-----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, Hckn+JlA0SBxzmihHlNvjJ6X3cWRvLkwmiQCl6kJXK9Xp/HRP4RPHpnf2WnhXFGS hRT7RqOsk6nhKLFBL8Pl5w== 0000906416-96-000036.txt : 19960705 0000906416-96-000036.hdr.sgml : 19960705 ACCESSION NUMBER: 0000906416-96-000036 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960703 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: GUARANTY NATIONAL CORP CENTRAL INDEX KEY: 0000044358 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 840445021 STATE OF INCORPORATION: CO FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43461 FILM NUMBER: 96590529 BUSINESS ADDRESS: STREET 1: 9800 SOUTH MERIDIAN BOULEVARD CITY: ENGLEWOOD STATE: CO ZIP: 80112-5901 BUSINESS PHONE: 3037548400 MAIL ADDRESS: STREET 1: 9800 SOUTH MERIDIAN BLVD CITY: ENGLEWOOD STATE: CO ZIP: 80112-5901 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ORION CAPITAL CORP CENTRAL INDEX KEY: 0000074931 STANDARD INDUSTRIAL CLASSIFICATION: FIRE, MARINE & CASUALTY INSURANCE [6331] IRS NUMBER: 956069054 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 600 FIFTH AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10020-2302 BUSINESS PHONE: 212-332-8080 MAIL ADDRESS: STREET 1: 600 FIFTH AVENUE STREET 2: 24TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10020-2302 FORMER COMPANY: FORMER CONFORMED NAME: EQUITY FUNDING CORP OF AMERICA DATE OF NAME CHANGE: 19760518 FORMER COMPANY: FORMER CONFORMED NAME: TONGOR CORP OF AMERICA DATE OF NAME CHANGE: 19670330 FORMER COMPANY: FORMER CONFORMED NAME: TONGOR CORP DATE OF NAME CHANGE: 19661024 SC 14D1/A 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 AMENDMENT NO. 5 SCHEDULE 14D-1 Tender Offer Statement Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 Guaranty National Corporation ----------------------------- (Name of Subject Company) Orion Capital Corporation The Connecticut Indemnity Company Connecticut Specialty Insurance Company Design Professionals Insurance Company EBI Indemnity Company Employee Benefits Insurance Company The Fire and Casualty Insurance Company of Connecticut Security Insurance Company of Hartford -------------------------------------- (Bidder) Common Stock, par value $1.00 per share --------------------------------------- (Title of Class of Securities) 401192109 ------------------------------------- (CUSIP Number of Class of Securities) Michael P. Maloney, Esq. Vice President and General Counsel ORION CAPITAL CORPORATION 600 Fifth Avenue New York, New York 10020-2302 (212) 332-8080 ---------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Bidder) Copy to: John J. McCann, Esq. Donovan Leisure Newton & Irvine 30 Rockefeller Plaza New York, New York 10112 (212) 632-3000 This Statement is filed by Orion Capital Corporation ("Orion") and the following of its wholly-owned subsidiaries: The Connecticut Indemnity Company, Connecticut Specialty Insurance Company, Design Professionals Insurance Company, EBI Indemnity Company, Employee Benefits Insurance Company, The Fire and Casualty Insurance Company of Connecticut and Security Insurance Company of Hartford (collectively with Orion, the "Purchasers") relating to the tender offer of the Purchasers to purchase up to 4,600,000 shares of common stock, par value $1.00 per share (the "Shares"), of Guaranty National Corporation, a Colorado corporation (the "Company"). This Statement further amends the Schedule 14D-1 of the Purchasers, dated May 8, 1996 previously amended by Amendment No. 1 dated May 23, 1996, by Amendment No. 2 dated June 4, 1996, by Amendment No. 3 dated June 11, 1996 and by Amendment No. 4 dated June 18, 1996 (as heretofore and hereby amended, the "Schedule 14D-1"), by incorporating by reference herein the information set forth in the press release dated July 2, 1996 of Orion attached as Exhibit (a)(14) hereto. This Statement also amends Items 6, 10 and 11 of the Schedule 14D-1 by adding the information set forth below. Except as otherwise indicated herein, the Schedule 14D-1 remains unchanged in all respects. Capitalized terms not otherwise defined herein are defined as set forth in the Schedule 14D-1 or in the Offer to -2- Purchase of the Purchasers, dated May 8, 1996 as supplemented by the Supplement to the Offer to Purchase dated June 4, 1996, (the "Offer to Purchase"). Item 6. Interest in Securities of the Subject Company --------------------------------------------- The information set forth in Item 6 of the 14D-1 is hereby supplemented as follows: At 12:00 midnight, New York City time, on July 1, 1996, the Offer expired. Based on its preliminary tabulation, State Street Bank and Trust Company, the depositary for the Offer, has informed the Purchasers that approximately 7,036,092 Shares were validly tendered and not withdrawn pursuant to the Offer (including 2,634,346 Shares tendered by means of notices of guaranteed delivery). On July 2, 1996, effective as of 12:01 a.m., Purchasers accepted for payment, on a pro rata basis, 4,600,000 of the Shares validly tendered and not withdrawn prior to the expiration of the Offer, which, together with the 7,409,942 Shares currently owned by Purchasers, represent approximately 80.3% of the Shares currently outstanding. The preliminary proration factor is 65.3772 percent. The final proration factor will be determined after the precise number of validly tendered Shares is calculated. Payment for Shares accepted for payment pursuant to the Offer will not be made until the final proration factor is known. The information set forth in the press release -3- dated July 2, 1996 of Orion attached hereto as Exhibit (a)(14) is incorporated herein by reference. Item 10. Additional Information ---------------------- The information set forth in Item 10 of the 14D-1 is hereby supplemented as follows: (e) On July 2, 1996, Orion signed on behalf of the Purchasers a Memorandum of Understanding with respect to the settlement and dismissal of all three litigations which have been purportedly commenced, on behalf of the stockholders of Guaranty National Corporation as a class, and in which the Purchasers have been named among the defendants. One action (VOGEL V. GUARANTY NATIONAL CORPORATION, ET AL.) is pending in the State of New York and two others (VOGEL V. GUARANTY NATIONAL CORPORATION, ET AL. and MILLER V. ROGER B. WARE, ET AL.) are pending in the State of Colorado. The plaintiffs would, under the terms of the Memorandum of Understanding, terminate all pending litigation on behalf of the entire class of allegedly affected stockholders, based on the revisions which Purchasers have previously made in the terms of the tender offer. In the Memorandum of Understanding the Purchasers have agreed not to oppose the settlement proposed, including the payment by the named defendants upon dismissal of all claims of plaintiffs' legal fees and expenses in all actions in an aggregate amount not to exceed $610,000. The Memorandum of -4- Understanding attached hereto as Exhibit (a)(15) is incorporated herein by reference. (f) Whether or not otherwise specifically referenced in response to the Items of this Statement, the information contained in the press release dated July 2, 1996 of Orion attached hereto as Exhibit (a)(14) is incorporated herein by reference. Item 11. Material to be Filed as Exhibits -------------------------------- (a)(14) Press Release dated July 2, 1996 of Orion Capital Corporation. (a)(15) Memorandum of Understanding dated July 2, 1996. -5- 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. Dated: July 2, 1996 ORION CAPITAL CORPORATION By /s/ Michael P. Maloney ---------------------------- Vice President, General Counsel and Secretary THE CONNECTICUT INDEMNITY COMPANY CONNECTICUT SPECIALTY INSURANCE COMPANY DESIGN PROFESSIONALS INSURANCE COMPANY EBI INDEMNITY COMPANY EMPLOYEE BENEFITS INSURANCE COMPANY THE FIRE AND CASUALTY INSURANCE COMPANY OF HARTFORD SECURITY INSURANCE COMPANY OF HARTFORD By /s/ Michael P. Maloney --------------------------- Senior Vice President -6- EXHIBIT INDEX Exhibit Description ------- ----------- (a)(14) Press Release dated July 2, 1996 of Orion Capital Corporation. (a)(15) Memorandum of Understanding dated July 2, 1996. -7- EX-99.14A 2 From: Vincent T. Papa Dawn Dover (212) 332-8080 Robert Siegfried Jeanne Hotchkiss Kekst and Company (860) 674-6754 (212) 593-2655 FOR IMMEDIATE RELEASE ORION CAPITAL CASH TENDER OFFER FOR GUARANTY NATIONAL SHARES OVERSUBSCRIBED New York, New York, July 2, 1996 -- Orion Capital Corporation (NYSE: OC), today announced that it has successfully completed its tender offer to purchase 4,600,000 shares of Guaranty National Corporation (NYSE: GNC) Common Stock, including any associated stock purchase rights, for $18.50 per share. The tender offer expired at 12:00 midnight, New York City time on July 1, 1996. Based on its preliminary tabulation, the Depositary for the Offer has informed Orion that approximately 7,036,092 shares of Guaranty National Corporation were tendered and not withdrawn pursuant to the Offer (including 2,634,346 shares tendered by means of notices of guaranteed delivery). Orion has accepted for payment, on a pro rata basis, 4,600,000 of the shares validly tendered prior to the expiration of the Offer, which together with the 7,409,942 shares currently owned by certain of Orion's wholly-owned subsidiaries, represents approximately 80.3% of the shares of Guaranty National Corporation currently outstanding. The preliminary proration factor is 65.3772%. The final proration factor will be determined after the precise number of validly tendered shares is calculated. Payment for shares accepted for payment pursuant to the Offer will be made when the final proration factor is determined. Orion Capital Corporation is engaged in the specialty property and casualty insurance business through wholly-owned subsidiaries which include EBI Companies, DPIC Companies, Connecticut Specialty Insurance Group, SecurityRe Companies and Wm. H. McGee & Co. Inc., as well as through its ownership interest in Guaranty National Corporation. ### EX-99.15A 3 MEMORANDUM OF UNDERSTANDING --------------------------- WHEREAS, there are now pending certain shareholder actions in (a) the Supreme Court of the State of New York, County of New York (the "Court") entitled EUGENIA GLADSTONE VOGEL V. GUARANTY NATIONAL CORPORATION, ET AL., Index No. 96-602632 (the "New York Action"); and (b) the District Court, County of Denver, State of Colorado, entitled EUGENIA GLADSTONE VOGEL V. GUARANTY NATIONAL CORPORATION, ET AL., Case No. 96CV2277; and (c) the District Court, County of Arapahoe, State of Colorado, entitled CHARLES MILLER V. ROGER B. WARE, ET AL., Case No. 96CV1020 ((b) and (c) referred to herein as the "Colorado Actions") (collectively, the "Actions")); WHEREAS, the Actions challenge certain actions allegedly taken or not taken by Orion Capital Corporation ("Orion"), Guaranty National Corporation ("Guaranty National" or the "Company") and the Board of Directors of Guaranty National, in connection with Orion's tender offer for up to 30% of the outstanding shares of Guaranty National (the "Tender Offer"); WHEREAS, the Tender Offer was originally for the purchase of up to 4,600,000 outstanding shares of Guaranty National stock at $17.50 per share; WHEREAS, pursuant to the agreed modifications to the Tender Offer set forth in paragraph 1 below (the "Revised Tender Offer"), including an increase to $18.50 per share in the consideration to be received for each share tendered as referred to in paragraph 1(a) below, Guaranty National's common shareholders (other than Orion and its subsidiaries (the "Orion Group")) will receive consideration in the Revised Tender Offer which will produce greater value for such shareholders than the consideration they would have received absent the modification; WHEREAS, counsel for the parties have reached a Memorandum of Understanding, subject to the completion of plaintiff's remaining discovery in the Actions, providing for the settlement of the Actions (the "Settlement") by the plaintiffs and by the putative class of persons on behalf of whom plaintiffs have brought the Actions, and by Orion, Guaranty National and the individual defendants to the Actions, on the terms and subject to the conditions set forth below; NOW THEREFORE, IT IS HEREBY AGREED, between and among the parties hereto that the following sets forth the terms of their agreement to settle this matter: 1. The Tender Offer has been modified as follows: -2- (a) Guaranty National shareholders will receive cash in the amount of $18.50 per share rather than $17.50 per share; (b) a minimum of 3,776,000 shares of Guaranty National common stock (i.e, a majority of the Company's outstanding shares not held by the Orion Group) must be validly tendered for the Revised Tender Offer to be effective; and (c) if the Revised Tender Offer is consummated, Orion has made additional undertakings which require, inter ----- alia that any purchase of the remaining outstanding shares ---- of Guaranty National within the next three years (i.e. ---- through July 1, 1999) shall be for consideration not less than that paid in the Revised Tender Offer. 2. Guaranty National has obtained a written opinion from its investment banker, Salomon Brothers Inc, stating that the Revised Tender Offer is fair, from a financial point of view, to the non-Orion stockholders of Guaranty National and the Guaranty National Board of Directors has recommended acceptance of the Revised Tender Offer to the non-Orion holders of Guaranty National common shares. 3. The parties acknowledge that plaintiffs' litigation efforts and their communications with defendants -3- were significant and influential causal factors considered by Orion, Guaranty National and the Guaranty National Board of Directors in connection with the modifications to the Tender Offer described in paragraph 1 above, and the steps taken by or on behalf of the Guaranty National Board described in paragraph 2 above. 4. Plaintiffs may conduct such reasonable additional discovery as the parties agree is appropriate and necessary to confirm the fairness and reasonableness of the terms of the Settlement. 5. The parties to the New York Action will agree upon, execute and present to the Court as soon as is practicable an appropriate Stipulation of Settlement ("Stipulation") and such other documentation as may be required in order to obtain prompt approval by the Court of the Settlement upon the terms set forth in this Memorandum of Understanding. The Stipulation will expressly provide, inter ----- alia: (a) for entry of a judgment in appropriate form barring ---- claims (including any claims for violation of federal, state or common law) that have been or might have been brought in any court by any member of the putative class relating to any matters that were or could have been asserted in the complaints, in the Actions or in the Amended Complaint in the New York Action; (b) for a release in an appropriate form -4- releasing all such claims that were or could have been asserted against the individual defendants, Orion or Guaranty National; and (c) for appropriate certification of the class as described in paragraph 6. 6. For the purposes of Settlement of the Actions consistent with the terms of this Memorandum of Understanding, the parties will jointly submit to the Court in connection with the Stipulation a proposed order providing, inter alia, for conditional certification of an ----- ---- opt-out class (the "Class"), pursuant to the New York Civil Practice Law and Rules, solely for the purpose of consummating and effectuating the proposed Settlement, consisting of Guaranty National shareholders (exclusive of the Orion Group and the individual defendants named in any of the Actions) who owned shares of the Company at any time between May 7, 1995 and the consummation of the Revised Tender Offer, and their successors in interest or transferees, immediate and remote. 7. The parties to the New York Action will present the Settlement to the Court for hearing and approval as soon as practicable following appropriate notice to the members of the Class and will use their best efforts to obtain final Court approval of the Settlement, and release and dismissal of the New York Action with prejudice as against plaintiff -5- Eugenia Gladstone Vogel and the Class and without awarding costs to any party (except as provided for in paragraph 10 below). As used herein, "final Court approval" of the Settlement means that the Court has entered an Order approving the Settlement and that Order is finally affirmed on appeal or is no longer subject to appeal. 8. Promptly after final Court approval of the Settlement, the parties to the Colorado Actions shall apply for the entry of a judgment in appropriate form dismissing and releasing the Colorado Actions with prejudice and without costs or fees (except as provided in Paragraph 10 below) based on the release and dismissal of the New York Action and the res judicata effect of the Order entered therein --- -------- approving the Settlement and dismissing that action. Notwithstanding the foregoing, plaintiffs reserve the right at any time prior to the issuance of an order by the Court preliminarily approving the Settlement and directing the dissemination of notice, to cause the Settlement to be submitted for approval by one of the two Colorado courts presiding over the Colorado actions. 9. Plaintiff reserves the right to withdraw from the terms of this Memorandum of Understanding and the proposed Settlement in the event that remaining discovery reveals facts which are inconsistent with the fairness of the -6- proposed Settlement to the Class. Defendants reserve the right to withdraw from the terms of this Memorandum of Understanding and the proposed Settlement in the event that there shall opt out of the Class shareholders whose aggregate Guaranty National holdings equal or exceed 500,000 common shares outstanding. The parties will cooperate with plaintiffs to schedule the discovery referred to herein in as efficient a manner as possible. 10. Provided that a Stipulation of Settlement has been executed and final Court approval of the Settlement (including class release) and dismissal of the Action by the Court with prejudice has been obtained, plaintiffs' counsel of record in the Actions will jointly apply to the Court for an award of attorneys' fees and expenses not to exceed in the aggregate $600,000. The attorneys for plaintiffs in the Actions shall make no other fee application in any of the Actions. Defendants will not oppose such application for attorneys' fees and expenses. Subject to the conditions set forth in this paragraph, any attorneys' fees and expenses awarded by the Court to plaintiffs' counsel shall be paid by Orion, on behalf of defendants, to the order of Milberg Weiss Bershad Hynes & Lerach LLP, as receiving agent for plaintiffs' counsel, or as the Court may otherwise direct, within ten days after final Court approval of the Settlement -7- and dismissal with prejudice and without costs or fees (except as otherwise set forth in this paragraph), of the Colorado Actions. Defendants shall also pay the costs and expenses incurred in the New York Action and, if necessary, in the Colorado or in any other litigated matter which requires such notice, in providing notice of the Settlement to the Class up to a maximum of $10,000.00. 11. Guaranty National and certain individual defendants, having filed a motion to dismiss the Amended Complaint in the New York Action, agree to toll the time within which the New York plaintiff must respond to that motion until the Settlement receives final Court approval, at which time the motion will be withdrawn. 12. This Memorandum of Understanding and the proposed Settlement described herein shall not be legally binding on any party unless and until the Stipulation is executed. Should a Stipulation not be executed or not be judicially approved by the Court, or should the Revised Tender Offer not be consummated in accordance with the modified terms described therein, 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 the Actions. In such event, neither the existence of this Memorandum of Understanding nor its -8- contents shall be admissible in evidence or shall be referred to for any purpose in this litigation or in any other litigation or proceeding. 13. This Memorandum of Understanding may be executed in counterpart by any of the signatories hereto, and as so executed shall constitute one agreement. 14. This Memorandum of Understanding and the Settlement contemplated by it shall be governed by, and construed in accordance with the laws of the State of New York. 15. This Memorandum of Understanding may be modified or amended only by a writing signed by the signatories hereto. 16. This Memorandum of Understanding shall be binding and inure to the benefit of the parties and their respective agents, executors, heirs, successors and assigns. Dated: July 2, 1996 MILBERG WEISS BERSHAD HYNES & LERACH LLP By: /s/ Steven G. Schulman --------------------------- Steven G. Schulman One Penn Plaza, 49th Floor New York, New York 10119 (212) 594-5300 Attorneys for Plaintiff Eugenia Gladstone Vogel (N.Y. and Colo. 96CV2277) -9- WECHSLER HARWOOD HALEBIAN & FEFFER LLP By: /s/ Robert I. Harwood --------------------------- Robert I. Harwood 805 Third Avenue New York, New York 10022 Attorneys for Plaintiff Charles Miller (Colo. 96CV1020) DONOVAN LEISURE NEWTON & IRVINE By: /s/ David R. Jewell --------------------------- David R. Jewell 30 Rockefeller Plaza New York, New York 10112 (212) 632-3000 Attorneys for defendants for Orion Capital Corporation, Alan R. Gruber, Larry D. Hollen, Robert B. Sanborn and William J. Shepherd IRELAND STAPLETON & PRYOR By: /s/ Hardin Holmes --------------------------- Hardin Holmes 1675 Broadway Denver, Colorado 80202 (303) 623-2700 Attorneys for defendants Guaranty National Corporation, Tucker Hart Adams, Dennis J. Lacey, M. Ann Padilla, Carroll D. Speckman, Richard R. Thomas and Roger B. Ware -10- -----END PRIVACY-ENHANCED MESSAGE-----