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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 1
to
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the
Securities Exchange Act of 1934
and
Amendment No. 1
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
FIRST COMMONWEALTH, INC.
(Name of Subject Company)
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
FLOSS ACQUISITION CORP.
(Bidders)
Common Stock, par value $.001 per share
(Including the Associated Preferred Stock Purchase Rights)
(Title of Class of Securities)
319983102
(CUSIP Number of Class of Securities)
Herschel Reich
Debra R. Smith, Esq.
The Guardian Life Insurance Company of America
201 Park Avenue South
New York, New York 10003
(212) 598-8000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
Copy to:
Timothy B. Goodell, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
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<PAGE>
This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule 14D-1 and Statement on Schedule 13D filed on May 25, 1999 (as amended
and supplemented, the "Schedule 14D-1/13D") relating to the offer (the "Offer")
by Floss Acquisition Corp. (the "Purchaser"), a Delaware corporation and a
wholly owned subsidiary of The Guardian Life Insurance Company of America, a New
York corporation ("Parent"), to purchase all of the issued and outstanding
shares of Common Stock, par value $.001 per share (the "Common Stock"),
including the associated preferred stock purchase rights, of First Commonwealth,
Inc., a Delaware corporation (the "Company"), at a price of $25.00 per share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated May 25, 1999 and the
related Letter of Transmittal, as they may be amended from time to time. The
item numbers and responses thereto below are in accordance with the requirements
of Schedule 14D-1. Capitalized terms used herein and not otherwise defined have
the meanings ascribed thereto in the Offer to Purchase.
Item 10. Additional Information.
Item 10(f) is hereby amended to add at the end thereof the following:
The first paragraph of Section 2--"Acceptance for Payment and Payment for
Shares" of the Offer to Purchase is hereby amended and restated in its entirety
to read as follows:
"Upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of any such
extension or amendment), the Purchaser will purchase, by accepting for
payment, and will pay for, all Shares validly tendered prior to the
Expiration Date (and not properly withdrawn in accordance with Section
4--"Withdrawal Rights") as promptly as practicable after the later to occur
of (i) the Expiration Date and (ii) the satisfaction or waiver of the
conditions set forth in Section 14--"Conditions of the Offer", including,
but not limited to, the regulatory conditions specified in Section
15--"Certain Legal Matters; Regulatory Approvals." Subject to applicable
rules of the Commission and the terms of the Merger Agreement, the
Purchaser expressly reserves the right, in its discretion, to delay
acceptance for payment of, or payment for, Shares in order to comply, in
whole or in part, with any applicable law. Notwithstanding the fact that
the Purchaser reserves the right to assert the non-occurrence of a
condition set forth in Section 14--"Conditions of the Offer", following
acceptance for payment of Shares but prior to payment for Shares, in order
to delay payment or cancel its obligation to pay for properly tendered
Shares, the Purchaser understands that all conditions to the Offer, other
than receipt of necessary regulatory approvals, must be satisfied or waived
prior to acceptance for payment of Shares. In addition, if, following
acceptance for payment of Shares, the Purchaser asserts such regulatory
approvals as a condition and does not promptly pay for Shares tendered, the
Purchaser will promptly return such Shares."
The third paragraph of Section 7--"Certain Information Concerning the
Company--Cautionary Statements Concerning Forward-Looking Statements" of the
Offer to Purchase is hereby amended and restated in its entirety to read as
follows:
"In addition, the Projections were not prepared in accordance with
generally accepted accounting principles, and neither the Company's nor
Parent's independent accountants have examined or compiled any of the
Projections or expressed any conclusion or provided any other form of
assurance with respect to the Projections and accordingly assume no
responsibility for the Projections. The Projections were prepared with a
limited degree of precision, and were not prepared with a view to public
disclosure or compliance with the published guidelines of the Commission or
the guidelines established by the American Institute of Certified Public
Accountants regarding projections, which would require a more complete
presentation of data than as shown above. The inclusion of the Projections
herein should not be regarded as a representation by Parent and the
Purchaser or any other person that the projected results will be achieved.
The Projections should be read in conjunction with the historical financial
information of the Company included above. Neither Parent nor the Purchaser
assumes any responsibility for the accuracy of the foregoing Projections.
Forward-looking statements also include those preceded by, followed by or
that include the words "believes", "expects", "anticipates" or similar
expressions. Such statements should be viewed with caution."
The final paragraph of Section 14--"Conditions of the Offer" of the Offer
to Purchase is hereby amended to add to the end thereof the following:
"Notwithstanding the fact that the Purchaser reserves the right to assert
the non-occurrence of a condition set forth in this Section 14, following
acceptance for payment of Shares but prior to payment for Shares, in order
to delay payment or cancel its obligation to pay for properly tendered
Shares, the Purchaser understands that all conditions to the Offer, other
than receipt of necessary regulatory approvals, must be satisfied or waived
prior to acceptance for payment of Shares."
<PAGE>
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: June 21, 1999 THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By: /s/ Herschel Reich
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Name: Herschel Reich
Title: Vice President, Group Health Care
Dated: June 21, 1999 FLOSS ACQUISITION CORP.
By: /s/ Herschel Reich
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Name: Herschel Reich
Title: Vice President, Dental Plans
