UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
Mercari
Communications Group, Ltd.
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(Name
of Issuer)
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Common
Stock, par value $0.00001 per share
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(Title
of Class of Securities)
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Mr.
Ronald S. Robbins
Executive
Vice President and Chief Operating Officer
Diversified
Private Equity Corporation
135
Fifth Avenue, 10
th
Floor
New
York, New York 10010
(212)
739-7700
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(Name,
Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
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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 § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the
following box
o
.
SCHEDULE
13D
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1
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NAMES
OF REPORTING PERSONS.
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Diversified
Private Equity Corporation
52-2158952
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2
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
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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,
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)
ý
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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
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SOLE
VOTING POWER
43,822,401
(See Item 5)
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8
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SHARED
VOTING POWER
0
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9
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SOLE
DISPOSITIVE POWER
43,822,401
(See Item 5)
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10
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SHARED
DISPOSITIVE POWER
0
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11
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
43,822,401
(See Item 5)
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12
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
o
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13
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
96.5%
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14
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TYPE
OF REPORTING PERSON
CO
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SCHEDULE
13D
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1
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NAMES
OF REPORTING PERSONS.
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Scott
L. Mathis
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2
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
o
(b)
o
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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,
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)
ý
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6
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CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY
EACH
REPORTING
PERSON
WITH
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7
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SOLE
VOTING POWER
0
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8
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SHARED
VOTING POWER
8,630,275
(See Item 5)
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9
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SOLE
DISPOSITIVE POWER
0
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10
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SHARED
DISPOSITIVE POWER
8,630,275
(See Item 5)
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11
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,630,275
(See Item 5)
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12
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
o
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13
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.0%
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14
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TYPE
OF REPORTING PERSON
IN/HC
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Item
1. Security and Issuer.
(a) This statement on
Schedule 13D relates to the common stock of Mercari Communications Group,
Ltd., a Colorado corporation (the “Issuer”).
(b) The principal executive
offices of the Issuer are located at 135 Fifth Avenue, 10
th
Floor, New York, New York
10010.
Item
2. Identity and Background.
(a)-(c) and (f) This
statement is being filed by Diversified Private Equity Corporation, a Delaware
corporation (“DPEC”) and Scott L. Mathis, a citizen of the United States, the
Chief Executive Officer, President, Chairman of the Board, and a significant
shareholder of DPEC (each of DPEC and Mr. Mathis may be referred to herein as a
“Reporting Person” and collectively may be referred to as “Reporting
Persons”).
Mr. Mathis may be deemed to be the
indirect beneficial owner of a pro rata portion of the shares deemed to be
beneficially owned by DPEC by virtue of his shared voting power over such shares
and his ownership interest in DPEC. The foregoing should not be construed in and
of itself as an admission by Mr. Mathis as to beneficial ownership of the shares
owned by DPEC and Mr. Mathis disclaims any beneficial ownership except to the
extent of his pecuniary interest in DPEC.
The business address for the Reporting
Persons is c/o Diversified Private Equity Corporation, 135 Fifth Avenue, 10
th
Floor, New York, New York 10010.
DPEC is a vertically integrated company
that creates, develops, markets, sells and manages private equity investment
opportunities principally in the biotechnology industry and in non leveraged
global real estate assets. Mr. Mathis is the Chief Executive Officer,
President and Chairman of the Board of DPEC.
(d) During the last five
years, none of the Reporting Persons have been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) Except as set forth
below, during the last five years, none of the Reporting Persons have been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding were or are 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.
FINRA
Matter
:
In May 2007, DPEC Capital, Inc. (“DPEC
Capital”), Scott Mathis and two other officers of DPEC Capital, entered into a
settlement of a disciplinary action filed in May 2004 by the NASD (now known as
FINRA), the regulatory body that has primary jurisdiction over DPEC Capital, a
wholly-owned subsidiary of DPEC. Many of the most serious allegations
asserted by FINRA were ultimately withdrawn, including all allegations and
charges that there had been any fraudulent, intentional, knowing or willful
violations of the federal securities laws. The NASD had also alleged
that private placements of DPEC securities sold through DPEC Capital
were conducted in violation of the Securities Act of 1933, as amended, that
there were several failures to comply with the NASD’s reporting requirements
related to disciplinary and other matters, that DPEC Capital operated in
violation of its net capital requirement on three separate days in 2001, and
other matters. The settlement resolved a substantial majority of the
charges in the case that were not withdrawn, and in connection therewith, Mr.
Mathis received a 30-day suspension from acting in a principal capacity for DPEC
Capital and DPEC Capital was suspended for 60 days from accepting new
engagements to offer private placements, which also has been
completed. The settling parties also agreed to pay fines totaling
$215,000, all of which has been paid, and DPEC Capital was also required to
engage
an
independent consultant to evaluate its practices and procedures relating to
private placement offerings, and to make necessary changes in response to the
consultant’s recommendations.
While the settlement with the NASD
resolved most of the issues in the case, a few remaining charges were not
resolved, namely, whether Mr. Mathis inadvertently or willfully failed to
properly make certain disclosures on his personal NASD Form
U-4. These charges were addressed at a hearing before FINRA’s Office
of Hearing Officers in July 2007, and were resolved by a decision dated
December 19, 2007. In that decision, Mr. Mathis was found to
have negligently failed to make, or timely make, certain disclosures on his Form
U-4 (concerning certain personal tax liens which relate to tax years as far back
as 1993 and which have been paid off, and two customer complaints), and to have
willfully failed to disclose certain tax liens for part of the period in
question. In connection only with his duties at DPEC Capital, Mr.
Mathis received a three-month suspension (plus a second ten-day suspension which
would run concurrently), and was fined $12,500. (These sanctions will
not take effect at least until the pending appeal is decided.) By
finding that he acted “willfully” in part, Mr. Mathis may in the future become
subject to a “statutory disqualification” if this finding is not ultimately
reversed on appeal. In that event, he may be required to cease
working for DPEC Capital, which could have a material adverse effect on DPEC
Capital’s prospects and performance.
Mr. Mathis never disputed that he
failed to timely make these disclosures on his Form U-4. However, he
does dispute the willfulness finding, and is appealing this finding. Mr. Mathis
appealed the Office of Hearing Officers’ decision to the FINRA National
Adjudicatory Council (NAC). On December 16, 2008, NAC affirmed the decision of
the Office of Hearing Officers pertaining to the “willfulness” issue, and even
slightly broadened it. Mr. Mathis appealed this decision to the SEC, and that
appeal is pending. He has the right to pursue a further appeal to the United
States Court of Appeals, if necessary. The suspensions and fine against Mr.
Mathis have been stayed pending appeal.
Item
3. Source and Amount of Funds or Other
Consideration.
DPEC acquired beneficial ownership of
43,822,401 shares of common stock pursuant to the Stock Purchase that is
described in Item 4 below. The total consideration paid to the Issuer
for the 43,822,001 shares purchased from the issuer was $43,822. DPEC
also purchased 200 shares each from the two former controlling shareholders of
the Issuer for total consideration of $180,000 payable to each selling
shareholder, of which $75,000 had been previously paid to each as a deposit with
respect to a letter of intent and related amendments entered into between DPEC,
the Issuer and the controlling shareholders, and $105,000 was paid to each at
closing. DPEC used its working capital to pay the purchase price for
the shares.
Item
4. Purpose of Transaction.
On November 9, 2009, the Issuer
entered into a Stock Purchase Agreement with DPEC and Kanouff, LLC (“KLLC”) and
Underwood Family Partners, Ltd. (“Partnership”), the two entities which were the
majority shareholders of the Issuer and which are controlled by the officers and
directors of the Issuer, under which DPEC purchased an aggregate of 43,822,001
shares of common stock from the Issuer for a purchase price of $43,822, or
$0.001 per share. In addition, DPEC purchased 200 shares of the
Issuer’s common stock from KLLC and 200 shares of the Issuer’s common stock from
Partnership for $180,000 payable to each, of which $105,000 was paid at closing
and of which $75,000 had previously been paid to each as a deposit with respect
to a letter of intent and related amendments entered into between the
parties.
The Stock Purchase Agreement contains
post-closing covenants whereby the Issuer and DPEC agree to utilize their
commercially reasonable efforts to cause the Issuer to (i) remain a Section
12(g) reporting company in compliance with and current in its reporting
requirements under the Exchange Act; and (ii) cause all of the assets and
business or equity interest of DPEC, its subsidiaries and affiliated companies
to be transferred to the Issuer and, in connection with such transactions, cause
the Issuer’s stock to be distributed by DPEC to DPEC’s stockholders and the
holders of equity interests in the affiliated companies (“Reorganization
Transaction”). In connection with and contemporaneously with
the
Reorganization
Transaction, it is anticipated that the Issuer and/or DPEC will seek to obtain
at least $10 million in gross proceeds from a financing (the
“Financing”). If the gross proceeds from the Financing exceed
$15 million at the time of the last closing of such financing, the Issuer
will issue additional shares of common stock to DPEC at a purchase price of
$.001 per share as follows: (i) 18,164,560 additional shares if
the amount of the Financing is at least $15 million and less than
$20 million; or (ii) 34,058,550 additional shares if the amount of the
Financing is $20 million or more. After consummation of the
Financing, the Issuer will seek to register for resale all of the shares issued
in the Financing and shares of common stock issued by the Issuer from and after
December 1, 2001 and prior to the date of the Stock Purchase
Agreement. The Issuer will use its commercially reasonable efforts to
file a registration statement within 60 days after consummation of the
Reorganization Transaction (“Filing Date”) and to have the registration
statement become effective within 180 days after the Filing Date. If
the SEC requires the Issuer to reduce the number of shares included under such
registration statement, any such reduction will first be made from the shares
issued in the Financing. The post-closing obligations of DPEC and the
Issuer discussed herein are contingent upon DPEC’s good faith determination
that, after taking commercially reasonable efforts, the transactions are
feasible. Such determination shall take into account all relevant
material factors, including without limitation, then-current economic, financial
and market conditions.
Upon the closing of the Stock Purchase
Agreement, the Issuer experienced a change in control and a change in all of the
members of the Board of Directors.
The authorized capital stock of the
Issuer consists of 950,000,000 shares of common stock and 20,000,000 shares of
preferred stock. As of November 9, 2009, there were 1,589,399 shares
of common stock issued and outstanding and no shares of preferred stock issued
and outstanding. Immediately following the closing of the Stock
Purchase Agreement, there were 45,411,400 shares of common stock issued and
outstanding. Immediately following the closing of the Stock Purchase
Agreement, DPEC owned an aggregate of 43,822,401 shares of the common stock out
of the total of 45,411,400 shares of common stock issued and outstanding at the
closing, or approximately 96.5% of the Company’s issued and outstanding
shares.
In accordance with the provisions of
the Stock Purchase Agreement, effective as of the closing, Messrs Kanouff and
Underwood, the existing directors and executive officers of the Company,
resigned, and Scott L. Mathis, Julian Beale and Peter Lawrence were appointed as
the Issuer’s directors and Scott L. Mathis, Ronald S. Robbins, Tim Holderbaum
were appointed as the executive officers.
Item
5. Interest in Securities of the
Issuer.
(a) As of the date hereof,
DPEC may be deemed to be the beneficial owner of an aggregate of 43,822,401
shares of common stock. The aggregate number of shares of common
stock of the Issuer DPEC beneficially owns represents 96.5% of the Issuer’s
outstanding common stock based on 45,411,400 shares of such common stock
outstanding.
Mr. Mathis, as the Chief Executive
Officer, President, Chairman of the Board and a significant shareholder of DPEC,
may be deemed to indirectly beneficially own 8,630,275 shares of the Issuer’s
common stock, which represents a pro rata amount of the shares of common stock
beneficially owned by DPEC representing his pecuniary interest in
DPEC. The aggregate number of shares of common stock of the Issuer
Mr. Mathis may be deemed to beneficially own represents 19.0% of the Issuer’s
outstanding common stock based on 45,411,400 shares of such common stock
outstanding.
The foregoing should not be construed
in and of itself as an admission by Mr. Mathis as to beneficial ownership of the
shares owned by DPEC.
(b) DPEC has the sole power
to vote or to direct the voting of all such shares described in Item 5(a)
above. DPEC has the sole power to dispose or direct the disposition
of all such shares described in Item 5(a) above. Mr. Mathis may be
deemed to have shared power to vote or to direct the vote of a pro rata portion
of the shares beneficially owned by DPEC, and the shared power to dispose or
direct the disposition of such shares by virtue of his ownership interest in
DPEC and his position as an executive officer and
Chairman
of the Board of DPEC. Mr. Mathis disclaims such beneficial ownership
interest except to the extent of his pecuniary interest in DPEC.
(c) Other than as described
in Items 3 and 4, during the past sixty days prior to the date hereof, the
Reporting Persons have not engaged in any transaction in the Issuer’s common
stock.
(d) No person, other than
the Reporting Persons, is known to have the right to receive of the power to
direct the receipt of dividends from, or any proceeds from the sale of, the
shares of common stock beneficially owned by the Reporting Persons.
(e) Not
applicable.
Item
6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
None, except as described elsewhere in
this Schedule 13D.
Item
7. Material to Be Filed as
Exhibits.
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Exhibit A:
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Joint
Filing Agreement, dated as of November 12, 2009, by and among
Diversified Private Equity Corporation and Scott L.
Mathis.
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Exhibit B:
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Stock
Purchase Agreement by and among Diversified Private Equity Corporation and
Mercari Communications Group, Ltd. and Kanouff, LLL and Underwood Family
Partners, Ltd. dated November 9, 2009 (incorporated by reference to
Exhibit 10.1 to the Issuer’s Current Report on Form 8-K filed on
November 10, 2009).
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SIGNATURE
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.
Dated:
November 12, 2009
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DIVERSIFIED
PRIVATE EQUITY CORPORATION
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By:
/s/ Ronald S.
Robbins
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Name: Ronald
S. Robbins
Title: Executive
Vice President and Chief Operating Officer
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Scott
L. Mathis
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EXHIBIT
A
JOINT
FILING AGREEMENT
This will confirm the agreement by and
among the undersigned that the Schedule 13D filed with the Securities and
Exchange Commission on or about the date hereof with respect to the beneficial
ownership by the undersigned of the common stock, par value $0.00001 per share,
of Mercari Communications Group, Ltd., a Colorado corporation, is being filed,
and all amendments thereto will be filed, on behalf of each of the persons and
entities named below in accordance with Rule 13d-1(k) under the Securities
Exchange Act of 1934, as amended. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Dated:
November 12, 2009
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DIVERSIFIED
PRIVATE EQUITY CORPORATION
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By:
/s/ Ronald S.
Robbins
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Name: Ronald
S. Robbins
Title: Executive
Vice President and Chief Operating Officer
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Scott
L. Mathis
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Page 9
of 9
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