(Amendment No. 6)1
STEVE WOLOSKY, ESQ.
ANDREW FREEDMAN, ESQ.
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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1 |
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NAME OF REPORTING PERSON |
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ITC Rumba, LLC |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ☒ |
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(b) ☐ |
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3 |
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SEC USE ONLY |
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4 |
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SOURCE OF FUNDS |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
☐ |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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DELAWARE |
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NUMBER OF |
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7 |
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SOLE VOTING POWER |
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SHARES |
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BENEFICIALLY |
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- 0 - |
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OWNED BY |
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8 |
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SHARED VOTING POWER |
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EACH |
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REPORTING |
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- 0 - |
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PERSON WITH |
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9 |
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SOLE DISPOSITIVE POWER |
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- 0 - |
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10 |
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SHARED DISPOSITIVE POWER |
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- 0 - |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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- 0 - |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
☐ |
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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0% |
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TYPE OF REPORTING PERSON |
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OO |
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1 |
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NAME OF REPORTING PERSON |
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Elliot Cooperstone |
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2 |
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ☒ |
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(b) ☐ |
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3 |
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SEC USE ONLY |
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SOURCE OF FUNDS |
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OO |
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5 |
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) |
☐ |
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6 |
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CITIZENSHIP OR PLACE OF ORGANIZATION |
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USA |
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NUMBER OF |
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7 |
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SOLE VOTING POWER |
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SHARES |
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BENEFICIALLY |
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14,825 |
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OWNED BY |
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8 |
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SHARED VOTING POWER |
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EACH |
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REPORTING |
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- 0 - |
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PERSON WITH |
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9 |
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SOLE DISPOSITIVE POWER |
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14,825 |
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10 |
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SHARED DISPOSITIVE POWER |
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- 0 - |
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11 |
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
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14,825 |
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12 |
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |
☐ |
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13 |
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
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Less than 1% |
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14 |
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TYPE OF REPORTING PERSON |
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IN |
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The following constitutes
Amendment No. 6 to the Schedule 13D filed by the undersigned (“Amendment No. 6”). This Amendment No. 6 amends the Schedule
13D as specifically set forth herein.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended
to add the following:
On May 18, 2023, the Former
Directors Group delivered a letter to the Issuer (the “Nomination and Proposal Notice”) nominating two highly-qualified director
candidates, Joseph Berardo, Jr. and Guy P. Sansone (together, the “Nominees”), for election to the Issuer’s Board of
Directors (the “Board”) at the Issuer’s 2023 annual meeting of stockholders (the “Annual Meeting”). The
Former Directors Group believes that the Nominees have the qualifications, experience and skill sets necessary to serve as directors of
the Issuer, as evidenced by their biographies below.
The Nomination and Proposal
Notice also included notice of the Former Directors Group’s intention to submit a stockholder proposal at the Annual Meeting seeking
to remove Dr. Marlow Hernandez from the Board for cause (the “Removal Proposal”). Since the Board is classified, under Delaware
law and the Issuer’s Certificate of Incorporation, stockholders can only remove a director for cause and only by the affirmative
vote of the holders of at least 66 2/3% of the outstanding shares of Common Stock entitled to vote at an election of directors. The Former
Directors Group believes cause exists to remove Dr. Hernandez from the Board because it believes, among other things, that Dr. Hernandez
is a compromised Chief Executive Officer who has abused his role to secure millions of dollars in loans from individuals who sold companies
to the Issuer and has continually failed to disclose related-party transactions to the Issuer’s stockholders in breach of his fiduciary
duties.
Stockholders’ ability
to vote on the election of the Former Directors Group’s Nominees and the Removal Proposal at the Annual Meeting is dependent on
the success of the Former Directors Group’s previously disclosed litigation in the Delaware Court of Chancery (the “Court”).
This litigation, among other things, seeks to compel the Issuer to re-open the window for nominating director candidates and making proposals
under the Issuer’s By-laws at the Annual Meeting. A ruling by the Court is expected in early June. As also previously disclosed,
while the litigation is pending, the Former Directors Group has filed a preliminary proxy statement and GREEN proxy card with the Securities
and Exchange Commission to be used to solicit stockholders to WITHHOLD support for the incumbent directors standing for re-election at
the Annual Meeting and to enable stockholders to have their voices heard regardless of the outcome of the Former Directors Group’s
litigation.
Also on May 18, 2023, the
Former Directors Group issued a press release (the “Press Release”) announcing that it had nominated the Nominees for election
to the Board and provided notice of its intention to present the Removal Proposal at the Annual Meeting. In the Press Release, the Former
Directors Group reiterated their significant concerns and detailed their case for urgent change at the Issuer. A copy of the Press Release
is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
The Nominees are:
Joseph Berardo, Jr.
currently serves as the Chief Executive Officer and Chairman of the board of directors of Carisk Partners, Inc., a specialty risk
transfer and care-coordination company that services Medicare Advantage, Managed Medicaid and Commercial group health, behavioral health,
worker’s compensation and auto insurer markets. Previously, Mr. Berardo served as Chief Executive Officer of Brighton Health Plan
Services, LLC, a healthcare enablement company. Prior to this, he served for 18 years in various roles of increasing seniority at MagnaCare
Holdings, Inc., a provider of health plan services, including as Chief Executive Officer. He was previously Senior Vice President of Empire
Blue Cross Blue Shield and President for Empire HealthChoice HMO, Inc., a health maintenance organization. Earlier in his career, Mr.
Berardo held leadership positions at the Mount Sinai Health System. Inc., MultiPlan Corporation (NYSE: MLPN), and U.S. Healthcare, Inc.,
one of America’s largest HMOs. Mr. Berardo currently serves as a member of the board of directors of several private companies,
including BeneLynk, a national provider of social determinant of health solutions for managed care companies, Radius Care, Inc., a healthcare
software company, and Avertix Medical, Inc. (f/k/a/ Angel Medical Systems, Inc.) a medical device company. Mr. Berardo previously served
as a member of the board of directors of MagnaCare from 2007 to January 2022 and Privia Health, LLC (now a subsidiary of Privia Health
Group (NASDAQ: PRVA)). He also serves as an advisory board member for Grant Avenue Capital, LLC, a private equity firm focused on the
healthcare sector. Mr. Berardo holds a B.A. in Economics from Rutgers University.
Guy P. Sansone is
the Co-Founder and serves as Chief Executive Officer of H2 Health, a leading regional provider of physical rehabilitation services and
clinician staffing solutions. Prior to that, he served as Managing Director of Alvarez & Marsal and spent many years chairing the
healthcare practice, Chief Executive Officer of the Visiting Nurse Service of New York, Senior Advisor to the Board of Directors of Health
Management Associates, Inc. (formerly NYSE: HMA), Interim President of LifeCell Corporation (formerly NASDAQ: LIFC), Chief Restructuring
Officer of Erickson Retirement Communities LLC (n/k/a Erickson Living), Chief Change and Turnaround Officer of the Saint Barnabas Health
Care System, Senior Consultant at Sunrise Senior Living, Chief Executive Officer and Chief Restructuring Officer of Saint Vincent Catholic
Medical Centers in New York, Acting Chief Financial Officer of HealthSouth Corporation (n/k/a Encompass Health Corporation (NYSE: EHC)),
and interim President and co-Chief Executive Officer of Rotech Healthcare, Inc. (formerly NASDAQ: ROHI) (“Rotech”). Mr. Sansone
currently serves as the Chairman of the boards of directors of each of H2 Health and Brookdale Senior Living, Inc. (NYSE: BKD), and on
the board of directors of RHA Health Services, LLC, one of the largest providers of care and home services to individuals with developmental
disabilities, Pediatrix Medical Group, Inc. (f/k/a Mednax, Inc.) (NYSE: MD), Longevity Health Plans, Qhr Health, Carisk Partners, Inc.,
and on the board of advisors of Pager, Inc., a mobile healthcare technology company. Mr. Sansone previously served on the board of directors
of each of Magellan Health, Inc. (formerly NASDAQ: MGLN), HealthPRO Heritage, LLC, Civitas Solutions, Inc. (formerly NYSE:CIVI), and Rotech.
Mr. Sansone earned a B.S. from the State University of New York at Albany.
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended
to add the following:
On May 18, 2023, the Former
Directors Group and the Nominees entered into a Joint Filing and Solicitation Agreement (the “Joint Filing and Solicitation Agreement”)
in which, among other things, they agreed (a) to the separate or joint filing on behalf of each of them of statements on Schedule 13D,
and any amendments thereto, with respect to the securities of the Issuer, (b) to form a group (the “Group”) to solicit proxies
or written consents for the election of the Nominees, or any other person(s) nominated by the Group, to the Board and/or the approval
of stockholder proposal(s) at the Annual Meeting, (c) to work together to enhance shareholder value, and (d) that each of ITC Rumba and
Mr. Cooperstone, on the one hand, and Mr. Sternlicht and Jaws Equity Owner (as defined therein), on the other hand, shall severally
and not jointly pay all pre-approved expenses incurred in connection with the Group’s activities, on a pro-rata basis, with ITC
Rumba and Mr. Cooperstone paying 90% of such expenses and Mr. Sternlicht and Jaws Equity Owner paying 10% of such expenses, subject
to certain exceptions. The Joint Filing and Solicitation Agreement superseded and replaced the previously disclosed Group Agreement entered
into by certain members of the Group on April 2, 2023 and, accordingly, the Group Agreement is no longer in effect. The Joint Filing and
Solicitation Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
ITC Rumba entered into letter
agreements with each of the Nominees (the “Indemnification Agreements”), pursuant to which ITC Rumba and certain of its affiliates
have agreed to indemnify such Nominees against claims arising from the solicitation of proxies from the Issuer’s stockholders in
connection with the Annual Meeting and any related transactions. For the avoidance of doubt, such indemnification does not apply to any
claims made against such Nominees in their capacities as directors of the Issuer, if so elected. A form of the Indemnification Agreement
is attached hereto as Exhibit 99.3 and is incorporated herein by reference.
| Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended
to add the following exhibits:
SIGNATURES
After reasonable inquiry
and to the best of his or its knowledge and belief, the undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: May 18, 2023
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ITC Rumba, LLC |
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By: |
/s/ Elliot Cooperstone |
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Name: |
Elliot Cooperstone |
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Title: |
Managing Partner |
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/s/ Elliot Cooperstone |
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Elliot Cooperstone |