Introduction
This Amendment No. 1 to Rule 13e-3 Transaction Statement on Schedule 13E-3 (the “Schedule 13E-3”) is being filed by Lawrence J. Cohen, Jay Chazanoff and Peter Gray (the “Filing Persons”), in connection with a proposed going private transaction by DVL, Inc., a Delaware corporation (“DVL”), pursuant to that certain preliminary proxy statement on Schedule 14A (the “Proxy Statement”) filed by DVL with the Securities and Exchange Commission (the “SEC”) on October 26, 2010 pursuant to Regulation 14A of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) and that certain Schedule 13E-3 filed by DVL with the SEC on October 26, 2010 (the “DVL SC 13E-3”). The Proxy Statement seeks the consent of holders of DVL’s common stock, par value $.01 per share (the “Common Stock”), to amendments to DVL’s Certificate of Incorporation to effect a 1-for-7,500 reverse stock split.
This Schedule 13E-3 is being filed with the SEC by the Filing Persons as the Filing Persons may be deemed “affiliates” of DVL under Rule 13e-3 of the Exchange Act due to the Filing Persons’ ownership interest in DVL and the affiliation of certain of the Filing Persons in NPO Management LLC, the entity that provides asset management services to DVL. The information contained in the Proxy Statement, including all annexes thereto, is expressly incorporated herein by reference and the responses to each item of this Schedule 13E-3 are qualified in their entirety by reference to the information contained in the Proxy statement. As of the date hereof, the Proxy Statement is in preliminary form and is subject to completion or amendment. This Schedule 13E-3 will be amended to reflect such completion or amendment of the Proxy Statement. Capitalized terms used and not otherwise defined herein have the meanings ascribed to such terms in the Proxy Statement.
Except for information specific to the Filings Persons, all information provided herein is based solely on the information provided in DVL’s SC 13E-3 without any independent investigation of any of the Filing Persons.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the Proxy Statement entitled “Summary of Terms of Reverse Stock Split” is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a)
Name and Address
. The name of the subject Company is DVL, Inc., a Delaware corporation. DVL, Inc.’s executive offices are located at 70 E. 55
th
Street, New York, New York 10022. DVL, Inc.’s telephone number is (212) 350-9900.
(b)
Securities
. The subject class of equity securities to which this Schedule relates is the Company’s Common Stock, $0.01 par value (“Common Stock”), of which 44,770,345 shares were outstanding as of September 30, 2010.
(c)
Trading Market and Price
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation” and “Opinion of Financial Advisor” is incorporated herein by reference.
(d)
Dividends
. The information set forth in the Proxy Statement entitled “General Information about the Special Annual Meeting and Voting – Dividend Policy” is incorporated herein by reference.
(e)
Prior Public Offerings
. The information set forth in the Proxy Statement entitled “Market for Registrant’s Common Equity” is incorporated herein by reference.
(f)
Prior Stock Purchases
. The information set forth in the Proxy Statement entitled “Market for Registrant’s Common Equity” and “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation” is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a)
Name and Address
. The information set forth in Footnote 2 under the heading entitled “Security Ownership of Certain Beneficial Owners, Directors and Executive Officers ” in the Proxy Statement is incorporated herein by reference.
(b)
Business and Background of Entities
. Not applicable.
(c)
Business and Background of Natural Persons
. With respect to each of the Filing Persons, the following sets for (i) current principal occupation or employment and location, and (ii) material occupations, positions, offices or employment for the past five years and location.
Each of the Filing Persons is, and has been for the past five years, a principal of Pembroke Companies, Inc. and NPO Management LLC, both of which are privately held investment and management firms in the real estate industry.
None of the Filing Persons has been convicted in a criminal proceeding or has been a party to a judicial or administrative proceeding during the past five years.
Each of the Filing Persons is a citizen of the United States.
ITEM 4. TERMS OF THE TRANSACTION.
(a)
Material Terms
. The information set forth in the Proxy Statement entitled “Special Factors”, “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet Quotation,” “Background and History of the Reverse Stock Split Proposal,” “Purpose of the Reverse Stock Split,” “Going Private Transaction; Schedule 13E-3 Filing,” “Structure of the Reverse Stock Split,” “Effects on Stockholders With Less Than 7,500 Shares of Common Stock,” “Effects On Stockholders With 7,500 Or More Shares Of Common Stock,” “Effects on Affiliates,” “Effects On The Company,” “General Information about the Special Annual Meeting and Voting – Special Annual Meeting and Voting Information,” “Material U.S. Federal Income Tax Consequences of the Reverse Stock Split,” “Tax Consequences of the Reverse Stock Split to U.S. Holders,” “Tax Consequences to Stockholders Who Receive Both Stock And Cash,” “Tax Consequences of the Reverse Stock Split to Non-U.S. Holders,” “U.S. Federal Income Tax Withholding Requirements for All Stockholders,” and “Tax Consequences of the Reverse Stock Split to the Company” is incorporated herein by reference.
(c)
Different Terms
. The information set forth in the Proxy Statement entitled “Special Factors,” “Effects on Stockholders With Less Than 7,500 Shares of Common Stock,” “Effects On Stockholders With 7,500 Or More Shares Of Common Stock” and “Effects on Affiliates” is incorporated herein by reference.
(d)
Appraisal Rights
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation” and “General Information about the Special Annual Meeting and Voting – Appraisal Rights” is incorporated herein by reference.
(e)
Provisions for Unaffiliated Security Holders
. The information set forth in the Proxy Statement entitled “Fairness of the Reverse Stock Split” is incorporated herein by reference.
(f)
Eligibility for Listing or Trading
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet Quotation” and “Disadvantages of the Reverse Stock Split – Substantial or Complete Reduction of Public Sale Opportunities for Our Stockholders” is incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a)
Transactions
. The information set forth in the Annual Report on Form 10-K for the fiscal year ended December 31, 2009 entitled “Certain Relationships and Related Transactions and Director Independence” is incorporated herein by reference.
(b)
Significant Corporate Events
. None.
(c)
Negotiations or Contacts
. None.
(e)
Agreements involving the Company’s Securities
. The information set forth in the Proxy Statement entitled “Security Ownership of Certain Beneficial Owners, Directors and Executive Officers” is incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b)
Use of Securities Acquired
.
The information set forth in the Proxy Statement entitled “Special Factors” and “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation” is incorporated herein by reference
.
(c)(1)-(8)
Plans
. The information set forth in the Proxy Statement entitled “Special Factors,” “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet Quotation,” “Background and History of the Reverse Stock Split Proposal,” “Purpose of the Reverse Stock Split,” “Going Private Transaction; Schedule 13E-3 Filing,” “Structure of the Reverse Stock Split” and “Effects on the Company” is incorporated herein by reference. The information in the Proxy Statement on the proposal to eliminate the Authorized Preferred Stock and Amend and Restate the Company’s Certificate of Incorporation is incorporated herein by reference.
ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
(a)
Purposes
. The information set forth in the Proxy Statement entitled “Effects on Affiliates,” “Special Factors,” “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Background and History of the Reverse Stock Split Proposal,” “Purpose of the Reverse Stock Split,” “Going Private Transaction; Schedule 13E-3 Filing,” and “Structure of the Reverse Stock Split,” “Effects on the Company” and “Advantages to the Reverse Stock Split” is incorporated herein by reference.
(b)
Alternatives
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Effects on Affiliates,” “Background and History of the Reverse Stock Split Proposal” and “Alternative Transactions Considered” is incorporated herein by reference.
(c)
Reasons
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Effects on Affiliates,” “Background and History of the Reverse Stock Split Proposal,” “Purpose of the Reverse Stock Split,” “Going Private Transaction; Schedule 13E-3 Filing” and “Advantages of the Reverse Stock Split” is incorporated herein by reference.
(d)
Effects
. The information set forth in the Proxy Statement entitled “Effects on Affiliates,” “Effects on Stockholders With Less Than 7,500 Shares of Common Stock,” “Effects On Stockholders With 7,500 Or More Shares Of Common Stock,” “Effects on Affiliates” and “Effects On The Company,” is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a)
Fairness
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Effects on Affiliates,” “Special Factors,” “Background and History of the Reverse Stock Split Proposal” and “Fairness of the Reverse Stock Split” is incorporated herein by reference.
(b)
Factors Considered in Determining Fairness
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Effects on Affiliates,” and “Special Factors,” “Background and History of the Reverse Stock Split Proposal” and “Fairness of the Reverse Stock Split” is incorporated herein by reference.
(c)
Approval of Security Holders
. The information set forth in the Proxy Statement entitled “Effects on Affiliates,” and “General Information about the Special Annual Meeting and Voting – Quorum and Required Vote” is incorporated herein by reference.
(d)
Unaffiliated Representative
. The information set forth in the Proxy Statement entitled “Effects on Affiliates,” “Background and History of the Reverse Stock Split Proposal,” and “Fairness of the Reverse Stock Split” is incorporated herein by reference.
(e)
Approval of Directors
. The information set forth in the Proxy Statement entitled “Effects on Affiliates,” “Special Factors,” “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” and “Background and History of the Reverse Stock Split Proposal” is incorporated herein by reference.
(f)
Other Offers
. None
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a)
Report, Opinion or Appraisal
. The information set forth in the Proxy Statement entitled “Opinion of Financial Advisor” is incorporated herein by reference.
(b)
Preparer and Summary of the Report, Opinion or Appraisal
. The Information set forth in the Proxy Statement entitled “Opinion of Financial Advisor” is incorporated herein by reference.
(c)
Availability of Documents
. The Information set forth in the Proxy Statement entitled “Opinion of Financial Advisor” is incorporated herein by reference.
ITEM 10. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)
Source of Funds
. The information set forth in the Proxy Statement entitled “Financing the Reverse Stock Split” is incorporated herein by reference.
(b)
Conditions
. Not applicable.
(c)
Expenses
. The information set forth in the Proxy Statement entitled “Costs/Source of Funds and Expenses” is incorporated herein by reference.
(d)
Borrowed Funds
. The information set forth in the Proxy Statement entitled “Financing the Reverse Stock Split” is incorporated herein by reference.
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)
Security Ownership
. The information set forth in the Proxy Statement entitled “Security Ownership of Certain Beneficial Owners, Directors and Executive Officers” is incorporated herein by reference
(b)
Securities Transactions
. The information set forth in the Proxy Statement entitled “Manner of Voting and Voting Required” and “Proposal 3 – Amend Company’s Charter to Eliminate Authorized Preferred Stock, Reduce Authorized Common Stock and Restate the Company’s Certificate of Incorporation in its Entirety” is incorporated herein by reference.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
(d)
Intent to tender or vote in a going-private transaction
. The information set forth in the Proxy Statement entitled “Fairness of the Reverse Stock Split,” “Special Factors,” “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Background and History of the Reverse Stock Split Proposal,” “Purpose of the Reverse Stock Split,” “Fairness of the Reverse Stock Split” and “Recommendation of Our Board of Directors” is incorporated herein by reference.
(e)
Recommendations of Others
. The information set forth in the Proxy Statement entitled “Fairness of the Reverse Stock Split,” “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” “Background and History of the Reverse Stock Split Proposal,” “Purpose of the Reverse Stock Split,” and “Opinion of Financial Advisor” is incorporated herein by reference.
ITEM 13. FINANCIAL STATEMENTS.
(a)
Financial Information
. The audited consolidated financial statements set forth in our Annual Report on Form 10-K for the years ended December 31, 2009 and December 31, 2008, and the information set forth in the Proxy Statement entitled “Incorporation by Reference” and “Additional Financial Information” is incorporated herein by reference.
(b)
Pro Forma Information
. Not applicable.
ITEM 14. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
(a)
Solicitations or Recommendations
. None.
(b)
Employees and Corporate Assets
. The information set forth in the Proxy Statement entitled “Financing the Reverse Stock Split” and “Costs/Source of Funds and Expenses” is incorporated herein by reference.
ITEM 15. ADDITIONAL INFORMATION.
(a)
Agreements, Regulatory Requirements and Legal Proceedings
. The information set forth in the Proxy Statement entitled “Reverse Stock Split; ‘Going Private;’ ‘Pink Sheet’ Quotation,” and “Going Private Transaction; Schedule 13E-3 Transaction” is incorporated herein by reference.
(b)
Other Material Information
. The Filing Persons are unaware of any information that is not contained in the Proxy Statement as may be necessary to make all required statements in the light of the circumstances under which they are made, not materially misleading.
ITEM 16. EXHIBITS.
(a)(1) Proxy Statement on Schedule 14A dated October 25, 2010 incorporated by reference.
(a)(2) Annual Report on Form 10-K for the fiscal year ending December 31, 2009, dated March 31, 2010, incorporated by reference.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.