SC TO-T/A 1 a2175848zscto-ta.htm SC TO-T/A

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE TO/A

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934

(Amendment No. 3)

ElkCorp
(Name of Subject Company (Issuer))

 

BMCA Acquisition Sub Inc.,

a wholly-owned subsidiary of

BMCA Acquisition Inc.
(Names of Filing Persons — Offerors)

 

COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)

287456107
(CUSIP Number of Class of Securities)

BMCA Acquisition Sub Inc.

1361 Alps Road

Wayne, NJ 07470

(201) 628-3000

Attention: John F. Rebele

(Name, Address and Telephone Numbers of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)

Copies to:

Maurice M. Lefkort, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY  10019-6099

(212) 728-8000

 

 


 

CALCULATION OF FILING FEE

Transaction Valuation*

 

Amount of Filing Fee*

$980,758,699.50

 

$104,941.19

 

 

 

 

 


* The amount of the filing fee, in accordance with Rule 0-11 of the Securities Exchange Act of 1934, is calculated by multiplying the transaction valuation by 0.000107.  For purposes of calculating the filing fee only, the transaction valuation was determined by multiplying the purchase price of $43.50 per share by the sum of (i) the 20,630,457 shares of common stock, par value $1.00 per share, of ElkCorp (the “Shares”), issued and outstanding as of January 31, 2007, according to the Schedule 14D-9 filed by ElkCorp with the Securities and Exchange Commission (the “Commission”) on February 1, 2007 (the “Schedule 14D-9”); (ii) the stock options granted to purchase 1,334,020 Shares issued and outstanding as of January 31, 2007, according to the Schedule 14D-9; and (iii) the 581,700 Shares subject to outstanding performance share awards as of January 31, 2007, according to the Schedule 14D-9.

x                                  Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) of the Exchange Act 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: Form or Registration No.:

 

$104,941.19
005-02742

 

Filing Party:

 

Building Materials
Corporation of America

 

 

 

 

Date Filed:

 

December 20, 2006, January 3, 2007, January 8, 2007,

 

 

 

 

 

 

January 9, 2007 and January 18, 2007

 

 

 

 

 

 

 

 

 

 

 

Filing Party:

 

BMCA Acquisition Sub Inc.

 

 

 

 

Date Filed:

 

January 18, 2007, January 23, 2007 and January 30, 2007

 

o            Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer:

o                                    Check the appropriate boxes below to designate any transactions to which the statement relates.

x                                third-party tender offer subject to Rule 14d-1.

o                               issuer tender offer subject to Rule 13e-4.

o                                 going-private transaction subject to Rule 13e-3.

x           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:  o

 

(Continued on following pages)

 


SCHEDULE TO

                This Amendment No. 3 to the Tender Offer Statement on Schedule TO (this “Amended Schedule TO”) amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on January 18, 2007, as amended and supplemented by Amendment No. 1 thereto filed with the Commission on January 23, 2007 and by Amendment No. 2 thereto filed with the Commission on January 30, 2007, by BMCA Acquisition Sub Inc. (including any successor thereto, “Purchaser”), a wholly-owned subsidiary of BMCA Acquisition Inc. (“Parent”), which is a wholly-owned subsidiary of Building Materials Corporation of America (“BMCA”), pursuant to Rule 14d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in connection with Purchaser’s offer to purchase all of the issued and outstanding shares of common stock, par value $1.00 per share (the “Common Stock”), of ElkCorp, a Delaware corporation (the “Company”), and the associated Series A Participating Preferred Stock purchase rights (the “Rights” and, together with the Common Stock, the “Shares”) at a price of $43.50 per Share, net to the seller in cash (less applicable withholding taxes and without interest).  The terms and conditions of the offer are described in the Offer to Purchase, dated January 18, 2007 (the “Offer to Purchase”) and the related Letter of Transmittal (the “Letter of Transmittal”), and the instructions thereto (the offer reflected by such terms and conditions, as they may be amended or supplemented from time to time, constitutes the “Offer”).  Capitalized terms used and not otherwise defined in this Amended Schedule TO shall have the same meanings assigned to such terms in the Schedule TO or the Offer to Purchase.

The information in the Offer to Purchase and the related Letter of Transmittal is incorporated in this Amended Schedule TO by reference to all of the applicable items in the Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided herein.

ITEM 2. SUBJECT COMPANY INFORMATION.

Item 2 of the Schedule TO is hereby amended and supplemented as follows:

The Introduction section of the Offer to Purchase is hereby amended and supplemented as follows:

The second paragraph under the sub-heading “Minimum Tender Condition” in the Introduction section of the Offer to Purchase is hereby amended as follows:

As of the date hereof, Purchaser’s affiliate, HIA, owns 2,123,799 Shares and Purchaser owns one Share. According to the Schedule 14D-9 filed by the Company with the Securities and Exchange Commission (the “Commission”) on February 1, 2007 (the “February 1st Schedule 14D-9”), as of January 31, 2007, there were (i) 20,630,457 Shares issued and outstanding, (ii) 1,334,020 Shares issuable under outstanding stock options and (iii) 581,700 Shares subject to outstanding performance share awards. Based on the foregoing and assuming that (a) no Shares are issued, required to be issued, or acquired by the Company after January 31, 2007 (other than as described in clause (d) below), (b) no

 


 

options were granted or expire after January 31, 2007, (c) no performance share awards were granted after January 31, 2007, (d) all 1,334,020 Shares subject to issuance under the Company’s stock option plan are issued at or prior to the consummation of the Offer and (e) all 581,700 Shares subject to outstanding performance share awards are issued at or prior to the consummation of the Offer, there would be 22,546,177 Shares outstanding immediately following consummation of the Offer, and, as a result, the Minimum Tender Condition would be satisfied if Purchaser acquired 9,149,289 Shares in addition to the 2,123,800 Shares already beneficially owned by BMCA.

Section 7 — Effect of the Offer on the Market for the Shares; NYSE Listing; Margin Regulations; Exchange Act Registration — of the Offer to Purchase is hereby amended and supplemented as follows:

The third sentence of the first paragraph of Section 7 of the Offer to Purchase is hereby amended as follows:

According to the February 1st Schedule 14D-9, as of January 31, 2007, there were 20,630,457 Shares outstanding.

Section 9 — Certain Information Concerning the Purchaser and its Affiliates — of the Offer to Purchase is hereby amended and supplemented as follows:

The second sentence of the seventh paragraph of Section 9 of the Offer to Purchase is hereby amended as follows:

This percentage has been calculated based upon a total of 20,630,457 Shares issued and outstanding as of January 31, 2007 as reported by the Company in the February 1st Schedule 14D-9.

ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.

Item 5 of the Schedule TO is hereby amended and supplemented as follows:

Section 10 — Background of the Offer; Contacts with the Company — of the Offer to Purchase is hereby amended and supplemented as follows:

The following paragraph is hereby added immediately preceding the sub-heading “Transactions with the Company” in Section 10 of the Offer to Purchase:

On February 2, 2007, Parent, Purchaser and BMCA sent a letter to the Special Committee, extending the expiration date of the Final Offer Letter from February 6, 2007 to February 12, 2007 (the “Extension Letter”).

The complete text of the Extension Letter is incorporated by reference into this Amended Schedule TO and a copy is filed herewith as Exhibit (a)(1)(W).

 


 

ITEM 12. EXHIBITS.

Item 12 of the Schedule TO is hereby amended and supplemented as follows:

                (a)(1)(W)                Letter, dated February 2, 2007, from BMCA Acquisition Inc., BMCA Acquisition Sub Inc. and Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp.

 


 

SIGNATURE

After due inquiry and to the best of their knowledge and belief, the undersigned hereby certify as of February 2, 2007 that the information set forth in this statement is true, complete and correct.

 

 

BMCA Acquisition Sub Inc.

 

 

 

 

 

 

 

By:

/s/ Robert B. Tafaro

 

 

Name:

Robert B. Tafaro

 

 

Title:

President and Chief Executive Officer

 

 

 

 

 

BMCA Acquisition Inc.

 

 

 

 

 

 

 

 

 

By:

/s/ Robert B. Tafaro

 

 

Name:

Robert B. Tafaro

 

 

Title:

President and Chief Executive Officer

 

 

 


EXHIBIT INDEX

 

 

 

EXHIBIT NO.

 

DESCRIPTION

(a) (1) (A)

 

Offer to Purchase, dated January 18, 2007. *

(a) (1) (B)

 

Letter of Transmittal. *

(a) (1) (C)

 

Notice of Guaranteed Delivery. *

(a) (1) (D)

 

Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees. *

(a) (1) (E)

 

Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. *

(a) (1) (F)

 

Form of Letter to Participants in the ElkCorp Employee Stock Ownership Plan. *

(a) (1) (G)

 

Trustee Direction Form. *

(a) (1) (H)

 

Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. *

(a) (1) (I)

 

Press Release, dated January 18, 2007, Announcing the Commencement of the Offer. *

(a) (1) (J)

 

Summary Advertisement, dated January 18, 2007, Appearing in the New York Times. *

(a) (1) (K)

 

Letter from Samuel J. Heyman, general partner of Heyman Investment Associates Limited Partnership, to Mr. Robert B. Tafaro, Chief Executive Officer and President of Building Materials Corporation of America, dated August 28, 2006. *

(a) (1) (L)

 

Press Release, dated December 17, 2006. *

(a) (1) (M)

 

Letter, dated December 17, 2006, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to Thomas D. Karol, Chairman of the Board and Chief Executive Officer of ElkCorp. *

(a) (1) (N)

 

Press Release, dated December 18, 2006. *

(a) (1) (O)

 

Letter, dated December 18, 2006, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Board of Directors of ElkCorp. *

(a) (1) (P)

 

Press Release, dated December 20, 2006. *

(a) (1) (Q)

 

Letter, dated January 5, 2007, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *

 


 

(a) (1) (R)

 

Letter, dated January 9, 2007, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *

(a) (1) (S)

 

Letter, dated January 18, 2007, from Robert B. Tafaro, President and Chief Executive Officer of Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *

(a) (1) (T)

 

Press Release, dated January 23, 2007. *

(a) (1) (U)

 

Offer Letter, dated January 29, 2007, from BMCA Acquisition Inc., BMCA Acquisition Sub Inc. and Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp. *

(a) (1) (V)

 

Press Release, dated January 30, 2007. *

(a) (1) (W)

 

Letter, dated February 2, 2007, from BMCA Acquisition Inc., BMCA Acquisition Sub Inc. and Building Materials Corporation of America, to the Special Committee of the Board of Directors of ElkCorp.

(b) (1)

 

Senior Secured Financing Commitment Letter, between Bear, Stearns & Co. Inc., Bear Stearns Corporate Lending Inc., Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., J.P. Morgan Securities, Inc., BMCA Acquisition Sub Inc., BMCA Acquisition Inc. and Building Materials Corporation of America, dated January 26, 2007. *

(b) (2)

 

Bridge Commitment Letter, between Bear Stearns Corporate Lending Inc., Deutsche Bank AG Cayman Islands Branch, JPMorgan Chase Bank, N.A., BMCA Acquisition Sub Inc., BMCA Acquisition Inc. and Building Materials Corporation of America, dated January 26, 2007. *

(d) (1)

 

Confidentiality Agreement, dated as of December 29, 2006, by and among ElkCorp, Heyman Investment Associates Limited Partnership and Building Materials Corporation of America. *

  *            Previously filed.