-----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, FbgIBwSC8bQlEt16g+Pg1Pq2yKxNzm3fGFzmJgLSONmGhIz5OXqfhT5H9XO8YFTG CPCIM747OwEB7DNF1fNKkg== 0000950152-00-004313.txt : 20000519 0000950152-00-004313.hdr.sgml : 20000519 ACCESSION NUMBER: 0000950152-00-004313 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20000518 GROUP MEMBERS: ALAP HOLD CO., LTD. GROUP MEMBERS: AMWAY JAPAN LIMITED GROUP MEMBERS: NAJ CO LTD GROUP MEMBERS: RICHARD M. DEVOS, JR. GROUP MEMBERS: STEPHEN A. VANANDEL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMWAY JAPAN LTD CENTRAL INDEX KEY: 0000922624 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 000000000 FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13E3/A SEC ACT: SEC FILE NUMBER: 005-57177 FILM NUMBER: 639675 BUSINESS ADDRESS: STREET 1: ARCO TOWER STREET 2: 8-1 SHIMOMEGURO 1 CHOME CITY: MEGURO-KU TOKYO JAPA STATE: M0 BUSINESS PHONE: 8135434848 MAIL ADDRESS: STREET 1: ARCO TOWER STREET 2: 8-1 SHIMOMEGURO 1 CHOME CITY: MEGURO KU TOKYO STATE: M0 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NAJ CO LTD CENTRAL INDEX KEY: 0001099148 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13E3/A BUSINESS ADDRESS: STREET 1: 7-1 UDAGAWA CHO STREET 2: SHIBUYA-KU CITY: TOKYO JAPAN 150-0042 BUSINESS PHONE: 6167876000 MAIL ADDRESS: STREET 1: 7-1 UDAGAWA CHO STREET 2: SHIBUYA-KU CITY: TOKYO JAPAN SC 13E3/A 1 AMWAY JAPAN LIMITED/N.A.J. CO., LTD. SC 13E3/A 1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13E-3/A RULE 13E-3 TRANSACTION STATEMENT (PURSUANT TO SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934) FINAL AMENDMENT NO. 2 NIHON AMWAY KABUSHIKI KAISHA (Exact name of Issuer as Specified in Charter) AMWAY JAPAN LIMITED (Translation of Issuer's Name in English) N.A.J. CO., LTD. ALAP HOLD CO., LTD. AMWAY JAPAN LIMITED RICHARD M. DEVOS, JR. STEPHEN A. VAN ANDEL (Names of Persons Filing Statement) COMMON STOCK, NO PAR VALUE AMERICAN DEPOSITARY SHARES, EACH REPRESENTING ONE-HALF OF ONE SHARE OF COMMON STOCK, EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS (Title of Class of Securities) 03 234 J 10 0 (CUSIP Number of ADSs) CRAIG N. MEURLIN, ESQ. SENIOR VICE PRESIDENT AND GENERAL COUNSEL AMWAY CORPORATION 7575 FULTON STREET EAST ADA, MICHIGAN 49355 (616) 787-6000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Person(s) Filing Statement) COPY TO: THOMAS C. DANIELS, ESQ. JONES, DAY, REAVIS & POGUE NORTH POINT 901 LAKESIDE AVENUE CLEVELAND, OHIO 44114 (216) 586-3939 _____________ 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) [sec. 240.13e-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:[ ] Page 1 of 6 Pages 2 INTRODUCTION This Final Amendment No. 2 to the Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Final Amendment") relates to a tender offer conducted by N.A.J. Co., Ltd., a joint stock corporation organized under the laws of Japan ("NAJ"), to purchase all outstanding shares of the Common Stock, no par value (the "Common Stock"), and American Depositary Shares, each representing one-half of one share of Common Stock (the "ADSs"), that are beneficially owned by shareholders of Amway Japan Limited, a joint stock corporation organized under the laws of Japan (the "Company"). The Offer (as defined herein) commenced on November 18, 1999. The purchase price for each share of Common Stock was (Yen)1,490, in cash (the "Common Stock Purchase Price"), less any U.S. backup withholding and Japanese taxes that were required to be withheld. The purchase price for each ADS was (Yen)745, in cash (the "ADS Purchase Price"), less any U.S. backup withholding and Japanese taxes that were required to be withheld. The ADS Purchase Price was equal to one-half of the Common Stock Purchase Price (because each ADS represents one-half of one share of Common Stock). The ADS Purchase Price was payable in and converted into U.S. dollars using the noon buying rate in New York City for cable transfers of yen announced for customs purposes by the Federal Reserve Bank of New York on the date of settlement of the Offer in Japan, December 22, 1999. The ADSs are evidenced by American Depositary Receipts. The Offer was made to each holder of Common Stock and ADSs and subject to the conditions set forth in the Offer to Purchase, dated November 18, 1999 (the "Offer to Purchase"), of NAJ, and in the related Letter of Transmittal (the "Letter of Transmittal," which, together with the Offer to Purchase, constitutes the "Offer"). Copies of the Offer to Purchase and the related Letter of Transmittal were filed on November 18, 1999 as Exhibits (d)(1) and (d)(2), respectively, to the initial filing of the Schedule 13E-3. This Final Amendment is being filed pursuant to Section 13(e) of the Securities Exchange Act of 1934 and Rule 13e-3(d)(3) thereunder. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Offer to Purchase. ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION. The information set forth in Item 1 of Schedule 13E-3 is hereby supplemented and amended as follows: In connection with the Offer, Guard Hill Capital LDC ("Guard Hill"), a holder of ADSs, attempted to tender its ADSs to NAJ. As a result of administrative and clerical errors relating to the Offer, Guard Hill's tender of its ADSs was rejected. Pursuant to Guard Hill's request and following a review of this matter, ALAP Hold Co., Ltd., a Nevada limited partnership and the parent of NAJ ("ALAP"), agreed to purchase the ADSs owned by Guard Hill. Pursuant to a letter, dated May 11, 2000, ALAP agreed to purchase 108,500 ADSs for (Yen) 745 per ADS in cash, the ADS Purchase Price, and Guard Hill agreed to tender its ADSs and to release ALAP, its affiliates and subsidiaries from any claims that exist or may arise in the future concerning the ADSs purchased by ALAP. ITEM 17. MATERIAL TO BE FILED AS EXHIBITS. The information set forth in Item 17 of the Schedule 13E-3 is hereby supplemented and amended as follows: Exhibit No. Description --- ----------- (c)(4) Form of Letter Agreement, dated May 11, 2000, between ALAP and Guard Hill. 2 3 SIGNATURES 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: May 18, 2000 N.A.J. CO., LTD. By: /s/ Lawrence M. Call ------------------------------------- Name: Lawrence M. Call Title: Attorney-in-Fact ALAP HOLD CO., LTD. By: AP NEW CO., LLC., its general partner By: AMWAY CORPORATION, its Manager By: /s/ Craig N. Meurlin ------------------------------------- Name: Craig N. Meurlin Title: Manager AMWAY JAPAN LIMITED By: /s/ James B. Payne ------------------------------------- Name: James B. Payne Title: President and Representative Director RICHARD M. DEVOS, JR. /s/ Richard M. DeVos, Jr. ------------------------------------------- STEPHEN A. VAN ANDEL /s/ Stephen A. Van Andel ------------------------------------------- 3 4 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION --- ----------- (a) (1) Form of Senior Bank Financing Commitment Letter among NAJ, ALAP Apple Hold Co., L.P., New AAP Limited, Amway Corporation and Morgan Guaranty Trust Company of New York, Tokyo Branch, dated November 15, 1999 (incorporated herein y reference to Exhibit (b)(1) of the Schedule 14D-1 of N.A.J. Co., Ltd. and ALAP Hold Co., Ltd. filed with the Commission on November 18, 1999 and amended on November 26, 1999, November 30, 1999, December 7, 1999, December 13, 1999 and December 17, 1999 (the "Schedule 14D-1")).** (2) Form of Term Sheet Regarding Credit Facility (incorporated herein by reference to Exhibit (b)(2) of the Schedule 14D-1).** (3) Credit Agreement, among ALAP, NAJ, Apple Hold Co., New AAP Limited, the banks party thereto and Morgan Guaranty Trust Company of New York, Toyko Branch, dated as of December 10, 1999.** (b) (1) Fairness Opinion of Goldman, Sachs & Co., dated November 15, 1999.** (2) Presentation Materials of Goldman Sachs & Co., dated November 15, 1999.** (3) Presentation Materials of Morgan Stanley & Co. Incorporated, dated September 21, 1999.** (c) (1) Form of Tender Offer Agreement, dated November 15, 1999 by and among AJL, NAJ and ALAP (incorporated herein by reference to Exhibit (c)(1) of the Schedule 14D-1).** (2) Form of Shareholder and Voting Agreement, by and among ALAP, NAJ and Certain Shareholders of AJL, dated as of November 15, 1999 (incorporated herein by reference to Exhibit (c)(2) of the Schedule 14D-1).** (3) Form of English translation of Memorandum Regarding Merger between NAJ and AJL, dated November 15, 1999 (incorporated herein by reference to Exhibit (c)(3) of the Schedule 14D-1).** (4) Form of Letter Agreement, dated May 11, 2000, between ALAP and Guard Hill. (d) (1) Form of Offer to Purchase, dated November 18, 1999 (incorporated herein by reference to Exhibit (a)(1) of the Schedule 14D-1).** (2) Form of Letter of Transmittal (incorporated herein by reference to Exhibit (a)(2) of the Schedule 14D-1).** (3) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated herein by reference to Exhibit (a)(3) of the Schedule 14D-1).** (4) Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated herein by reference to Exhibit (a)(4) of the Schedule 14D-1).** (5) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (incorporated herein by reference to Exhibit (a)(5) of the Schedule 14D-1).** 4 5 (6) Form of Letter to AJL's Holders of Common Stock and ADSs (incorporated herein by reference to Exhibit (a)(6) of the Schedule 14D-1).** (7) Form of Press Release "Amway Japan's Principal Shareholders to Commence Tender Offer for Outstanding Public Shares" issued by AJL and the Principal Shareholders on November 15, 1999 (incorporated herein by reference to Exhibit (a)(7) of the Schedule 14D-1).** (8) Form of English translation of Additional Information to the Press Release on November 15, 1999 (incorporated herein by reference to Exhibit (a)(8) of the Schedule 14D-1).** (9) Form of English translation of Notice of Approval of Tender Offer, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(9) of the Schedule 14D-1).** (10) Form of English translation of Announcement of Approval of Tender Offer, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(10) of the Schedule 14D-1).** (11) Form of English translation of Announcement of Merger, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(11) of the Schedule 14D-1).** (12) Form of Statement for AJL Distributors, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(12) of the Schedule 14D-1).** (13) Form of Statement for AJL Employees on Electronic Bulletin Board, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(13) of the Schedule 14D-1).** (14) Form of Communications to Amway Distributors, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(14) of the Schedule 14D-1).** (15) Form of Tender Offer Announcement to Amway Management and Employees, dated November 15, 1999 (incorporated herein by reference to Exhibit (a)(15) of the Schedule 14D-1).** (16) Form of Memorandum to Diamonds Direct Distributors, dated November 16, 1999 (incorporated herein by reference to Exhibit (a)(16) of the Schedule 14D-1).** (17) Form of Press Release "Amway Japan's Principal Shareholders Commence Tender Offer For Outstanding Public Shares" issued by AJL and the Public Shareholders on November 18, 1999 (incorporated herein by reference to Exhibit (a)(17) of the Schedule 14D-1).** (18) Form of English translation of Report of Announcement of Opinion, dated November 18, 1999 (incorporated herein by reference to Exhibit (a)(18) of the Schedule 14D-1).** (19) Form of English translation of the Public Notice, dated November 18, 1999 (incorporated herein by reference to Exhibit (a)(19) of the Schedule 14D-1).** (20) Form of Summary Advertisement published on November 18, 1999 (incorporated herein by reference to Exhibit (a)(20) of the Schedule 14D-1).** (21) Form of English translations of Japanese Tender Offer Explanatory Statement and Tender Offer Application Form, dated November 18, 1999 (incorporated herein by reference to Exhibit (a)(21) of the Schedule 14D-1).** (22) Form of Trustee Direction Form from the 401(k) Trustee (incorporated herein by reference to Exhibit (a)(22) of the Schedule 14D-1).** 5 6 (23) Form of Letter to Participants of the 401(k) Plan (incorporated herein by reference to Exhibit (a)(23) of the Schedule 14D-1).** (24) Form of Letter to AJL Shareholders from AJL, dated November 1999 (incorporated by reference to Exhibit (a)(24) of the Schedule 14D-1).** (25) Form of Letter to AJL Shareholders from NAJ, dated November 1999 (incorporated herein by reference to Exhibit (a)(25) of the Schedule 14D-1).** (26) Form of Question and Answer Memorandum to Distributors, dated December 2, 1999 (incorporated herein by reference to Exhibit (a)(26) of the Schedule 14D-1).** (27) Form of English translation of the Public Notice, dated December 7, 1999 (incorporated herein by reference to Exhibit (a)(27) of the Schedule 14D-1).** (28) Form of English translation of Japanese Tender Offer Registration Statement, amended on December 7, 1999 (incorporated herein by reference to Exhibit (a)(28) of the Schedule 14D-1).** (29) Form of English translation of Japanese Tender Offer Report of NAJ, dated December 20, 1999.** (30) Form of English translation of Press Release, dated December 18, 1999.** (31) Form of English translation of Press Release, dated December 20, 1999.** (32) Form of English translation of Press Release, dated December 21, 1999.** (33) Form of Press Release, dated December 20, 1999.** (34) Form of English translation of Press Release, dated December 22, 1999.** (35) Form of English translation of Japanese Tender Offer Report of NAJ, as amended on December 22, 1999.** (e) Not applicable. (f) Not applicable. (g) Consent of Deloitte Touche Tohmatsu (incorporated herein by reference to Exhibit (g) of the Schedule 14D-1).** (h) Power of Attorney for NAJ (incorporated herein by reference to Exhibit (h) of the Schedule 14D-1).** ** Previously filed as exhibits to the Transaction Statement on Schedule 13E-3 filed by NAJ, ALAP, the Company, Richard M. DeVos, Jr. and Stephen A. Van Andel on November 18, 1999 and amended on November 26, 1999, November 30, 1999, December 7, 1999, December 13, 1999, December 17, 1999 and December 27, 1999. 6 EX-99.C.4 2 EXHIBIT (C)(4) 1 Exhibit (c)(4) May 11, 2000 ALAP Hold Co., Ltd. c/o AP New Co., LLC Attention: Craig N. Meurlin Amway Corporation 7575 Fulton Street East Ada, Michigan 49355 Re: Sale of American Depositary Shares of Amway Japan Limited --------------------------------------------------------- Dear Mr. Meurlin: We hereby agree to sell, assign and transfer to ALAP Hold Co., Ltd., a Nevada limited partnership ("ALAP"), and ALAP hereby agrees to purchase from us, American Depositary Shares ("ADSs") representing shares of common stock, no par value, of Amway Japan Limited ("AJL"), on the terms and subject to the conditions set forth in this letter agreement. We hereby agree to sell, assign and transfer to ALAP all right, title and interest in and to 108,500 ADSs (the "Shares") for (Yen)745 per ADS in cash, and ALAP hereby agrees to pay us in the aggregate (Yen)80,832,500 for the Shares (the "Purchase Price"). We agree that the Purchase Price will be payable in and converted into U.S. dollars at (Yen)101.53 to $1.00, the noon buying rate in New York City for cable transfers of yen announced for customs purposes by the Federal Reserve Bank of New York on December 22, 1999, the date of settlement of the tender offer by N.A.J. Co., Ltd. ("NAJ"). Promptly (and in any event within one business day) after receipt of a signed copy of this letter agreement, evidence of transfer of the Shares held through The Depository Trust Company from our broker's account to ALAP's broker's account at: Michigan National Bank Participant No.: 986 Agent and Institutional No.: 26293 Account No.: 2402111306 and the Substitute Form W-9, ALAP hereby agrees to wire transfer $796,143.99 to: 2 Mr. Craig Meurlin May 11, 2000 Page 2 Citibank ABA No.: 021-000-089 In Favor of: Bear Stearns Securities Corp. Acct. No.: 09253186 For Credit: Guard Hill Capital LDC Sub. Acct. No.: 101-401-95 We hereby represent and warrant that we have full power and authority to surrender the Shares and that ALAP will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges, and encumbrances and the same will not be subject to any adverse claim. We further represent that payment of the Purchase Price is not subject to any stock transfer taxes, U.S. backup or other withholding tax. We agree that all agreements in this letter agreement shall be binding upon any of our trustees in bankruptcy, successors and assigns. We further agree, on behalf of ourselves, our heirs, executors, administrators, successors and assigns, to hereby release and forever discharge AJL, NAJ, ALAP, and all of their predecessors and successors, their present and former parents, subsidiaries, affiliates, partners, principals, officers, directors, employees, assigns, beneficiaries, attorneys, representatives, heirs or executors, none of whom admit any liability but all of whom expressly deny liability, from any and all liability, actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, and demands whatsoever, in law, admiralty, or equity relating in any way to the Shares (collectively, the "Claims"), that we or our heirs, executors, administrators, successors, or assigns ever had, now have, or hereafter can, shall, or may have for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of time to the date of this letter agreement. Without limitation, this release and discharge applies to any Claims that we, or our heirs, executors, administrators, successors, and assigns ever had, now have, or hereafter can, shall, or may have in the two purported class action lawsuits that were brought in connection with the tender offer by NAJ referred to above -- Sydney Desmond Hatchette, et al., v. Amway Japan Limited, et al. (pending in the Superior Court of the State of California, Case No. 818124), and Blynn Chideler, et al. v. Amway Japan Limited, et al., (pending in the Superior Court of the State of California, County of Monterrey, Case No. M 47077) -- and we agree to opt out of and not participate in any of those (or any subsequently filed similar) class actions. We agree that any legal action or proceeding brought against either party to this letter agreement with respect to the matters set forth in this letter agreement may be brought in such of the courts of competent jurisdiction of the State of New York in New York County, the City of New York or in the United States District Court for the Southern District of New York as either party, its successors or assigns may elect, and by executing and delivering this letter agreement, we irrevocably submit to the nonexclusive jurisdiction of such courts. We further agree that all costs and expenses, including attorneys' fees, incurred in any legal action or 3 Mr. Craig Meurlin May 11, 2000 Page 3 proceeding to enforce this letter agreement or arising from a breach of this letter agreement shall be paid to the prevailing party by the non-prevailing party. We agree to keep this letter agreement confidential and shall not disclose the terms hereof absent a court order directing us to do so. This letter agreement constitutes the entire agreement and supersedes any and all other prior agreements and undertakings, both written and oral, among the parties, with respect to the subject matter hereof and is not intended to confer upon any person other than ALAP and us, any rights or remedies hereunder. Sincerely, GUARD HILL CAPITAL LDC By: /s/ Scott W. Keller ----------------------- Name: Scott W. Keller Title: President Agreed and accepted as of May 11, 2000 ALAP HOLD CO., LTD. By: AP NEW CO., LLC, its general partner By: AMWAY CORPORATION, its manager By: /s/ Craig N. Meurlin ---------------------------------------------- Name: Craig N. Meurlin Title: Senior Vice President, General Counsel and Secretary -----END PRIVACY-ENHANCED MESSAGE-----