-----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, EMVwZB4h239ZckqVGYu8IquoD9udkAsnVg5X/CirPUjaL6KEpM/IkJkjgO0p88KU G7JeMYh/dyEJyGBP1ZrHfQ== 0001021408-01-000009.txt : 20010122 0001021408-01-000009.hdr.sgml : 20010122 ACCESSION NUMBER: 0001021408-01-000009 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010103 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KENETECH CORP CENTRAL INDEX KEY: 0000807708 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 943009803 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3/A SEC ACT: SEC FILE NUMBER: 005-43755 FILM NUMBER: 1500832 BUSINESS ADDRESS: STREET 1: 500 SANSOME STREET SUITE 410 CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4153983825 MAIL ADDRESS: STREET 1: 500 SANSOME STREET SUITE 410 CITY: SAN FRANCISCO STATE: CA ZIP: 94111 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KC HOLDING CORP CENTRAL INDEX KEY: 0001127379 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3/A BUSINESS ADDRESS: STREET 1: C/O VALUEACT CAPITAL PARTNERS LP STREET 2: ONE MAITIME PLAZA SUITE 1400 CITY: SAN FRANCISCO STATE: CA ZIP: 94111 BUSINESS PHONE: 4157339756 MAIL ADDRESS: STREET 1: C/O VALUEACT CAPITAL PARTNERS LP STREET 2: ONE MARITIME PLAZA SUITE 1400 CITY: SAN FRANCISCO STATE: CA ZIP: 94111 SC 13E3/A 1 0001.txt FINAL AMENDMENT TO SCHEDULE 13E3/A SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________________ SCHEDULE 13E-3 Rule 13e-100 Transaction Statement under Section 13(e) of the Securities Exchange Act of 1934 and Rule 13e-3 thereunder (Final Amendment) ____________________________ KENETECH CORPORATION ____________________________ (Name of the Issuer) KC HOLDING CORPORATION VALUEACT CAPITAL PARTNERS, L.P. VA PARTNERS, L.L.C. ____________ (Name of Person(s) Filing Statement) Common Stock, par value $0.0001 per share ____________ (Title of Class of Securities) 488878109 ____________ (CUSIP Number of Class of Securities) KC HOLDING CORPORATION C/O VALUEACT CAPITAL PARTNERS, L.P. ONE MARITIME PLAZA SUITE 1400 SAN FRANCISCO, CALIFORNIA 94111 ATTN: JEFFREY W. UBBEN (415) 362-3700 ____________ (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of Person(s) Filing Statement) ____________ This statement is filed in connection with (check the appropriate box): a.[_] The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. b.[_] The filing of a registration statement under the Securities Act of 1933. c.[x] A tender offer. d.[_] None of the above. Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies:[_] Check the following box if the filing is a final amendment reporting the results of the transaction:[x] ____________ Calculation of Filing Fee ================================================================================ Transaction Valuation* AMOUNT OF FILING FEE** ________________________________________________________________________________ $34,549,971 6,910 ================================================================================ *Estimated for purposes of calculating the amount of the filing fee only. Calculated by multiplying $1.04, the per share tender offer price, by 33,220,164, the sum of (i) 31,970,164 currently outstanding shares of Common Stock sought in the Offer, (ii) outstanding options with respect to 750,000 shares of Common Stock and (iii) outstanding warrants with respect to 500,000 shares of Common Stock, in each case as of October 20, 2000. **Calculated as 1/50 of 1% of the transaction value. [x] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) 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. [CAPTION] AMOUNT PREVIOUSLY PAID: $6,910 FILING PARTY: KC MERGER CORP. Form or Registration No.: Schedule TO/13E-3 KC HOLDING CORPORATION VALUEACT CAPITAL PARTNERS, L.P. Date Filed: November 7, 2000 INTRODUCTION This Final Amendment (the "Final Amendment") to the Transaction Statement on Schedule 13E-3, as amended (the "Schedule 13E-3"), relates to the offer by KC Merger Corp., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of KC Holding Corporation, a Delaware corporation ("Parent"), as set forth in the Tender Offer Statement on Schedule TO, dated November 7, 2000 (the "Schedule TO"), to purchase all of the outstanding shares of common stock of KENETECH Corporation, a Delaware corporation ("KENETECH"), par value $.0001 per share, at a price of $1.04 per share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated November 6, 2000 (the "Initial Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1)(i), the supplement to the Offer to Purchase dated November 26, 2000 (the "Supplement"), a copy of which is attached hereto as Exhibit (a)(1)(vii) (the Initial Offer to Purchase and the Supplement are together referred to herein as the "Offer to Purchase") and in the related Letter of Transmittal, a copy of which is attached hereto as Exhibit (a)(1)(ii) (which, together with the Offer to Purchase, as amended or further supplemented from time to time, constitute the "Offer"). The Schedule TO was originally filed by Purchaser, Parent and ValueAct Capital Partners, L.P. ("ValueAct") with the Securities and Exchange Commission on November 7, 2000. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Offer to Purchase. The information contained in this Schedule 13E-3 and/or the Offer to Purchase concerning each filing person other than Parent, ValueAct and VA Partners, L.L.C. was supplied by each such filing person and no other filing person, including Parent, ValueAct and VA Partners, L.L.C., takes responsibility for the accuracy of any information not supplied by such filing person. ITEM 3. This Final Amendment is being filed on behalf of Parent, ValueAct and VA Partners, L.L.C. ITEM 5. Item 5 of the Schedule 13E-3 is hereby amended and supplemented by the following: "As more fully described in Item 6 hereof, Purchaser and KENETECH entered into a Stock Purchase Agreement, dated December 29, 2000 (the "Stock Purchase Agreement"), a copy of which is attached hereto as Exhibit (d)(11), pursuant to which Purchaser purchased certain additional Shares of Common Stock, as further described in Item 6, in consideration for an aggregate amount of $14,934,728.64 (the "Stock Purchase Consideration")." ITEM 6. Item 6 of the Schedule 13E-3 is hereby amended and supplemented by the following: "On December 28, 2000, Purchaser accepted for purchase and payment, pursuant to the Offer, all Shares which were validly tendered and not withdrawn as of the expiration of the Offer at 12:00 midnight, New York City time, on December 27, 2000. Based on information provided by Mellon Investor Services, L.L.C., the depositary for the Offer, 16,021,160 Shares (including 49,502 Shares tendered pursuant to notices of guaranteed delivery) were validly tendered pursuant to the Offer and not withdrawn. Immediately after the purchase of the tendered Shares, Purchaser owned approximately 86% of the outstanding Shares. On December 29, 2000, Purchaser and KENETECH entered into the Stock Purchase Agreement providing for the sale by KENETECH of 14,360,316 Shares of Common Stock to Purchaser for the purchase price amount of $1.04 per Share of Common Stock or an aggregate amount of $14,934,728.64 (the "Stock Purchase"). Effective upon the consummation of the Stock Purchase, Purchaser owned at least 90% of the outstanding Shares of Common Stock. On December 29, 2000, pursuant to the terms and conditions of the Merger Agreement, Purchaser was merged with and into KENETECH in accordance with the General Corporation Law of the State of Delaware, with KENETECH continuing as the surviving corporation (the "Surviving Corporation"). Upon the Merger becoming effective, (i) each issued and outstanding share of common stock, par value $0.01 per share, of Purchaser was converted into one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation; (ii) each issued and outstanding Share of Common Stock held in KENETECH's treasury or held by Parent or any wholly owned subsidiary of Parent was canceled without any consideration being delivered therefor; and (iii) each issued and outstanding Share of Common Stock, other than Shares canceled as described above and other than Shares held by stockholders properly exercising appraisal rights pursuant to the provisions of applicable law, was converted into the right to receive from the Surviving Corporation the Merger Consideration. In connection with the Merger: (i) each then outstanding option to purchase any Shares (in each case an "Option") was canceled by the KENETECH and in consideration for such cancellation, the holder of the Option received the right to receive from the Surviving Corporation cash in an amount equal to (A) the product of (1) the number of Shares subject to such Option and (2) the excess, if any, of the Merger Consideration over the exercise price per share for the purchase of Shares subject to such Option, minus (B) all applicable federal, state and local taxes required to be withheld with respect to such payment; and (ii) each holder of a then outstanding warrant to purchase any Shares (in each case a "Warrant") received the right to receive in cash an amount (the "Warrant Consideration") equal to (A) the product of (1) the number of Shares subject to such Warrant and (2) the excess, if any, of the Merger Consideration over the exercise price per share for the purchase of the Shares subject to the Warrant, minus (B) all applicable federal, state and local taxes required to be withheld with respect to such payment, as a result, such holder agreeing that, after the effective time of the Merger, each such Warrant held by such holder represented the right to receive from the Surviving Corporation the Warrant Consideration. As a result of the Merger, the Surviving Corporation became a wholly owned subsidiary of Parent. A Form 15 has been filed with the Commission in order to deregister the Shares. A press release relating to the consummation of the Merger is attached as Exhibit (a)(1)(xiv) and is incorporated herein by reference." ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION. Item 10 of the Schedule 13E-3 is hereby amended and supplemented by the following: "The Stock Purchase was funded by a capital contribution from Parent to Purchaser, which in turn was funded from the proceeds of the issuance of a promissory note in the face amount of $14,934,728.64 from Parent to ValueAct Capital Partners, L.P. ("ValueAct") with a stated interest rate of 8% per annum (the "Note"). The Note, a copy of which is attached hereto as Exhibit (b)(1), will be repaid by the Surviving Corporation from cash on hand promptly following the consummation of the Merger." ITEM 16. EXHIBITS. Item 16 of the Schedule 13E-3 is hereby amended and supplemented by the following: (a)(1)(xiv) Press Release issued by Parent dated January 2, 2001 (incorporated by reference to Amendment No. 7 to Schedule 13D filed by Parent, KENETECH, ValueAct and VA Partners, L.L.C. on January 2, 2001) (b)(1) Promissory Note, dated as of December 29, 2000, issued by Parent in favor of ValueAct (d)(8) Stock Purchase Agreement, dated as of December 29, 2000, by and between Purchaser and KENETECH (Incorporated by reference to Amendment No. 7 to Schedule 13D filed by Parent,KENETECH, ValueAct and VA Partners, L.L.C. on January 2, 2001) SIGNATURES After due inquiry and to the best of his or her knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: January 2, 2001 KC HOLDING CORPORATION By: /s/ Jeffrey W. Ubben -------------------- Name: Jeffrey W. Ubben Title: Secretary/Treasurer VALUEACT CAPITAL PARTNERS, L.P. By: VA Partners, L.L.C. its General Partner /s/ Jeffrey W. Ubben -------------------- Name: Jeffrey W. Ubben Title: Managing Member VA PARTNERS, L.L.C. /s/ Jeffrey W. Ubben -------------------- Name: Jeffrey W. Ubben Title: Managing Member EXHIBIT INDEX Exhibit No. - ----------- (a)(1)(i) Offer to Purchase, dated November 6, 2000. (a)(1)(ii) Form of Letter of Transmittal (a)(1)(iii) Form of Notice of Guaranteed Delivery. (a)(1)(iv) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. (a)(1)(v) Form of Letter to Clients for use by Brokers, Dealers, Commerical Banks, Trust Companies and Other Nominees. (a)(1)(vi) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(1)(vii) Supplement to Offer to Purchase, dated November 26, 2000. (a)(1)(viii) Press Release issued by Purchaser on November 29, 2000. (a)(1)(ix) Press Release issued by the Company on December 12, 2000. (a)(1)(x) Press release issued by Purchaser on December 12, 2000. (a)(1)(xi) Amendment No. 1 to Merger Agreement. (a)(1)(xii) Press Release issued by Purchaser and the Company on December 19, 2000. (a)(1)(xiii) Press Release issued by Purchaser on December 28, 2000. *(a)(1)(xiv) Press Release issued by Parent on January 2, 2001 (incorporated by reference to Exhibit E of Amendment No. 7 to Schedule 13D filed by Parent, the Company, ValueAct and VA Partners, L.L.C. on January 2, 2001). (a)(5)(i) KENETECH Corporation Press Release, dated October 25, 2000. (a)(5)(ii) KC Holding Corporation Press Release, dated November 7, 2000. (a)(5)(iii) Pages 16 through 35 of the Annual Report on Form 10-K filed by the Company for the year ended December 31, 1999 (incorporated by reference to the Form 10-K filed by the Company on March 28, 2000). (a)(5)(iv) Pages 4 through 17 of the Quarterly Report on Form 10-Q filed by the Company for the quarterly period ended June 30, 2000 (incorporated by reference to the Form 10-Q filed by the Company on August 14, 2000).(a)(5)(v) Notice of Motion and Motion for Leave to File Second Amended and Supplemental Complaint in the action styled Kohls v. Duthie, et al. (a)(5)(v) Notice of Motion and Motion for Leave to File Second Amended and Supplemental Complaint in the action styled Kohls v. Duthie, et al. (a)(5)(vi) Pages 3 through 28 of the Quarterly Report on Form 10-Q filed by the Company for the quarterly period ended September 30, 2000 (incorporated by reference to the Form 10-Q filed by the Company on November 14, 2000). (a)(5)(vii) Memorandum Opinion, dated December 11, 2000, in the action styled Kohls v. Duthie, et al. *(b)(1) Promissory Note, dated as of December 29, 2000, issued by Parent in favor of ValueAct. (c)(1) Fairness Opinion to Houlihan Lokey Howard & Zukin Financial Advisors, Inc. (included as Annex A to Offer to Purchase). (c)(2) Presentation to the Company's Special Committee and Board of Directors by Houlihan Lokey Howard & Zukin Financial Advisors, Inc., dated October 25, 2000. (c)(3) Schedule of the 823 U.S. acquisitions considered by Houlihan Lokey. (c)(4) Feasibility Assessment of the Proposed Astoria Energy Project. (d)(1) Agreement and Plan of Merger, dated as of October 25, 2000, among Parent, Purchaser and the Company (included as Schedule D to Offer to Purchase). (d)(2) Confidentiality Agreement, dated June 29, 2000, between ValueAct and the Company. (d)(3) Employment Agreement, dated October 25, 2000, between Purchaser and Mark D. Lerdal. (d)(4) Voting Agreement, dated October 25, 2000, among Purchaser, Parent and Mark D. Lerdal. (d)(5) Subscription and Contribution Agreement, dated October 24, 2000, among Parent, ValueAct and Mark D. Lerdal. (d)(6) Guaranty, dated October 25, 2000, executed by ValueAct for the benefit of the Company. (d)(7) Form of Stockholders Agreement, among Parent, Mark D. Lerdal, and the persons named therein. *(d)(8) Stock Purchase Agreement, dated as of December 29, 2000, by and between Purchaser and the Company (incorporated by reference to Exhibit E of Amendment No. 7 to Schedule 13D filed by Parent, the Company, ValueAct and VA Partners, L.L.C. on January 2, 2001). (f) Section 262 of the General Corporation Law of State of Delaware; Chapter 13 of the General Corporation Law of the State of California (included as Schedule C to Offer to Purchase). (g) None. (h) None. *Filed herewith. EX-99.(B)(1) 2 0002.txt DEMAND PROMISSORY NOTE DATED DECEMBER 29, 2000 EXHIBIT (b)(1) DEMAND PROMISSORY NOTE $14,934,728.64 December 29, 2000 ON DEMAND, for value received, the undersigned, KC Holding Corporation, a Delaware corporation (the "Company"), promises to pay to the order ValueAct Capital Partners, L.P., a Delaware limited partnership (the "Lender"), the principal sum of $14,934,728.64 or, if less, the amount outstanding hereunder together with interest (computed on the basis of a year of 360 days and actual days elapsed) on the principal amount from time to time remaining unpaid hereon from the date hereof to the maturity thereof (whether by demand or otherwise) at the rate per annum equal to eight percent (8%) and after the maturity thereof until paid at the rate per annum of two percent (2%) above the interest rate otherwise applicable to this Note at such maturity. Interest shall be payable upon demand. The Company hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note. The Company agrees to pay to the holder hereof all expenses incurred or paid by such holder, including attorney's fees and court costs, in connection with the creation, enforcement or collection of this Note. It is agreed that this Note and the rights and remedies of the holder hereof shall be construed in accordance with and governed by the laws of New York. KC HOLDING CORPORATION By: /s/ Jeffrey W. Ubben ------------------------ Name: Jeffrey W. Ubben ------------------- Title: Secretary and Treasurer --------------------------- -----END PRIVACY-ENHANCED MESSAGE-----