SC 13D/A 1 sc13da207428ite_07012013.htm sc13da207428ite_07012013.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)

(Amendment No. 2)1

ITEX CORPORATION
(Name of Issuer)

Common Stock, par value $0.01 per share
(Title of Class of Securities)

465647303
(CUSIP Number)
 
Sardar Biglari
Biglari Capital Corp.
17802 IH 10 West, Suite 400
San Antonio, Texas  78257
(210) 344-3400
 
with copies to:
 
Steve Wolosky, Esq.
Olshan Frome Wolosky LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

July 1, 2013
(Date of Event Which Requires Filing of This Statement)

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 §§ 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 § 240.13d-7 for other parties to whom copies are to be sent.


_______________
1              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. 465647303
 
1
NAME OF REPORTING PERSON
 
The Lion Fund, L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
340,840
8
SHARED VOTING POWER
 
-0-
9
SOLE DISPOSITIVE POWER
 
340,840
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
340,840
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
11.6%
14
TYPE OF REPORTING PERSON
 
PN

 
2
 
CUSIP NO. 465647303
 
1
NAME OF REPORTING PERSON
 
Biglari Capital Corp.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Texas
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
340,840
8
SHARED VOTING POWER
 
-0-
9
SOLE DISPOSITIVE POWER
 
340,840
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
340,840
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
11.6%
14
TYPE OF REPORTING PERSON
 
CO

 
3
 
CUSIP NO. 465647303
 
1
NAME OF REPORTING PERSON
 
Sardar Biglari
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
340,840
8
SHARED VOTING POWER
 
-0-
9
SOLE DISPOSITIVE POWER
 
340,840
10
SHARED DISPOSITIVE POWER
 
-0-
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
340,840
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
11.6%
14
TYPE OF REPORTING PERSON
 
IN

 
4
 
CUSIP NO. 465647303
 
The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”).  This Amendment No. 2, among other things, adds The Lion Fund, L.P. and Biglari Capital Corp. as Reporting Persons, removes Biglari Holdings Inc. and Western Sizzlin Corporation as Reporting Persons and reports the contribution of securities of the Issuer held by Western Sizzlin Corporation to The Lion Fund, L.P.  In furtherance of the foregoing, this Amendment No. 2 amends the Schedule 13D as specifically set forth herein.
 
Item 2.
Identity and Background.
 
Item 2 is hereby amended and restated to read as follows:
 
(a)           This statement is filed by The Lion Fund, L.P., a Delaware limited partnership (“Lion Fund”), Biglari Capital Corp., a Texas corporation (“BCC”), and Sardar Biglari.  Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.”
 
BCC is the general partner of the Lion Fund.  Sardar Biglari is the Chairman and Chief Executive Officer of BCC and has investment discretion over the securities owned by the Lion Fund.  By virtue of these relationships, BCC and Sardar Biglari may be deemed to beneficially own the Shares owned directly by the Lion Fund.
 
(b)           The principal business address of each of the Lion Fund, BCC and Sardar Biglari is 17802 IH 10 West, Suite 400, San Antonio, Texas 78257.
 
(c)           The principal business of the Lion Fund is purchasing, holding and selling securities for investment purposes.  The principal business of BCC is serving as the general partner of the Lion Fund.  The principal occupation of Sardar Biglari is serving as Chairman and Chief Executive Officer of Biglari Holdings Inc. and BCC.
 
(d)           No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
 
(e)           No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is 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.
 
(f)           The Lion Fund is organized under the laws of the State of Delaware.  BCC is organized under the laws of the State of Texas.  Sardar Biglari is a citizen of the United States of America.
 
 
5
 
CUSIP NO. 465647303
 
Item 3.
Source and Amount of Funds or Other Consideration.
 
Item 3 is hereby amended and restated to read as follows:
 
The aggregate purchase price of the 340,840 Shares owned directly by the Lion Fund is approximately $1,487,631.  The Shares owned directly by the Lion Fund were acquired with funds of an affiliated entity that initially purchased the Shares prior to their contribution to the Lion Fund.
 
The Lion Fund effects purchases of securities primarily through margin accounts maintained for it with prime brokers, which may extend margin credit to it as and when required to open or carry positions in the margin accounts, subject to applicable federal margin regulations, stock exchange rules and the prime brokers’ credit policies.  In such instances, the positions held in the margin accounts are pledged as collateral security for the repayment of debit balances in the accounts.
 
Item 5.
Interest in Securities of the Issuer.
 
Item 5 is hereby amended and restated to read as follows:
 
(a - e)           The aggregate percentage of Shares reported owned by the Reporting Persons is based upon 2,940,986 Shares outstanding, which is the total number of Shares outstanding as of April 30, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on June 13, 2013.
 
As of the close of business on July 2, 2013, the Lion Fund owned directly 340,840 Shares, constituting approximately 11.6% of the Shares outstanding.  By virtue of their relationships with the Lion Fund discussed in further detail in Item 2, each of BCC and Sardar Biglari may be deemed to beneficially own the Shares owned by the Lion Fund.
 
No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Shares.
 
Effective July 1, 2013, Western Sizzlin Corporation contributed 340,840 Shares to the Lion Fund.  As a result, Western Sizzlin Corporation no longer owns any securities of the Issuer and Biglari Holdings Inc. is no longer deemed to beneficially own any securities of the Issuer.  There were no other transactions in securities of the Issuer by the Reporting Persons during the past 60 days.
 
By virtue of his relationships with the other Reporting Persons discussed in further detail in Item 2, Sardar Biglari may be deemed to have the sole power to vote and dispose of the Shares owned directly by the Lion Fund.
 
The filing of this Schedule 13D shall not be deemed an admission that any of the Reporting Persons is, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, the beneficial owner of any Shares he or it does not directly own.  Each of the Reporting Persons specifically disclaims beneficial ownership of the Shares reported herein that he or it does not directly own.
 
 
6
 
CUSIP NO. 465647303
 
Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Item 6 is hereby amended to add the following:
 
On July 3, 2013, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer.  A copy of this agreement is attached as an exhibit hereto and is incorporated herein by reference.
 
Item 7.
Material to be Filed as Exhibits.
 
Item 7 is hereby amended to add the following exhibit:
 
 
99.1
Joint Filing Agreement, dated July 3, 2013, by and among The Lion Fund, L.P., Biglari Capital Corp. and Sardar Biglari.
 
 
7
 
CUSIP NO. 465647303
 
SIGNATURE

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

   
July 3, 2013
   
(Date)
     
     
     
   
THE LION FUND, L.P.
     
 
By: BIGLARI CAPITAL CORP., its General Partner
   
   
 
By:
/s/ Sardar Biglari
   
Name:
Sardar Biglari
   
Title:
Chairman and Chief Executive Officer
   
     
   
BIGLARI CAPITAL CORP.
     
     
   
By:
/s/ Sardar Biglari
     
Name:
Sardar Biglari
     
Title:
Chairman and Chief Executive Officer
       
   
     
/s/ Sardar Biglari
     
SARDAR BIGLARI
 

 
 
8