ATSI Communications, Inc. v. Shaar Fund, Ltd.
Smarter Legal Research, 02 September 2009
More detailed factual background is provided in our previous opinion in this case, ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007) (” ATSI I”).
ATSI describes itself as a firm which was “founded in December of 1993 to capitalize on the opportunities anticipated by trends towards deregulation and privatization of telecommunications markets within Mexico and other Latin American countries.” In 1999, needing capital, ATSI issued four series of convertible preferred stock (“Preferred Stock”), shares of which were convertible, with minimal restrictions, to ATSI common shares in increasing amounts as the price of ATSI common shares declined. Because there was no limit on the number of common shares into which the Preferred Stock could convert, securities such as these are called “floorless” convertibles. ATSI I, 493 F.3d at 94. A holder of such Preferred Stock who wanted to increase ownership or acquire the company could actually benefit from a decline in ATSI share price. Accordingly, ATSI elicited the purchasers’ representations that they would not sell shares short, or were not purchasing with an intent to resell. Id. at 95-96. ATSI issued Preferred Stock at various points to (among others) defendants The Shaar Fund, Ltd. (“Shaar Fund”) and Rose Glen Capital Management, L.P. (“Rose Glen”).
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