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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 9, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(Pursuant to Section 13 (e) of the Securities Exchange Act of 1934)
--------------------------
ENSTAR INC.
(Name of Issuer)
ENSTAR INC.
ENSTAR ACQUISITION, INC.
JAMES H. MICHAEL, JEFFREY J. MICHAEL,
4J2R1C LIMITED PARTNERSHIP,
3J2R LIMITED PARTNERSHIP,
MICHAEL ACQUISITION CORPORATION TRUST
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
29358M 10 8
(CUSIP Number of Class of Securities)
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PETER E. FLYNN JEFFREY J. MICHAEL
EXECUTIVE VICE PRESIDENT PRESIDENT
ENSTAR INC. ENSTAR ACQUISITION, INC.
7450 FLYING CLOUD DRIVE 6479 CITY WEST PARKWAY
EDEN PRAIRIE, MINNESOTA 55344 EDEN PRAIRIE, MINNESOTA 55344-3246
(612) 942-3887 (612) 941-3200
(Name, Address and Telephone Number of Person Authorized to Receive Notice
and Communications on Behalf of Person(s) Filing Statement)
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COPIES TO:
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PATRICK COURTEMANCHE MICHAEL ZALK
DORSEY & WHITNEY LLP OPPENHEIMER WOLFF & DONNELLY LLP
PILLSBURY CENTER SOUTH PLAZA VII
220 SOUTH SIXTH STREET 45 SOUTH SEVENTH STREET
MINNEAPOLIS, MINNESOTA 55402-1498 MINNEAPOLIS, MINNESOTA 55402-1609
(612) 340-5653 (612) 607-7000
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This statement is filed in connection with:
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/X/ a. The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C or
Rule 13d-3(c) under the Securities Exchange Act of 1934.
/ / b. The filing of a registration statement under the Securities
Act of 1933.
/ / c A Tender Offer
/ / d. None of the above.
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Check the following box if the soliciting materials or information statement
referred to in check box (a) are preliminary copies: / /
--------------------------
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$14,248,337 $2,850
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* For purposes of calculating fee only. This amount assumes the purchase at a
price of $12.50 per share of 1,047,167 outstanding shares of Company Common
Stock and the settlement of 243,752 shares subject to stock options at an
average spread of $4.7538 per share. The amount of the filing fee,
calculated in accordance with Regulation 240.0-11 of the Securities Exchange
Act of 1934, equals 1/50th of one percent of the value of the shares
purchased, plus 1/50th of one percent of the average spread of the options
settled.
/X/ Check box if any part of the fee is offset as provided in 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
schedule and the date of its filing.
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Amount Previously Paid: $2,850 Filing Party: ENStar Inc.
Form or Registration No.: Proxy Statement Date Filed: September 2, 1999
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CROSS REFERENCE SHEET
(PURSUANT TO GENERAL INSTRUCTION F TO SCHEDULE 13E-3)
INTRODUCTION
This Rule 13E-3 Transaction Statement is being filed in connection with a
proposed merger (the "Merger") as contemplated by the Agreement and Plan of
Merger, dated August 13, 1999 (the "Merger Agreement"), among ENStar Inc., a
Minnesota corporation (the "Company"), ENStar Acquisition, Inc., a Minnesota
corporation wholly owned by two limited partnerships and a trust controlled
by James H. and Jeffrey J. Michael (the "Acquisition Company"), James H. and
Jeffrey J. Michael and the two limited partnerships and the trust controlled
by them (together, the "Michael Family"), pursuant to which the Acquisition
Company will be merged with and into the Company, with the Company as the
surviving corporation. Upon consummation of the Merger, (i) the separate
corporate existence of the Acquisition Company will cease and the Company
will continue as the surviving corporation wholly owned by the Michael
Family, (ii) each outstanding share of Common Stock, par value $.01 per
share, of the Company (the "Common Stock") not owned by the Michael Family
will be converted into the right to receive $12.50 in cash, except those
shares as to which dissenters' rights have been perfected under the Minnesota
Business Corporation Act, and (iii) holders of options to acquire shares of
the Common Stock of the Company, other than members of the Michael Family,
will receive a cash settlement, net of withholding taxes, equal to the excess
of $12.50 over the exercise price of such options. As of December 1, 1999,
the Merger Agreement was approved by the Company's shareholders and
consummation of the Merger was scheduled to occur on that day.
The Cross Reference Sheet is being supplied pursuant to General
Instruction F to Schedule 13E-3 and shows the location in the Company's
preliminary proxy statement (the "Proxy Statement"), filed with the
Securities and Exchange Commission (the "SEC") in connection with the
proposed Merger, of information required to be included in response to items
of this Statement. A copy of the Proxy Statement is attached hereto as
Exhibit (d)(1). The information in the Proxy Statement, including all
exhibits thereto, is hereby expressly incorporated herein by reference and
the responses to each item are qualified in their entirety by the provisions
of the Proxy Statement. All information in, or incorporated by reference in,
the Proxy Statement or this Statement concerning the Company or its advisors,
or actions or events with respect to any of them, was provided by the
Company, and all information in, or incorporated by reference in, the Proxy
Statement or this Statement concerning the Acquisition Company, the Michael
Family or their affiliates, or actions or events with respect to them, was
provided by the Michael Family. The information in the Proxy Statement is
intended to be solely for the information and use of the SEC, and should not
be relied upon by any other person for any purpose. Capitalized terms used
but not defined in this Statement shall have the respective meanings given
them in the Proxy Statement.
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SCHEDULE 13E-3 ITEM NUMBER AND RESPONSE AND/OR LOCATION IN PROXY STATEMENT
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Item 1. Issuer and Class of Security
Subject to the Transaction
(a) Front Cover Page and "SUMMARY--The Company," which
information is incorporated herein by this reference.
(b) "SUMMARY--Record Date; Shareholders Entitled to Vote;
Quorum" and "THE ANNUAL MEETING--Record Date;
Stockholder Approval," which information is incorporated
herein by this reference.
(c) "SUMMARY--Market Price and Dividend Data," which
information is incorporated herein by this reference.
(d) "SUMMARY--Market Price and Dividend Data," which
information is incorporated herein by this reference.
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2
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SCHEDULE 13E-3 ITEM NUMBER AND RESPONSE AND/OR LOCATION IN PROXY STATEMENT
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(e) Not applicable.
(f) "SPECIAL FACTORS--Public Offerings and Repurchases of
Common Stock," which information is incorporated herein
by this reference.
Item 2. Identity and Background This Statement is being jointly filed by the Company
(the issuer of the equity securities that are the
subject of the Merger), the Acquisition Company and the
members of the Michael Family. The information required
by this Item with respect to each such entity and person
is as follows:
(a)-(d), (g) "SUMMARY--The Company" and "--the Acquisition Company,"
"ELECTION OF DIRECTORS" and "MANAGEMENT OF THE COMPANY
AND THE ACQUISITION COMPANY," which information is
incorporated herein by this reference. James H. Michael
and Jeffrey J. Michael are citizens of the United
States.
(e), (f) To the best of the undersigneds' knowledge, except as
described under "MANAGEMENT OF THE COMPANY AND THE
ACQUISITION COMPANY--Certain Proceedings" in the Proxy
Statement, which information is incorporated herein by
this reference, none of the persons with respect to whom
information is provided in response to this Item was
during the last five years (i) convicted in a criminal
proceeding (excluding traffic violations or similar
misdemeanors) or (ii) party to a civil proceeding of a
judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or
is subject to a judgment, decree or final order
enjoining further violations of, or prohibiting
activities subject to, federal or state securities laws
or finding any violations of such laws.
Item 3. Past Contacts, Transactions or
Negotiations
(a)(1) Not applicable.
(a)(2), (b) "SPECIAL FACTORS--Background of the Merger" and
"--Interests of Certain Persons in the Merger," which
information is incorporated herein by this reference.
Item 4. Terms of the Transaction
(a) Front Cover Page, "SUMMARY--The Merger," "THE MERGER
AGREEMENT" and "EXHIBIT A--Agreement and Plan of
Merger," which information is incorporated herein by
this reference.
(b) "SPECIAL FACTORS--Interests of Certain Persons in the
Merger," which information is incorporated herein by
this reference.
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3
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SCHEDULE 13E-3 ITEM NUMBER AND RESPONSE AND/OR LOCATION IN PROXY STATEMENT
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Item 5. Plans or Proposals of the Issuer
or Affiliate
(a)-(e) "SPECIAL FACTORS--Plans for the Company After the
Merger" and "MANAGEMENT OF THE COMPANY AND THE
ACQUISITION COMPANY," which information is incorporated
herein by this reference.
(f), (g) "SPECIAL FACTORS--Certain Effects of the Merger," which
information is incorporated herein by this reference.
Item 6. Source and Amount of Funds or
Other Consideration
(a), (b) "THE ANNUAL MEETING--Proxies," "SPECIAL
FACTORS--Opinion of Financial Advisor," "--Source of
Funds" and "--Fees and Expenses," which information
is incorporated herein by this reference. A Revolving
Credit and Term Loan Agreement dated as of November
29, 1999, ("Revolving Credit and Term Loan
Agreement") among 3J2R Limited Partnership, 4J2R1C
Limited Partnership, Jeffrey J. Michael, as Trustee
of the Michael Acquisition Corporation Trust and
National City Bank of Minneapolis details the terms
under which National City Bank agrees to provide the
Michael Family a revolving loan of up to $8.0 million
and a term loan of $6.0 million, the proceeds of
which will then be loaned by the Michael Family to
the Acquisition Co. The revolving loan has a term of
three years, bearing interest at a variable rate
equal to 1.5% in excess of the London inter-bank
offered rate (LIBOR), and calls for monthly payments
of interest only with a single principal payment at
maturity. The term loan to the Michael Family has a
term of five years, bearing interest at a variable
rate equal to 1.75% in excess of LIBOR, and calls for
monthly payments of interest with five equal annual
installments of principal payments. Both loans are
secured by a pledge of investment grade marketable
securities.
The Agreement among ENStar Acquisition, Inc., Jeffrey
J. Michael, James H. Michael, 4J2R1C Limited
Partnership, 3J2R Limited Partnership and Jeffrey J.
Michael, as trustee of the Michael Acquisition
Corporation Trust ("Loan Agreement") details the
terms upon which the Michael Family will loan the
Acquisition Co. the necessary capital to finance the
Merger. This Loan Agreement carries substantially the
same terms as the Revolving Credit and Term Loan
Agreement except that the variable interest rates on
the revolving loan and the term loan will be 1.75%
and 2.0% in excess of LIBOR, respectively, and the
loans will be secured by the Acquisition Co. granting
a security interest in all its assets in favor of the
Michael Family. Acquisition Co.'s obligations under
the Loan Agreement become an obligation of the
Surviving Corporation upon consummation of the
Merger.
(c) "SPECIAL FACTORS--Source of Funds," which information is
incorporated herein by this reference.
(d) Not applicable.
Item 7. Purpose(s), Alternatives, Reasons
and Effects
(a)-(c) "SPECIAL FACTORS--Background of the Merger," "--Purpose
and Reasons for Structure of the Merger,"
"--Recommendations of the Company's Special Committee
and Board of Directors," "--Position of the Michael
Family and Acquisition Company as to the Fairness of the
Merger" and "--Certain Effects of the Merger," which
information is incorporated herein by this reference.
(d) "SUMMARY--The Merger," "--Interests of Certain Persons
in the Merger" and "--Federal Income Tax Consequences,"
"SPECIAL FACTORS--Background of the Merger," "--Plans
for the Company After the Merger," "--Certain Effects of
the Merger," "--Interests of Certain Persons in the
Merger" and "--Certain Federal Income Tax Consequences"
and "MANAGEMENT OF THE COMPANY AND THE ACQUISITION
COMPANY," which information is incorporated herein by
this reference.
Item 8. Fairness of the Transaction
(a) "SUMMARY--Recommendations of the Company's Special
Committee and Board of Directors," "SPECIAL FACTORS--
Recommendations of the Company's Special Committee and
Board of Directors," and "--Position of the Michael
Family and Acquisition Company as to Fairness of the
Merger," which information is incorporated herein by
this reference.
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SCHEDULE 13E-3 ITEM NUMBER AND RESPONSE AND/OR LOCATION IN PROXY STATEMENT
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(b) "SUMMARY--Recommendations of the Company's Special
Committee and Board of Directors" and "SPECIAL
FACTORS--Background of the Merger," "--Purpose and
Structure of the Merger," "--Recommendations of the
Company's Special Committee and Board of Directors,"
"--Opinion of Financial Advisor," "--Position of the
Michael Family and Acquisition Company as to Fairness of
the Merger" and "EXHIBIT B--Opinion of Goldsmith, Agio,
Helms Securities, Inc.," which information is
incorporated herein by this reference.
(c) "THE ANNUAL MEETING--Record Date; Shareholder Approval,"
which information is incorporated herein by this
reference.
(d)-(e) "SPECIAL FACTORS--Background of the Merger" and
"--Recommendations of the Company's Special Committee
and Board of Directors," which information is
incorporated herein by this reference.
(f) Not applicable.
Item 9. Reports, Opinions, Appraisals and
Certain Negotiations
(a)-(c) "SUMMARY--Opinion of Financial Advisor," "SPECIAL
FACTORS--Background of the Merger" and "--Opinion of
Financial Advisor" and "EXHIBIT B--Opinion of Goldsmith,
Agio, Helms Securities, Inc.," which information is
incorporated herein by this reference.
Item 10. Interest in Securities of the
Issuer
(a) "SUMMARY--Voting of Shares Owned by the Michael Family,"
"THE ANNUAL MEETING--Record Date; Shareholder Approval,"
"SPECIAL FACTORS--Background of the Merger" and
"--Interests of Certain Persons in the Merger" and
"STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL
OWNERS," which information is incorporated herein by
this reference.
(b) "STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL
OWNERS--Transactions by Certain Persons in Common
Stock," which information is incorporated herein by this
reference.
Item 11. Contracts, Arrangements or "SPECIAL FACTORS--Interests of Certain Persons in the
Understandings With Respect to the Merger," "THE MERGER AGREEMENT" and
Issuer's Securities "EXHIBIT A--Agreement and Plan of Merger," which
information is incorporated herein by this reference.
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SCHEDULE 13E-3 ITEM NUMBER AND RESPONSE AND/OR LOCATION IN PROXY STATEMENT
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Item 12. Present Intention and
Recommendation of Certain Persons With
Regard to the Transaction
(a), (b) "THE ANNUAL MEETING--Record Date; Shareholder Approval,"
"SPECIAL FACTORS--Background of the Merger,"
"--Recommendations of the Company's Special Committee
and Board of Directors," "--Position of the Michael
Family and Acquisition Company as to the Fairness of the
Merger" and "--Interests of Certain Persons in the
Merger" and "STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN
BENEFICIAL OWNERS," which information is incorporated
herein by this reference.
Item 13. Other Provisions of the
Transaction
(a) "SUMMARY--Dissenters' Rights," "RIGHTS OF DISSENTING
SHAREHOLDERS" and "EXHIBIT C--Provisions of Minnesota
Business Corporation Act Relating to Dissenters'
Rights," which information is incorporated herein by
this reference.
(b), (c) Not applicable.
Item 14. Financial Information The Company's Annual Report on Form 10-K for the year
ended December 31, 1998 and its Quarterly Report on
Form 10-Q for the quarter ended June 30, 1999 are
incorporated by reference in the Proxy Statement and
will be delivered to shareholders of the Company with
the Proxy Statement. The Company's audited financial
statements for the periods covered by the Form 10-K and
unaudited financial statements for the periods covered
by the Form 10-Q are incorporated herein by this
reference.
Item 15. Person and Assets Employed,
Retained or Utilized
(a), (b) "THE ANNUAL MEETING--Proxies" and "SPECIAL
FACTORS--Source of Funds" and "--Fees and Expenses" and
"THE MERGER AGREEMENT--Exchange and Payment Procedures"
and "--Treatment of Stock Options," which information is
incorporated herein by this reference.
Item 16. Additional Information See the text of the Proxy Statement.
Item 17. Materials to be Filed as Exhibits Exhibit Number and Description (Exhibits marked with an
asterisk (*) are filed herewith)
(a) (a)(1) Letter dated July 26, 1999 from National City
Bank relating to loan commitment. Previously filed.
(a)(2) Revolving Credit and Term Loan Agreement dated
as of November 29, 1999 among 3J2R Limited
Partnership, 4J2R1C Limited Partnership, Jeffrey J.
Michael, as Trustee of the Michael Acquisition
Corporation Trust and National City Bank of
Minneapolis, which is incorporated by reference to
Exhibit No. 3 to Amendment No. 2 to Schedule 13D
dated December 1, 1999 filed by ENStar Acquisition,
Inc., James H. Michael, 4J2R1C Limited Partnership,
Jeffrey J. Michael, the Michael Acquisition
Corporation Trust U/A dated effective July 29, 1999
and 3J2R Limited Partnership.
(b) (b)(1) Opinion of Goldsmith, Agio, Helms Securities,
Inc. dated August 13, 1999, which is Exhibit B to the
Proxy Statement and is incorporated herein by this
reference.
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SCHEDULE 13E-3 ITEM NUMBER AND RESPONSE AND/OR LOCATION IN PROXY STATEMENT
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(c) (c)(1) Agreement and Plan of Merger dated August 13,
1999 among the Company, the Acquisition Company and the
Michael Family which is Exhibit A to the Proxy Statement
and is incorporated herein by this reference.
(c)(2) 1996 Stock Incentive Plan, which is incorporated
by reference to Exhibit 10.1 to the Company's
Registration Statement on Form S-4 (File No. 333-1925).
(c)(3) Severance Agreement dated April 5, 1999 between
the Company and Jeffrey J. Michael, which is
incorporated by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
(c)(4) Severance and Retention Agreement dated April 5,
1999 between Americable, Inc. and Peter E. Flynn, which
is incorporated by reference to Exhibit 10.2 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
(d) (d)(1) Definitive copy of Letter to Shareholders, Notice
of Annual Meeting, Proxy Statement and form of Proxy for
the Annual Meeting of Shareholders of the Company to be
held on December 1, 1999.
(e) (e)(1) Sections 302A.471 and 302A.473 of the Minnesota
Business Corporation Act, which is Exhibit C to the
Proxy Statement and is incorporated herein by this
reference.
(f) Not applicable.
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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.
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December 1, 1999 ENSTAR INC.
By: /s/ JEFFREY J. MICHAEL
------------------------------------
Name: Jeffrey J. Michael
Title: President and Chief Executive
Officer
December 1, 1999 ENSTAR ACQUISITION, INC.
By: /s/ JEFFREY J. MICHAEL
------------------------------------
Name: Jeffrey J. Michael
Title: President
December 1, 1999 By: /s/ JAMES H. MICHAEL
------------------------------------
James H. Michael
December 1, 1999 By: /s/ JEFFREY J. MICHAEL
------------------------------------
Jeffrey J. Michael
December 1, 1999 4J2R1C LIMITED PARTNERSHIP
By: /s/ JAMES H. MICHAEL
------------------------------------
Name: James H. Michael
Title: General Partner
December 1, 1999 3J2R LIMITED PARTNERSHIP
By: /s/ JEFFREY J. MICHAEL
------------------------------------
Name: Jeffrey J. Michael
Title: Managing General Partner
December 1, 1999 MICHAEL ACQUISITION CORPORATION TRUST
By: /s/ JEFFREY J. MICHAEL
------------------------------------
Name: Jeffrey J. Michael
Title: Trustee
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