UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 2)

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

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

 

(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 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).

 

 

 

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Introduction

 

This Amendment No. 2 (“Amendment No. 2”) is jointly filed by and on behalf of Alex Meruelo Living Trust (“Meruelo Trust”), Meruelo Investment Partners LLC (“Meruelo Partners”), and Alex Meruelo to amend the Schedule 13D filed with the Securities and Exchange Commission (“Commission”) on July 1, 2014 (“Original Schedule 13D”) as amended by Amendment No. 1 to the Original Schedule 13D filed with the Commission on February 19, 2015 (“Amendment No. 1”), and the Original Schedule 13D, together with the Amendment No. 1, the “Existing Schedule 13D”, and collectively with this Amendment No. 2, the “Schedule 13D” or “statement”) with respect to the subject class of securities.  Each term used and not otherwise defined in this Amendment No. 2 shall have the meaning assigned to such term in the Existing Schedule 13D.  Except as otherwise provided hereby, each Item of the Existing Schedule 13D remains unchanged.

 

Item 4.       Purpose of Transaction.

 

Item 4 of the Existing Schedule 13D is hereby amended and restated in its entirety as follows:

 

“On October 7, 2013, Meruelo Group entered into an agreement with the issuer (the “Meruelo Agreement”), a copy of which is included in Exhibit 99.2 hereto and hereby incorporated herein by reference.

 

On February 7, 2014, pursuant to the Merger Agreement, the reporting persons received 4,023,570 shares of Common Stock.

 

As part of the Meruelo Agreement, we retained the right to require the Company to call the 2015 Annual Meeting by no later than May 30, 2015.

 

On February 13, 2015, we submitted a letter to the board addressing their request for guidance as to such right, a copy of which is included in Exhibit 99.3 hereto and hereby incorporated herein by reference.  In this letter we wrote the board about our willingness to waive our right to require the Company to hold its annual meeting pursuant to the Meruelo Agreement, in exchange for (i) a change on the board to add a subject matter expert, and (ii) an increased share repurchase program from $15 million to $30 million to be deployed over 12 months without limitation.

 

On March 3, 2015, the Company announced that it would increase the share repurchase program up to $30 million.

 

On March 10, 2015, Meruelo Group and the Company entered into an Amendment to the Meruelo Agreement whereby the parties agreed to revise the Meruelo Agreement to allow the Company to hold the 2015 Annual Meeting no later than December 15, 2015 (the “Amendment”) a copy of which is included in Exhibit 99.4 hereto and hereby incorporated by reference.

 

The reporting persons have engaged in discussions with security holders of the issuer and other persons with respect to the subject class of securities, the issuer, the issuer’s industry, business, condition, operations, structure, governance, management, capitalization, policies, plans, and prospects and related and other matters. Subject to the terms of the Meruelo Agreement, each reporting person plans and proposes to review and analyze such reporting person’s interest in the issuer on a continuing basis and continue to engage in such discussions, as well as discussions with the issuer, the issuer’s directors and officers and other persons related to the issuer, as such reporting person deems necessary or appropriate in connection with such reporting person’s interest in the issuer.

 

Subject to the terms of the Meruelo Agreement and depending upon the factors described below and any other factor that is or becomes relevant, each reporting person plans and proposes to: (a) acquire additional amounts of the subject class of securities or different equity, debt, or other securities of the issuer, derivative securities related to securities of the issuer or other securities related to the issuer (collectively, “Issuer-Related Securities”) or a combination or combinations of Issuer-Related Securities, including by purchase or other method, pursuant to open market, private, tender offer, or other transactions, using borrowed or other funds or consideration of or from any source described herein or other source or via a combination or combinations of such methods, transactions, consideration, and sources; (b) dispose of all or part of the securities covered by this statement and any other Issuer- Related Securities, including by sale or other method, pursuant to open market, private, or other transactions or via a combination or combinations of such methods and transactions; (c) engage in financing, lending, hedging, pledging, or similar transactions involving the securities covered by this statement or other Issuer-Related Securities or a combination or combinations of such transactions; (d) engage in discussions and otherwise communicate with the issuer, officers, directors, and security holders of the issuer and other persons related to the issuer with respect to Issuer-Related Securities, the issuer, the issuer’s industry, business, condition, operations, structure, governance, management, capitalization, dividend policy, other policies, plans, and prospects and related and other matters; (e) suggest or recommend a transaction or transactions involving the acquisition, sale, or exchange of all or part of the Issuer-Related Securities or assets of the issuer, other actions or a combination or combinations of such actions, in any case, which relates or relate to (or could result in) a change or changes to the issuer’s business, condition, operations, structure, governance, management, capitalization, policies, plans, and prospects and similar and other actions and changes; (f) make a proposal or proposals involving the acquisition or sale of all or part of the Issuer-Related Securities or assets of the issuer; (g) make a proposal or proposals to request that the issuer and/or the security holders of the issuer consider an extraordinary or other transaction, such as a merger or reorganization, or a combination or combinations of such transactions; and (h) engage in a combination or combinations of the foregoing plans and/or proposals.

 

        Each such plan or proposal may be subject to, and depend upon, a variety of factors, including (i) current and anticipated trading prices and the expected value of applicable Issuer-Related Securities, (ii) the issuer’s financial condition and position, results of operations, plans, prospects and strategies, (iii) general industry conditions, (iv) the availability, form and terms of financing and other investment and business opportunities, (v) general stock market and economic conditions, (vi) tax considerations and (vii) other factors. Each acquisition, disposition, transaction, discussion, communication, suggestion, recommendation, proposal and other action described herein may be effected, made or taken, as applicable, at any time and/or from time to time without prior notice. Although the plans and proposals described herein reflect the plans and proposals presently contemplated by the reporting persons with respect to the issuer and the Issuer-Related Securities, as applicable, each such plan and proposal is subject to change at any time and from time to time dependent upon contingencies and assumed and speculative conditions and other factors, including actions taken by the issuer, the issuer’s board of directors, other security

 

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holders of the issuer and other parties and the outcome of the discussions, communications, transactions and other actions described herein. There can be no assurance that any such plan or proposal will be consummated or pursued or result in any transaction described herein or other transaction or that any action contemplated by any such plan or proposal (or any similar action) will be taken. Except as otherwise described herein, no reporting person currently has any plan or proposal that relates to or would result in any of the actions specified in clause (a) through (j) of Item 4 of Schedule 13D. However, subject to the terms of the Meruelo Agreement, each reporting person may, at any time and from time to time, plan or propose to effect or cause an action or actions relating to or resulting in one or more of the actions specified in clause (a) through (j) of Item 4 of Schedule 13D.”

 

Remainder of Page Intentionally Left Blank.  Signature Page(s) to Follow.

 

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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.

 

		Alex Meruelo Living Trust
Date:	March 19, 2015	By:	/s/ Alex Meruelo
		Name:	Alex Meruelo
		Title:	Trustee
		Meruelo Investment Partners LLC
Date:	March 19, 2015	By:	/s/ Alex Meruelo
		Name:	Alex Meruelo
		Title:	Managing Member
		Alex Meruelo
Date:	March 19, 2015	By:	/s/ Alex Meruelo
		Name:	Alex Meruelo

 

Remainder of Page Intentionally Left Blank.  Exhibit Index to Follow.

 

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Exhibit Index

 

Exhibit

 

Reference		Description
24.1		Joint Filing Agreement and Power of Attorney (incorporated by reference to Exhibit 24.1 to Original Schedule 13D) Agreement and Plan of Merger, dated as of August 12, 2013, by and among Extreme Reach, Inc., Dawn Blackhawk
99.1		Acquisition Corp. and Digital Generation, Inc. (incorporated by reference to Exhibit 2.1 of Digital Generation, Inc.’s Current Report on Form 8-K filed with the SEC on August 13, 2013.
99.2		Meruelo Agreement dated October 7, 2013 (incorporated by reference to Exhibit 99.11 to Amendment No. 5 on Schedule 13D filed by Meruelo Partners on October 9, 2013)
99.3		Letter dated February 13, 2015 (Incorporated by reference to Exhibit 99.3 to Amendment No. 1)
99.4		Amendment to Meruelo Agreement dated March 10, 2015 (furnished herewith)

 

Remainder of Page Intentionally Left Blank.  Exhibit(s) to Follow.

 

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Exhibit 99.4

 

AMENDMENT TO MERUELO AGREEMENT

 

This Amendment (“Amendment”), dated March 10, 2015, is entered into by and among the persons and entities listed on Exhibit A hereto (“Meruelo Stockholders”) and Sizmek Inc. (the “Company”).

 

WHEREAS, the Meruelo Stockholders and Digital Generation, Inc. entered into that certain Agreement, effective October 7, 2013 (the “Agreement”). Capitalized terms used herein, but not otherwise defined herein, shall have the meanings set forth in the Agreement.

 

WHEREAS, the Company entered into a joinder agreement whereby the Company agreed to enter into and be bound by the Agreement.

 

WHEREAS, the Meruelo Stockholders and the Company desire to amend the Agreement as provided in this Amendment.

 

NOW THEREFORE, in consideration of and reliance upon the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

1.     Section 3.6(b) of the Agreement is hereby amended and restated as follows:

 

“The Company shall cause SpinCo to, and SpinCo shall, hold the 2014 Annual Meeting no later than December 15, 2014 and the 2015 Annual Meeting no later than December 15, 2015.”

 

2.     Section 4.3(b) of the Agreement is hereby amended and restated as follows:

 

“if to SpinCo, to:

 

Sizmek Inc.

500 W. 5th Street

Suite 900

Austin, TX 78701

Attention:              Neil Nguyen

Chief Executive Officer and President

 

With a copy to:

 

Latham & Watkins LLP

555 Eleventh Street, NW, Suite 1000

Washington, DC 20004

Attention:              William P. O’Neill”

 

3.     All other provisions of the Agreement shall remain unchanged.  Sections 4.4 (Successors and Assigns), 4.6 (Counterparts), 4.7 (Headings), 4.8 (Governing Law; Choice of Venue) and 4.14 (Interpretation and Construction) of the Agreement are hereby incorporated by reference herein and shall apply to this Amendment as if repeated in full.

 

*       *       *       *       *

 

 

IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment, or caused the same to be executed by its duly authorized representative as of the date first above written.

 

	Sizmek Inc.
	By:	/s/ Neil Nguyen
		Neil Nguyen
		Chief Executive Officer and President
	Alex Meruelo Living Trust
	By:	/s/ Alex Meruelo
		Alex Meruelo
		Trustee
	Meruelo Investment Partners LLC
	By:	/s/ Alex Meruelo
		Alex Meruelo
		Chief Executive Office
	Alex Meruelo
	By:	/s/ Alex Meruelo
		Alex Meruelo

 

 

EXHIBIT A

 

MERUELO STOCKHOLDERS

 

Alex Meruelo Living Trust

Meruelo Investment Partners LLC

Alex Meruelo