-----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, D3o1XIXcplQv0kCs2Hg3GPrhamFCnlViwVDY9RVqseK+gEfIL1Uh0qLtZoRajZ3M 0iazkcDH6ogRwaNM4QnnSg== 0001047469-99-033213.txt : 19990823 0001047469-99-033213.hdr.sgml : 19990823 ACCESSION NUMBER: 0001047469-99-033213 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990820 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EKCO GROUP INC /DE/ CENTRAL INDEX KEY: 0000018827 STANDARD INDUSTRIAL CLASSIFICATION: METAL FORGING & STAMPINGS [3460] IRS NUMBER: 112167167 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: SEC FILE NUMBER: 005-10179 FILM NUMBER: 99696723 BUSINESS ADDRESS: STREET 1: 98 SPIT BROOK RD STREET 2: SUITE 102 CITY: NASHUA STATE: NH ZIP: 03062 BUSINESS PHONE: 6038881212 MAIL ADDRESS: STREET 1: 98 SPIT BROOK RD STREET 2: SUITE 102 CITY: NASHUA STATE: NH ZIP: 03062 FORMER COMPANY: FORMER CONFORMED NAME: CENTRONICS CORP DATE OF NAME CHANGE: 19880504 FORMER COMPANY: FORMER CONFORMED NAME: CENTRONICS DATA COMPUTER CORP DATE OF NAME CHANGE: 19870304 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: EKCO GROUP INC /DE/ CENTRAL INDEX KEY: 0000018827 STANDARD INDUSTRIAL CLASSIFICATION: METAL FORGING & STAMPINGS [3460] IRS NUMBER: 112167167 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 98 SPIT BROOK RD STREET 2: SUITE 102 CITY: NASHUA STATE: NH ZIP: 03062 BUSINESS PHONE: 6038881212 MAIL ADDRESS: STREET 1: 98 SPIT BROOK RD STREET 2: SUITE 102 CITY: NASHUA STATE: NH ZIP: 03062 FORMER COMPANY: FORMER CONFORMED NAME: CENTRONICS CORP DATE OF NAME CHANGE: 19880504 FORMER COMPANY: FORMER CONFORMED NAME: CENTRONICS DATA COMPUTER CORP DATE OF NAME CHANGE: 19870304 SC 14D9/A 1 SCHEDULE 14D/9A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-9/A AMENDMENT NO. 2 SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 EKCO GROUP, INC. (Name of Subject Company) EKCO GROUP, INC. (Name of Person(s) Filing Statement) COMMON STOCK, PAR VALUE $.01 PER SHARE SERIES B ESOP CONVERTIBLE PREFERRED STOCK, PAR VALUE $.01 PER SHARE (Title of Class of Securities) 282636109 (CUSIP NUMBER OF COMMON STOCK) ------------------------ DONATO A. DENOVELLIS EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER EKCO GROUP, INC. 98 SPIT BROOK ROAD, SUITE 102 NASHUA, NEW HAMPSHIRE 03062 (603) 888-1212 (Name, address and telephone number of person authorized to receive notice and communication on behalf of the person(s) filing statement). WITH A COPY TO: PETER S. LAWRENCE, ESQ. MICHAEL L. FANTOZZI, ESQ. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. ONE FINANCIAL CENTER BOSTON, MASSACHUSETTS 02111 (617) 542-6000 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
@ Exhibit 1 Agreement and Plan of Merger among Ekco Group, Inc., CCPC Acquisition Corp. and EG Two Acquisition Co., dated as of August 5, 1999. @ Exhibit 2 Amendment to the Agreement and Plan of Merger among Ekco Group, Inc., CCPC Acquisition Corp. and EG Two Acquisition Co., dated as of August 10, 1999. @ Exhibit 3 Guarantee dated August 5, 1999 exclusively executed by Borden, Inc. in favor of Ekco Group, Inc. @ Exhibit 4 Confidentiality Agreement between Ekco Group, Inc. and Borden, Inc., dated as of May 3, 1999. @ Exhibit 5 Letter to Stockholders of Ekco Group, Inc., dated August 12, 1999.* + Exhibit 6 Press Release issued by Ekco Group, Inc., CCPC Acquisition Corp. and EG TWO Acquisition Co. on August 5, 1999 (incorporated by reference to Exhibit 99.1 to Ekco Group, Inc.'s Current Report on Form 8-K reporting events occurring on August 5, 1999). @ Exhibit 7 Opinion of Lehman Brothers, Inc., dated as of August 4, 1999.* + Exhibit 8 1984 Restricted Stock Purchase Plan, as amended (incorporated herein by reference to Exhibit 10.1(a) to Form 10-K for the year ended December 29, 1996). + Exhibit 9 1985 Restricted Stock Purchase Plan, as amended (incorporated herein by reference to Exhibit 10.1(b) to Form 10-K for the year ended December 29, 1996). + Exhibit 10 Form of Restricted Stock Purchase Agreement, as amended (incorporated herein by reference to Exhibit 10.1(b) to Form 10-K for the year ended January 1, 1995, Exhibit 10.1(c)(3) to Form 10-K for the year ended December 31, 1995 and schedule thereto in Exhibit 10.1(c)(2) to Form 10-K for the year ended December 29,1996). + Exhibit 11 Form of Restricted Stock Purchase Agreement, as amended (incorporated by reference to Exhibits 10.1(d) to Form 10-K for the year ended December 31, 1995). + Exhibit 12 1987 Stock Option Plan, as amended, including forms of incentive stock option and non-qualified stock option agreements (incorporated herein by reference to Exhibit 10.2(a) to Form 10-K for the year ended December 28, 1997). + Exhibit 13 Form of Non-Qualified Stock Option and Repurchase Agreement, as amended (incorporated herein by reference to Exhibit10.2(b)(2)(i) to Form 10-K for the year ended December 31, 1995). @ Exhibit 14 Schedule to Form of Non-Qualified Stock Option and Repurchase Agreement, as amended. + Exhibit 15 Form of Non-Qualified Stock Option Agreement (incorporated herein by reference to Exhibit 10.2(e) to Form 10-K for the year ended December 29, 1996). + Exhibit 16 Form of Non-Qualified Stock Option and Repurchase Agreement (incorporated herein by reference to Exhibit 10.2(e) to Form 10-K for the year ended December 28, 1997 and Exhibit 10.2(b)(2) to Form 10-K for the year ended January 3, 1999). + Exhibit 17 Form of Non-Qualified Stock Option Agreement (incorporated herein by reference to Exhibit 10.2(f) to Form 10-K for the year ended December 28, 1997). + Exhibit 18 Form of Indemnity Agreement for officers and directors, originally filed as Exhibit 10.3(c) to Form 10-K for the year ended January 1, 1995 (incorporated herein by reference to Exhibit 10.3 to Form 10-K for the year ended January 3, 1999). + Exhibit 19 Ekco Group, Inc. 1988 Directors' Stock Option Plan, as amended, and form of Non-Qualified Stock Option and Repurchase Agreement (incorporated herein by reference to Exhibit 10.4 to Form 10-K for the year ended December 28, 1997).
2 + Exhibit 20 Schedule to Form of Non-Qualified Stock Option and Repurchase Agreement (incorporated herein by reference to Exhibit 10.4(a)(2) to Form 10-K for the year ended January 3, 1999). + Exhibit 21 Ekco Group, Inc. Employees' Stock Ownership Plan ("ESOP") effective as of January 1, 1989, as amended (incorporated herein by reference to Exhibits 10.6(a)(1) and (2) to Form 10-K for the year ended January 1, 1995, Exhibits 10.5(a)(2) and 10.5(a)(3) to Form 10-K for the year ended December 29, 1996 and Exhibit 10.5(b) to Form 10-K for the year ended January 3, 1999). + Exhibit 22 Employment Agreement with Malcolm L. Sherman dated December 4, 1996, as amended (incorporated herein by reference to Exhibit 10.6 to Form 10-K for the year ended January 3, 1999). + Exhibit 23 Amended and Restated Employment Agreement with Donato A. DeNovellis dated as of May 25, 1995, as amended (incorporated herein by reference to Exhibit 10.3 to Form 10-Q for the quarterly period ended October 1, 1995, Exhibit 10.9(b) to Form 10-Q for the period ended June 30, 1996 and Exhibit 10.10 to Form 10-K for the year ended December 29, 1996). + Exhibit 24 Amended and Restated Employment Agreement with Jeffrey A. Weinstein dated as of May 25, 1995 (incorporated herein by reference to Exhibit 10.2 to Form 10-Q for the quarterly period ended October 1, 1995 and Exhibit 10.10 to Form 10-K for the year ended December 29, 1996). + Exhibit 25 Form of Amended and Restated Employment Agreement with Brian R. McQuesten and another officer dated as of May 25, 1995, as amended (incorporated herein by reference to Exhibit 10.5 to Form 10-Q for the quarterly period ended October 1, 1995). @ Exhibit 26 Employment Agreement with J. Jay Althoff dated September 16, 1997, as amended. + Exhibit 27 1995 Restatement of Incentive Compensation Plan for Executive Employees of Ekco Group, Inc. and its Subsidiaries, as amended (incorporated herein by reference to Exhibit 10.12 to Form 10-K for the year ended December 28, 1997). + Exhibit 28 Ekco Group, Inc. Supplemental Executive Retirement Plan dated as of July 1, 1992, (incorporated herein by reference to Exhibit 10.12 to Form 10-K for the year ended January 3, 1999). + Exhibit 29 Form of Split Dollar Agreement (incorporated herein by reference to Exhibit 10.13 to Form 10-K for the year ended January 3, 1999). @ Exhibit 30 Resolutions dated May 25, 1995 re: Ekco Group, Inc. Severance Policy. @ Exhibit 31 Letter to Participants in Ekco Group, Inc. Employees' Stock Ownership Plan dated August 13, 1999 @ Exhibit 32 Instruction Form Exhibit 33 Letter to Holder of Options to Purchase Ekco Group, Inc. Common Stock Exhibit 34 Form of Option Election Agreement
- ------------------------ * Included with Schedule 14D-9 mailed to stockholders @ Previously filed. + Incorporated by reference. 3 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: August 20, 1999 EKCO GROUP, INC. By: /s/ J. JAY ALTHOFF ----------------------------------------- J. Jay Althoff Title: Vice President and General Counsel
4 EX-99.33 2 EXHIBIT 99.33 EXHIBIT 33 EKCO GROUP, INC. Dear Holder of Options to Purchase Ekco Common Stock: As you know, the Board of Directors of Ekco Group, Inc. has unanimously approved a Merger Agreement among Ekco, CCPC Acquisition Corp. and EG Two Acquisition Co. ("Acquisition Co."). Both CCPC Acquisition Corp. and Acquisition Co. are affiliates of Corning Consumer Products and Borden. Under the terms of the Merger Agreement, Acquisition Co. is obligated to offer to purchase all outstanding shares of Ekco Common Stock at a purchase price of $7.00 per share, net to the seller in cash. We are very excited about the prospects this transaction brings to Ekco. Corning and Borden bring outstanding records in financial and management success, in addition to well-respected reputations for building strong companies. We see this as a unique and timely opportunity for Ekco. As part of the tender offer, Acquisition Co. has agreed to purchase all the outstanding options for common stock of Ekco, WHETHER VESTED OR UNVESTED, for a cash payment per share equal to $7.00 less the per share exercise price. As a result, your options can be tendered to Acquisition Co. in exchange for a cash payment equal to $7.00 multiplied by the aggregate number of shares subject to your options, less the aggregate exercise price of your option shares and all withholding taxes attributable to such payment (the "Option Payment"). All of your Ekco options will terminate upon your receipt of the Option Payment as set forth in the enclosed Option Election Agreement. If you do not sign the Option Election Agreement and the offer is consummated, your options will be converted in the merger into the right to receive the Option Payment at a later date. You are urged to read the enclosed Offer to Purchase dated August 11, 1999 and our letter to shareholders and Solicitation/Recommendation Statement dated August 12, 1999. If you would like to participate in this offer PLEASE SIGN THE ENCLOSED OPTION ELECTION AGREEMENT AND SEND IT IN THE ENCLOSED ENVELOPE TO EKCO's COUNSEL: MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C. ONE FINANCIAL CENTER BOSTON, MA 02111 ATTENTION: KATIE HUGHES YOUR OPTION ELECTION AGREEMENT MUST BE RECEIVED PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON WEDNESDAY SEPTEMBER 8, 1999 IN ORDER FOR YOUR OPTIONS TO BE PURCHASED IN THE TENDER OFFER. Please feel free to call Linda Millman at Ekco at (603) 888-1212 or Nancy Prior at Mintz Levin, Ekco's counsel, at (617) 348-3045 with any questions. Sincerely, /s/ Malcolm L. Sherman Malcolm L. Sherman Chairman of the Board and Chief Executive Officer EX-99.34 3 EXHIBIT 99.34 EXHIBIT 34 FORM OF OPTION ELECTION AGREEMENT THIS OPTION ELECTION AGREEMENT (this "Agreement") is entered into as of the date set forth on the last page of this Agreement, by and among [NAME] ("you") and Ekco Group, Inc., a Delaware corporation ("EKCO"). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement and Plan of Merger, dated as of August 5, 1999 as amended, by and among EKCO, EG Two Acquisition Co. (the "Purchaser") and CCPC Acquisition Corp. (the "Merger Agreement"). WHEREAS, as of August 16, 1999, you hold an option or options (collectively, "Option(s)") to purchase that number of shares of common stock, par value $.01 per share, of EKCO (the "Option Shares") set forth on Schedule A hereto granted to you under either EKCO's 1987 Stock Option Plan or EKCO's 1998 Directors' Stock Option Plan (the "EKCO Plans") under written stock option agreement(s) between EKCO and you ("Option Agreement(s)"); WHEREAS, Purchaser has agreed to purchase all the outstanding shares of common stock of EKCO through a tender offer at a purchase price of $7.00 per share of EKCO common stock, net to the seller in cash, in connection with the Merger Agreement upon the satisfaction of certain conditions set forth therein; and WHEREAS, if you agree to enter into this Agreement to terminate your Option(s) and the Option Agreement(s), you will receive a cash payment from Purchaser equal to the aggregate amount that you would receive if each of your Option Shares (whether or not such Options are vested) had been tendered pursuant to the terms of the Offer, less the payment of the exercise price of each Option Share and all withholding taxes attributable to such payment. NOW, THEREFORE, in consideration of the premises contained herein, the parties agree as follows: 1. You hereby agree that, immediately prior to the consummation of the Offer, and subject to the consummation of the Offer, each outstanding Option shall be deemed to be fully exercisable (whether or not otherwise exercisable) and shall be cancelled as of the date thereof, in exchange for a cash payment from the Purchaser equal to the aggregate amount that you would receive if each of the Option Shares had been tendered to Purchaser pursuant to the terms of the Offer, less the payment of the exercise price of each Option Share and all withholding taxes attributable to such payment (the "Option Payment") as set forth on Schedule A attached hereto and incorporated herein by reference. The Option Payment shall be paid to you by the Purchaser as soon as practicable after the consummation of the Offer but in no event later than 10 business days after the consummation of the Offer. 2. You hereby acknowledge that you have been advised that (i) Options for which a valid Stock Option Election Agreement has been executed and delivered to Ekco that are not already vested will become vested immediately prior to the consummation of the Offer (but subject to the purchase by Purchaser of shares of EKCO common stock pursuant to the Offer), and (ii) upon the receipt by you of the Option Payment pursuant to this Agreement, you shall have no further rights under any Options. By signing this Agreement, you are deemed to have agreed to the cancellation of your Options in exchange for receipt of the Option Payment. Pursuant to this Agreement, you shall have no further rights under such Options other than receipt of the Option Payment. 3. If, for any reason, the Offer is not consummated, this Agreement shall be void and of no effect and your Option(s) shall remain outstanding and shall continue to vest in accordance with their terms. 4. The right to receive the Option Payment under this Agreement may not be assigned, alienated, pledged or hypothecated, and any attempted assignment, alienation, pledge or hypothecation shall be void and of no effect. 5. This Agreement may be signed in one or more identical counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this OPTION ELECTION AGREEMENT this 20th day of August, 1999. EKCO GROUP, INC. By: ----------------------------------------- Name: J. Jay Althoff Title: Vice President and General Counsel
-------------------------------------- Optionee SCHEDULE A OPTIONEE:_____________
OPTION PAYMENT (TOTAL PURCHASE PRICE - AGGREGATE AGGREGATE EXERCISE PRICE TOTAL PURCHASE PRICE EXERCISE PRICE OF TOTAL OPTION SHARES OF OPTION SHARES FOR OPTION SHARES OPTION SHARES) - ------------------- ------------------------ -------------------- -----------------
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