-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QTJuQtyyAHY7vdgmjFRG4LeF0h1XNran8CB1iU9QKrMrfOausjKAMZq9GAypCbTx NfeRDmnPPBx1Z7PGqsm/Qg== 0000950123-05-000725.txt : 20060929 0000950123-05-000725.hdr.sgml : 20060929 20050126160231 ACCESSION NUMBER: 0000950123-05-000725 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050126 DATE AS OF CHANGE: 20060120 GROUP MEMBERS: F I L A - FABRICA ITALIANA LAPIS ED AFFINI SPA SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DIXON TICONDEROGA CO CENTRAL INDEX KEY: 0000014995 STANDARD INDUSTRIAL CLASSIFICATION: PENS, PENCILS & OTHER ARTISTS' MATERIALS [3950] IRS NUMBER: 230973760 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-08942 FILM NUMBER: 05550184 BUSINESS ADDRESS: STREET 1: 195 INTERNATIONAL PKWY STREET 2: STE 200 CITY: HEATHROW STATE: FL ZIP: 32746-5036 BUSINESS PHONE: 4078759000 MAIL ADDRESS: STREET 1: PO BOX 958413 STREET 2: STE 200 CITY: HEATHROW STATE: FL ZIP: 32795-8413 FORMER COMPANY: FORMER CONFORMED NAME: BRYN MAWR CORP/DE/ DATE OF NAME CHANGE: 19831002 FORMER COMPANY: FORMER CONFORMED NAME: BRYN MAWR GROUP INC DATE OF NAME CHANGE: 19730619 FORMER COMPANY: FORMER CONFORMED NAME: BRYN MAWR CAMP RESORTS INC DATE OF NAME CHANGE: 19700608 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Pencil Acquisition Corp. CENTRAL INDEX KEY: 0001311731 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: C/O SHAPIRO FORMAN ALLEN MILLER & MCPHER STREET 2: 380 MADISON AVE, 25TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-972-4900 MAIL ADDRESS: STREET 1: C/O SHAPIRO FORMAN ALLEN MILLER & MCPHER STREET 2: 380 MADISON AVE, 25TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC TO-T/A 1 y05123sctovtza.txt AMENDMENT NO. 1 TO SCHEDULE TO SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE TO/A (AMENDMENT NO. 1) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 DIXON TICONDEROGA COMPANY (NAME OF SUBJECT COMPANY (ISSUER)) PENCIL ACQUISITION CORP., A WHOLLY-OWNED SUBSIDIARY OF F.I.L.A - FABBRICA ITALIANA LAPIS ED AFFINI S.P.A. (NAMES OF FILING PERSONS (OFFERORS)) COMMON STOCK, PAR VALUE $1.00 PER SHARE (TITLE OF CLASS OF SECURITIES) 255860 10 8 (CUSIP NUMBER OF COMMON STOCK) ROBERT W. FORMAN, ESQ. SHAPIRO FORMAN ALLEN MILLER & MCPHERSON LLP 380 MADISON AVENUE 25TH FLOOR NEW YORK, NEW YORK 10017 (212) 972-4900 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS) CALCULATION OF FILING FEE TRANSACTION VALUE* AMOUNT OF FILING FEE $22,455,258 $2,642.98 * Estimated for purposes of calculating the amount of the filing fee only. This amount assumes the purchase of 3,207,894 shares of common stock, par value $1.00 per share, of Dixon Ticonderoga Company (the "Shares"), representing all of the outstanding Shares, as of December 16, 2004. [X] Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number or the Form or Schedule and the date of its filing. Amount Previously Paid: $2,642.98 Filing Party: Pencil Acquisition Corp. Form or Registration No.: Schedule TO Date Filed: January 7, 2005 [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [X] third-party tender offer subject to Rule 14d-1 [ ] issuer tender offer subject to Rule 13e-4 [ ] going private transaction subject to Rule 13e-3 [ ] amendment to Schedule 13D under Rule 13d-2 Check the following box if the filing is a final amendment reporting the results of the tender offer [ ] This Amendment No. 1 (this "Amendment") amends and supplements the Tender Offer Statement on Schedule TO (the "Statement") originally filed with the Securities and Exchange Commission on January 7, 2005 by Pencil Acquisition Corp., ("Merger Sub"), a wholly owned subsidiary of F.I.L.A - Fabbrica Italiana Lapis ed Affini S.p.A. ("Parent") relating to a tender offer by Merger Sub to purchase all outstanding shares of common stock, par value $1.00 per share, of Dixon Ticonderoga Company, a Delaware corporation (the "Company"), for a purchase price of $7.00 per share, net to the seller in cash, without interest thereon, upon the terms and conditions set forth in the Offer to Purchase, dated January 7, 2005 (the "Offer to Purchase"), a copy of which is filed as Exhibit (a)(1) to the Statement (the "Offer to Purchase"), and in the related Letter of Transmittal and the instructions thereto, a copy of which is filed as Exhibit (a)(2) to the Statement (the "Letter of Transmittal") (which, together with the Offer to Purchase as each may be amended or supplemented from time to time, constitute the "Offer"). Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Statement. ITEMS 1 THROUGH 11. A. The sixth bullet point (which appears on page S-3 of the Offer to Purchase) in the response to the question "Can the offer be extended and under what circumstances?" on page S-2 of the Offer to Purchase is hereby amended by inserting on the third line after the word "beginning" the words "immediately on the next business day after the latest expiration date". B. The second sentence of the first full paragraph on page 4 of the Offer to Purchase is hereby amended by deleting it and replacing it with the following: A Subsequent Offering Period is an additional period of time from three to 20 business days in length, beginning immediately on the next business day after the latest Expiration Date, during which time stockholders may tender, but not withdraw, their Shares and receive the Offer Price. C. "5. Certain United States Federal Income Tax Consequences" on page 10 is hereby amended as follows: 1. The heading is hereby amended to delete the word "Certain" and to read in its entirety as follows: "5. United States Federal Income Tax Consequences." 2. The first paragraph under the heading is hereby amended by (i) deleting the words "general" and "certain" in the first line of such paragraph and (ii) by deleting the second sentence of such paragraph. 3. The second paragraph under the heading is hereby amended by deleting it and replacing it with the following: BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH STOCKHOLDER IS ADVISED TO CONSULT ITS OWN TAX ADVISOR REGARDING THE PARTICULAR TAX EFFECTS TO SUCH STOCKHOLDER OF THE OFFER AND THE PROPOSED MERGER, INCLUDING THE APPLICATION AND EFFECT OF STATE, LOCAL AND FOREIGN TAX LAWS. 2 4. The third paragraph under the heading is amended by deleting the word "generally" in the third line. D. "7. Certain Information Concerning the Company" beginning on page 11 is hereby amended as follows: 1. The first paragraph under the heading "Company Projections" is hereby amended by deleting the word "certain" in the third line. 2. The second paragraph under the heading "Company Projections" is hereby amended by deleting the first sentence in its entirety. 3. The fourth paragraph under "Company Projections" is hereby amended by (i) deleting the words "also" and "numerous" on the first line, and (ii) deleting the last sentence of the paragraph and adding three new sentences at the end of the paragraph as follows: The projections assumed revenues would increase by approximately 7.8%, cost of goods sold as a percent of sales would decrease by approximately 0.85% and that selling expenses would increase by approximately 4.7% and payroll expenses by 3%, in 2005 as compared to 2004. The projections also assume that the Company would remain a public company, and reflect costs and expenses associated with investment banking fees, debt refinancing costs and Sarbanes-Oxley compliance costs of approximately $1,125,000 for fiscal 2005. It is impractical to quantify any other assumptions on which the projections were based. 4. The fifth and sixth paragraphs under the heading "Company Projections" are deleted. 5. The first sentence in the seventh paragraph under the heading "Company Projections" is amended (i) to delete the word "included" and replace it with the word "reflected" and (ii) to insert the word "year" after the word "fiscal." 6. The seventh paragraph under the heading "Company Projections" is amended by adding the following under the table: This compares with the following actual results for the Company on a consolidated basis for fiscal year 2004:
($ in millions) Total Revenue 88,169 Gross Profit 33,465 Net Income 1,732
3 7. The eighth paragraph under the heading "Company Projections" is deleted. E. "14. Conditions of the Offer" is hereby amended as follows: 1. Subparagraph "(i)" on page 30 is amended by adding the following after the words "Minimum Condition" "(i.e., the number of Shares tendered, together with the Shares subject to the Stock Purchase Agreement, shall exceed 66 2/3% of the Company's outstanding Shares)". 2. Subparagraph "(ii)(b)" is amended by adding a period after the word "whole" and adding the following: "Material Adverse Effect" means any effect, change, event, circumstance or condition which when considered with all other effects, changes, events, circumstances or conditions has materially adversely affected or would reasonably be expected to materially adversely affect the results of operations, financial condition, or business of the Company, including its Subsidiaries together with it taken as a whole; 3. Subparagraph "(ii)(d)" is amended by adding the words "(see Item 11 above)" after the word "Agreement" in the first line. 4. The last paragraph of the section is amended by adding the words "prior to expiration of the Offer" after the words "time to time" on the third line. 4 SIGNATURE After due 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. F.I.L.A - Fabbrica Italiana Lapis ed Affini S.p.A. By: /s/ Massimo Candela ---------------------- Name: Massimo Candela Title: Managing Director Pencil Acquisition Corp. By: /s/ Massimo Candela ---------------------- Name: Massimo Candela Title: President Date: January 26, 2005 5 CORRESP 2 filename2.txt [LETTERHEAD OF SHAPIRO FORMAN ALLEN MILLER & MCPHERSON LLP] January 26, 2005 Abby Adams, Special Counsel Office of Mergers and Acquisitions Securities and Exchange Commission Division of Corporate Finance 450 Fifth Street, N.W. Mail Stop 4-4 Washington, DC 20549-0404 Telephone number 202-942-1881 Re: Dixon Ticonderoga Company Schedule TO-C filed December 17, 2004 Schedule TO-T filed January 7, 2005 Filed by Pencil Acquisition Corp., and F.I.L.A. S.P.A. Dear Ms. Adams: We represent the Parent and Merger Sub (collectively, the "Bidder") in connection with the above-referenced offer, and write in response to the staff's comment letter dated January 21, 2005. SCHEDULE TO-C 1. The Bidder will not refer to the safe harbor provision in any future communications with respect to this tender offer. 2. The Bidder will revise the disclosure to delete any reference to the Bidder not having obligations to update forward-looking statements to reflect subsequent events or circumstances. Abby Adams January 26, 2005 Page 2 SCHEDULE TO-T Offer to Purchase Summary Term Sheet 3. The Offer has been amended to clarify that a Subsequent Offering Period, if any, would commence immediately on the next business day after the Expiration Date. Certain U.S. Federal Income Tax Consequences, page 10 4. The Bidder has revised the disclosure to conform to your comments. The Offer discloses all material federal income tax consequences of the transaction. Certain Information Concerning the Company, page 11 5. The Bidder has revised the section to eliminate the disclaimers. 6. The Bidder has not given any considerations to providing a reconciliation of the projections so that they are provided in accordance with GAAP. The projections were internally prepared forecasts, not intended to be in accordance with GAAP, and were included in the Offer only because the Bidder had been shown such projections. 7. The Bidder has disclosed all assumptions of which the Bidder is aware, including an attempt to quantify the cost of remaining a public company and complying with Sarbanes-Oxley. 8. The Bidder has revised the Offer to include similar line items for the actual results for the fiscal year ended in 2004. This information is available from the Company's Annual Report on Form 10-K. 9. The Bidder has changed the word "include" to "reflect." The projections referred to in the Offer are the only projections furnished to Parent or Merger Sub. Conditions of the Offer, page 30 10. The Bidder has revised the disclosure to set forth in full the definition of a "Material Adverse Effect". We have cross-referenced to item 11 which describes the Agreement in detail. We believe the discussion of the representations and warranties in item 11 adequately inform the reader as to the representations, warranties, governmental approvals and consents to which we refer. 11. Under the Stock Purchase Agreement, the Bidder has the right to compel the selling stockholders to tender their shares. The Bidder has given the selling stockholders such notice. If the selling stockholders fail to tender, the Bidder will know that prior to the 2 Abby Adams January 26, 2005 Page 3 expiration of the offer. In addition, the selling stockholders could breach the agreement by anticipatorily repudiating their obligations, or selling their stock in violation of the agreement. 12. We do not believe there are two Minimum Conditions. Rather, rights are afforded to the Bidder to extend the offer until the Outside Date, if greater than 66 2/3% but less than 90% of the outstanding shares are tendered. 13. We have revised the disclosure to state the Bidder can only waive the conditions prior to the Expiration Date. Letter of Transmittal: Validity of Tender 14. The Bidder will exercise its discretion with respect to irregularities or defects in a reasonable manner. Closing Comments We are simultaneously filing a statement from the Bidder with the acknowledgements requested in the staff's comment letter. We do not believe that the Bidder's revised disclosure in response to the Staff's comments materially change the information provided to security holders. The revisions to the Offer relate principally to the Federal Tax Consequences, Conditions to the Offer and the projections referred to in the Offer. We believe that the discussion of the tax consequences contained in the Offer document mailed to shareholders was sufficient to inform shareholders of the material federal income tax consequences associated with the Offer. The Bidder did not place any reliance on the 2005 projections in making any decisions regarding the Offer. Moreover, the revisions to the Offer do not change or elaborate on the most important components of the projections, i.e., sales and net income projections. Accordingly, we do not believe that disseminating revised materials is necessary to inform them of the revised information. If you have any questions or comments regarding the foregoing, please contact me at your earliest convenience. Very truly yours, Robert W. Forman RWF/cpl 3 CORRESP 3 filename3.txt Abby Adams January 25, 2005 Page 2 [FILA LETTERHEAD] January 25, 2005 Abby Adams, Special Counsel Office of Mergers and Acquisitions Securities and Exchange Commission Division of Corporate Finance 450 Fifth Street, N.W. Mail Stop 4-4 Washington, DC 20549-0404 Re: Dixon Ticonderoga Company Schedule TO-C filed December 17, 2004 Schedule TO-T filed January 7, 2005 Filed by Pencil Acquisition Corp., and F.I.L.A. S.P.A. Dear Ms. Adams: On behalf of the bidders referred to above, I hereby acknowledge that - the bidders are responsible for the adequacy and accuracy of the disclosure in the above-referenced filings; - staff comments or changes to disclosure in response to staff comments in the above-referenced filings reviewed by the staff do not foreclose the Commission from taking any action with respect to the filing; and - the bidders may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. Abby Adams January 26, 2005 Page 2 F.I.L.A.-Fabbrica Italiana Lapis ed Affini S.p.A. By: /s/Massimo Candela ------------------------------------------ Name: Massimo Candela Title: Managing Director Pencil Acquisition Corp. By: /s/Massimo Candela ------------------------------------------ Name: Massimo Candela Title: President 2 -----END PRIVACY-ENHANCED MESSAGE-----