SC 13D 1 foxbycorp13d_11-17.htm

 

 

 

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

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. __)*

 

FOXBY CORP.

(Name of Issuer)

 

Common Stock, $0.01 par value

(Title of Class of Securities)

 

351645106

(CUSIP Number)

 

Louise Guarneri

Credit Suisse

Eleven Madison Avenue, New York, NY 10010

(212) 325-2000

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

November 8, 2005

(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 §240.13d-7(b) 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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CUSIP No. 351645106

13D

 

 

1

NAMES OF REPORTING PERSONS

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)

Credit Suisse, on behalf of the Credit Suisse First Boston business unit

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) o

(b) x

3

SEC USE ONLY

4

SOURCE OF FUNDS*

WC

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) x

6

CITIZENSHIP OR PLACE OF ORGANIZATION

Switzerland

NUMBER OF SHARES

7

SOLE VOTING POWER

See Item 5.

BENEFICIALLY OWNED BY

8

SHARED VOTING POWER

See Item 5.

EACH REPORTING PERSON

9

SOLE DISPOSITIVE POWER

See Item 5.

WITH

10

SHARED DISPOSITIVE POWER


See Item 5.

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

See Item 5.

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* o

 

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

See Item 5.

14

TYPE OF REPORTING PERSON*

BK, HC

 

*SEE INSTRUCTIONS BEFORE FILLING OUT!

 

 

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Item 1.

Security and Issuer.

This statement on Schedule 13D (this “Statement”) relates to the Common Stock (the “Shares”) of Foxby Corp., a Maryland corporation (the “Company”). The principal executive offices of the Company are located at 11 Hanover Square, 12th Floor, New York, New York 10005.

Item 2.

Identity and Background.

In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998), this Statement is being filed by Credit Suisse (the “Bank”), a Swiss bank, on behalf of itself and its subsidiaries, to the extent that they constitute the Credit Suisse First Boston business unit (the “CSFB business unit”) excluding Asset Management (as defined below) (the “Reporting Person”). The CSFB business unit is also comprised of an asset management business principally conducted under the brand name Credit Suisse Asset Management (“Asset Management”). The Reporting Person provides financial advisory and capital raising services, sales and trading for users and suppliers of capital around the world and invests in and manages private equity and venture capital funds. Asset Management provides asset management and investment advisory services to institutional, mutual fund and private investors worldwide. The address of the Bank’s principal business and office is Uetlibergstrasse 231, P.O. Box 900, CH 8070 Zurich, Switzerland. The address of the Reporting Person’s principal business and office in the United States is Eleven Madison Avenue, New York, New York 10010.

The Bank owns directly a majority of the voting stock, and all of the non-voting stock, of Credit Suisse First Boston, Inc. (“CSFBI”), a Delaware corporation. The address of CSFBI’s principal business and office is Eleven Madison Avenue, New York, New York 10010. The Bank’s voting stock is entirely owned by Credit Suisse Group (“CSG”), a corporation formed under the laws of Switzerland. CSG also owns the remainder of the voting stock of CSFBI.

CSFBI owns all of the voting stock of Credit Suisse First Boston (USA), Inc. (“CSFB-USA”), a Delaware corporation and holding company. CSFB-USA is the sole member of Credit Suisse First Boston LLC (“CSFB LLC”), a Delaware limited liability company and a registered broker-dealer that effects trades in many companies, including the Company. CSFB LLC is the successor company of Credit Suisse First Boston Corporation ("CSFBC"), and all references hereinafter to CSFBC shall be deemed to refer to CSFB LLC. The address of the principal business and office of each of CSFB-USA and CSFB LLC is Eleven Madison Avenue, New York, New York 10010.

CSG is a global financial services company, active in all major financial centers and providing a comprehensive range of banking and insurance products. CSG has three distinct business units. In addition to the CSFB business unit, CSG and its consolidated subsidiaries are comprised of the Credit Suisse business unit (the “Credit Suisse business unit”) and the Winterthur business unit (the “Winterthur business unit”). The Credit Suisse business unit offers global private banking and corporate and retail banking services in Switzerland. The Winterthur business unit provides life and non-life insurance and pension products to private and corporate clients worldwide. CSG’s business address is Paradeplatz 8, P.O. Box 1, CH 8070 Zurich, Switzerland.

The Bank is comprised of what were formerly known as Credit Suisse First Boston and Credit Suisse, each a Swiss bank, which were merged on May 13, 2005. The operations of the Bank consist principally of the Credit Suisse and CSFB business units.

CSG, for purposes of the federal securities laws, may be deemed ultimately to control the Bank and the Reporting Person. CSG, its executive officers and directors, and its direct and indirect subsidiaries (including Asset Management, the Credit Suisse business unit and the Winterthur business unit) may beneficially own Shares to which this Statement relates and such Shares are not reported in this

 

 

 

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Statement. CSG disclaims beneficial ownership of Shares beneficially owned by its direct and indirect subsidiaries, including the Reporting Person. Each of Asset Management, the Credit Suisse business unit and the Winterthur business unit disclaims beneficial ownership of Shares beneficially owned by the Reporting Person. The Reporting Person disclaims beneficial ownership of Shares beneficially owned by CSG, Asset Management, the Credit Suisse business unit and the Winterthur business unit.

The Reporting Person, CSFBI, CSFB-USA and CSFB LLC may be deemed for purposes of this Statement to beneficially own Shares held in client accounts with respect to which CSFB LLC or its employees have voting or investment discretion, or both (“Managed Accounts”). The Reporting Person, CSFBI, CSFB-USA and CSFB LLC disclaim beneficial ownership of Shares held in Managed Accounts.

The name, business address, citizenship, present principal occupation or employment, and the name and business address of any corporation or organization in which each such employment is conducted, of each executive officer or director of the Reporting Person, CSFBI, CSFB-USA and CSFB LLC are set forth on Schedules A-1 through A-4 attached hereto, each of which is incorporated by reference herein.

Except as otherwise provided herein, during the past five years none of the Reporting Person, CSFBI, CSFB-USA nor CSFB LLC nor, to the best knowledge of the Reporting Person, any of the other persons listed on Schedules A-1 through A-4 attached hereto, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to United States federal or state securities laws or finding any violation with respect to such laws.

On January 22, 2002, CSFBC, without admitting or denying any alleged violation, entered into coordinated settlements with NASD Regulation, Inc. (“NASDR”) and the Securities and Exchange Commission (“SEC”) resolving all outstanding investigations of CSFBC into the allocation of shares in initial public offerings (“IPOs”). CSFB-USA was then the sole stockholder of CSFBC.

CSFBC consented to these settlements without admitting or denying any of the allegations made in the SEC’s Complaint or the Letter of Acceptance, Waiver and Consent (“AWC”) filed with the NASDR. The SEC and NASDR alleged that, between April 1999 and June 2000, certain CSFBC employees allocated many shares in IPOs to over 100 customers with whom they had improper profit-sharing arrangements. The NASDR and SEC alleged that certain employees allocated “hot” IPO shares to certain customers who paid the Firm a portion of the profits (between 33 and 65 percent) that they made when they sold their IPO stock, by paying inflated brokerage commissions on transactions unrelated to the IPO shares.

Under the terms of the coordinated settlement:

 

 

CSFBC paid a total of $100 million. This amount included $30 million in fines and civil penalties divided evenly between the SEC and NASDR, and a total of $70 million in disgorgement, $35 million of which was paid to the U.S. Treasury and $35 million of which was paid to the NASDR, representing the monies obtained as a result of the conduct described by the SEC and NASDR. The SEC determined in this case that it was appropriate and in the public interest to pay funds to the U.S. Treasury rather than to any third parties.

 

 

 

 

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CSFBC has adopted and implemented revised policies and procedures for allocating IPOs in its broker-dealer operations. The SEC and NASD have reviewed these policies and procedures. These included the establishment of an IPO Allocation Review Committee, a process for the pre-qualification of accounts before they are eligible to receive IPO allocations and enhanced supervisory procedures, which includes the review of commissions paid by certain accounts receiving allocations around the time of the IPO. CSFBC also agreed to retain an independent consultant to review the implementation of these policies and procedures one year from the date of the settlement.

 

In the NASDR settlement, CSFBC, without admitting or denying any findings, consented to a censure and findings that it violated NASD Rules 2110, 2330, 2710, 3010 and 3110. These Rules (a) require broker-dealers to adhere to just and equitable principles of trade, (b) prohibit broker-dealers from sharing in the profits of client accounts except as specifically provided, (c) require a managing underwriter to file certain information that may have a bearing on the NASDR’s review of underwriting arrangements, (d) require members to establish, maintain and enforce a reasonable supervisory system, and (e) require broker-dealers to maintain certain books and records.

The NASDR AWC also found violations of Section 17(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and SEC Rule 17a-3, thereunder, which are incorporated by NASD Rule 3110 and similarly impose certain record keeping requirements on CSFBC as a broker-dealer. In the SEC settlement, CSFBC, without admitting or denying the allegations of the Complaint, consented to entry by the District Court for the District of Columbia of a final judgment that: (1) permanently enjoined CSFBC, directly or indirectly, from violations of NASD Conduct Rules 2110 and 2330 and Section 17(a)(1) of the Exchange Act and SEC Rule 17a-3; and (2) ordered CSFBC to comply with certain undertakings.

Neither the SEC nor NASDR made any allegations or findings of fraudulent conduct by CSFBC. Further, neither the SEC nor NASDR alleged that any IPO prospectus was rendered false or misleading by CSFBC’s conduct or that this conduct affected either the offering price of an IPO or the price at which any IPO stock traded in the aftermarket.

On August 13, 2002, Mr. John A. Ehinger, an executive officer of CSFB-USA and board member of CSFB LLC, without admitting or denying any alleged violation, entered into a settlement with the NASD resolving outstanding investigations of Mr. Ehinger into his alleged failure to supervise with a view toward preventing CSFBC’s violations of NASD Rules 2110, 2330, 2710 and 3110, and Section 17(a) of the Exchange Act and SEC Rule 17a-3 thereunder. Under the terms of the settlement, Mr. Ehinger agreed to (1) the payment of a fine of $200,000, (2) a suspension from associating with a member firm in any and all capacities for 30 calendar days, and (3) a suspension from acting in any supervisory capacity for 30 additional calendar days, such supervisory suspension beginning after the suspension in all capacities had been served.

On October 31, 2003, the U.S. District Court for the Southern District of New York (the “SDNY”) approved the global settlement among a number of Wall Street firms, including CSFB LLC, and a coalition of state and federal regulators and self-regulatory organizations (the “Global Settlement”). CSFB LLC, without admitting or denying any alleged violation, consented to the Global Settlement and thereby resolved a Securities and Exchange Commission’s (“SEC”) complaint filed on April 28, 2003, in the SDNY. In this complaint, the SEC alleged that, from July 1998 to December 2001, CSFB LLC engaged in acts and practices that created or maintained inappropriate influence over research analysts, thereby imposing conflicts of interest on research analysts that CSFB LLC failed to manage in an adequate or appropriate manner. The SEC’s complaint also alleged that CSFB LLC engaged in inappropriate “spinning” of “hot” IPO allocations in violation of New York Stock Exchange (“NYSE”)

 

 

 

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and NASD Inc. (“NASD”) rules requiring adherence to high business standards and just and equitable principles of trade, and that CSFB LLC’s books and records relating to certain transactions violated the broker-dealer record-keeping provisions of Section 17(a) of the Securities Exchange Act of 1934, NYSE Rules 401, 440 and 476(a)(6) and NASD Rules 2110 and 3110.

Under the terms of the Global Settlement:

    CSFB LLC agreed to pay the following amounts: $75 million as a penalty, $75 million as disgorgement of commissions and other monies for restitution for investors, and $50 million to be used to fund independent research. This $50 million to fund independent research is payable over a five year period.

  

 

CSFB LLC is required, among other things, to: (i) separate its research and investment banking departments and make independent research available to investors, (ii) prohibit its analysts from receiving compensation for investment banking activities and prohibit analysts’ involvement in investment banking “pitches” and “roadshows,” (iii) contract, for a five-year period, with no fewer than three independent research firms that will make available independent research to CSFB’s customers, and (iv) make its analysts’ historical price targets (among other things) publicly available.

 

 

CSFB LLC is permanently restrained and enjoined from violating Sections 15(c) and 17(a) of the Exchange Act, Exchange Act Rules 15c1-2 and 17a-3, NASD Rules 2110, 2210, 3010, and 3110, and NYSE Rules 342, 401, 440, 472, and 476.

 

Other Wall Street firms were subject to similar requirements.

Item 3.

Source and Amounts of Funds.

The aggregate consideration (exclusive of commissions) paid by CSFB LLC for the acquisitions of the Shares (described in Item 5(a)) was US $413,183.

The funds used by CSFB LLC to make these acquisitions, and the acquisitions described in Schedule B attached hereto, came from working capital.

Item 4.

Purpose of Transaction.

CSFB LLC acquired 196,900 Shares for investment purposes as part of its proprietary trading strategies.

The Reporting Person intends to optimize the value of its investments and, therefore, will review from time to time the Company’s business affairs and financial position. Based on such evaluation and review, as well as general economic and industry conditions existing at the time, the Reporting Person may consider from time to time various alternative courses of action. Such actions may include the acquisition or disposition of Shares or other securities through open market transactions, privately negotiated transactions, a tender offer, an exchange offer or otherwise.

Except as set forth herein, the Reporting Person has no present plans or proposals that relate to or that would result in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule 13D.

 

 

 

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Item 5.

Interest in Securities of the Issuer.

(a)           As of November 17, 2005, the Reporting Person may be deemed to beneficially own an aggregate of 196,900 Shares, consisting of 196,900 Shares held directly by CSFB LLC.

Accordingly, the Reporting Person may be deemed to beneficially own 7.6% of the outstanding Shares of the Company.

To the best knowledge of the Reporting Person, and except as described herein, neither the Reporting Person, CSFBI, CSFB-USA nor CSFB LLC nor, to the best knowledge of the Reporting Person, any other persons listed on Schedules A-1 through A-4 attached hereto, beneficially owns any additional Shares.

(b)           With respect to any rights or powers to vote, or to direct the vote of, or to dispose of, or direct the disposition of, the Shares referenced in paragraph 5(a), there is shared power to vote, or to direct the vote of, and to dispose of, or to direct the disposition of, such Shares among the Reporting Person, CSFBI, CSFB-USA and CSFB LLC.

(c)           Schedule B, which is incorporated herein by reference, sets forth the transactions in the Shares effected by the Reporting Person during the period beginning 60 days prior to November 17, 2005.

(d)           No other person is known by the Reporting Person to have the right to receive or power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares beneficially owned by the Reporting Person, CSFBI, CSFB-USA or CSFB LLC.

 

(e)

Not applicable.

Item 6.

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

Not applicable.

Item 7.

Material to be filed as Exhibits.

Not applicable.

 

 

 

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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.

Date: November 18, 2005

CREDIT SUISSE, on behalf of the CREDIT SUISSE FIRST BOSTON BUSINESS UNIT.

 

By:

/s/ Louise Guarneri                              

Name: Louise Guarneri

Title: Director

 

 

 

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SCHEDULE A-1

EXECUTIVE OFFICERS OF CREDIT SUISSE

The following sets forth the name, business address, present principal occupation and citizenship of each executive officer of Credit Suisse. The business address of Credit Suisse is Eleven Madison Avenue, New York, New York 10010.

Name

Business Address

Title

Citizenship

Brady W. Dougan

Eleven Madison Avenue
New York, NY
10010

USA

Chief Executive Officer

United States

Paul Calello

Two Exchange Square
8 Connaught Place Central Hong Kong
People’s Republic of China

Chairman and Chief Executive Officer of the Asia-Pacific Region

United States

Tony Ehinger

Eleven Madison Avenue
New York, NY
10010

USA

Co-Head of the Equity Division

United States

Brian D. Finn

Eleven Madison Avenue
New York, NY
10010

USA

President

United States

Marc D. Granetz

Eleven Madison Avenue
New York, NY
10010

USA

Co-Head of the Global and Investment Banking Division, Head of the Global Mergers and Acquisitions Group

United States

John S. Harrison

Eleven Madison Avenue
New York, NY
10010

USA

Managing Director

United States

James P. Healy

Eleven Madison Avenue
New York, NY
10010

USA

Head of the Fixed Income Division

United States

 

 

 

 

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James E. Kreitman

One Cabot Square, London E14 4QJ,
Great Britain

Co-Head of the Equity Division

United States

Neil Moskowitz

Eleven Madison
Avenue
New York, NY
10010

USA

Chief Financial Officer

United States

Adebayo O. Ogunlesi

Eleven Madison Avenue
New York, NY
10010

USA

Executive Vice Chairman and Chief
Client Officer

Nigeria

Michael Philipp

One Cabot Square, London E14 4QJ,
Great Britain

Chairman and Chief Executive Officer
of CSFB Europe, Middle East and Africa

United States

Richard E. Thornburgh

Eleven Madison
Avenue
New York, NY
10010

USA

Executive Vice Chairman

United States

Eric M. Varvel

Eleven Madison
Avenue
New York, NY
10010

USA

Co-Head of the Global Corporate and Investment Banking Division

United States

 

 

 

 

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SCHEDULE A-2

EXECUTIVE OFFICERS OF CREDIT SUISSE FIRST BOSTON, INC.

The following sets forth the name, business address, present principal occupation and citizenship of each executive officer of Credit Suisse First Boston, Inc. The business address of Credit Suisse First Boston, Inc. is Eleven Madison Avenue, New York, New York 10010, USA.

Name

Business Address

Title

Citizenship

Brady W. Dougan

Eleven Madison Avenue
New York, NY 10010
USA

Board Member, President and Chief Executive Officer

United States

Neil Moskowitz

Eleven Madison Avenue
New York, NY 10010
USA

Board Member and Managing Director

United States

Neil D. Radey

One Madison Avenue
New York, NY 10010
USA

Managing Director and General Counsel

United States

David C. Fisher

Eleven Madison Avenue
New York, NY 10010
USA

Chief Financial Officer

United States

Peter J. Feeney

Eleven Madison Avenue
New York, NY 10010
USA

Treasurer

United States

 

 

 

 

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SCHEDULE A-3

EXECUTIVE OFFICERS OF CREDIT SUISSE FIRST BOSTON (USA), INC.

The following sets forth the name, business address, present principal occupation and citizenship of each executive officer of Credit Suisse First Boston (USA), Inc. The business address of Credit Suisse First Boston (USA), Inc. is Eleven Madison Avenue, New York, New York 10010, USA.

Name

Business Address

Title

Citizenship

Brady W. Dougan

Eleven Madison Avenue
New York, NY
10010

USA

Board Member, President and Chief Executive Officer

United States

Neil Moskowitz

Eleven Madison Avenue
New York, NY
10010
USA

Board Member

United States

Neil D. Radey

One Madison Avenue
New York, NY
10010
USA

General Counsel

United States

Lewis H. Wirshba

Eleven Madison Avenue
New York, NY
10010

USA

Board Member

United States

David C. Fisher

Eleven Madison Avenue
New York, NY
10010

USA

Chief Financial and Accounting Officer

United States

Peter J. Feeney

Eleven Madison Avenue
New York, NY
10010

USA

Treasurer

United States

 

 

 

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SCHEDULE A-4

EXECUTIVE OFFICERS OF CREDIT SUISSE FIRST BOSTON LLC

The following sets forth the name, business address, present principal occupation and citizenship of each executive officer of Credit Suisse First Boston LLC. The business address of Credit Suisse First Boston LLC is Eleven Madison Avenue, New York, New York 10010.

Name

Business Address

Title

Citizenship

Brady W. Dougan

Eleven Madison Avenue
New York, NY
10010
USA

Board Member, President and Chief Executive Officer

United States

John A. Ehinger

Eleven Madison Avenue
New York, NY
10010
USA

Board Member

United States

James P. Healy

Eleven Madison Avenue
New York, NY
10010
USA

Board Member

United States

Neil D. Radey

One Madison Avenue
New York, NY
10010
USA

General Counsel

United States

Paul J. O’Keefe

Eleven Madison Avenue
New York, NY
10010
USA

Chief Financial Officer

United States

Gary Gluck

Eleven Madison Avenue
New York, NY
10010
USA

Treasurer

United States

 

 

 

 

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SCHEDULE B

The following table lists all trades effected by the indicated entity in the Shares for the past 60 days up to and including November 17, 2005. All trades were effected in ordinary trading on the indicated exchange.

 

Date

Entity

Buy/Sell

Quantity

Price

CCY

Exchange

03 Oct 2005

CSFB LLC

Buy

100 

2.000

USD

American Stock Exchange

01 Nov 2005

CSFB LLC

Sell

9,000 

1.960

USD

American Stock Exchange

01 Nov 2005

CSFB LLC

Sell

100 

1.980

USD

American Stock Exchange

02 Nov 2005

CSFB LLC

Buy

3,300 

1.950

USD

American Stock Exchange

08 Nov 2005

CSFB LLC

Buy

100 

2.000

USD

American Stock Exchange

08 Nov 2005

CSFB LLC

Buy

62,500 

2.010

USD

American Stock Exchange

17 Nov 2005

CSFB LLC

Buy

900 

1.980

USD

American Stock Exchange

17 Nov 2005

CSFB LLC

Buy

100 

2.010

USD

American Stock Exchange

17 Nov 2005

CSFB LLC

Buy

3,500 

2.020

USD

American Stock Exchange

17 Nov 2005

CSFB LLC

Buy

3,000 

2.030

USD

American Stock Exchange

17 Nov 2005

CSFB LLC

Buy

2,600 

2.040

USD

American Stock Exchange

 

 

 

 

 

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