-----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, Kdn98carxcJAkSCMDSMm47mMPh1wRlbXGCkW6i/S4Uwle6LcuAKohtr9MjKpRt8c HxGKiGwJSLcifMo7zJeKvA== 0000950123-97-004848.txt : 19970606 0000950123-97-004848.hdr.sgml : 19970606 ACCESSION NUMBER: 0000950123-97-004848 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970605 SROS: NONE GROUP MEMBERS: HARCOURT GENERAL, INC. GROUP MEMBERS: NICK ACQUISITION CORP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL EDUCATION CORP CENTRAL INDEX KEY: 0000277821 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 952774428 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32461 FILM NUMBER: 97619774 BUSINESS ADDRESS: STREET 1: 2601 MAIN STREET CITY: IRVINE STATE: CA ZIP: 92614 BUSINESS PHONE: 714-474-9400 MAIL ADDRESS: STREET 1: 18400 VON KARMAN AVE CITY: IRVINE STATE: CA ZIP: 92715 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NICK ACQUISITION CORP CENTRAL INDEX KEY: 0001037989 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: C/O HARCOURT GENERAL INC STREET 2: 27 BOYLSTON ST CITY: CHESTNUT HILL STATE: MA ZIP: 02167 BUSINESS PHONE: 6172328200 MAIL ADDRESS: STREET 1: C/O HARCOURT GENERAL INC STREET 2: 27 BOYLSTON ST CITY: CHESTNUT HILL STATE: MA ZIP: 02167 SC 14D1/A 1 AMENDMENT NO. 5 TO SCHEDULE 14D-1 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 5 TO SCHEDULE 14D-1 TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 ------------------------ NATIONAL EDUCATION CORPORATION (NAME OF SUBJECT COMPANY) NICK ACQUISITION CORPORATION HARCOURT GENERAL, INC. (BIDDER) ------------------------ COMMON STOCK, PAR VALUE $.01 PER SHARE (TITLE OF CLASS OF SECURITIES) 63577110 (CUSIP NUMBER OF CLASS OF SECURITIES) ERIC P. GELLER SENIOR VICE PRESIDENT AND GENERAL COUNSEL 27 BOYLSTON STREET CHESTNUT HILL, MASSACHUSETTS 02167 TELEPHONE: (617) 232-8200 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER) ------------------------ Copy to: ROBERT L. FRIEDMAN, ESQ. SIMPSON THACHER & BARTLETT 425 LEXINGTON AVENUE NEW YORK, NEW YORK 10017 TELEPHONE: (212) 455-2000 ================================================================================ 2 This Amendment No. 5 amends and supplements the Tender Offer Statement on Schedule 14D-1 filed on April 21, 1997 (as amended and supplemented, the "Schedule 14D-1") relating to the offer by Nick Acquisition Corporation, a Delaware corporation (the "Purchaser") and a wholly-owned subsidiary of Harcourt General, Inc., a Delaware corporation (the "Parent" or "Harcourt"), to purchase all of the outstanding shares of Common Stock, par value $.01 per share (the "Shares"), of National Education Corporation, a Delaware corporation (the "Company"), at an amended purchase price of $21.00 per Share, 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 April 21, 1997 as amended and supplemented on May 14, 1997 (the "Offer to Purchase"), and in the related Letter of Transmittal. Unless otherwise indicated, all capitalized terms used but not defined herein shall have the meanings assigned to them in the Schedule 14D-1. ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY. Item 3(b) is amended and supplemented as follows: Pursuant to an Agreement dated May 30, 1997, by and between Harcourt and Steck-Vaughn (the "Steck-Vaughn Agreement"), Harcourt has agreed that, until June 4, 2000, Harcourt shall not consummate any Business Combination (as such term is defined in Section 203 of the Delaware General Corporation Law) with Steck-Vaughn unless and until each of the following steps have been complied with: (i) any proposed Business Combination shall be submitted by Harcourt in writing to the Board of Directors of Steck-Vaughn; (ii) the Board of Directors of Steck-Vaughn shall appoint a committee of the Board (the "Committee") comprised solely of Disinterested Directors; (iii) the Committee may retain such financial and legal advisors as it deems necessary or desirable, at the sole cost and expense of Steck-Vaughn; (iv) the Business Combination shall not be consummated unless and until the Committee has affirmatively recommended its approval by the Board of Directors, finding that the terms of such Business Combination are fair to the shareholders of Steck-Vaughn, other than NEC and Harcourt; and (v) the Business Combination is approved by a majority of Steck-Vaughn's Board of Directors, including a majority of the Disinterested Directors. In order to effectuate the foregoing during such three-year period, Harcourt will cause Steck-Vaughn's Board to at all times have at least three Disinterested Directors and, subject to their willingness to serve, will invite the following outside directors (Messrs. Jaffe, Justiz, Klein and Lind) to serve initially as Disinterested Directors and, if a Committee is formed, so long as such individuals remain Disinterested Directors, to constitute a majority of the members of such Committee. For purposes of the Steck-Vaughn Agreement, the term "Disinterested Director" means a member of the Board of Directors of Steck-Vaughn who is not an officer, director, employee or affiliate of Harcourt, NEC (after the merger of NEC with the Purchaser) or their respective affiliates, who does not have a direct or indirect material financial interest in Harcourt, NEC, or its affiliates, and who would be deemed to be an outside director qualified to serve on the audit committee of Steck-Vaughn under the rules of the New York Stock Exchange. Pursuant to the Steck-Vaughn Agreement, following consummation of the Offer, if requested by Harcourt, and subject to complying with applicable requirements of the Commission, Steck-Vaughn and the Board of Directors of Steck-Vaughn have agreed to promptly take all action necessary, including increasing the size of the Board of Directors, to cause a number of designees of Harcourt to be elected to the Steck-Vaughn Board of Directors such that the Harcourt designees will constitute a majority of the entire Board of Directors of Steck-Vaughn. In addition, pursuant to the Steck-Vaughn Agreement, following consummation of the Offer, Steck-Vaughn and the Board of Directors of Steck-Vaughn have agreed to promptly take all action necessary, including increasing the size of the Board of Directors, to cause a number of designees of Harcourt to be elected to the Steck-Vaughn Board of Directors such that the Harcourt designees will constitute half of the entire Board of Directors of Steck-Vaughn. ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER. Item 5 is amended and supplemented as follows: 2 3 The information provided in this Amendment No. 5 under Items 3 and 6 is hereby incorporated by reference. ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY. Item 6 is amended and supplemented as follows: At 5:00 P.M., New York City time, on Wednesday, June 4, 1997, the Offer expired. Based on information provided by the Depositary, a total of approximately 34.6 million Shares (or approximately 96.0% of the Shares outstanding) (including approximately 475,000 Shares subject to guarantee of delivery) were validly tendered and not properly withdrawn pursuant to the Offer. The Purchaser has accepted for payment, and has notified the Depositary to promptly pay for, the tendered and accepted Shares at the purchase price of $21.00 per Share in cash. Pursuant to the Merger Agreement, effective June 5, 1997, the Board of Directors of the Company was reconstituted and is now comprised of the following three designees of the Parent: Richard A. Smith, Brian J. Knez and Robert A. Smith. Pursuant to the Merger Agreement, the Purchaser intends to merge itself into the Company in accordance with the Delaware General Corporation Law as promptly as practicable. As a result of the Merger, the Company will become a wholly-owned subsidiary of the Parent and each outstanding Share (other than Shares held in the treasury of the Company, Shares owned by the Parent, the Purchaser or any other direct or indirect wholly-owned subsidiary of the Parent or the Company, and Shares owned by stockholders who choose to dissent and demand appraisal of their Shares) shall be cancelled, extinguished, and converted into the right to receive $21.00 per Share in cash, without interest, less any applicable withholding taxes. The consummation of the Offer was publicly announced in a press release issued by the Parent on June 5, 1997, a copy of which is filed as Exhibit 11(a)(20) hereto and incorporated herein by reference. ITEM 11. MATERIAL TO BE FILED AS EXHIBITS. Item 11 is hereby amended and supplemented to add the following: (a)(20) Press Release issued by the Parent on June 5, 1997. (a)(21) Agreement dated May 30, 1997 by and between Harcourt General, Inc. and Steck-Vaughn Publishing Corporation. 3 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. HARCOURT GENERAL, INC. By: /s/ ERIC P. GELLER --------------------------------------- Name: Eric P. Geller Title: Senior Vice President, General Counsel and Secretary NICK ACQUISITION CORPORATION By: /s/ ERIC P. GELLER --------------------------------------- Name: Eric P. Geller Title: Vice President and Secretary Date: June 5, 1997 5 EXHIBIT INDEX
EXHIBIT PAGE NO. DESCRIPTION NO. - --------- -------------------------------------------------------------------------- ---- 11(a)(20) Press Release issued by the Parent on June 5, 1997........................ 11(a)(21) Agreement dated May 30, 1997 by and between Harcourt General, Inc. and Steck-Vaughn Publishing Corporation.......................................
EX-99.11.A.20 2 PRESS RELEASE 1 EXHIBIT 11(A)(20) HARCOURT GENERAL, INC. 27 BOYLSTON STREET, CHESTNUT HILL, MA 02167 TEL 617 232 8200 Peter Farwell News Release Vice President George Sard or Anna Cordasco Corporate Relations Sard Verbinnen & Co. (617) 232-8200 (212) 687-8080 FOR IMMEDIATE RELEASE HARCOURT GENERAL COMPLETES NEC TENDER OFFER CHESTNUT HILL, MA, June 5, 1997 -- Harcourt General, Inc. (NYSE:H) announced today that it has successfully completed its tender offer for all shares of National Education Corporation (NYSE:NEC) at $21 per share in cash. The offer expired at 5 p.m. EDT on Wednesday, June 4, 1997. Based on information provided by IBJ Schroder Bank & Trust Company, the depositary for the offer, approximately 34.6 million shares, equal to approximately 96% of the 36.0 million outstanding shares of NEC, were tendered. Harcourt General indicated that it would begin payment for the accepted shares promptly. In the second step of the acquisition, NEC will be merged with a subsidiary of Harcourt General and each NEC share not previously purchased in the tender offer will be converted into the right to receive $21 in cash. The merger is expected to be completed by June 10th. Harcourt General also announced that with its acquisition of the NEC shares, it has acquired control of Steck-Vaughn Publishing Corporation (NASDAQ:STEK). NEC owns approximately 83% of Steck-Vaughn's common stock. "With the successful completion of our tender offer for NEC, we can now devote our energies to integrating these business and building our presence in the fast-growing educational services market," said Richard A. Smith, chairman and chief executive officer of Harcourt General. "We look forward to working together with our new colleagues at NEC to take full advantage of the many synergies between our two companies." Harcourt General, Inc. is a growth-oriented company with core businesses in publishing and specialty retailing. The Company also provides professional outplacement services to clients worldwide. National Education Corporation's operations include ICS Learning Systems, the largest provider of distance education in vocational, academic and professional studies; National Education Training Group, the leader in information technology interactive multimedia-based learning products; and 83% ownership of Steck-Vaughn Publishing Corporation, one of the largest publishers of supplemental education materials. # # # H A R C O U R T Contact G E N E R A L EX-99.11.A.21 3 AGREEMENT BETWEEN HARCOURT GENERAL & STECK-VAUGHN 1 EXHIBIT 11(a)(21) AGREEMENT AGREEMENT made this 30th day of May, 1997, by and between STECK-VAUGHN PUBLISHING CORPORATION ("Steck-Vaughn") and HARCOURT GENERAL, INC. ("Harcourt") with reference to the following facts: 1. In connection with its merger (the "Merger") with National Education Corporation ("NEC"), and related tender offer (the "Tender Offer") for shares of NEC's common stock, Harcourt will become the indirect owner of approximately 83% of the issued and outstanding common stock of Steck-Vaughn. 2. Harcourt has requested the Board of Directors of Steck-Vaughn to approve Harcourt's acquisition of such interest in Steck-Vaughn for purposes of Section 203 of the Delaware General Corporation Law ("Section 203"). 3. The Board of Directors of Steck-Vaughn has indicated to Harcourt that it would not approve such acquisition in the absence of the agreement by Harcourt not to engage in any Business Combination (as defined in Section 203) with Steck-Vaughn for a period of three years from the date of the consummation of the Tender Offer, unless such Business Combination was approved by the vote of a committee of the Board of Directors comprised exclusively of Disinterested Directors (as defined) of Steck-Vaughn. 4. In order to induce the Board of Directors of Steck-Vaughn to grant the aforesaid approval, Harcourt is willing to enter into the agreements contained herein. Accordingly, in consideration of the foregoing premises and mutual agreements contained herein, Harcourt and Steck-Vaughn agree as follows: 1. Approval Of Harcourt's Acquisition Of Interest In Steck-Vaughn. The Board of Directors of Steck-Vaughn has approved Harcourt's acquisition of an indirect ownership interest of approximately 83% of Steck-Vaughn's common stock pursuant to the Tender Offer by reason of the adoption of the resolution annexed as Exhibit A hereto (the "Resolution"), which Resolution has not been rescinded or modified. 2. Acquisition Only With Approval Of Disinterested Directors. For a three-year period ending on the third anniversary date of the consummation of the Tender Offer, Harcourt shall not consummate any Business Combination with Steck-Vaughn unless and until each of the following steps have been complied with: a. Any proposed Business Combination shall be submitted by Harcourt in writing to the Board of Directors of Steck-Vaughn; b. The Board of Directors of Steck-Vaughn shall appoint a committee of the Board (the "Committee") comprised solely of Disinterested Directors; c. The Committee may retain such financial and legal advisors as it deems necessary or desirable, at the sole cost and expense of Steck-Vaughn; d. The Business Combination shall not be consummated unless and until the Committee has affirmatively recommended its approval by the Board of Directors, finding that the terms of such Business Combination are fair to the shareholders of Steck-Vaughn, other than NEC and Harcourt; and e. The Business Combination is approved by a majority of the Steck-Vaughn Board, including a majority of the Disinterested Directors. In order to effectuate the foregoing during such three year period, Harcourt will cause Steck-Vaughn's Board to at all times have at least three Disinterested Directors and, subject to their willingness to serve, will invite the following outside directors (Messrs. Jaffe, Justiz, Klein and Lind) to serve initially as Disinterested Directors (which directors shall be compensated consistent with the compensation of outside directors of comparable public companies) and, if a Committee is formed, so long as such individuals remain Disinterested Directors, to constitute a majority of the members of such Committee. 2 Harcourt acknowledges and agrees that the directors of Steck-Vaughn are acting within the scope of their responsibilities as Directors of Steck-Vaughn in connection with their actions in connection with this Agreement and adoption of the Resolution and that the Disinterested Directors of Steck-Vaughn shall be so acting in connection with any service on the Committee or consideration of any Business Combination and all such directors shall be entitled to indemnification and advance of expenses to the maximum extent permitted by applicable Delaware law and, absent a final non-appealable judicial determination that indemnification is not proper, such Directors shall be conclusively deemed to have met the applicable standard for such indemnification. If for any reason whatsoever indemnification by Steck-Vaughn is held not to be appropriate, Harcourt shall indemnify and hold harmless each of the Steck-Vaughn directors from and against all cost, loss, liability or expense (including attorneys' fees) arising out of or relating to their actions as directors in connection with this Agreement, adoption of the Resolution or the matters contemplated hereby if such director acted in good faith and in a manner the director reasonably believed to be in or not opposed to the best interests of Steck-Vaughn and, with respect to any criminal action or proceeding, had no reasonable cause to believe such director's conduct was unlawful. For purposes of this Agreement, the term "Disinterested Director" shall mean a member of the Board of Directors of Steck-Vaughn who is not an officer, director, employee or affiliate of Harcourt, NEC (after the Merger) or their respective affiliates, who does not have a direct or indirect material financial interest in Harcourt, NEC, or its affiliates, and who would be deemed to be an outside director qualified to serve on the audit committee of the corporation under the rules of the New York Stock Exchange. 3. Third Party Beneficiaries. This Agreement is for the express benefit of the shareholders of Steck-Vaughn, other than NEC, and for the express benefit of the Disinterested Directors of Steck-Vaughn, whether or not currently in office or elected or appointed to office during such three-year period and may be enforced by any of them. 4. Miscellaneous. The Delaware Chancery Court shall have exclusive jurisdiction to determine the validity, rights and obligations of the parties hereto and the beneficiaries hereof. In connection with any such proceeding, the prevailing party will be entitled to recover attorneys' fees and costs. In connection with any action to enforce this Agreement by a Disinterested Director, Steck-Vaughn shall pay all costs incurred by such director, including attorneys' fees, for prosecuting or defending any such action. Such costs and fees shall not be recoverable by Steck-Vaughn absent a non-appealable judicial determination that such director did not act in good faith and in a manner he or she deemed to be in the best interests of the corporation. In addition, in connection with any litigation or proceeding, the Disinterested Director shall be entitled to be paid for their time as a witness or for depositions or trial preparation on a reasonable per diem basis. 5. Harcourt Directors. Following consummation of the Tender Offer, if requested by Harcourt, and subject to complying with applicable requirements of the Securities and Exchange Commission, Steck-Vaughn and the Board of Directors of Steck-Vaughn shall promptly take all action necessary, including increasing the size of the Board of Directors, to cause a number of designees of Harcourt to be elected to the Steck-Vaughn Board of Directors such that the Harcourt designees will constitute a majority of the entire Board of Directors of Steck-Vaughn. In addition to the foregoing, following consummation of the Tender Offer, Steck-Vaughn and the Board of Directors of Steck-Vaughn shall promptly take all action necessary, including increasing the size of the Board of Directors, to cause a number of designees of Harcourt to be elected to the Steck-Vaughn Board of Directors such that the Harcourt designees will constitute half of the entire Board of Directors of Steck-Vaughn. 6. No Inconsistent Actions. Harcourt agrees not to vote for any amendment to the certificate of incorporation or bylaws of Harcourt or Steck-Vaughn which is inconsistent with the terms of this agreement. 7. Specific Performance and Injunctive Relief. The parties hereto acknowledge that irreparable harm would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms and that the parties shall be entitled to an injunction to prevent breaches and to enforce specifically the terms and provisions hereof. Nothing in this paragraph shall exclude or limit any other remedies that the parties may be entitled to pursue at law or in equity. 2 3 IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the day and year first above written. HARCOURT GENERAL, INC. By: /s/ ERIC P. GELLER ------------------------------------ Its: Senior Vice President, General Counsel and Secretary STECK-VAUGHN PUBLISHING CORPORATION By: /s/ PHILIP C. MAYNARD ------------------------------------ Its: Vice President and Secretary 3 -----END PRIVACY-ENHANCED MESSAGE-----