- Amended Statement of Beneficial Ownership (SC 13D/A)
December 22 2008 - 3:02PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
(Amendment No. 12)
*
Arbinet-thexchange, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
03875 P100
(CUSIP Number)
Karen Singer
212 Vaccaro Drive
Cresskill, NJ 07626
(201) 750-0415
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and Communications)
December 19, 2008
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report this
acquisition that is the subject of this Schedule 13D, and is filing this Schedule because of Rule
13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box:
o
*The remainder of this cover page shall be filled out for a reporting persons 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.
SCHEDULE 13D
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1
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NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
KAREN SINGER
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS)
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(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 (SEE INSTRUCTIONS)
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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 ITEMS 2(d) OR 2(e)
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o
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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UNITED STATES
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7
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SOLE VOTING POWER
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NUMBER OF
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4,241,608
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SHARES
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8
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SHARED VOTING POWER
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BENEFICIALLY
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OWNED BY
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-0-
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EACH
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9
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SOLE DISPOSITIVE POWER
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REPORTING
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PERSON
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4,241,608
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WITH
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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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4,241,608
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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o
N/A
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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18.8%
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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IN
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This constitutes Amendment No. 12 (the Amendment No. 12) to the statement on Schedule 13D, filed
on behalf of Karen Singer (Ms. Singer and/or the Reporting Person), dated March 16, 2007, as
amended (the Statement), relating to the common stock (the Common Stock) of Arbinet-thexchange,
Inc., a Delaware corporation (the Issuer or Arbinet). Unless specifically amended or modified
hereby, the disclosure set forth in the Statement shall remain unchanged.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Statement is hereby amended and restated as follows:
Ms. Singer is the trustee of the Singer Childrens Family Trust (the Trust), which was created
pursuant to Trust Agreement, dated May 29, 1998 (the Trust Agreement). All of the shares of
Common Stock of the Issuer reported above were purchased by funds generated and held by Trust. The
aggregate amount of funds used for the purchase of these shares was approximately $19,874,404.00.
Item 4. Purpose of the Transaction.
Items 4 of the Statement is hereby amended and restated in its entirety as follows:
The shares of Common Stock of the Issuer covered by this Schedule 13D were acquired for
investment purposes. Ms. Singer has previously disclosed the following:
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On March 19, 2007, Ms. Singer submitted notice (the Notice) to the Issuer, in
accordance with the requirements of Issuers Second Amended and Restated By-laws
and/or the procedures outlined in the Issuers most recent proxy statement, dated
May 3, 2006, that would enable Ms. Singer to nominate Mr. Shawn ODonnell, Ms. Jill
Thoerle and Mr. Stanley Kreitman to be elected to the Board of Directors of the
Issuer (the Board).
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On July 13, 2007, Ms. Singer entered in to a Settlement and Standstill Agreement,
dated as of July 13, 2007 by and among Arbinet, the Singer Childrens Family Trust,
Ms. Singer, and Gary Singer (the Standstill Agreement). Pursuant to the terms of
the Standstill Agreement, on July 13, 2007, Arbinet increased the size of the Board
from six to nine members and appointed Mr. ODonnell and Ms. Thoerle to the Board as
Class III directors, with terms expiring at the 2007 Annual Meeting of Stockholders,
and Mr. Kreitman to the Board as a Class II director, with a term expiring at the
2009 Annual Meeting of Stockholders. Arbinet also agreed to nominate Michael J.
Ruane, a current Class III director, Mr. ODonnell, and Ms. Thoerle (collectively,
the 2007 Nominees) for election to the Board as Class III directors at the 2007
Annual Meeting of Stockholders and to use its reasonable best efforts to elect each
of the 2007 Nominees. Ms. Singer agreed that she would withdraw and terminate the
Notice in connection upon the appointment of Mr. ODonnell, Ms. Thoerle, and Mr.
Kreitman to the Board. Ms. Singer also agreed to vote all of the Trusts shares of
the Issuer in favor of the 2007 Nominees at the 2007 Annual Meeting of Stockholders.
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Until July 13, 2008 (the Standstill Period), Ms. Singer has agreed to vote in
favor of any matter brought before a stockholder meeting held during the Standstill
Period upon the
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recommendation of the Board by a two-thirds vote of the Board
members voting unless her fiduciary duties require otherwise.
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On May 30, 2008, Ms. Singer entered into a Stock Ownership Agreement, dated as of
May 30, 2008 (the Stock Agreement), by and among the Issuer, the Singer Childrens
Management Trust, Gary Singer and Ms. Singer which provides, on the terms and
subject to the conditions set forth in the Stock Agreement, for a waiver of the
applicability of the provisions of Section 203 (Section 203) of the Delaware
General Corporation Law.
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Pursuant to the terms of the Stock Agreement, the Board of Directors of the
Issuer approved, for purposes of Section 203, the purchase by the Trust of up to
eighteen percent of the outstanding voting stock of the Issuer through open market
purchases, privately negotiation transactions or otherwise.
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The Stock Agreement also provides that if, at any time during the three year
period from the date of the Stock Agreement, Ms. Singer, Gary Singer or the Singer
Childrens Management Trust (collectively, the Singer Entities) becomes the owner
of eighteen percent or more of the outstanding voting stock of the Issuer, the
Singer Entities will not be able to engage in any business combination (as defined
in Section 203) with the Issuer for a period of three years following the date on
which the Singer Entities became the owner of eighteen percent or more of the
outstanding voting stock of the Issuer. The above summary of the Stock Agreement
does not purport to be complete and is qualified in its entirety by reference to the
Stock Agreement.
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On September 3, 2008, the Singer Childrens Management Trust requested, pursuant
to a certain letter to the Chairman of the Board of the Company, that the Board of
Directors of the Issuer approve the elimination of the stock ownership restrictions
contained in the Stock Agreement. This request was made so that, notwithstanding the
fact that the Singer Entities may, together with their Affiliates and Associates,
acquire ownership of 18% or more of the Issuers outstanding voting stock, the
Singer Entities and such Affiliates and Associates will be able, for purposes of
Section 203(a)(1) of the Delaware General Corporate Law, to engage in any business
combination with the Issuer at any time during the three-year period after the date
on which the Singer Entities and such Affiliates and Associates acquire such
ownership.
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The purpose of this Amendment No. 12 is to report that, since the filing of Amendment No. 11
to the Statement, dated September 5, 2008 (
Amendment No. 11
), the Singer Childrens
Management Trust and the Company have entered into that certain Amended and Restated Stock
Ownership Agreement, dated as of December 19, 2008 (the Amended Stock Agreement), a copy of which
has been filed as Exhibit 99.4 to this Amendment No. 12. Pursuant to the Amended Stock Agreement, a
committee of disinterested members of the Board of Directors of the Issuers approved the purchase
by the Trust of up to 5,141,608 shares of the outstanding voting stock of the Issuer (the Share
Limit). The Amended Stock Agreement also provides that if, at any time during the three year
period from the date of the Amended Stock Agreement, the Singer Entities, together with their
affiliates and associates, become the owner of shares of voting stock of the Issuer exceeding the
Share Limit, the parties agree that neither the Singer Entities nor any of their respective
affiliates or associates will be able to engage in any business combination with the Issuer for a
period of three years following the date on which the Singer Entities exceed the Share Limit,
subject to certain exceptions. The above summary of the Amended Stock
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Agreement does not purport to
be complete and is qualified in its entirety by reference to the Amended Stock Agreement.
Ms. Singer reserves the right, subject to the terms of the Standstill Agreement and the Stock
Agreement, to take any and all actions permitted by applicable law that she may deem appropriate to
maximize the value of her investments in light of her general investment policies, market
conditions, subsequent developments affecting the Issuer and the general business and future
prospects of the Issuer.
Item 5. Interest in Securities of the Issuer.
Items 5 of the Statement is hereby amended and restated in its entirety as follows:
(a)
Ms. Singer is the beneficial owner of 4,241,608 shares of Common Stock of the Issuer as
trustee of the Trust, comprising approximately 18.8% of the shares of Common Stock of the Issuer,
based upon representations of the Issuer as set forth in the Amended Stock Agreement that the
outstanding shares of Common Stock of the Issuer is 22,579,874, not 25,962,305 as set forth in the
Issuers 10-Q filed on November 10, 2008.
(b)
Ms. Singer has sole dispositive and voting power over all of the shares of Common Stock of
the Issuer reported on this Schedule 13D.
(c)
Ms. Singer has effected the following transactions in shares of Common Stock of the
Issuer on the open market in the past 60 days:
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No. of
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Transaction
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Trade date
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Shares
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Price/share
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Purchase
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11/10/2008
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5,800
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2.25
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Purchase
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11/21/2008
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75,000
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1.4438
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Purchase
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12/11/2008
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25,000
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1.63
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(d)
No person other than Ms. Singer has the right to receive or the power to direct the
receipt of distributions or dividends from, or the proceeds from the transfer of, the reported
securities.
(e)
Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
As more specifically described in Item 4 hereto, Ms. Singer entered into the Amended Stock
Agreement with the Issuer.
Item 7. Material to be Filed as Exhibits
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Exhibit
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99.1 -
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Standstill Agreement, dated as of July 13, 2007 by and between Arbinet-thexchange, Inc. and
the Singer Childrens Family Trust, Karen Singer, and Gary Singer. (Filed as Exhibit 99.1 to
Schedule 13D by the Reporting Person with the Securities and Exchange Commission on July 23, 2007
and incorporated herein by reference).
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Exhibit
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99.2 -
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Stock Ownership Agreement, dated as of May 30, 3008, among Arbinet-thexchange, Inc., and the
Singer Childrens Management Trust, Gary Singer and Karen Singer. (Filed as Exhibit 10.1 to Form
8-K by Arbinet-thexchange, Inc. with the SEC on June 10, 2008 and incorporated herein by
reference).
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99.3 -
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Letter, dated September 3, 2008 by Singer Childrens Management Trust to the Chairman of the
Board of the Issuer. (Filed as Exhibit 99.3 to Amendment No. 11 and incorporated herein by
reference).
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99.4 -
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Amended and Restated Stock Ownership Agreement, dated as of December 19, 2008, among
Arbinet-thexchange, Inc., and the Singer Childrens Management Trust, Gary Singer and Karen Singer.
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SIGNATURES
After reasonable inquiry and to the best of the undersigneds knowledge and belief, the
undersigned hereby certifies that the information set forth in this statement is true, complete and
correct.
Dated: December 22, 2008
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/s/ Karen Singer
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Karen Singer
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7
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