-----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, RNhIUy9glwJHCD2x46tmy1MW7mL5KtvIGj5lYbeaDaWWWwTDfOZ/mblWtZJVbM/v EHYrmv7qzLS8GBq9WazVmw== 0000950123-95-002922.txt : 19951017 0000950123-95-002922.hdr.sgml : 19951017 ACCESSION NUMBER: 0000950123-95-002922 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951016 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GIBSON C R CO INC CENTRAL INDEX KEY: 0000041365 STANDARD INDUSTRIAL CLASSIFICATION: BLANKBOOKS, LOOSELEAF BINDERS & BOOKBINDING & RELATED WORK [2780] IRS NUMBER: 060361615 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-16451 FILM NUMBER: 95581065 BUSINESS ADDRESS: STREET 1: 32 KNIGHT ST CITY: NORWALK STATE: CT ZIP: 06856 BUSINESS PHONE: 2038474543 MAIL ADDRESS: STREET 1: 32 KNIGHT STREET CITY: NORWALK STATE: CT ZIP: 06856 FORMER COMPANY: FORMER CONFORMED NAME: GIBSON JOHN CO DATE OF NAME CHANGE: 19700522 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GIBSON C R CO INC CENTRAL INDEX KEY: 0000041365 STANDARD INDUSTRIAL CLASSIFICATION: BLANKBOOKS, LOOSELEAF BINDERS & BOOKBINDING & RELATED WORK [2780] IRS NUMBER: 060361615 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 32 KNIGHT ST CITY: NORWALK STATE: CT ZIP: 06856 BUSINESS PHONE: 2038474543 MAIL ADDRESS: STREET 1: 32 KNIGHT STREET CITY: NORWALK STATE: CT ZIP: 06856 FORMER COMPANY: FORMER CONFORMED NAME: GIBSON JOHN CO DATE OF NAME CHANGE: 19700522 SC 14D9/A 1 AMENDMENT NO. 2 TO SCHEDULE 14D-9 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 16, 1995 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-9 (AMENDMENT NO. 2) SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(D)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 THE C.R. GIBSON COMPANY (NAME OF SUBJECT COMPANY) THE C.R. GIBSON COMPANY (NAME OF PERSON(S) FILING STATEMENT) COMMON STOCK, $0.10 PAR VALUE (TITLE OF CLASS OF SECURITIES) 374762 10 2 (CUSIP NUMBER OF CLASS OF SECURITIES) FRANK A. ROSENBERRY PRESIDENT AND CHIEF EXECUTIVE OFFICER THE C.R. GIBSON COMPANY 32 KNIGHT STREET NORWALK, CONNECTICUT 06856 (203) 847-4543 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICE AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT) COPY TO: PAUL G. HUGHES, ESQ. CUMMINGS & LOCKWOOD FOUR STAMFORD PLAZA P.O. BOX 120 STAMFORD, CONNECTICUT 06904 (203) 327-1700 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 INTRODUCTION The Solicitation/Recommendation Statement on Schedule 14D-9 of which this Amendment No. 2 (this "Amendment No. 2") is a part relates to an offer by Nelson Acquisition Corp., a Delaware corporation (the "Offeror"), a wholly-owned subsidiary of Thomas Nelson, Inc., a Tennessee corporation (the "Parent"), to purchase all of the outstanding shares of Common Stock, $0.10 par value per share, of The C.R. Gibson Company, a Delaware corporation (the "Company"), made by means of an Offer to Purchase dated September 19, 1995, as amended by a supplement dated October 16, 1995 (as so amended, the "Offer to Purchase"). The Solicitation/Recommendation Statement on Schedule 14D-9 of the Company dated September 19, 1995, as amended by Amendment No. 1 thereto dated September 27, 1995, is hereinafter referred to as the "Schedule 14D-9." In connection with a proposed settlement of the claims asserted against the Company and its directors in Crandon Capital Partners v. Bowman, et al. (Del. Ch., C.A. No. 14538), which proposed settlement is subject to the approval of the Court of Chancery of the State of Delaware in and for New Castle County, the Company has agreed to make certain additional disclosures relating to the Offer to Purchase and the Offeror, the Parent and the Company have agreed to certain amendments to the Tender Offer and Merger Agreement dated as of September 13, 1995 (the "Merger Agreement"). The purpose of this Amendment No. 2 is to provide such additional disclosure and to describe the Merger Agreement provisions as amended by such amendments. Except as otherwise amended by this Amendment No. 2, the information contained in the Schedule 14D-9 is hereby confirmed. ITEM 3. IDENTITY AND BACKGROUND (a) The information contained in Item 3(a) of the Schedule 14D-9 is incorporated herein by reference and made a part hereof. (b)(1) The information contained in Item 3(b)(1) of the Schedule 14D-9 is incorporated herein by reference and made a part hereof. (b)(2) Except as specifically set forth below, the information contained in Item 3(b)(2) of the Schedule 14D-9 is incorporated herein by reference and made a part hereof. The introductory paragraph of Item 3(b)(2) of the Schedule 14D-9 is hereby deleted and amended to read in its entirety as follows: The Company, the Parent and the Offeror have entered into a Tender Offer and Merger Agreement dated as of September 13, 1995, a copy of which was filed as Exhibit (c)(1) to the Schedule 14D-9 (the "Merger Agreement"), which has been amended by Amendment No. 1, dated as of October 16, 1995 ("Amendment No. 1 to the Merger Agreement"), a copy of which is filed as Exhibit (c)(1)(i) to this Amendment No. 2. Certain stockholders and directors of the Company, the Offeror and the Parent have entered into related stock option agreements (collectively, the "Option Agreements") copies of which were filed as Exhibits (c)(2) - (c)(11) to the Schedule 14D-9, each of which is incorporated herein by reference. The information set forth in Item 3(b)(2) of the Schedule 14D-9 under the caption THE MERGER AGREEMENT -- Acquisition Proposals is hereby deleted and amended to read in its entirety as follows: Acquisition Proposals. The Company has agreed in the Merger Agreement that neither the Company nor its subsidiaries shall, and the Company shall direct and use its best efforts to cause its and its subsidiaries' officers, directors, employees, authorized agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders, but excluding the transaction contemplated by the Merger Agreement) with respect to a merger, acquisition, consolidation, business combination, recapitalization, liquidation or similar transaction involving the Company, or any 1 3 purchase of a significant amount of the assets of, or more than 25% of any equity securities of, the Company (an "Acquisition Proposal"), or engage or participate in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person, entity or group relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal, and that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted theretofore with respect to any of the foregoing and will take the necessary steps to inform such parties of the obligations undertaken in the Merger Agreement. The Company will notify the Parent promptly if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or its representatives, and will promptly communicate to the Parent the substantive terms of any proposal or inquiry it may receive and the identity of the person from whom such proposal or inquiry is received; provided, however, that so long as none of the Company, its subsidiaries or representatives is otherwise in violation of the provisions of the Merger Agreement relating to Acquisition Proposals, the Board of Directors of the Company may furnish information to, or enter into discussions or negotiations with, any person that makes an unsolicited bona fide proposal in writing, not subject to any financing contingency, to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction if, and only to the extent that (A) the Board of Directors determines in good faith (based on a written opinion of the Company's outside counsel) that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) the Board of Directors determines in good faith (based on the written opinion of a financial adviser of nationally recognized reputation) that such transaction would be more favorable to the Company's stockholders than the Offer, (C) prior to or concurrently with furnishing such information to, or entering into such discussions or negotiations with, such a person or entity, the Company provides written notice to the Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such a person or entity, and (D) the Company keeps the Parent informed of the substantive terms of any such discussions or negotiations, which does not require the Company to provide the Parent with step-by-step details of such discussions or negotiations, including the bidding processes. The information set forth in Item 3(b)(2) of the Schedule 14D-9 under the caption THE MERGER AGREEMENT -- Fees and Expenses is hereby deleted and amended to read in its entirety as follows: Fees and Expenses. The Merger Agreement provides that the costs and expenses incurred by the parties in connection with the transactions contemplated by the Merger Agreement and the Certificate of Merger will be borne as follows: the Parent will bear all costs and expenses incurred by it and the Offeror, including, without limitation, the preparation and filing and prosecution of all applications for regulatory approvals and the cost of printing and filing the Offer documents and any proxy or information statement required under the Merger Agreement; the Company will bear all costs and expenses incurred by it including, without limitation, costs and expenses relating to the calling and holding of a meeting of its stockholders, if required, and any securities filings and regulatory applications. The Company has agreed in the Merger Agreement that, in the event that (i) any person (other than the Parent or any of its affiliates) shall have become, prior to the termination of the Merger Agreement, the beneficial owner of 50% or more of the outstanding Shares, (ii) the Offer shall have expired at a time when less than a majority of the sum of the outstanding Shares and options for Shares shall have been properly tendered and not withdrawn pursuant to the Offer and at any time on or prior to one year after the expiration of the Offer any person (other than the Parent or any of its affiliates) shall acquire beneficial ownership of 50% or more of the outstanding Shares or shall consummate an Acquisition Proposal, or (iii) at any time prior to the termination of the Merger Agreement, any person (other than the Parent or any of its affiliates) shall publicly announce any Acquisition Proposal and, at any time on or prior to one year after the date of the termination of the Merger Agreement, shall become the beneficial owner of 50% or more of the outstanding Shares or shall consummate an Acquisition Proposal, then the Company shall, promptly, but in no event later than two business days after the first of such events to occur, pay the Parent the sum of $2.75 million (the "Termination Fee"). If the Company fails to pay the Termination Fee when due, and the Parent commences a suit which results in a judgment against the Company for the Termination Fee, 2 4 the Company shall pay the Parent its costs and expenses in connection with such suit, together with interest on the amount of the Termination Fee at the rate of 10% per annum. ITEM 4. THE SOLICITATION OR RECOMMENDATION (a) The information contained in Item 4(a) of the Schedule 14D-9 is incorporated herein by reference and made a part hereof. (b) Except as specifically set forth below, the information contained in Item 4(b) of the Schedule 14D-9 is incorporated herein by reference and made a part hereof. The information set forth in Item 4(b) of the Schedule 14D-9 under the caption BACKGROUND OF THE OFFER is hereby deleted and amended to read in its entirety as follows: The Company is advised that, from late 1992 through late 1993, senior management of the Parent periodically held informal communications with certain stockholders of the Company regarding the business of the Company and whether a strategic alliance between the Parent and the Company would benefit each of the companies and their respective stockholders. The Company is further advised that, as a result of these communications and a review of publicly available information concerning the Company, the Parent engaged PaineWebber, Incorporated ("PaineWebber") in January 1994 as its financial advisor to assist the Parent in evaluating its options with respect to a potential acquisition of the Company. By letter dated January 17, 1994 from Sam Moore, the President and Chairman of the Board of the Parent to Robert G. Bowman, Chairman of the Board of the Company, Mr. Moore outlined the terms of a proposed combination of the Company and the Parent whereby the Company's stockholders would receive shares of the Parent's Common Stock valued at $12.00 (based on the market value of the Parent's Common Stock at that time) in exchange for each outstanding Share (the "1994 Proposed Transaction"). The Parent stated that the proposed combination should be a tax-free transaction to be accounted for as a pooling of interests. Certain other terms and conditions which would have been required in any definitive agreement were not identified and the proposal was subject to due diligence review on the part of the Company as well as the Parent. On February 2, 1994, the Parent was advised in a letter from Mr. Bowman that the Company's Board of Directors had considered the 1994 Proposed Transaction with the assistance of its legal and financial advisors, and had unanimously decided that pursuing the 1994 Proposed Transaction was not in the best interests of the Company or its stockholders at that time. The Company is advised that, subsequent thereto, the Parent's Board of Directors determined not to pursue its proposal. With the assistance of its financial advisor, Goldman Sachs, the Board of Directors of the Company considered carefully the 1994 Proposed Transaction. The Board of Directors of the Company reviewed a number of financial analyses including (a) the historical and projected results of operations of the Company and the Parent, (b) a discounted cash flow analysis, (c) a comparison of the 1994 Proposed Transaction with the terms of a number of acquisition transactions in the printed paper products industry and the publishing industry, (d) the economic and voting rights which the holders of the Common Stock would have in the Parent in comparison to the contributions which the Company would make to the combined entity, (e) the then current stock prices for the Common Stock and for the Parent's Common Stock compared with historical prices and price-earnings multiples. The Board also reviewed its own strategic plan, including the then anticipated benefits of the acquisition by the Company of the business of The Rytex Company. Based on this review, the Board of Directors of the Company concluded unanimously that further discussion with the Parent of the 1994 Proposed Transaction was not in the best interests of the Company or its stockholders. In its evaluation of the 1994 Proposed Transaction, the Board of Directors of the Company did not assign relative weights to the factors or determine that any factor was of particular importance. Rather, the Board of Directors of the Company viewed its position and determination as being based on the totality of the information presented to and considered by it. As a result of numerous factors, including the Company's recent financial results, revised projections for the future results of operations of the Company which, based on changes in the Company's business 3 5 and the conditions in its industry, varied from the financial projections used in evaluating the 1994 Proposed Transaction, increasing competition in the industry in which the Company's business is conducted and the anticipated capital and other needs for continued growth and success, the Board of Directors of the Company in the first quarter of 1995 began actively studying the current and future state of the market for paper gift and stationery products. The Board of Directors of the Company also began actively studying the Company's strategic position, its near and long-term prospects and the possibility that the Company should conduct a systematic review of strategic alternatives, including alternatives to remaining an independent company, in order to maximize stockholder value. During the first quarter of 1995 representatives of the Company at the direction of the Board of Directors of the Company solicited Goldman Sachs to assist the Company with its analysis and consideration of various financial alternatives. As of April 17, 1995, Goldman Sachs was engaged in this regard. On April 18, 1995, the Board of Directors of the Company reviewed, and discussed with Goldman Sachs, various strategic alternatives that might be available to the Company. At a meeting on May 9, 1995, the Board of Directors of the Company authorized retaining Goldman Sachs as the Company's financial advisor to assist the Board of Directors of the Company as it studied strategic alternatives with a view to maximizing stockholder value and directed the Executive Committee to determine when and if this process should commence. Goldman Sachs was subsequently engaged by the Company as financial advisor in connection with the possible sale of all or a portion of the Company. This engagement superseded the Company's April 17, 1995 arrangement with Goldman Sachs. On May 24, 1995, the Company publicly announced that it had retained Goldman Sachs to explore strategic alternatives for the purpose of maximizing stockholder value. After the public announcement that Goldman Sachs had been retained, the Board of Directors of the Company, management of the Company and Goldman Sachs prepared a list of companies which might be potentially interested in pursuing a strategic transaction with the Company. During the period from early June through early July 1995, the Board of Directors of the Company authorized Goldman Sachs to contact in excess of 60 companies on a confidential basis to assess their interest. During that period, approximately 15 unsolicited inquiries were also received. Of the companies contacted and unsolicited inquiries received, approximately 30 companies signed confidentiality agreements with the Company and were provided with a memorandum containing additional confidential information with respect to the Company. The Parent participated in this process and entered into a confidentiality agreement with the Company on June 19, 1995. After having received such information, potentially interested parties could, if they so desired (although no determination had been made to sell the Company), make a preliminary indication of interest with respect to possibly acquiring the Company. A number of companies that received the information memorandum (including the Parent) each contacted the Company to indicate a preliminary interest in continuing discussions with the Company. At a meeting on July 14, 1995, the Board of Directors of the Company authorized the continuation of discussions with certain of those companies, including the Parent, in furtherance of the ongoing process. Arrangements were made for those companies who wished to do so, including the Parent, to conduct additional due diligence. That due diligence was conducted during the period from mid-July to early September. Goldman Sachs contacted each of the companies who had confirmed its interest in pursuing a strategic transaction with the Company after conducting due diligence. At the direction of the Company, Goldman Sachs issued guidelines for submitting proposals. Such proposals were required to be submitted by September 6, 1995. On September 6, 1995, the Company received bids, one of which was from the Parent. Those bids contained various differing terms and conditions. At a meeting held on September 7 and 8, 1995, the terms and conditions of the bids were reviewed by the Board of Directors of the Company and discussed with the Company's legal and financial advisors. At that meeting, Goldman Sachs delivered a presentation to the Board of Directors of the Company, discussing, among other things, the process undertaken to that date, the respective terms and conditions of the bids and Goldman Sachs' analyses. The Board of Directors of the Company then authorized the 4 6 Company's legal and financial advisors to engage in further discussions and negotiate with the Parent and its representatives toward a definitive agreement. Following such meeting, the Company's financial advisors contacted the financial advisors for the Parent to discuss certain terms of the Parent's proposal. Based on these communications, the Parent's representatives stated that the Parent would agree to increase the price to be offered in the Offer to $9.50 per Share. Subsequent negotiations occurred relating to a variety of significant terms of the proposed agreement, including the representations and warranties requested of the Company therein, the terms of the Termination Fee, the covenant of the Company relating to alternative Acquisition Proposals and issues relating to employment benefits, and resulted in a variety of changes to the proposed merger agreement. During the negotiations, the Parent indicated that it would be unable to proceed with a transaction without additional due diligence. At the conclusion of such additional due diligence, senior management of the Parent telephoned senior management of the Company on September 12, 1995 to express the Parent's reluctance to proceed with the Offer at a per Share price of $9.50. During that conversation, the Parent agreed to proceed with the Offer at $9.00 per Share in cash. Through September 13, 1995, representatives of the Company and the Company's legal and financial advisors negotiated with the Parent over both the financial and non-financial terms and conditions of the Parent's proposal. During that period, the Board of Directors of the Company held meetings and informal discussions for the purpose of reviewing the status of such negotiations. The Board of Directors of the Company held a meeting on September 13, 1995 to review the terms and conditions of the proposed transaction and the Merger Agreement in its final form and to discuss the proposed transaction and the Merger Agreement with the Company's legal and financial advisors. At that meeting, the Board of Directors of the Company unanimously approved the proposal of the Parent. The factors taken into account by the Board of Directors of the Company in making its decision are described below, under "Recommendation of the Board of Directors; Fairness of the Offer and the Merger." By a complaint dated September 14, 1995 and served on the Company on September 19, 1995, Crandon Capital Partners, a Florida partnership, commenced an action on behalf of itself, and purportedly on behalf of a class of the Company's stockholders similarly situated, in the Court of Chancery of the State of Delaware in and for New Castle County against the Company and its directors. Subsequent discussions between representatives of the Company and the Parent and their counsel and counsel for the plaintiff resulted in a proposed settlement of the claims asserted in such action. As part of such proposed settlement, which is subject to approval by the Court of Chancery, the Company has agreed to make certain additional disclosures which are contained in this Amendment No. 2 and the Parent and the Company agreed to modify the Merger Agreement to clarify the circumstances in which the Termination Fee would be payable if an Acquisition Proposal is proposed or publicly announced by any person (other than the Parent or any of its affiliates), to reduce the amount of the Termination Fee from $3.0 million to $2.75 million and eliminate the obligation of the Company under certain circumstances to pay certain expenses incurred by the Parent in connection with the transactions contemplated by the Merger Agreement and to clarify the obligations of the Board of Directors of the Company to advise the Parent of information relating to certain Acquisition Proposals. In connection with the proposed settlement and subject to approval of the settlement by the Court of Chancery, the Company has agreed to pay $135,000 of fees and expenses of the counsel for the plaintiff. The information set forth in Item 4(b) of the Schedule 14D-9 in paragraph (vii) under the caption RECOMMENDATION OF THE BOARD OF DIRECTORS; FAIRNESS OF THE OFFER AND THE MERGER is hereby deleted and amended to read in its entirety as follows: (vii) the termination provisions of the Merger Agreement, as amended by Amendment No. 1 to the Merger Agreement, which were a condition to the Parent's proposal, providing that the Parent could be entitled to a Termination Fee of $2.75 million, upon the termination of the Merger Agreement, as amended by Amendment No. 1 to the Merger Agreement, under certain circumstances, including the modification or withdrawal of the Board of Directors' recommendation with respect to the Offer and the Merger in the presence of an Acquisition Proposal; and 5 7 ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. Item 9 is hereby amended to add the following exhibits: Exhibit (a)(4) -- Form of Letter to Stockholders of the Company dated October 16, 1995. Exhibit (c)(1)(i) -- Copy of Amendment No. 1, dated as of October 16, 1995, to Tender Offer and Merger Agreement, dated as of September 13, 1995, by and among Thomas Nelson, Inc., Nelson Acquisition Corp. and The C.R. Gibson Company.* Exhibit (c)(3) -- Memorandum of Understanding, dated October 16, 1995, between counsel for the Company and the directors of the Company and counsel for Crandon Capital Partners.* - --------------- * Not included in copies mailed to stockholders. 6 8 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. THE C.R. GIBSON COMPANY By: /s/ JAMES M. HARRISON ------------------------------------ James M. Harrison Executive Vice President and Chief Operating Officer Dated: October 16, 1995 7 9 EXHIBIT INDEX Exhibit (a)(4) -- Form of Letter to Stockholders of the Company dated October 16, 1995. Exhibit (c)(1)(i) -- Copy of Amendment No. 1, dated as of October 16, 1995, to Tender Offer and Merger Agreement, dated as of September 13, 1995, by and among Thomas Nelson, Inc., Nelson Acquisition Corp. and The C.R. Gibson Company.* Exhibit (c)(3) -- Memorandum of Understanding, dated October 16, 1995, between counsel for the Company and the directors of the Company and counsel for Crandon Capital Partners.*
- --------------- * Not included in copies mailed to stockholders. EX-99.A4 2 FORM OF LETTER TO STOCKHOLDERS DATED 10/16/95 1 EXHIBIT (A)(4) October 16, 1995 To Our Stockholders: Attached is a copy of Amendment No. 2, dated October 16, 1995 ("Amendment No. 2"), to the Solicitation/Recommendation Statement Pursuant to Section 14(d)(4) of the Securities Exchange Act of 1934, dated September 19, 1995, of The C. R. Gibson Company (the "Company") on Schedule 14D-9 (the "Schedule 14D-9"). The Schedule 14D-9 relates to the offer by Nelson Acquisition Corp., a wholly owned subsidiary of Thomas Nelson, Inc. ("Thomas Nelson"), to purchase up to 100% of the Common Stock of the Company for a purchase price of $9.00 per share. The information contained in Amendment No. 2 reflects a proposed settlement of the claims asserted against the Company and its directors in a purported class action captioned Crandon Capital Partners v. Bowman, et al. This action was described in Amendment No. 1, dated September 27, 1995, to the Schedule 14D-9, and the commencement of the action was announced in the Company's press release dated September 27, 1995. In particular, Amendment No. 2 provides additional information concerning the background of the proposed transactions between the Company and Thomas Nelson and describes certain amendments to the Tender Offer and Merger Agreement among the Company, Thomas Nelson and Nelson Acquisition Corp. (the "Merger Agreement"). The Board of Directors of the Company confirms its determination that the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, the Company and its stockholders and recommends acceptance of the Offer and approval of the Merger (as defined in the Merger Agreement). I urge you to read the enclosed material carefully. Sincerely, FRANK A. ROSENBERRY President and Chief Executive Officer EX-99.C1I 3 AMEND. NO. 1 TO TENDER OFFER & MERGER AGREEMENT 1 EXHIBIT (C)(1)(I) AMENDMENT NO. 1 TO TENDER OFFER AND MERGER AGREEMENT BY AND BETWEEN THOMAS NELSON, INC., A TENNESSEE CORPORATION, NELSON ACQUISITION CORP., A DELAWARE CORPORATION, AND THE C.R. GIBSON COMPANY, A DELAWARE CORPORATION DATE: OCTOBER 16, 1995 2 AMENDMENT NO. 1 TO TENDER OFFER AND MERGER AGREEMENT This AMENDMENT NO. 1, dated as of October 16, 1995 (this "Amendment No. 1"), to the Tender Offer and Merger Agreement, dated as of September 13, 1995 (the "Merger Agreement"), by and between THOMAS NELSON, INC., a Tennessee corporation ("Acquiror"), NELSON ACQUISITION CORP., a Delaware corporation ("Merger Subsidiary"), and THE C.R. GIBSON COMPANY, a Delaware corporation ("C.R. Gibson"). WITNESSETH: WHEREAS, Acquiror, Merger Subsidiary and C.R. Gibson have entered into the Merger Agreement; and WHEREAS, following public announcement of the execution and delivery of the Merger Agreement, an action captioned Crandon Capital Partners v. Bowman, et al. was instituted against C.R. Gibson and its directors in the Court of Chancery of the State of Delaware in and for New Castle County (the "Lawsuit"); and WHEREAS, a proposed settlement of the Lawsuit has been agreed upon between the plaintiff and C.R. Gibson, subject to the approval of the Court of Chancery, which proposed settlement has been approved by Acquiror; and WHEREAS, the proposed settlement of the Lawsuit contemplates certain amendments to the Merger Agreement; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. Section 6.3(a) of the Merger Agreement is hereby amended to read in its entirety as follows: (a) Acquisition Proposals. C.R. Gibson hereby agrees (a) that neither it nor any of the C.R. Gibson Subsidiaries shall, and it shall direct and use its best efforts to cause its and the C.R. Gibson Subsidiaries' officers, directors, employees, agents, representatives and affiliates (including, without limitation, any investment banker, attorney or accountant retained by it or any of the C.R. Gibson Subsidiaries) (collectively, the "C.R. Gibson Representatives") not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders but excluding the transactions contemplated by this Agreement) with respect to a merger, acquisition, consolidation, business combination, recapitalization, liquidation or similar transaction involving, or any purchase of a significant amount of the assets of or more than 25% of any equity securities of, C.R. Gibson (any such proposal or offering being hereinafter referred to as an "Acquisition Proposal") or engage or participate in any negotiations or discussions concerning, or provide any confidential information or data to, or have any discussions with, any corporation, partnership, person or other entity or group relating to any Acquisition Proposal, or otherwise assist or facilitate any effort to attempt to make or implement an Acquisition Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 6.3.(a); and (c) that it will notify Acquiror promptly if any such inquiries or proposals (whether formal or informal) are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with it or any of the C.R. Gibson Representatives and will promptly communicate to Acquiror the substantive terms of any proposal or inquiry which it may receive and the identity of the person from whom such proposal or inquiry is received. Notwithstanding the foregoing and provided none of C.R. Gibson, the C.R. Gibson Subsidiaries or the C.R. Gibson Representatives is otherwise in violation of this Section 6.3.(a), the Board of Directors of C.R. Gibson may furnish information to, or enter into discussions or negotiations with, any person that makes an unsolicited bona fide proposal in writing, not subject to any financing contingency, to acquire C.R. Gibson pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, 3 business combination or other similar transaction, if, and only to the extent that (A) the Board of Directors determines in good faith (based on the written opinion of C.R. Gibson's outside counsel) that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) the Board of Directors determines in good faith (based on the written opinion of a financial advisor of nationally recognized reputation) that such transaction would be more favorable to C.R. Gibson's stockholders than the Offer, (C) prior to or concurrently with furnishing such information to, or entering into discussions or negotiations with, such a person or entity, C.R. Gibson provides written notice to Acquiror to the effect that it is furnishing information to, or entering into discussions or negotiations with, such a person or entity, and (D) C.R. Gibson keeps Acquiror informed of the substantive terms of any such discussions or negotiations. 2. Section 9.3 of the Merger Agreement is hereby amended to read in its entirety as follows: 9.3. Fees Upon Certain Events. In the event that (A) any person (other than Acquiror or any of its affiliates) shall have become, prior to the termination of this Agreement, the beneficial owner of 50% or more of the outstanding shares of C.R. Gibson Common, (B) the Offer shall have expired at a time when the condition set forth in paragraph (a) of Exhibit A hereto shall not have been satisfied and at any time on or prior to one year after the expiration of the Offer any person (other than Acquiror or any of its affiliates) shall acquire beneficial ownership of 50% or more of the outstanding shares of C.R. Gibson Common or shall consummate an Acquisition Proposal, or (C) at any time prior to the termination of this Agreement, any person (other than Acquiror or any of its affiliates) shall publicly announce any Acquisition Proposal and, at any time on or prior to one year after the termination of this Agreement, shall become the beneficial owner of 50% or more of the outstanding shares of C.R. Gibson Common or shall consummate an Acquisition Proposal, then C.R. Gibson shall promptly, but in no event later than two business days after the first of such events to occur, pay Acquiror $2.75 million. C.R. Gibson acknowledges that the agreements contained in this Section 9.3. are an integral part of the transactions contemplated in this Agreement; accordingly, if C.R. Gibson fails to promptly pay the amount due pursuant to this Section 9.3., and, in order to obtain such payment, Acquiror commences a suit which results in a judgment against C.R. Gibson for the fee set forth in this Section 9.3., C.R. Gibson shall pay to Acquiror its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the rate of 10% per annum. 3. The execution of this Amendment No. 1 by Acquiror constitutes the approval in writing by Acquiror of the settlement of the Lawsuit by C.R. Gibson on the terms described herein, including, without limitation, the approval of the settlement by the Court of Chancery and, following such approval, the payment by C.R. Gibson of $135,000 of fees and expenses for counsel for the plaintiff in the Lawsuit. 4. Capitalized terms used herein which are not otherwise defined are used as defined in the Merger Agreement. 5. Except as specifically amended by this Amendment No. 1, the terms of the Merger Agreement shall remain in full force and effect. 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be executed as of the date first above written. ATTEST: THOMAS NELSON, INC. /s/ STUART HEATON By /s/ JOE L. POWERS - ----------------------------------------------- -------------------------------------------- Title: EVP & Secretary ----------------------------------------- ATTEST: NELSON ACQUISITION CORP. /s/ STUART HEATON By /s/ S. JOSEPH MOORE - ----------------------------------------------- -------------------------------------------- Title: President ----------------------------------------- ATTEST: THE C.R. GIBSON COMPANY /s/ JAMES M. HARRISON By /s/ FRANK A. ROSENBERRY - ----------------------------------------------- -------------------------------------------- James M. Harrison Frank A. Rosenberry Secretary President and Chief Executive Officer
EX-99.C3 4 MEMORANDUM OF UNDERSTANDING DATED 10/16/95 1 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY CRANDON CAPITAL PARTNERS, : a Florida Partnership, : Individually And On : Behalf of All Others : Similarly Situated, : : Plaintiff, : : v. : Civil Action No. 14538 : ROBERT G. BOWMAN, FRANK A. : ROSENBERRY, JAMES M. : HARRISON, WILLARD J. : OVERLOCK, JOANNA BRADSHAW : RICHARD E. CHENEY, RUDOLPH : EBERSTADT, JR., ROBERT : GARRETT, BARBARA M. HENEGAN, : JOHN G. RUSSELL, ROBERT J. : SIMON, and C.R. GIBSON CO., : : Defendants. : MEMORANDUM OF UNDERSTANDING WHEREAS, plaintiff in the above-referenced stockholder class action (the "Action") has challenged the proposed acquisition (the "Acquisition) of The C.R. Gibson Company ("C.R. Gibson") by Thomas Nelson, Inc. ("Nelson") pursuant to a Tender Offer and Merger Agreement dated September 13, 1995 (the "Merger Agreement"); and 2 WHEREAS, as a result of plaintiff's initiation and prosecution of the Action, pursuant to the agreed modifications to the Merger Agreement and additional disclosures referred to below, C.R. Gibson's common stockholders will receive the benefits of this agreement; NOW, THEREFORE, IT IS HEREBY AGREED, subject to the approval of the executive committee of the C.R. Gibson board of directors, between and among the parties hereto, that the following sets forth the terms of their proposed agreement to settle this matter: 1. The Merger Agreement shall be modified so that the termination fee and Acquiror's Expenses to be paid under certain circumstances described in Section 9.3 of the Merger Agreement shall be reduced from $3.0 million to $2.75 million and from $500,000 to $0, respectively. 2. C.R. Gibson's 14D-9 will be supplemented, after consultation with plaintiff's counsel, to (a) describe Nelson's January 1994 proposed combination with C.R. Gibson and the reasons for C.R. Gibson's rejection of the proposal; (b) clarify that the circumstances under which the termination fee would be payable to Nelson does not include the mere failure of the stockholders to 2 3 tender the minimum amount under the Merger Agreement, absent a competing offer within one year of the termination of the Offer; and (c) clarify that C.R. Gibson's obligations under Section 6.3(a) of the Merger Agreement to keep Nelson informed of the status of any discussions or negotiations with another bidder includes an obligation to inform Nelson of all significant terms of the other offer, but does not require C.R. Gibson to provide Nelson with step-by-step details of the discussions, including the bidding processes. 3. The date that the tender offer shall close will be extended to a date no earlier than October 30, 1995 to permit adequate dissemination of the news of the changes contemplated by this Memorandum of Understanding. 4. Plaintiff may conduct such reasonable additional discovery as the parties agree is appropriate and necessary to confirm the fairness and reasonableness of the terms of this proposed settlement. 5. C.R. Gibson shall bear all administrative costs associated with implementing this settlement, including the cost of notifying the members of the Class. 6. Subject to approval of the Court of Chancery, within five business days after approval of the settlement of the Action, resolution of any appeal there- 3 4 from and final resolution of any collateral attack on the settlement, C.R. Gibson shall pay plaintiffs' counsel fees and expenses in an amount not to exceed $135,000, plus interest at the prime rate as reported by the Wall Street Journal beginning to accrue on the date the Court of Chancery enters its judgment approving the settlement. A collateral attack upon the Acquisition or the settlement shall not preclude this settlement from becoming final by operation of Delaware law. 7. A Stipulation of Settlement of the Action (the "Stipulation") will be prepared, executed and submitted to the Court of Chancery for approval at the earliest practicable time. The Stipulation will expressly provide, among other things, that: (a) the defendants have denied, and continue to deny, that they have committed any violation of law or engaged in any of the wrongful acts alleged in the complaint; (b) the defendants are entering into the Stipulation because the proposed settlement would eliminate the burden and expense of further litigation; and (c) plaintiff's counsel, having made a thorough investigation of the facts, believe that the proposed settlement is fair, reasonable and adequate and in the best interests of plaintiff and the proposed class. The Stipulation will further provide for, among 4 5 other things, (a) appropriate certification of a class consisting of all persons or entities who held stock, either of record or beneficially, of C.R. Gibson (other than the defendants and their affiliates) at any time from January 1, 1994 through the consum- mation of the Offer, as amended, including the legal representatives, heirs, executors, administrators, transferees, successors and assigns of such persons or entities; and (b) the entry of a judgment and delivery of releases in appropriate forms, dismissing the Action with prejudice and barring and releasing any known or unknown claims (including any claims for violation of federal, state or common law) that have been or might have been brought in any court or forum by any member of the proposed class against any person or entity, including class, derivative, individual and all other claims, relating to any matter that was discussed in or could have been asserted in the complaint or was discussed in the Offer to Purchase, as amended. 8. This Memorandum of Understanding and the proposed settlement described herein shall be contingent upon execution of an appropriate and satisfactory Stipulation and related documents and the approval of the Court of Chancery. Should a Stipulation not be executed 5 6 or not be approved by the Court, or should the Offer not be consummated in accordance with the modified terms described herein, the proposed settlement shall be null and void and of no force and effect, and shall not be deemed to prejudice in any way the position of any party with respect to this litigation. In the event the contingencies set forth herein are not satisfied, neither the existence of this Memorandum of Understanding nor its contents shall be admissible in evidence or shall be referred to for any purpose in this litigation or in any other litigation or proceeding. 9. This Memorandum of Understanding and the proposed settlement described herein shall be governed by, and construed in accordance with, the laws of the State of Delaware. 10. This Memorandum of Understanding may be modified or amended only by a writing signed by all of the signatories hereto. 11. The plaintiff and its counsel represent and warrant that none of plaintiff's claims or causes of action referred to in any complaint or in the complaint in the Action or this Memorandum of Understanding have been assigned, encumbered or in any manner transferred in whole or in part. 6 7 12. Except as otherwise provided herein, this Memorandum of Understanding shall be binding upon and shall inure to the benefit of the parties and their respective agents, successors, executors, heirs and assigns. 13. By signing this Memorandum of Understanding, plaintiff's counsel represent and warrant that the named plaintiff is a stockholder of C.R. Gibson. 14. The parties to this Memorandum of Understanding agree (a) to use their best efforts to achieve the dismissal of the Action in accordance with the terms of this Memorandum of Understanding, (b) to cause the timely occurrence of all events, transactions, or other circumstances described herein, and (c) in the event of the filing of any collateral attack on this settlement or on the Acquisition, the defendants agree to use their best efforts to have such attack promptly dismissed based upon, among other things, this settlement. 7 8 15. This Memorandum of Understanding may be signed in counterparts. DATED: October 16, 1995 /s/ KEVIN GROSS ---------------------------- Kevin Gross ROSENTHAL, MONHAIT, GROSS & OF COUNSEL: GODDESS, P.A. First Federal Plaza WECHSLER HARWOOD Suite 214 HALEBIAN & FEFFER LLP P.O. Box 1070 805 Third Avenue Wilmington, DE 19899-1070 New York, NY 10022 (302) 656-4433 (212) 935-7400 Attorneys for plaintiff /s/ CATHY J. TESTA ---------------------------- Edward P. Welch Cathy J. Testa SKADDEN, ARPS, SLATE, MEAGHER & FLOM One Rodney Square P.O. Box 636 Wilmington, DE 19899 (302) 651-3000 Attorneys for Defendants 8 -----END PRIVACY-ENHANCED MESSAGE-----