-----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, Uh9lPiRoBINwUAe/vz1Aw1YCdRTKHxY8IQeEjJsW4eN409uGJRZU4Scmy9oPhKj6 6x574NDS/pcaTMewMyyMWg== 0000921530-04-000249.txt : 20040506 0000921530-04-000249.hdr.sgml : 20040506 20040506172134 ACCESSION NUMBER: 0000921530-04-000249 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20040506 GROUP MEMBERS: MARK H. RACHESKY, M.D. GROUP MEMBERS: MHR ADVISORS LLC GROUP MEMBERS: MHR CAPITAL PARTNERS LP GROUP MEMBERS: OTQ LLC FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MHR CAPITAL PARTNERS LP CENTRAL INDEX KEY: 0001019190 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 335 MADISON AVENUE 26TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128783550 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MILLSTREAM ACQUISITION CORP CENTRAL INDEX KEY: 0001233426 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 061688360 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79247 FILM NUMBER: 04786096 BUSINESS ADDRESS: STREET 1: 435 DEVON PARK DRIVE BLDG 400 CITY: WAYNE STATE: PA ZIP: 19087 BUSINESS PHONE: 6102932511 MAIL ADDRESS: STREET 1: 435 DEVON PARK DR BLDG 400 CITY: WAYNE STATE: PA ZIP: 19087 SC 13D 1 millstream_13d-5504.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. )* MILLSTREAM ACQUISITION CORPORATION ---------------------------------- (Name of Issuer) Common Stock, Par Value $.0001 Per Share ---------------------------------------- (Title of Class of Securities) 601316102 --------- (CUSIP Number) James E. Kaye, Esq. Akin Gump Strauss Hauer & Feld LLP 590 Madison Avenue New York, New York 10022 (213) 872-1000 -------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 5, 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 ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [X]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss.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 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 ("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 following pages Page 1 of 13 Pages Exhibit Index: Page 12 SCHEDULE 13D CUSIP NO.: 601316102 Page 2 of 13 Pages 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only). MHR CAPITAL PARTNERS LP 2 Check the Appropriate Box if a Member of a Group (See Instructions) a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) WC 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization DELAWARE 7 Sole Voting Power Number of 698,834 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 698,834 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 698,834 13 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X] 13 Percent of Class Represented By Amount in Row (11) 14.6% 14 Type of Reporting Person (See Instructions) PN SCHEDULE 13D CUSIP NO.: 601316102 Page 3 of 13 Pages 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only). MHR ADVISORS LLC 2 Check the Appropriate Box if a Member of a Group (See Instructions) a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) AF 5 Check 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 698,834 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 698,834 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 698,834 13 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X] 13 Percent of Class Represented By Amount in Row (11) 14.6% 14 Type of Reporting Person (See Instructions) OO SCHEDULE 13D CUSIP NO.: 601316102 Page 4 of 13 Pages 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only). OTQ LLC 2 Check the Appropriate Box if a Member of a Group (See Instructions) a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) WC 5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) [ ] 6 Citizenship or Place of Organization DELAWARE 7 Sole Voting Power Number of 254,166 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 254,166 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 254,166 13 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [X] 13 Percent of Class Represented By Amount in Row (11) 5.3% 14 Type of Reporting Person (See Instructions) OO SCHEDULE 13D CUSIP NO.: 601316102 Page 5 of 13 Pages 1 Names of Reporting Persons I.R.S. Identification Nos. of above persons (entities only). MARK H. RACHESKY, M.D. 2 Check the Appropriate Box if a Member of a Group (See Instructions) a. [ ] b. [X] 3 SEC Use Only 4 Source of Funds (See Instructions) AF; PF 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 OF AMERICA 7 Sole Voting Power Number of 1,076,000 Shares Beneficially 8 Shared Voting Power Owned By 0 Each Reporting 9 Sole Dispositive Power Person 1,076,000 With 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 1,076,000 13 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) [ ] 13 Percent of Class Represented By Amount in Row (11) 22.5% 14 Type of Reporting Person (See Instructions) IA; IN Page 6 of 13 Pages This Statement on Schedule 13D relates to shares of Common Stock, par value $0.0001 per share (the "Shares") of Millstream Acquisition Corporation (the "Issuer"). Certain of the securities reported herein were previously reported on Schedule 13G, the last amendment of which was filed on April 21, 2004. This Statement on Schedule 13D is being filed by the Reporting Persons (as defined below) to report the recent acquisition of Shares, as a result of which the Reporting Persons may be deemed to be the beneficial owners of more than 20% of the outstanding Shares. Item 1. Security and Issuer This Statement relates to the Shares. The address of the principal executive office of the Issuer is 435 Devon Park Drive, Bldg. 400, Wayne, Pennsylvania 19087. Item 2. Identity and Background This Statement is being filed on behalf of each of the following persons (collectively, the "Reporting Persons"): (i) MHR Capital Partners LP ("Capital Partners"); (ii) MHR Advisors LLC ("Advisors"); (iii) OTQ LLC ("OTQ"); and (iv) Mark H. Rachesky, M.D. ("Dr. Rachesky") This Statement relates to the Shares and other securities held for the accounts of Capital Partners, OTQ and certain personal trusts and charitable foundation accounts (the "Personal Accounts") established by Dr. Rachesky. Dr. Rachesky exercises voting and/or investment power over the portfolio securities of such Personal Accounts and, in such capacity, Dr. Rachesky may be deemed to beneficially own the Shares and other securities held for the accounts of the Personal Accounts. The Reporting Persons Capital Partners is a Delaware limited partnership. The principal business of Capital Partners is investment in securities. Advisors is a Delaware limited liability company and the general partner of Capital Partners. The principal business of Advisors is to provide management and advisory services to Capital Partners. Current information concerning the identity and background of the directors and officers of Advisors is set forth in Annex A hereto, which is incorporated by reference in response to this Item 2. OTQ is a Delaware limited liability company. The principal business of OTQ is investment in securities. Current information concerning the identity and background of the directors and officers of OTQ is set forth in Annex A hereto, which is incorporated by reference in response to this Item 2. Dr. Rachesky, is the managing member of Advisors and OTQ. The principal occupation of Dr. Rachesky, a United States citizen, is investment management. Each Reporting Person's principal business address is 40 West 57th Street, 24th Floor, New York, N.Y. 10019. During the past five years, none of the Reporting Person and, to the best of the Reporting Persons' knowledge, no other person identified in response to this Item 2 has been (a) convicted in a criminal proceeding or (b) been a party to any civil proceeding as a result of which he or it has been subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws. Page 7 of 13 Pages Item 3. Source and Amount of Funds or Other Consideration Capital Partners expended approximately $3,542,080.00 of its working capital to purchase the securities reported herein as having been acquired within 60 days of the date hereof as set forth in Annex B hereto. OTQ expended approximately $1,127,413.00 of its working capital to purchase the securities reported herein as having been acquired within 60 days of the date hereof as set forth in Annex B hereto. Dr. Rachesky expended approximately $869,204.00 of his personal funds to purchase the securities reported herein as having been acquired within 60 days of the date hereof for the Personal Accounts as set forth in Annex B hereto. The securities held for the accounts of Capital Partners, OTQ, and the Personal Accounts may be held through margin accounts maintained with brokers, which extend margin credit as and when required to open or carry positions in their margin accounts, subject to applicable federal margin regulations, stock exchange rules and such firms' credit policies. The positions which may be held in the margin accounts, including the Shares, may be pledged as collateral security for the repayment of debit balances in the respective accounts. Item 4. Purpose of Transaction All of the Shares reported herein as having been acquired for or disposed of from the accounts of Capital Partners, OTQ, and Personal Accounts were acquired or disposed of for investment purposes. Neither the Reporting Persons nor, to the best of their knowledge, any of the other individuals identified in response to this Item 2, has any plans or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the right to acquire, or cause to be acquired, additional securities of the Issuer, to dispose of, or cause to be disposed, such securities at any time or to formulate other purposes, plans or proposals regarding the Issuer or any of its securities, to the extent deemed advisable in light of general investment and trading policies of the Reporting Persons, market conditions or other factors. Item 5. Interest in Securities of the Issuer According to information provided by the Issuer in its most recently filed annual report on Form 10-K, the amount of Shares outstanding is 4,775,000 Shares as of February 4, 2004. (a) (i) Capital Partners and Advisors may be deemed the beneficial owner of 698,834 Shares (approximately 14.6% of the total number of Shares outstanding). This number consists of 698,834 Shares held for the account of Capital Partners. (ii) OTQ may be deemed the beneficial owner of 254,166 Shares (approximately 5.3% of the total number of Shares outstanding). This number consists of 254,166 Shares held for its account. (iii) Dr. Rachesky may be deemed the beneficial owner of 1,076,000 Shares (approximately 22.5% of the total number of Shares outstanding). This number consists of A) 698,834 Shares held for the account of Capital Partners, B) 254,166 Shares held for the account of OTQ, C) 123,000 Shares held for the accounts of the Personal Accounts. (b) (i) Capital Partners and Advisors may be deemed to have the sole power to direct the voting and disposition of the 698,834 Shares which may be deemed to be beneficially owned by Capital Partners and Advisors as described above. (ii) OTQ may be deemed to have the sole power to direct the voting and disposition of the 254,166 Shares which may be deemed to be beneficially owned by OTQ as described above. (iii) Dr. Rachesky may be deemed to have the sole power to direct the voting and disposition of the 1,076,000 Shares which may be deemed to be beneficially owned by Dr. Rachesky as described above. Page 8 of 13 Pages (c) Except for the transactions listed on Annex B hereto, all of which were effected in the over-the-counter market in routine brokerage transactions, there have been no transactions with respect to the Shares since March 7, 2004 (60 days prior to the date herof) by any of the Reporting Persons. (d) (i) The partners of Capital Partners, including Advisors, have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the account of Capital Partners in accordance with their partnership interests in Capital Partners. (ii) The members of OTQ have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the account of OTQ in accordance with their membership interests in OTQ. (iii) Included within the Personal Accounts are certain trusts. The beneficiaries of certain of these trusts have the right to participate in the receipt of dividends from, or proceeds from the sale of, the securities held for the accounts of their respective trusts in accordance with their beneficiary interests in their respective trusts. (e) Not Applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Each of Capital Partners and OTQ also hold warrants to purchase Shares. As of the date hereof, Capital Partners holds warrants to purchase 488,001 Shares and OTQ holds warrants to purchase 242,999 Shares. The warrants are not presently exercisable but will become exercisable upon the later of the Issuer's completion of a business combination or August 25, 2004. Certain of the Shares and warrants held for the accounts of Capital Partners and OTQ were acquired through the purchase of units of the Issuer ("Units"). Each Unit consists of one Share and two warrants to purchase Shares. From time to time each of the Reporting Persons may lend portfolio securities to brokers, banks or other financial institutions. These loans typically obligate the borrower to return the securities, or an equal amount of securities of the same class, to the lender and typically provide that the borrower is entitled to exercise voting rights and retain dividends during the term of the loan. From time to time, to the extent permitted by applicable law, each of the Reporting Persons may borrow securities, including the Shares, for the purpose of effecting, and may effect, short sale transactions, and may purchase securities for the purpose of closing out short sale positions in such securities. Except as set forth herein, the Reporting Persons do not have any contracts, arrangements, understandings or relationships with respect to any securities of the Issuer. Item 7. Material to be Filed as Exhibits The Exhibit Index is incorporated herein by reference. Page 9 of 13 Pages SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct. Date: May 6, 2004 MHR CAPITAL PARTNERS LP By: MHR Advisors LLC, its General Partner By: /s/ Hal Goldstein ------------------------------- Name: Hal Goldstein, Title: Vice President MHR ADVISORS LLC By:/s/ Hal Goldstein ------------------------------- Name: Hal Goldstein, Title: Vice President OTQ LLC By: /s/ Hal Goldstein ------------------------------- Name: Hal Goldstein Title: Authorized Signatory MARK H. RACHESKY, M.D. /s/ Mark H. Rachesky, M.D. ---------------------------------- Page 10 of 13 Pages ANNEX A Directors and Officers of MHR Advisors LLC Name/Citizenship Principal Occupation Business Address Mark H. Rachesky, M.D. Managing Member and Principal 40 West 57th Street (United States) 24th Floor New York, N.Y. 10019 Hal Goldstein Vice President and Principal 40 West 57th Street (United States) 24th Floor New York, N.Y. 10019 Directors and Officers of OTQ LLC Name/Citizenship Principal Occupation Business Address Mark H. Rachesky, M.D. Managing Member and Principal 40 West 57th Street (United States) 24th Floor New York, N.Y. 10019 Hal Goldstein Vice President and Principal 40 West 57th Street (United States) 24th Floor New York, N.Y. 10019 Except as otherwise set forth herein, to the best of the Reporting Persons' knowledge: (a) None of the above persons hold any Shares. /1/ (b) None of the above persons has any contracts, arrangements, understandings or relationships with respect to the Shares. Item 6 is incorporated herein by reference. /1/ - -------------------------------------- /1/ Mr Goldstein is a beneficial owner of the Shares through his ownership of interests in Advisors and OTQ. Page 11 of 13 Pages ANNEX B RECENT TRANSACTIONS IN THE SECURITIES OF MILLSTREAM ACQUISITION CORPORATION Date of Nature of Number of For the Account of Transaction Transaction Securities Price - ------------------ ----------- ----------- ---------- ----- MHR Capital Partners March 10, 2004 Buy 6,667 units $7.13 /unit OTQ LLC March 10, 2004 Buy 3,333 units $7.13 /unit MHR Capital Partners March 10, 2004 Buy 286,667 shares $5.225 /share OTQ LLC March 10, 2004 Buy 143,333 shares $5.225 /share MHR Capital Partners March 10, 2004 Buy 166,667 warrants $1.026 /wt OTQ LLC March 10, 2004 Buy 83,333 warrants $1.026 /wt MHR Capital Partners March 12, 2004 Buy 46,667 shares $5.23 /share OTQ LLC March 12, 2004 Buy 23,333 shares $5.23 /share MHR Capital Partners April 14, 2004 Buy 13,333 units $9.41 /units OTQ LLC April 14, 2004 Buy 6,667 units $9.41 /units MHR Capital Partners April 16, 2004 Buy 22,333 shares $6.34 /share OTQ LLC April 16, 2004 Buy 11,167 shares $6.34 /share MHR Capital Partners April 16, 2004 Buy 14,000 warrants $1.96 /wt OTQ LLC April 16, 2004 Buy 7,000 warrants $1.96 /wt MHR Capital Partners April 21, 2004 Buy 23,000 shares $6.43 /share MHR Capital Partners April 22, 2004 Buy 46,500 shares $6.82 /share MHR Capital Partners April 23, 2004 Buy 10,000 shares $6.80 /share MHR Capital Partners April 26, 2004 Buy 73,000 shares $6.85 /share MHR Capital Partners April 27, 2004 Buy 37,000 shares $6.86 /share Personal Accounts May 5, 2004 Buy 123,000 shares $7.0667 of Mark H. Rachesky, /share M.D. Note: One Unit equals one common share plus two warrants Page 12 of 13 Pages EXHIBIT INDEX Ex. Page No. - --- -------- A. Joint Filing Agreement, dated as of May 6, 2004, by and between MHR Capital Partners LP, MHR Advisors LLC, OTQ LLC and Mark H. Rachesky, M.D.................... 13 Page 13 of 13 Pages EXHIBIT A JOINT FILING AGREEMENT The undersigned hereby agree that the Statement on Schedule 13D with respect to the Common Stock of Millstream Acquisition Corporation, dated as of May 6, 2004, is, and any amendments thereto (including amendments on Schedule 13G) signed by each of the undersigned shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934. Date: May 6, 2004 MHR CAPITAL PARTNERS LP By: MHR Advisors LLC, its General Partner By: /s/ Hal Goldstein ------------------------------- Name: Hal Goldstein, Title: Vice President MHR ADVISORS LLC By:/s/ Hal Goldstein ------------------------------- Name: Hal Goldstein, Title: Vice President OTQ LLC By: /s/ Hal Goldstein ------------------------------- Name: Hal Goldstein Title: Authorized Signatory MARK H. RACHESKY, M.D. /s/ Mark H. Rachesky, M.D. ---------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----