UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
Altigen Communications, Inc.
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(Name of Issuer)
Common Stock, par value $0.001 per share
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(Title of Class of Securities)
021489109
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(CUSIP Number)
with a copy to:
Mr. Douglass Bermingham Robert G. Minion, Esq.
627 Harris Road Lowenstein Sandler PC
Bedford Hills, New York 10507 65 Livingston Avenue
(212) 307-2660 Roseland, New Jersey 07068
(973) 597-2424
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
June 18, 2006
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 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 Section 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. 021489109
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1) Names of Reporting Persons. I.R.S. Identification Nos. of above persons
(entities only):
Douglass Bermingham
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2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) [ ]
(b) [X]
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3) SEC Use Only
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4) Source of Funds (See Instructions): WC, OO
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5) Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e):
Not Applicable
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6) Citizenship or Place of Organization: United States
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Number of 7) Sole Voting Power: 743,834*
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Shares Beneficially 8) Shared Voting Power: 0*
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Owned by
Each Reporting 9) Sole Dispositive Power: 743,834*
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Person With 10) Shared Dispositive Power: 0*
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11) Aggregate Amount Beneficially Owned by Each Reporting Person: 743,834*
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions):
[X]
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13) Percent of Class Represented by Amount in Row (11): 5.0%*
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14) Type of Reporting Person (See Instructions): IN
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* As of June 18, 2006, Douglass Bermingham possesses sole power to vote and
direct the disposition of 743,834 shares of the common stock, $0.001 par value
per share (the "Shares"), of Altigen Communications, Inc., a Delaware
corporation (the "Company"), held by (i) Ten Pine Advisors LLC, a Delaware
limited liability company, the sole member of which is Mr. Bermingham, (ii)
several trusts, the beneficiaries of which are members of Mr. Bermingham's
family, and for which he serves as the trustee, (iii) Mr. Bermingham's
individual retirement account and (iv) Mr. Bermingham personally. Accordingly,
for the purposes of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Act"), Mr. Bermingham is deemed to beneficially own 743,834
Shares, or 5.0% of the Shares deemed issued and outstanding as of June 18, 2006.
Mr. Bermingham has engaged in certain discussions with Larry Bursten, holder of
70,000 Shares as of June 18, 2006, with respect to the future of the Company and
its various strategic alternatives. As a result of such conversations, Messrs.
Bermingham and Bursten (the "Parties") may be deemed to have formed a "group"
for purposes of Section 13(d) of the Act, and the rules promulgated thereunder.
Accordingly, each of the Parties may be deemed to be the beneficial owner of the
Shares beneficially owned by the other. Mr. Bermingham expressly disclaims
beneficial ownership of the Shares beneficially owned by Mr. Bursten.
Additionally, Mr. Bermingham expressly disclaims any assertion or presumption
that the Parties constitute a "group." The aggregate number of Shares held by
the Parties as of June 18, 2006 is 813,834, or 5.4% of the Shares deemed issued
and outstanding as of that date.
Item 2. Identity and Background.
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Item 2 is hereby amended by adding the following after the second
paragraph thereof:
Ten Pine Advisors LLC ("TPA") is a Delaware limited liability company
the sole member of which is Mr. Bermingham. TPA's principal address is 627
Harris Road, Bedford Hills, New York 10507. TPA is engaged in the investment in
personal property of all kinds, including but not limited to capital stock,
depository receipts, investment companies, mutual funds, subscriptions,
warrants, bonds, notes, debentures, options and other securities of whatever
kind and nature.
TPA has never been convicted in any criminal proceeding, nor has it
been a party to any civil proceeding commenced before a judicial or
administrative body of competent jurisdiction as a result of which it was or is
now subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 4. Purpose of Transaction.
----------------------
Item 4 is hereby amended by adding the following after the fifth
paragraph thereof:
Pursuant to the terms of the Letter of Intent ("LOI") described in
Item 6 of this Schedule 13D Amendment No. 2, the Buyer, as that term is defined
therein, is proposing to acquire all of the outstanding Shares and to make the
Company a private entity. Consummation of the transactions contemplated in the
LOI would cause the Shares to cease to be authorized to be quoted on the NASDAQ
inter-dealer quotation system.
Item 5. Interest in Securities of the Issuer.
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Item 5 is hereby amended by deleting Item 5 in its entirety and by
substituting the following in lieu thereof:
Based upon information set forth in the Company's Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 2006, as filed with the
Securities and Exchange Commission on May 15, 2006, there were 14,976,633 Shares
issued and outstanding as of May 11, 2006.
As of June 18, 2006, the Accounts held an aggregate of 743,834 Shares.
Douglass Bermingham possesses sole power to vote and direct the disposition of
all Shares held in the Accounts. Accordingly, for the purposes of Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Act"), Mr.
Bermingham is deemed to beneficially own 743,834 Shares, or 5.0% of the Shares
deemed issued and outstanding as of June 18, 2006. Mr. Bermingham has engaged in
certain discussions with Larry Bursten, holder of 70,000 Shares as of June 18,
2006, with respect to the future of the Company and its various strategic
alternatives. As a result of such conversations, Messrs. Bermingham and Bursten
(the "Parties") may be deemed to have formed a "group" for purposes of Section
13(d) of the Act, and the rules promulgated thereunder. Accordingly, each of the
Parties may be deemed to be the beneficial owner of the Shares beneficially
owned by the other. Mr. Bermingham expressly disclaims beneficial ownership of
the Shares beneficially owned Mr. Bursten. Additionally, Mr. Bermingham
expressly disclaims any assertion or presumption that the Parties constitute a
"group." The aggregate number of Shares held by the Parties as of June 18, 2006
is 813,834, or 5.4% of the Shares deemed issued and outstanding as of that date.
Since the filing of the Schedule 13D Amendment No. 1 on June 12, 2006,
the only transactions in Shares, or securities convertible into, exercisable for
or exchangeable for Shares, by Mr. Bermingham or any other person or entity
controlled by him or any person or entity for which he possesses voting or
investment control over the securities thereof, were the purchase of 8,250
Shares on June 12, 2006, at a price of $1.52 per Share, and the purchase of
11,900 Shares on June 13, 2006, at a price of $1.52 (each of which was effected
in an ordinary brokerage transaction). In addition, Mr. Bursten purchased 13,000
Shares on June 13, 2006, at a price of $1.53 per Share, and 7,000 Shares on June
14, 2006, at a price of $1.53 (each of which was effected in an ordinary
brokerage transaction).
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
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Item 6 is hereby amended by deleting Item 6 in its entirety and by
substituting the following in lieu thereof:
On June 18, 2006, the Buyer sent the Company's Chief Executive Officer
the LOI, pursuant to which, among other things, the Buyer expressed a desire to
purchase all of the outstanding Shares. If consummated, the transaction would
result in the Company becoming a private entity. The management and certain
shareholders of the Company will be given the option to maintain their current
pro-rata ownership.
The descriptions of the transactions and proposals set forth in this
Schedule 13D Amendment No. 3 are qualified in their entirety by reference to the
complete proposal governing such matters, which is attached to this Schedule 13D
Amendment No. 3 as an exhibit pursuant to Item 7 hereof.
Except as otherwise described herein, no contracts, arrangements,
understandings or similar relationships exist with respect to the securities of
the Company between Mr. Bermingham and any person or entity.
See Item 5 for a description of the relationship between Messrs.
Bermingham and Bursten.
Item 7. Material to Be Filed as Exhibits.
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Item 7 is hereby amended by deleting Item 7 in its entirety and by
substituting the following in lieu thereof:
1. Letter of Intent to Acquire Altigen Communications, Inc., dated as
of June 18, 2006.
Signature
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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.
June 19, 2006
/s/ Douglass Bermingham
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Douglass Bermingham
Attention: Intentional misstatements or omissions of fact constitute
Federal criminal violations (See 18 U.S.C. 1001).
Jesup & Lamont
SECURITIES CORPORATION
June 18, 2006
Altigen Communications, Inc
4555 Cushing Parkway
Fremont, CA 94538
Attn: Gilbert Hu
Via Facsimile: (510) 252-9738
Re: Letter of Intent to acquire Altigen Communications, Inc.
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Dear Mr Hu:
The purpose of this letter is to express the basis upon which Ten Pine Advisors
LLC (TPA) or the proposed Altigen Private Acquisition Corp. (collectively, the
"Buyer") proposes to acquire Altigen Communications, Inc. ("Altigen" or the
"Company"). Based on the information we have been provided to date, we present
to you the following principal terms and timing of the proposed transaction:
1. Transaction Structure. Buyer will acquire 100% of the outstanding
shares of the Company. The Company will become a private entity and
management and certain shareholders will be given the option to
maintain their pro-rata ownership. The analysis below assumes the
company will become private.
2. Purchase Price; Consideration. Buyer proposes a total value of
$28,000,000 for the Company. The $28,000,000 of value includes (i)
$9,300,000 of cash and cash equivalents.
3. Financing. Buyer has engaged Jesup & Lamont to use its diligence and
good faith efforts to obtain financing commitments for the
acquisition.
4. Definitive Agreement. Buyer can move quickly to execute a definitive
agreement respecting the transaction contemplated hereby. Buyer is
prepared to work toward executing such agreement within 60 days from
acceptance of this offer, which agreement shall contain terms and
conditions that are customary for a transaction of this type. Buyer's
obligation to execute such definitive agreement would be subject to
the completion of customary due diligence and approval of the
transaction and such definitive agreement by its Investment Committee.
5. Closing. The closing of the proposed transaction will take place as
soon as practicable upon execution of a definitive agreement, subject
to the satisfaction of all conditions to closing, including the
receipt of all required consents, Stockholder Approval and regulatory
approvals
6. Pre-Closing Operations. The Company shall continue to be operated in
the ordinary course, consistent with prior practices.
Altigen Communications, Inc
June 18, 2006
Page 2
7. Due Diligence; Access. Buyer is prepared to begin due diligence on
July 5, 2006 and could complete its work within 60 days. Buyer and its
agents and representatives will require full and complete access to
the books and records, files, documents and facilities related to the
Company, and access to the Company's employees, consultants,
accountants, customers, legal counsel and other agents and
representatives in order to permit Buyer to promptly complete its due
diligence investigation of the Company.
8. Fees and Expenses. If the transaction contemplated hereby is
consummated, Buyer will bear its own expenses as well as transaction
expenses incurred by Altigen Communications, Inc. in connection with
such transaction. If the transaction contemplated hereby is not
consummated, each party will bear its own expenses in connection with
such transaction.
9. Non-Solicitation. In order to complete the transaction as rapidly as
possible, we would intend to enter into either a 30 day of
non-solicitation with the Company starting July 5, 2006.
The terms of non-solicitation are as follow: Until the Company
provides written notice to Jesup & Lamont, which notice may not be
provided until at least 30 days from July 5, 2006 (unless this
agreement has been mutually terminated), the Company shall not
directly or indirectly solicit, initiate, or knowingly encourage any
bid, offer or proposal to acquire the assets and/or stock of the
Company provided, however, that at any time prior to obtaining the
Stockholder Approval, in response to a bona fide written Superior
Proposal that was not solicited by the Company, the Company Board may
proceed with a Superior Proposal in order to comply with their
fiduciary duties to the holders of shares of Company Common Stock
under applicable Law. In addition, the Company shall promptly advise
Buyer orally and in writing of the Company's receipt of any request
for information or any Superior Proposal and the material terms and
conditions of such request or Superior Proposal. Promptly upon
determination by the Company Board that an offer constitutes a
Superior Proposal, the Company shall deliver to Buyer a written notice
advising it that the Company Board has made such determination,
specifying the material terms and conditions of such Superior Proposal
and the identity of the Person making such Superior Proposal.
10. Confidentiality. Each party agrees to keep confidential any non-public
proprietary information obtained regarding the other in connection
with the transaction contemplated hereby. The Buyer & Company has a
limited right to be able to show this Letter of Intent to its required
constituents, including respective directors, officers, employees and
agents who have a need to know in order to consummate the transaction
contemplated in this letter, provided that the foregoing shall not
prohibit any disclosure which, in the opinion of the attorneys of
either party, is necessary to comply with applicable laws.
Altigen Communications, Inc
June 18, 2006
Page 3
11. Termination. Except as provided in Sections 8 and 10 hereof, which
provisions shall survive termination hereof indefinitely and Section 9
hereof, which provision shall survive in accordance with its terms,
this Letter of Intent, when executed by Company, shall terminate on
September 4, 2006 (or earlier if the parties so agree or upon
execution of a purchase agreement), after which date neither of the
parties will have any obligation to the other.
12. Non-Binding Letter of Intent. This Letter of Intent is not to be
considered an offer to purchase or an agreement of purchase and sale,
but is merely an expression of our intent and desire to acquire the
Company generally on the terms outlined above. Except for the
provisions of Sections 8, 9 and 10 hereof, which are intended to be
binding on the parties, this Letter of Intent is not binding. If a
purchase agreement is entered into by the parties, any obligations of
the parties set forth in this Letter of Intent will terminate except
to the extent expressly reaffirmed in such purchase agreement.
If this proposal meets with your approval, we ask that you indicate such
approval by returning the enclosed copy of this letter appropriately signed.
This letter will expire on June 23 at 2:00 PM PST unless executed by Company and
delivered to Jesup & Lamont prior to such time. If you have any questions please
feel free to contact me at (212)-918-0401.
Sincerely,
/s/ Stephen J. DeGroat
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Stephen J. DeGroat
Chief Executive Officer
ACCEPTED AND AGREED TO:
Altigen Communications, Inc.
By: _________________________
Name:
Title:
Dated: