Back Yard Burgers Inc - Amended Statement of Beneficial Ownership (SC 13D/A)
October 02 2007 - 6:04AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(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. 5)
Back Yard Burgers, Inc.
Common Stock, $0.01 Par Value Per Share
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(Title of Class of Securities)
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05635W101
Reid M. Zeising
Chairman of the Board of Managers
BBAC, LLC
3060 Peachtree Road
Suite 1410
Atlanta,
GA 30305
(404) 495-7400
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
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With a copy to:
Bryan E. Davis
Jones Day
1420 Peachtree Street
Atlanta, GA 30309
(404) 581-3939
September 30, 2007
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(Date of Event which Requires Filing of This Statement)
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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 Rule 13d-1(e), 13d-1(f) or 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
§240.13d-7 for other parties to whom copies are sent.
*
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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.
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The information required on the
remainder of this cover page shall not be deemed to be filed for the purposes 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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NAMES OF REPORTING PERSONS
BBAC, LLC
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
¨
(b)
x
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS
WC
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5.
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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¨
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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7. SOLE VOTING POWER
None
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8. SHARED VOTING POWER
1,806,728*
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9. SOLE DISPOSITIVE POWER
None
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10. SHARED DISPOSITIVE POWER
435,404
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,806,728*
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12.
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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¨
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.24%**
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14.
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TYPE OF REPORTING PERSON
OO (limited liability company)
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*
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Beneficial ownership of 1,371,324 shares of the common stock of Back Yard Burgers, Inc. referred to herein is being reported hereunder solely because the reporting person may be
deemed to have beneficial ownership of such shares as a result of the Stockholder Voting Agreements described in Items 3, 4 and 5 hereof. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by
any of the Reporting Persons that it is the beneficial owner of such 1,371,324 shares of common stock for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is
expressly disclaimed.
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**
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The calculation of the percentage is based on 5,126,688 shares of common stock being issued and outstanding as of July 31, 2007, as set forth in Back Yard Burgers, Inc.s
10-Q for the quarterly period ended June 30, 2007.
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1.
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NAMES OF REPORTING PERSONS
Cherokee Advisors, LLC
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
¨
(b)
x
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS
AF
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5.
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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¨
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
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7. SOLE VOTING POWER
None
|
|
8. SHARED VOTING POWER
1,806,728*
|
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9. SOLE DISPOSITIVE POWER
None
|
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10. SHARED DISPOSITIVE POWER
435,404
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11.
|
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,806,728*
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12.
|
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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¨
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.24%**
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14.
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TYPE OF REPORTING PERSON
OO (limited liability company)
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*
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Beneficial ownership of 1,371,324 shares of the common stock of Back Yard Burgers, Inc. referred to herein is being reported hereunder solely because the reporting person may be
deemed to have beneficial ownership of such shares as a result of the Stockholder Voting Agreements described in Items 3, 4 and 5 hereof. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by
any of the Reporting Persons that it is the beneficial owner of such 1,371,324 shares of common stock for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is
expressly disclaimed.
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**
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The calculation of the percentage is based on 5,126,688 shares of common stock being issued and outstanding as of July 31, 2007, as set forth in Back Yard Burgers, Inc.s
10-Q for the quarterly period ended June 30, 2007.
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1.
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NAMES OF REPORTING PERSONS
Reid M. Zeising
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2.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
¨
(b)
x
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3.
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SEC USE ONLY
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4.
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SOURCE OF FUNDS
OO
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5.
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CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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¨
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
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7. SOLE VOTING POWER
None
|
|
8. SHARED VOTING POWER
1,806,728*
|
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9. SOLE DISPOSITIVE POWER
None
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10. SHARED DISPOSITIVE POWER
435,404
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11.
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,806,728*
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12.
|
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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¨
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13.
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.24%**
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14.
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TYPE OF REPORTING PERSON
IN
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*
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Beneficial ownership of 1,371,324 shares of the common stock of Back Yard Burgers, Inc. referred to herein is being reported hereunder solely because the reporting person may be
deemed to have beneficial ownership of such shares as a result of the Stockholder Voting Agreements described in Items 3, 4 and 5 hereof. Neither the filing of this Schedule 13D nor any of its contents shall be deemed to constitute an admission by
any of the Reporting Persons that it is the beneficial owner of such 1,371,324 shares of common stock for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial ownership is
expressly disclaimed.
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**
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The calculation of the percentage is based on 5,126,688 shares of common stock being issued and outstanding as of July 31, 2007, as set forth in Back Yard Burgers, Inc.s
10-Q for the quarterly period ended June 30, 2007.
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Introductory Note.
This Amendment No. 5 (as defined herein) is filed by BBAC, LLC (
BBAC
), Cherokee Advisors, LLC (
Cherokee
) and Reid M. Zeising (collectively, the
Reporting Persons
) to update the
Amended Statement (as defined herein). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Amended Statement.
Item 1.
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Security and Issuer.
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Item 1 of the Statement is hereby
amended and restated in its entirety as follows:
This Amendment No. 5 to Schedule 13D (
Amendment No. 5
) relates to shares of
common stock, par value $0.01 per share (the
Common Stock
), of Back Yard Burgers, Inc., a Delaware corporation (the
Issuer
). This Amendment No. 5 amends the initial statement on Schedule 13D filed by the
Reporting Persons on June 5, 2006, as amended by Amendment No. 1 to Schedule 13D filed by the Reporting Persons on August 24, 2006, Amendment No. 2 to Schedule 13D filed by the Reporting Persons on September 5, 2006,
Amendment No. 3 to Schedule 13D filed by the Reporting Persons on December 7, 2006, and Amendment No. 4 to Schedule 13D filed by the Reporting Persons on June 12, 2007 (the
Amended Statement
and, collectively
with this Amendment No. 5, the
Statement
). The address of the Issuers principal executive office is 1657 N. Shelby Oaks Drive, Suite 105, Memphis, Tennessee 38134.
Item 3.
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Source and Amount of Funds or Other Consideration.
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Item 3 of
the Statement is hereby amended by adding the following at the end of Item 3:
Effective as of September 30, 2007, BBAC entered into amendments
to the commitment letters with Regions Bank (Regions) and Harbert Mezzanine Partners II, L.P. (Harbert) that extend the expiration date of each commitment letter until October 31, 2007 and with respect to the Regions
commitment letter modifies the commitment letter with respect to the matters described below.
On August 14, 2007, the Issuer reported that a putative
class action complaint captioned
Plank v. Back Yard Burgers, Inc., et al.,
Civil Action File No. 07-2499, had been served on the Issuer and other unnamed defendants that alleged violations of the federal Fair and Accurate Credit
Transactions Act and the Tennessee Consumer Protection Act (the Lawsuit). The Lawsuit was settled by the Issuer with the plaintiff on an individual basis and dismissed on September 14, 2007. The parties did not request nor did the
court make any ruling with respect to the certification of any putative class as alleged in the complaint.
The Reporting Persons requested Regions and
Harbert to extend the expiration dates of their respective commitment letters so that the Reporting Persons, Regions and Harbert would have additional time to investigate and evaluate the facts surrounding the allegations made in the Lawsuit and
their impact on the conditions in the commitment letters and the Merger Agreement. The Reporting Persons have requested and received certain information from the Issuer and the Issuer is in the process of producing additional information or
obtaining it from third parties.
The amendments to the commitment letters are attached as
Exhibit P
and
Exhibit Q
and are incorporated by
reference in their entirety into this Item 3.
Item 6.
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Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
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Item 6 of the Statement is hereby amended by deleting in its entirety the last paragraph of Item 6 and replacing it with the following:
The information set forth in Items 3, 4 and 5, as amended from time to time, is incorporated herein by reference. Other than as described elsewhere in this Statement and as previously reported, the Reporting Persons
have no understandings, arrangements, relationships or contracts relating to the Issuers Common Stock which are required to be described hereunder.
Item 7.
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Material to be Filed as Exhibits.
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Item 7 of the Statement is
hereby amended by adding the following exhibits:
Exhibit P:
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Amendment to Regions Bank Commitment Letter
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Exhibit Q:
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Amendment to Harbert Mezzanine Partners II, L.P. Commitment Letter
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- 7 -
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment No. 5 is true, complete and correct.
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September 30, 2007
(Date)
BBAC, LLC
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By:
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Reid M. Zeising
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Chairman
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/s/ Reid M. Zeising
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(Signature)
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CHEROKEE ADVISORS, LLC
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By:
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Reid M. Zeising
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Managing Member
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/s/ Reid M. Zeising
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(Signature)
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REID M. ZEISING
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/s/ Reid M. Zeising
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(Signature)
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