shares of the Issuer’s common stock. This number represents 48% of the 13,125,385 shares of the Issuer’s common stock outstanding as of April 23, 2004, as reported in the Issuer’s quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2004 filed with the Securities and Exchange Commission, and includes 1,133,333 shares issuable upon exercise of options held by Mr. Gilo. Of the shares held by Mr. Gilo, (i) 3,965,766 shares are held by the Gilo Family Trust U/A/D 1/18/91, of which Mr. Gilo and Shamaya Gilo are trustees; (ii) 345,000 shares are held by Mr. Gilo individually; (iii) 1,133,333 shares consist of options to purchase shares of common stock and are held by Mr. Gilo individually, (500,000 of these options will become exercisable within 60 days of April 30, 2004); (iv) 5,420 shares are held by Harmony Management, Inc., of which Davidi Gilo and a trust for his benefit are the sole shareholders; (v) 18,206 shares are held by The Gilo Family Partnership, L.P., a California limited partnership of which Harmony Management, Inc. is the general partner and of which Mr. Gilo, Shamaya Gilo and three trusts for the benefit of Mr. Gilo’s children, Adi, Elad and Yael Gilo, are the limited partners; (vi) 170,000 shares are held by the Gilo Family Foundation, a California not-for-profit corporation of which Mr. Gilo and Shamaya Gilo are trustees; (vii) 488,933 shares are held by Skyfarm Management LLC, a New Jersey limited liability company which has entered into a voting trust agreement granting Mr. Gilo the exclusive right to vote certain shares held by it; and (viii) 170,000 shares are held by the Winds of Change Foundation, Inc. a not-for-profit corporation of which Shamaya Gilo is the trustee and with which Mr. Gilo has entered into a voting trust agreement pursuant to which Mr. Gilo has the exclusive right to vote such shares.

(b) Mr. Gilo has sole voting power with respect to all of the 6,296,658 shares held by the Gilo Family Trust U/A/D 1/18/91, by Harmony Management, Inc., by The Gilo Family Partnership, L.P., by the Gilo Family Foundation, by Skyfarm Management LLC, by the Winds of Change Foundation, and by Mr. Gilo individually. Mr. Gilo has sole dispositive power with respect to all of the 5,637,725 shares held by the Gilo Family Trust U/A/D 1/18/91, by Harmony Management, Inc., by The Gilo Family Partnership, L.P., by the Gilo Family Foundation, and by Mr. Gilo individually, subject to the rights of Shamaya Gilo to the proceeds from the sale of 440,039 of those shares and to elect a distribution of said 440,039 shares to her, on or after the earlier of (i) July 1, 2008; or (ii) the sale by Mr. Gilo of his California residence, pursuant to a marital settlement agreement.

(c) On March 1, 2004, Mr. Gilo in his capacity as Trustee of the Gilo Family Trust U/A/D 1/18/91, sold 33,000 shares of the issuer’s Common Stock pursuant to a 10b5-1 Sales Plan, at prices ranging from $7.57 per share to $7.90 per share, as further set forth in the Form 4 filed with the SEC on March 2, 2004. On April 1, 2004, Mr. Gilo in his capacity as Trustee of the Gilo Family Trust U/A/D 1/18/91, sold an additional 33,000 shares of the issuer’s Common Stock pursuant to a 10b5-1 Sales Plan, at prices ranging from $6.40 per share to $6.71 per share, as further set forth in the Form 4 filed with the SEC on April 5, 2004.

(d) No person other than Davidi Gilo has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any of the shares of the Issuer’s common stock owned or sold by Davidi Gilo, except that (i) Shamaya Gilo has rights to the proceeds from the sale of 440,039 of Mr. Gilo’s shares and to elect a distribution of said 440,039 shares to her, on or after the earlier of (A) July 1, 2008; or (B) the sale by Mr. Gilo of his California residence, pursuant to a marital settlement agreement;

and (ii) Shamaya Gilo and three trusts for the benefit of Mr. Gilo’s children, Adi, Elad and Yael Gilo, have certain rights as limited partners of the Gilo Family Partnership, L.P. In addition, the Gilo Family Foundation is a California not-for-profit corporation and has sole rights to receive any such dividends or proceeds, which may be distributed by the Foundation for certain charitable purposes only as permitted under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Furthermore, Skyfarm Management LLC and Winds of Change Foundation, Inc. have the right to dispose of, and receive dividends with respect to, the Issuer’s Common Stock held by each of them.

(e) Not applicable.

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

Mr. Gilo has entered into voting trust agreements with Skyfarm Management LLC and Winds of Change Foundation, Inc. which grant Mr. Gilo the exclusive right to vote certain shares held by Skyfarm Management LLC and Winds of Change Foundation, Inc.

On August 12, 2003, the Vyyo Inc. Board of Directors granted Mr. Gilo options to purchase 800,000 shares of Vyyo Inc. Common Stock at an exercise price of $3.92 per share. 2.0833% of these options become exercisable on the 12^th day of each month commencing on September 12, 2003 and for the following 47 months. In addition, all of the options will become exercisable upon certain transactions resulting in a change of control of Vyyo Inc. or upon the death or disability of Mr. Gilo. The options will terminate five years after the date of grant.

Mr. Gilo has entered into a marital settlement agreement with Shamaya Gilo providing Shamaya Gilo with rights to the proceeds from the sale of 440,039 of Mr. Gilo’s shares of Vyyo Inc. Common Stock and to elect a distribution of said 440,039 shares to her, on or after the earlier of (i) July 1, 2008; or (ii) the sale by Mr. Gilo of his California residence.

ITEM 7.

MATERIAL TO BE FILED AS EXHIBITS.

The voting trust agreement between Winds of Change Foundation, Inc. and Mr. Gilo is attached.

SIGNATURE

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

Dated: April 30, 2004

Davidi Gilo

/s/ Davidi Gilo

Signature

EX-99.1 2 dex991.htm VOTING TRUST AGREEMENT Voting Trust Agreement

Exhibit 99.1

VOTING TRUST AGREEMENT

THIS VOTING TRUST AGREEMENT (the “Agreement”) is made and entered into effective December 12, 2003 by and between WINDS OF CHANGE FOUNDATION, INC. (“Shareholder”) and Davidi Gilo (“Trustee”) with respect to One Hundred Seventy Thousand (170,000) shares of common stock of Vyyo Inc. (“Company”) (“Shares”).

RECITALS

A. The Shareholder is the owner of the Shares.

B. The Shareholder and Trustee desire to enter into this Agreement to establish a voting trust (the “Voting Trust”).

AGREEMENT

NOW, THEREFORE, the Shareholder hereby creates, and the Trustee hereby accepts, a Voting Trust on the terms stated herein, and the parties agree as follows:

1. Trustee’s Powers and Duties.

a. Voting of Shares. During the existence of this trust, the Trustee shall have the exclusive right to vote the Shares, or any of such shares remaining subject to this Voting Trust, in person or by proxy at all shareholder meetings and in all proceedings in which the vote or consent of shareholders may be required or authorized, and shall have all the rights, privileges, and powers of the Shareholder except as otherwise provided in this Agreement.

b. Other Trustee Activities. The Trustee may serve the Company as an officer or director or in any other capacity, and may receive compensation from the Company for such services.

c. No Sale of Shares. The Trustee shall have no authority to sell or otherwise dispose of any shares transferred to him under this Agreement.

d. Number and Replacement of Trustee. The number of Trustees shall be one (1). In the event of the death or resignation of the Trustee, a successor Trustee shall be appointed by the Board of Directors of the Company.

e. Compensation. The Trustee shall receive no compensation for his services.

f. Trustee’s Liability. The Trustee shall not be liable for any error of judgment or mistake of fact or law, or for any act or omission made in good faith in connection with his powers and duties under this Agreement, except for the Trustee’s own willful misconduct or gross negligence. No Trustee shall be liable for the acts or omissions of any other Trustee or Trustees or for the acts or omissions of any employee or agent of any other Trustee or Trustees.

The Trustee shall not be liable in acting on any notice, consent, certificate, instruction, or other paper or document or signature believed by him to be genuine and to have been signed by the proper party or parties. The Trustee may consult with legal counsel, and any of his acts or omissions made in good faith in accordance with the opinion of legal counsel shall be binding and conclusive on the parties to this Agreement.

2. Termination. This Voting Trust shall terminate on the first to occur of: (i) the fifth (5th) anniversary of the effective date of this Agreement; or (ii) as to any Shares sold by Shareholder, upon such sale, the effect being that the Shares or any of them may be sold free of the provisions of this Voting Trust at any time and from time to time.

3. Extension of Agreement. The term of this Agreement, as prescribed in Paragraph 2, may be extended from the original termination date of this Agreement or from the termination date as last extended in accordance with this paragraph, provided that within two years before the date as originally fixed or as last extended, the Shareholder, by written agreement, and with the Trustee’s written consent, extends the term of this Agreement with respect to his shares for an additional term not to exceed ten years from the expiration date then in effect.

4. Notices, Dividends, and Distributions.

a. Notices. The Trustee shall promptly forward copies of all notices, reports, statements, and other communications received from the Company to the Shareholder, indicating the date of receipt.

b. Dividends. The Trustee shall promptly distribute all dividends and other distributions received from the Company to the Shareholder.

c. Additional Shares. If any dividend or stock split consists of additional shares having voting rights, the Trustee shall hold these shares in trust subject to the terms of this Agreement.

5. Additional Documentation. The parties agree to execute such additional documentation as may be required to implement the terms of this Agreement, including but not limited to such documentation as may be necessary to transfer title of the Shares into the name of the Trustee.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.


SHAREHOLDER				TRUSTEE

WINDS OF CHANGE FOUNDATION, INC.

/s/ SHAMAYA GILO				/s/ DAVIDI GILO

Shamaya Gilo, President				Davidi Gilo

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