-----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, Wi8MNFKJflq0M8N1CDWo6gMJuOqEgwikr6AwvQsOaMNXd+ZZve5A9Pu0Cx+uaB36 f+r6ZCfE6tP7x8wPZhkB/A== 0001047469-99-034952.txt : 19990908 0001047469-99-034952.hdr.sgml : 19990908 ACCESSION NUMBER: 0001047469-99-034952 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19990907 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: 99707182 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 SC 14D9/A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-9/A AMENDMENT NO. 3 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 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Amendment No. 3 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 filed on August 12, 1999 (as amended, the "Schedule 14D-9") relating to the offer by EG Two Acquisition Co., a Delaware corporation (the "Purchaser"), and a subsidiary of CCPC Acquisition Corp., a Delaware corporation (the "Parent"), and an affiliate of Borden, Inc., a New Jersey corporation ("Borden"), to purchase all of the outstanding shares of Common Stock, par value $0.01 per share (the "Common Stock") including the associated preferred stock purchase rights (the "Rights") issued pursuant to the Rights Agreement dated March 27, 1987, as amended on June 9, 1998, January 10, 1989, March 23, 1992 and December 22, 1992, and as amended and restated as of March 21, 1997 and as amended on August 4, 1999 (as so amended, the "Rights Agreement") between EKCO Group, Inc., a Delaware corporation (the "Company") and American Stock Transfer & Trust Company, as rights agent ( the "Rights Agent"), and all of the outstanding shares of Series B ESOP Convertible Preferred Stock, par value $0.01 per share (the "ESOP Preferred Stock", and together with the Common Stock, the "Shares") of the Company, at a purchase price of $7.00 per Share (including, if applicable, the associated Right) net to the Seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase dated August 11, 1999 (the "Offer to Purchase") and in the related Letter of Transmittal (which, together with the Offer to Purchase, constitute the "Offer"). Unless otherwise indicated, all capitalized terms used, but not defined herein, shall have the meanings assigned to them in the Schedule 14D-9. ITEM 3. IDENTITY AND BACKGROUND--AGREEMENTS WITH THE PARENT, PURCHASER, OR THEIR AFFILIATES--THE MERGER AGREEMENT--CONDITIONS OF THE OFFER Item 3 of the Schedule 14D-9 is hereby amended and supplemented as follows: On September 2, 1999, the Company issued a press release announcing that the waiting period under the HSR Act had expired. The full text of the press release is set forth in Exhibit 35 and is incorporated herein by reference. ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED On September 2, 1999, the Company issued a press release announcing that the waiting period under the HSR Act had expired. The full text of the press release is set forth in Exhibit 35 and is incorporated herein by reference. 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 Exhibit 35 Press Release issued by Ekco Group, Inc. on September 2, 1999
- ------------------------ * 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: September 7, 1999 EKCO GROUP, INC. By: /s/ J. JAY ALTHOFF ----------------------------------------- J. Jay Althoff Title: Vice President and General Counsel
4 EX-99.35 2 EXHIBIT 35 EXHIBIT 35 [LETTERHEAD OF EKCO GROUP, INC.] For: EKCO Group, Inc. Contact: Don DeNovellis Chief Financial Officer (603) 888-1212 Investors: Stacey Bibi/Caroline Eustace/ Bernadette Garfinkle Morgen-Walke Associates FOR IMMEDIATE RELEASE (212) 850-5600 Media: Michael McMullan/ Stacy Roth Morgen-Walke Associates (212) 850-5600
EKCO GROUP, INC. ANNOUNCES EXPIRATION OF THE HART-SCOTT-RODINO WAITING PERIOD RELATING TO THE TENDER OFFER BY CCPC ACQUISITION CORP. FOR THE STOCK OF EKCO GROUP, INC. Nashua, NH, September 2, 1999--EKCO Group, Inc. (ASE:EKO) announced today that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 in connection with the pending acquisition of the Company by CCPC Acquisition Corp. (the parent of Corning Consumer Products Company) pursuant to a tender offer commenced on August 11, 1999 expired at 11:59 p.m. on September 1, 1999 Eastern Time. The tender offer and withdrawal rights thereunder will expire at 12:00 Midnight, New York City time, on Wednesday, September 8, 1999, unless the tender offer is extended. The tender offer is subject to the valid tender of at least a majority of the existing EKCO Group shares and to other customary conditions. EKCO Group, Inc., based in Nashua, NH, is a leading manufacturer and marketer of branded consumer products that are broadly marketed primarily through major mass merchant, supermarket, home, hardware, specialty and department stores. The Company's products include household items such as bakeware, kitchenware, pantryware, brooms, brushes and mops, as well as nonpoisonous and low-toxic household pest control products and small animal care and control products. In addition, the Company also markets pet supplies and accessories, such as ropes, chews, collars and leashes, through its subsidiary, Aspen Pet Products. EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THE MATTERS DISCUSSED IN THIS PRESS RELEASE ARE FORWARD-LOOKING STATEMENTS MADE PURSUANT TO THE SAFE HARBOR PROVISIONS OF SECTION 27A OF THE SECURITIES ACT OF 1933 AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934. SUCH STATEMENTS ARE BASED ON MANAGEMENT'S CURRENT EXPECTATIONS AND ARE SUBJECT TO A NUMBER OF FACTORS AND UNCERTAINTIES WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE DESCRIBED IN THE FORWARD-LOOKING STATEMENTS. SUCH FACTORS AND UNCERTAINTIES INCLUDE, BUT ARE NOT LIMITED TO: THE IMPACT OF THE LEVEL OF EKCO'S INDEBTEDNESS; RESTRICTIVE COVENANTS CONTAINED IN EKCO'S VARIOUS DEBT DOCUMENTS; GENERAL ECONOMIC CONDITIONS AND CONDITIONS IN THE RETAIL ENVIRONMENT; EKCO'S DEPENDENCE ON A FEW LARGE CUSTOMERS; PRICE FLUCTUATIONS IN THE RAW MATERIALS USED BY EKCO; COMPETITIVE CONDITIONS IN EKCO'S MARKETS; THE TIMELY INTRODUCTION OF NEW PRODUCTS AND COSTS ASSOCIATED THEREWITH; THE IMPACT OF COMPETITIVE PRODUCTS AND PRICING; CERTAIN ASSUMPTIONS RELATED TO CONSUMER PURCHASING PATTERNS; THE SEASONAL NATURE OF EKCO'S BUSINESS; THE TIMELY IMPLEMENTATION BY EKCO OF ITS YEAR 2000 PROJECT, THE FUTURE COSTS ASSOCIATED WITH ITS YEAR 2000 PROJECT AND THE TIMELY CONVERSION BY KEY VENDORS, CUSTOMERS, SUPPLIERS AND OTHER THIRD PARTIES ON WHICH EKCO'S BUSINESS RELIES; AND THE IMPACT OF FEDERAL, STATE AND LOCAL ENVIRONMENTAL REQUIREMENTS (INCLUDING THE IMPACT OF CURRENT OR FUTURE ENVIRONMENTAL CLAIMS AGAINST EKCO). AS A RESULT, EKCO'S RESULTS MAY FLUCTUATE. ADDITIONAL INFORMATION CONCERNING RISK FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE PROJECTED IN THE FORWARD-LOOKING STATEMENTS IS CONTAINED IN EKCO'S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE FORWARD-LOOKING STATEMENTS REPRESENT EKCO'S BEST ESTIMATES AS OF THE DATE OF THIS PRESS RELEASE. EKCO ASSUMES NO OBLIGATION TO UPDATE SUCH ESTIMATES EXCEPT AS REQUIRED BY THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION. # # # -----END PRIVACY-ENHANCED MESSAGE-----