-----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, KK7O+rCjVpFEYVyJ8Acyxf8EnKIf879eWUcLPqcu/ngDVnW63r6kf+Lvmn9upPzt v3RuPSbQshhXLqISALFF8A== 0000912057-97-025358.txt : 19970730 0000912057-97-025358.hdr.sgml : 19970730 ACCESSION NUMBER: 0000912057-97-025358 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970729 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KERR GROUP INC CENTRAL INDEX KEY: 0000055454 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 950898810 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34081 FILM NUMBER: 97647420 BUSINESS ADDRESS: STREET 1: 500 NEW HOLLAND AVE CITY: LANCASTER STATE: PA ZIP: 17602 BUSINESS PHONE: 3105562200 MAIL ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 FORMER COMPANY: FORMER CONFORMED NAME: KERR GLASS MANUFACTURING CORP DATE OF NAME CHANGE: 19920518 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KERR GROUP INC CENTRAL INDEX KEY: 0000055454 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 950898810 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34081 FILM NUMBER: 97647421 BUSINESS ADDRESS: STREET 1: 500 NEW HOLLAND AVE CITY: LANCASTER STATE: PA ZIP: 17602 BUSINESS PHONE: 3105562200 MAIL ADDRESS: STREET 1: 1840 CENTURY PARK EAST CITY: LOS ANGELES STATE: CA ZIP: 90067 FORMER COMPANY: FORMER CONFORMED NAME: KERR GLASS MANUFACTURING CORP DATE OF NAME CHANGE: 19920518 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KERR ACQUISTION CORP CENTRAL INDEX KEY: 0001041988 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 50 FREMONT STREET SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94105 MAIL ADDRESS: STREET 1: 50 FREMONT STREET SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94105 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KERR ACQUISTION CORP CENTRAL INDEX KEY: 0001041988 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 50 FREMONT STREET SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94105 MAIL ADDRESS: STREET 1: 50 FREMONT STREET SUITE 3700 CITY: SAN FRANCISCO STATE: CA ZIP: 94105 SC 14D1/A 1 SC 14D-1/A - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ SCHEDULE 14D-1/A (AMENDMENT NO. 1) TENDER OFFER STATEMENT Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934 and SCHEDULE 13D/A (AMENDMENT NO. 1) Under the Securities Exchange Act of 1934 ------------------------ KERR GROUP, INC. (Name of Subject Company) KERR ACQUISITION CORPORATION FREMONT ACQUISITION COMPANY, LLC (Bidders) COMMON STOCK, PAR VALUE $0.50 PER SHARE (AND ASSOCIATED PURCHASE RIGHTS) $1.70 CLASS B CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES D, PAR VALUE $0.50 PER SHARE (Title of Class of Securities) 492376108 AND 492376207 (CUSIP Number of Class of Securities) GILBERT H. LAMPHERE PRESIDENT FREMONT ACQUISITION COMPANY, LLC C/O THE FREMONT GROUP 50 FREMONT STREET SUITE 3700 SAN FRANCISCO, CALIFORNIA 94105 (415) 284-8500 (Name, Address and Telephone Number of Person authorized to Receive Notices and Communications on Behalf of Bidder) COPY TO: KENTON J. KING, ESQ. Skadden, Arps, Slate, Meagher & Flom LLP Four Embarcadero Center, Suite 3800 San Francisco, California 94111 (415) 984-6400 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- This Amendment No. 1 amends and supplements the Tender Offer statement on Schedule 14D-1/13D (the "Schedule 14D-1/13D") filed with the Securities and Exchange Commission on July 8, 1997 by Kerr Acquisition Corporation (the "Purchaser") and Fremont Acquisition Company, LLC ("Fremont"), relating to the offer by Purchaser to purchase (i) all of the issued and outstanding shares of common stock, par value $0.50 per share, including the associated rights to purchase shares of preferred stock (the "Rights" and, together with common stock, the "Common Stock") issued pursuant to the Rights Agreement, dated as of July 25, 1995, between Kerr Group, Inc., a Delaware corporation (the "Company") and BankBoston, N.A. (formerly The First Bank of Boston), as Rights Agent, as amended, and (ii) all of the issued and outstanding shares of $1.70 Class B Cumulative Convertible Preferred Stock Series D, par value $0.50 per share (the "Series D Preferred Shares"), of the Company, for $5.40 per share of Common Stock and $12.50 per share of Series D Preferred Share, in each case net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated July 8, 1997 (the "Offer to Purchase"), a copy of which is attached to the Schedule 14D-1/13D as Exhibit (a)(1), and the related Letters of Transmittal, copies of which are attached to the Schedule 14D-1/13D as Exhibits (a)(2) and (a)(3). This filing also constitutes Amendment No. 1 to the Schedule 13D originally filed pursuant to Section 13(d) of the Securities Exchange Act of 1934, as amended, on behalf of each of the Purchaser, Fremont, Fremont Partners, L.P., FP Advisors, L.L.C., Fremont Group, L.L.C. and Fremont Investors, Inc. ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION (a)-(b) The information set forth in "Section 10--Source of Amount of Funds" of the Offer to Purchase is hereby amended by replacing such Section in its entirety with the following: Fremont and the Purchaser estimate that the total amount of funds required by the Purchaser to (i) purchase all the Shares pursuant to the Offer and finance the Merger Consideration, (ii) refinance certain existing indebtedness and accrued liabilities of the Company, (iii) provide cash on the balance sheet of the Company and (iv) pay fees and expenses incurred in connection with the Offer and the Merger will be approximately $95.6 million. Of these funds, it is anticipated that (i) approximately $0.9 million will be obtained from the Company's cash and cash equivalents, (ii) approximately $44.7 million will be obtained by Fremont through the sale of equity interests to Fremont Partners and affiliated partnerships, (and possibly to key management of the Company and related entities) and Fremont will in turn contribute such amount to the Purchaser, and (iii) approximately $50.0 million will be financed either through a permanent bank financing (the "Bank Financing"), or, if the Bank Financing cannot be obtained prior to the date on which the Shares are acquired by the Purchaser pursuant to the Offer, through a bridge facility (the "Bridge Facility") provided by Fremont Partners, the principal terms of which are described below. 2 The following table has been prepared by the Purchaser after discussions with management of the Company and sets forth the approximate amounts, proposed sources and uses of funds necessary to consummate the proposed Offer, Merger and related refinancings:
$ IN MILLIONS ------------- Sources: Cash on balance sheet of the Company.......................................... $ 0.9 Equity Contributions from Fremont............................................. 44.7 Borrowings under Bridge Facility or Bank Financing............................ 50.0 ----- Total....................................................................... $ 95.6 ----- ----- Uses: Purchase Equity............................................................... $ 27.9 Refinance Existing Debt and Accrued Liabilities of Company.................... 57.0 Cash on balance sheet of the Company.......................................... 2.4 Fees and Expenses............................................................. 8.3 ----- Total....................................................................... $ 95.6 ----- -----
The proposed Bridge Facility will be structured as a term loan, and will be fully secured by a first priority, perfected security interest on substantially all the tangible and intangible assets of the Company. The Bridge Facility will mature and be payable in full on the date which is 364 days after the date on which the Shares are acquired by the Purchaser pursuant to the Offer (the "Bridge Maturity Date"). If the Bridge Facility is not refinanced on or prior to the Bridge Maturity Date, it would, at such time, convert (the "Conversion") to a permanent loan facility with a five-year term. Prior to the Bridge Maturity Date, the Bridge Facility will accrue interest at a rate per annum equal to LIBOR plus a margin of 250 basis points. Following the Conversion, the Bridge Facility will accrue interest at a rate per annum equal to the rate for five-year U.S. Treasuries as of the date of the Conversion plus a margin of 600 basis points. ITEM 11. MATERIALS TO BE FILED AS EXHIBITS Item 11 is hereby amended and supplemented by adding the following Exhibits: (a)(12) Notice of United National Bank as Trustee of the Kerr Group, Inc. Employee Incentive Stock Ownership Plan I to Participants in the Kerr Group, Inc. Employee Incentive Stock Ownership Plan I. (a)(13) Notice of United National Bank as Trustee of the Kerr Group, Inc. Employee Incentive Stock Ownership Plan to Participants in the Kerr Group, Inc. Employee Incentive Stock Ownership Plan.
3 EXHIBIT LIST
EXHIBIT NUMBER EXHIBIT - --------- -------------------------------------------------------------------------------------------------------- (a)(1) Offer to Purchase, dated July 8, 1997. (a)(2) Letter of Transmittal with respect to the Common Stock. (a)(3) Letter of Transmittal with respect to the Series D Preferred Shares. (a)(4) Letter for use by Brokers, Dealers, Banks, Trust Companies and Nominees to their Clients. (a)(5) Letter to Clients. (a)(6) Notice of Guaranteed Delivery with respect to the Common Stock. (a)(7) Notice of Guaranteed Delivery with respect to the Series D Preferred Shares. (a)(8) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(9) Press Release jointly issued by Fremont and the Company, dated July 1, 1997. (a)(10) Form of Summary Advertisement, dated July 8, 1997. (a)(11) Fairness Opinion of CIBC Wood Gundy Securities Corp., dated June 30, 1997. (a)(12) Notice of United National Bank as Trustee of the Kerr Group, Inc. Employee Incentive Stock Ownership Plan I to Participants in Kerr Group, Inc. Employee Incentive Stock Ownership Plan I. (a)(13) Notice of United National Bank as Trustee of the Kerr Group, Inc. Employee Incentive Stock Ownership Plan to Participants in Kerr Group, Inc. Employee Incentive Stock Ownership Plan. (c)(1) Agreement and Plan of Merger, dated as of July 1, 1997, by and among Fremont, the Purchaser and the Company. (c)(2) Option Agreement, dated as of July 1, 1997, by and between Fremont and the Company. (c)(3) Guarantee, dated as of July 1, 1997, by and between Fremont Partners, L.P. and the Company. (c)(4) Confidentiality Agreement, dated November 6, 1995, by and between Fremont Group, Inc. and Lehman Brothers Inc. on behalf of the Company. (d) None. (e) Not applicable. (f) None.
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. Date: July 29, 1997 KERR ACQUISITION CORPORATION By: /s/ GILBERT H. LAMPHERE ----------------------------------------- Name: Gilbert H. Lamphere Title: Director and President
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. Date: July 29, 1997 FREMONT ACQUISITION COMPANY, LLC By: /s/ GILBERT H. LAMPHERE ----------------------------------------- Name: Gilbert H. Lamphere Title: President
6 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. Date: July 29, 1997 FREMONT PARTNERS, L.P. By: FP Advisors, L.L.C., its general partner By: Fremont Group, L.L.C., its managing member By: Fremont Investors, Inc., its manager By: /s/ GILBERT H. LAMPHERE -------------------------------------------- Name: Gilbert H. Lamphere Title: Managing Director and Director 7 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. Date: July 29, 1997 FP ADVISORS, L.L.C. By: Fremont Group, L.L.C., it managing member By: Fremont Investors, Inc., its manager By: /s/ GILBERT H. LAMPHERE ----------------------------------------- Name: Gilbert H. Lamphere Title: Managing Director and Director
8 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. Date: July 29, 1997 FREMONT GROUP, L.L.C. By: Fremont Investors, Inc., its manager By: /s/ GILBERT H. LAMPHERE ---------------------------------------- Name: Gilbert H. Lamphere Title: Managing Director and Director
9 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. Date: July 29, 1997 FREMONT INVESTORS, INC. By: /s/ GILBERT H. LAMPHERE ----------------------------------------- Name: Gilbert H. Lamphere Title: Managing Director and Director
10 INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT - --------- -------------------------------------------------------------------------------------------------------- (a)(12) Notice of United National Bank as Trustee of the Kerr Group, Inc. Employee Incentive Stock Ownership Plan I to Participants in the Kerr Group, Inc. Employee Incentive Stock Ownership Plan I. (a)(13) Notice of United National Bank as Trustee of the Kerr Group, Inc. Employee Incentive Stock Ownership Plan to Participants in the Kerr Group, Inc. Employee Incentive Stock Ownership Plan.
11 EX-99.(A)(12) 2 EXHIBIT (A)(12) [UNITED NATIONAL BANK LETTERHEAD] NOTICE TO PARTICIPANTS IN THE KERR GROUP, INC. 1987 EMPLOYEE INCENTIVE STOCK OWNERSHIP PLAN I JULY 14, 1997 Dear Participant: As you may already know, Kerr Group, Inc., a Delaware corporation (the "Company") is party to a merger agreement, dated July 1, 1997 (the "Merger Agreement"), by and among the Company, Fremont Acquisition Company, LLC, a Delaware limited liability company ("Fremont") and Kerr Acquisition Corporation, a Delaware corporation ("Purchaser"), providing for, among other things, the tender offer described in this letter and the attached materials. Enclosed for your information is a copy of the Purchaser's Offer to Purchase and the related Letter of Transmittal relating to the offer. Pursuant to the Merger Agreement, the Purchaser, a wholly owned subsidiary of Fremont, has commenced a cash tender offer (the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.50 per share, including the associated rights to purchase shares of preferred stock, issued pursuant to the Rights Agreement, dated July 25, 1995, between the Company and BankBoston, N.A. (formerly The First National Bank of Boston), as amended (the "Rights", and together with the common stock, the "Shares"), at a price of $5.40 per Share in cash. The Offer covers Shares allocated to your account as a participant in the Kerr Group, Inc. 1987 Employee Incentive Stock Ownership Plan ("ESOP I"). If the Offer is successful, following the merger (the "Merger"), the Company will be the surviving corporation and will become a wholly owned subsidiary of Fremont. In addition, if the Offer is successful, (i.e., the Purchaser acquires 51% or more of the Shares sought in the Offer), then at the time of the subsequent Merger, each Share not purchased in the Offer (other than Shares held by dissenting stockholders who perfect appraisal rights under Delaware law) will be canceled and converted into a right to receive the amount paid for such Shares in the Offer, without interest. The Board of Directors of the Company has unanimously approved the Offer and the Merger as being fair to and in the best interests of the Company and its stockholders and recommends that all stockholders accept the Offer. Only the Trustee (United National Bank) of ESOP I can tender the Shares held in your account. As Trustee of ESOP I, we have carefully considered the Offer and have determined that it would be in the best interests of ESOP I participants if we tendered ALL of the ESOP Shares. However, under the terms of ESOP I, we need approval of our decision to sell these Shares to the Purchaser by a vote of a majority of the Shares held by the participants in ESOP I. In determining whether or not to approve our decision, you should review the enclosed Offer materials. Shares with no voting instructions will be voted proportionately to the Shares that have been voted. Enclosed you will find voting instructions and a return envelope. YOUR VOTING INSTRUCTIONS MUST BE RETURNED IN THE ENVELOPE PROVIDED BY WEDNESDAY, JULY 30, 1997. PLEASE DO NOT RETURN YOUR INSTRUCTION FORM TO THE COMPANY. If you have any questions, please call MacKenzie Partners, Inc., the Information Agent for the Offer, at the telephone number indicated in the enclosed Offer materials which are being furnished to you for your information only. UNITED NATIONAL BANK The Trustee of the 1987 Employee Incentive Stock Ownership Plan I 2 EX-99.(A)(13) 3 EXHIBIT (A)(13) [UNITED NATIONAL BANK LETTERHEAD] NOTICE TO PARTICIPANTS IN THE KERR GROUP, INC. 1987 EMPLOYEE INCENTIVE STOCK OWNERSHIP PLAN JULY 14, 1997 Dear Participant: As you may already know, Kerr Group, Inc., a Delaware corporation (the "Company") is party to a merger agreement, dated July 1, 1997 (the "Merger Agreement"), by and among the Company, Fremont Acquisition Company, LLC, a Delaware limited liability company ("Fremont") and Kerr Acquisition Corporation, a Delaware corporation ("Purchaser"), providing for, among other things, the tender offer described in this letter and the attached materials. Enclosed for your information is a copy of the Purchaser's Offer to Purchase and the related Letter of Transmittal relating to the offer. Pursuant to the Merger Agreement, the Purchaser, a wholly owned subsidiary of Fremont, has commenced a cash tender offer (the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.50 per share, including the associated rights to purchase shares of preferred stock, issued pursuant to the Rights Agreement, dated July 25, 1995, between the Company and BankBoston, N.A. (formerly The First National Bank of Boston), as amended (the "Rights", and together with the common stock, the "Shares"), at a price of $5.40 per Share in cash. The Offer covers Shares allocated to your account as a participant in the Kerr Group, Inc. 1987 Employee Incentive Stock Ownership Plan ("ESOP II"). If the Offer is successful, following the merger (the "Merger"), the Company will be the surviving corporation and will become a wholly owned subsidiary of Fremont. In addition, if the Offer is successful, (i.e., the Purchaser acquires 51% or more of the Shares sought in the Offer), then at the time of the subsequent Merger, each Share not purchased in the Offer (other than Shares held by dissenting stockholders who perfect appraisal rights under Delaware law) will be canceled and converted into a right to receive the amount paid for such Shares in the Offer, without interest. The Board of Directors of the Company has unanimously approved the Offer and the Merger as being fair to and in the best interests of the Company and its stockholders and recommends that all stockholders accept the Offer. Only the Trustee (United National Bank) of ESOP II can tender the Shares held in your account. As Trustee of ESOP II, we have carefully considered the Offer and have determined that it would be in the best interests of ESOP II participants if we tendered ALL of the ESOP Shares. However, under the terms of ESOP II, we need approval of our decision to sell these Shares to the Purchaser by a vote of a majority of the Shares held by the participants in ESOP II. In determining whether or not to approve our decision, you should review the enclosed Offer materials. Shares with no voting instructions will be voted proportionately to the Shares that have been voted. Enclosed you will find voting instructions and a return envelope. YOUR VOTING INSTRUCTIONS MUST BE RETURNED IN THE ENVELOPE PROVIDED BY WEDNESDAY, JULY 30, 1997. PLEASE DO NOT RETURN YOUR INSTRUCTION FORM TO THE COMPANY. If you have any questions, please call MacKenzie Partners, Inc., the Information Agent for the Offer, at the telephone number indicated in the enclosed Offer materials which are being furnished to you for your information only. UNITED NATIONAL BANK The Trustee of the 1987 Employee Incentive Stock Ownership Plan 2 -----END PRIVACY-ENHANCED MESSAGE-----