UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
TSR, Inc.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
872885207
(CUSIP Number)
Daniel Zeff
885 Sixth Avenue
New York, New York 10001
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 9, 2018
(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 §§ 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 § 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).
| CUSIP No. 872885207 | 13D | Page 2 of 8 | |
|
(1) NAMES OF REPORTING PERSONS Zeff Capital, L.P. | |||
|
(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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐ | |||
|
(6) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | (7) SOLE VOTING POWER | ||
| 0 shares | |||
| (8) SHARED VOTING POWER | |||
| 437,774 shares | |||
| (9) SOLE DISPOSITIVE POWER | |||
| 0 shares | |||
| (10) SHARED DISPOSITIVE POWER | |||
| 437,774 shares | |||
|
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 437,774 shares | |||
| (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ☐ | |||
|
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.3%* | |||
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(14) TYPE OF REPORTING PERSON (see instructions) PN | |||
________________
* Percentage calculated based on 1,962,062 shares of common stock, par value $0.01 per share, outstanding as of September 21, 2018, as reported in the definitive proxy statement filed by TSR, Inc. on September 27, 2018.
| CUSIP No. 872885207 | 13D | Page 3 of 8 | |
|
(1) NAMES OF REPORTING PERSONS Zeff Holding Company, 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) OO | |||
| (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐ | |||
|
(6) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | (7) SOLE VOTING POWER | ||
| 0 shares | |||
| (8) SHARED VOTING POWER | |||
| 437,774 shares | |||
| (9) SOLE DISPOSITIVE POWER | |||
| 0 shares | |||
| (10) SHARED DISPOSITIVE POWER | |||
| 437,774 shares | |||
|
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 437,774 shares | |||
| (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ☐ | |||
|
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.3%* | |||
|
(14) TYPE OF REPORTING PERSON (see instructions) OO | |||
________________
* Percentage calculated based on 1,962,062 shares of common stock, par value $0.01 per share, outstanding as of September 21, 2018, as reported in the definitive proxy statement filed by TSR, Inc. on September 27, 2018.
| CUSIP No. 872885207 | 13D | Page 4 of 8 | |
|
(1) NAMES OF REPORTING PERSONS Daniel Zeff | |||
|
(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 BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [_] | |||
|
(6) CITIZENSHIP OR PLACE OF ORGANIZATION United States of America | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | (7) SOLE VOTING POWER | ||
| 0 shares | |||
| (8) SHARED VOTING POWER | |||
| 437,774 shares | |||
| (9) SOLE DISPOSITIVE POWER | |||
| 0 shares | |||
| (10) SHARED DISPOSITIVE POWER | |||
| 437,774 shares | |||
|
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 437,774 shares | |||
| (12) CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ☐ | |||
|
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.3%* | |||
|
(14) TYPE OF REPORTING PERSON (see instructions) IN | |||
________________
* Percentage calculated based on 1,962,062 shares of common stock, par value $0.01 per share, outstanding as of September 21, 2018, as reported in the definitive proxy statement filed by TSR, Inc. on September 27, 2018.
Explanatory Note
This Amendment No. 3 (this “Amendment”) amends and supplements the Schedule 13D filed on July 26, 2018, as amended on August 23, 2018, and September 19, 2018 (as amended, the “Schedule 13D”), by the Reporting Persons relating to the Common Stock of the Issuer. Information reported in the Schedule 13D remains in effect except to the extent that it is amended, restated or superseded by information contained in this Amendment. Capitalized terms used but not defined in this Amendment have the respective meanings set forth in the Schedule 13D. All references in the Schedule 13D and this Amendment to the “Statement” will be deemed to refer to the Schedule 13D as amended and supplemented by this Amendment.
| Item 4. | Purpose of Transaction. |
Item 4 is amended to add the following:
On October 9, 2018, Capital, as the record holder of 304,291 shares of Common Stock, delivered a letter to the Issuer (the “Nomination Letter”) nominating a two highly qualified, independent director candidates—H. Timothy Eriksen and Bradley M. Tirpak (together, the “Nominees”)—for election to the Board as Class I directors at the Issuer’s 2018 Annual Meeting of Stockholders (the “2018 Annual Meeting”). The Nominees were carefully selected and together will bring extensive and relevant experience to the Board.
The Issuer has disclosed that the 2018 Annual Meeting will be held on November 28, 2018.
In the Nomination Letter, Capital reserved the right to further nominate, substitute or add additional persons in the event that (1) the Issuer purports to increase the number of directorships; (2) the Issuer makes or announces any changes to the Amended and Restated By-laws of the Issuer (the “By-laws”) or takes or announces any other action that purports to have, or if consummated would purport to have, the effect of disqualifying any of the Nominees or any additional nominee nominated pursuant to clauses (1) or (2) of this paragraph or any other business proposed; or (3) any of the Nominees is unable or becomes unwilling for any reason to serve as a director.
The Nomination Letter also includes proposals concerning (1) the Board taking all necessary steps (other than steps that must be taken by stockholders) to eliminate the classification of the Board and to require that all directors must be elected on an annual basis; (2) amending the By-laws to provide that the number of directors that constitute the whole Board may be increased only with the approval of at least 80% of the authorized directors; and (3) the repeal of any provision or amendment to the By-laws adopted by the Board without stockholder approval after August 27, 2018 (which is the date of the last publicly available amendment to the By-laws).
On October 10, 2018, Capital issued a press release concerning the submission of the Nomination Letter. The press release is attached as Exhibit 3 and is incorporated by reference.
Pursuant to letter agreements (the “Indemnification Agreements”) that have been entered into, Capital, in connection with any solicitation at the Issuer conducted by the Reporting Persons, will indemnify each of the Nominees against any and all claims of any nature and to reimburse any reasonable and documented out-of-pocket expenses. The foregoing description of the Indemnification Agreements is qualified in its entirety by reference to the Form of Indemnification Agreement, which is attached as Exhibit 4 and is incorporated by reference.
| Item 7. | Material to be Filed as Exhibits. |
Item 7 is amended to add the following:
|
Exhibit Number |
Description |
| 3 | Press release of Zeff Capital, L.P. (incorporated by reference to the DFAN14A filing made by Zeff Capital, L.P. on October 10, 2018). |
| 4 | Form of Indemnification Agreement. |
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.
Dated: October 10, 2018
ZEFF CAPITAL, L.P.
By: Zeff Holding Company, LLC, as
general partner
By: /s/ Daniel Zeff
Name: Daniel Zeff
Title: Manager
ZEFF HOLDING COMPANY, LLC
By: /s/ Daniel Zeff
Name: Daniel Zeff
Title: Manager
/s/ Daniel Zeff
Daniel Zeff
EXHIBIT INDEX
|
Exhibit Number |
Description |
| 1 | Joint Filing Agreement (incorporated by reference to Exhibit 1 to the Amendment No. 1 to Schedule 13D filed by Zeff Capital, L.P., Zeff Holding Company, LLC and Daniel Zeff on August 23, 2018). |
| 2 | Letter dated as of September 17, 2018 (incorporated by reference to Exhibit 2 to the Amendment No. 2 to Schedule 13D filed by Zeff Capital, L.P., Zeff Holding Company, LLC and Daniel Zeff on September 19, 2018). |
| 3 | Press release of Zeff Capital, L.P. (incorporated by reference to the DFAN14A filing made by Zeff Capital, L.P. on October 10, 2018). |
| 4 | Form of Indemnification Agreement. |
_______________________
Exhibit 4
Zeff Capital, L.P.
c/o Zeff Holding Company, LLC
885 Sixth Avenue
New York, New York 10001
October [●], 2018
[Name of Nominee]
[Address of Nominee]
Dear [●]:
As you know, Zeff Capital, L.P., on behalf of itself and its affiliates (collectively, “Capital”), is considering the possibility of commencing a solicitation (the “Solicitation”) of proxies in connection with the 2018 Annual Meeting of Stockholders of TSR, Inc., a Delaware corporation (the “Company”), or a Special Meeting of Stockholders of the Company in lieu thereof that includes the election of directors (in each case, including any adjournments, postponements or other delays thereof) to, in each case and among other things, elect nominees to serve as directors on the Company’s Board of Directors (the “Board”). This letter agreement (this “Letter Agreement”) will confirm your agreement, subject to the terms and conditions stated herein, with Capital to stand for election as a nominee of Capital to serve as a Class I director of the Company in connection with the Solicitation.
Capital reserves the right, in its sole discretion at any time, not to nominate you or to withdraw you from serving as a nominee of Capital. Any such action by Capital will not prejudice your rights under this Letter Agreement to reimbursement of certain expenses and the benefits of the indemnification provisions in this Letter Agreement through the date that Capital determines not to nominate you or to withdraw you as a nominee.
Capital will reimburse you, as promptly as practicable upon your request, for your reasonable and documented out-of-pocket expenses directly related to the performance of your duties under this Letter Agreement with respect to the Solicitation (including travel expenses, if any). This right of reimbursement is in addition to your rights of indemnification described in this Letter Agreement. You must consult with Capital prior to incurring any such expenses.
Each of Capital and you recognizes that, should you be elected to the Board, all of your activities and decisions as a director will be governed by applicable law and subject to your duties to the stockholders of the Company. As a result, there is not, and can never be, any agreement between you and Capital that governs the decisions that you will make as a director of the Company.
In consideration of your agreement as set forth above, and to the fullest extent permitted by Delaware and other applicable law, Capital agrees to indemnify you against, and hold you harmless from, any and all liabilities, losses, claims, damages, suits, actions, judgments and reasonable costs and expenses actually incurred by you (including reasonable and documented out-of-pocket attorneys’ fees and expenses) (collectively, “Losses”) in connection with the investigation, preparation or defense of any litigation (commenced or threatened), any civil, criminal, administrative or arbitration action, or any claim whatsoever, in each case whether instituted by the Company or any other party, and any and all amounts paid in settlement (with Capital’s consent) by you or on your behalf of any such claim or litigation asserted against, imposed upon or incurred or suffered by you, directly or indirectly, based upon, arising out of or relating to (a) serving as a nominee of Capital; (b) being a “participant in a solicitation” (as defined in the rules and regulations under the Securities Exchange Act of 1934, as amended) in connection with the Solicitation; and (c) being otherwise involved in the Solicitation as a nominee of Capital (in the case of each of (a), (b) and (c), following the date of this Letter Agreement). In connection with the Solicitation, Capital will have no indemnification obligation in excess of $100,000 in the aggregate for all indemnified persons. Notwithstanding anything to the contrary in this Letter Agreement, Capital will not indemnify you for any action taken or omission (i) by you or on your behalf that occurs subsequent to certification of the results relating to the Solicitation or such earlier time as you are no longer a nominee of Capital for election to the Board; or (ii) by you as a director of the Company, if you are elected. In addition, Capital will not be obligated to provide you with any indemnification with respect to any Losses that (A) arise out of any materially inaccurate written information supplied by you or on your behalf for inclusion in any filings made with any federal or state governmental agency, including any materials related to the Solicitation (including, without limitation, the proxy statement with respect to the Solicitation); or (B) are found in a final judgment by a court, not subject to further appeal, to have resulted from bad faith or willful misconduct on your part. You will repay to Capital any amounts that have been paid by Capital to you or on your behalf in respect of the foregoing in the event that you are found, subject to a final and non-appealable judgment, to not be entitled to indemnification under this Letter Agreement.
Promptly after receipt by you of notice of any such claim or the commencement of any action, proceeding or investigation in respect of which indemnification may be sought as provided above, you must promptly notify Capital’s counsel, Wilson Sonsini Goodrich & Rosati, Professional Corporation, in writing by personal delivery, fax or overnight mail of the receipt of any such notice or commencement of any such action, proceeding or investigation. Any such notice should be sent to the following address: Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, CA 94303, Attention: Douglas K. Schnell, (650) 493-6811 (fax). The failure to so notify Capital’s counsel will not limit your rights to indemnification hereunder, except to the extent that Capital is actually prejudiced thereby.
-2-
In case any such action, proceeding or investigation is brought against you and you notify Capital of the commencement thereof, Capital will have the right to participate in such action, proceeding or investigation and, to the extent that Capital so determines, at any time to assume the defense and settlement thereof, with counsel reasonably satisfactory to you. Notwithstanding the prior sentence, if the defendants in any such action include both you and Capital and if you have been advised by counsel reasonably acceptable to Capital that there may be one or more legal defenses available to you that are different from or additional to those available to Capital (a “Conflict Situation”), you will have the right to select up to one separate counsel reasonably acceptable to Capital to participate in the defense of such action on your behalf. Capital will not be responsible for more than one such counsel in each jurisdiction. In the event of a Conflict Situation, you and other persons who are (or were) nominees of Capital to serve as directors of the Company involved in such matter will share one counsel (unless you have been advised by counsel reasonably satisfactory to Capital that there may be one or more legal defenses available to you that are different from or additional to those available to any of such other persons). After notice from Capital to you of its election to assume the defense of any such action, proceeding or investigation, neither Capital nor any of its affiliates will be liable to you under this Letter Agreement for any expenses subsequently incurred by you in connection with the defense thereof, unless you have employed counsel in accordance with this paragraph.
Capital will have the right to settle any action, proceeding or investigation that is brought against you for which indemnification is available under the terms of this Letter Agreement, except that Capital will not settle, without your prior written consent (which you may not unreasonably withhold), any action, proceeding or investigation in any manner that would impose any penalty, obligation or limitation on you (other than monetary damages for which Capital agrees to be wholly responsible) or that would contain any language (other than a recitation of any amounts to be paid in settlement) that could reasonably be viewed as an acknowledgement of wrongdoing on your part or otherwise as materially detrimental to your reputation.
Capital will not be liable under this Letter Agreement to make any indemnification payment in connection with any claim made against you to the extent (and only to the extent) that you have otherwise received payment or have a right to be indemnified or reimbursed (under any insurance policy, pursuant to any indemnification or reimbursement payment or provision by any party other than Capital, or otherwise) of the amounts otherwise indemnifiable hereunder. Any payments required to be made by Capital pursuant to this Letter Agreement will be remitted to you on a monthly basis as the expenses to which such payments relate are incurred.
For purposes of this Letter Agreement, the termination of any claim, action, suit or proceeding by judgment, order, settlement (whether with or without court approval), or upon a plea of nolo contendere, or its equivalent, will not create a presumption that you did not meet any particular standard of conduct or have any particular belief, or that a court has determined that indemnification is not permitted by applicable law.
-3-
In the event of any payment under this Letter Agreement, Capital will be subrogated to the extent of such payment to all of your rights of recovery and you will, at Capital’s expense, execute all documents reasonably required and will do everything that may be reasonably necessary to secure such rights, including, without limitation, the execution of such documents reasonably necessary to enable Capital to effectively bring suit to enforce such rights.
This Letter Agreement shall be governed by and construed by and enforced in accordance with the laws of the State of Delaware. Without limiting the foregoing, each party agrees that service of process on such party at the address listed for such party in this Letter Agreement will be deemed effective service of process on such party. This Letter Agreement may only be amended or waived by a written instrument signed by Capital and you. This Letter Agreement may be executed in textually identical counterparts (including by fax and .pdf), each of which shall constitute an original, but which together shall constitute one agreement. This Letter Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof.
Capital and you irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of Delaware and of the United States of America in each case located in the State of Delaware for any litigation arising out of or relating to this Letter Agreement, and waive any objection to the laying of venue of any litigation arising out of this Letter Agreement in such courts. Capital and you irrevocably and unconditionally waive and agree not to plead or claim that any such litigation brought in any such court has been brought in an inconvenient forum.
[Signature page follows]
-4-
Please acknowledge your agreement to the foregoing by signing in the space provided below.
Very truly yours,
ZEFF CAPITAL, L.P.
By: Zeff Holding Company, LLC, as
general partner
By: __________________________
Name: Daniel Zeff
Title: Manager
Accepted and Agreed:
[●]
[Signature Page to Nominee Letter]