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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
TO
SCHEDULE TO
Tender Offer Statement
Under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934
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Echelon International Corporation
(Name of Subject Company)
EIN Acquisition Corp.
ETA Holding LLC
ETA Holding Corp.
The 1999 Haber Family Trust
James Haber
(Name of Filing Persons--Offerors)
Common Stock, par value $.01 per share
(Title of Class of Securities)
278747100
(CUSIP Number of Class of Securities)
James Haber
President
EIN Acquisition Corp.
ETA Holding LLC
950 Third Avenue, 23rd Floor
New York, New York 10022
Telephone: (212) 688-2700
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Stuart Bressman, Esq.
Robert M. Unger, Esq.
Brown Raysman Millstein Felder & Steiner LLP
120 West 45th Street
New York, New York 10036
Telephone: (212) 944-1515
[_]Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which
the statement relates:
[X]third-party tender offer subject to Rule 14d-1.
[_]issuer tender offer subject to Rule 13e-4.
[_]going-private transaction subject to Rule 13e-3.
[_]amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [_]
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This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission on January 28,
2000 relating to the offer by EIN Acquisition Corp., a Florida corporation, ETA
Holding LLC, a Delaware limited liability company and the sole shareholder of
EIN Acquisition Corp. ("Parent"), ETA Holding Corp., a Delaware corporation and
the sole manager of Parent ("Manager"), The 1999 Haber Family Trust, a New York
trust and the sole shareholder of Manager and sole member of Parent (the
"Trust"), and James Haber to purchase all of the issued and outstanding shares
of common stock, par value $.01 per share (the "Common Stock"), of Echelon
International Corporation, a Florida corporation (the "Company") and the
associated preferred share purchase rights (the "Rights" and, together with the
Common Stock, the "Shares"), at a purchase price of $34.00 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 January 28, 2000 (the
"Offer to Purchase"), and in the related Letter of Transmittal (which, together
with the Offer to Purchase, as amended or supplemented from time to time,
constitute the "Offer"), copies of which were previously filed as Exhibits
(a)(1)(i) and (a)(1)(ii). In accordance with the press release issued by and on
behalf of Purchaser, a copy of which is attached hereto as Exhibit (a) (1)
(ix), and as provided in the Offer to Purchase, the Expiration Date is extended
to 12:00 Midnight, New York City time, on Tuesday, March 7, 2000.
Item 12. Exhibits.
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<C> <S>
(a) (1)(i) Offer to Purchase dated January 28, 2000.*
(a) (1)(ii) Letter of Transmittal.*
(a) (1)(iii) Notice of Guaranteed Delivery.*
(a) (1)(iv) Letter from the Dealer Manager to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.*
(a) (1)(v) Letter to clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Nominees.*
(a) (1)(vi) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.*
(a) (1)(vii) Summary Advertisement as published on January 28, 2000.*
(a) (1)(viii) Press Release dated January 22, 2000.*
(a) (1)(ix) Press release dated February 28, 2000.
(b) (1) Credit Agreement dated as of January 21, 2000 among EIN
Acquisition Corp., Utrecht-America Finance Co., as Initial
Lender, and Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland," New York Branch, as Agent (the
"Credit Agreement").*
(b) (2) Security Agreement dated as of January 21, 2000 made by EIN
Acquisition Corp. in favor of Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A., "Rabobank Nederland," New York Branch, as
Agent for the lenders party to the Credit Agreement.*
(b) (3) Amendment dated February 28, 2000 to the Credit Agreement.
(c) Not applicable.*
(d) (1) Agreement and Plan of Merger, dated as of January 21, 2000, by
and among Echelon International Corporation, EIN Acquisition
Corp. and ETA Holding LLC.*
(d) (2) Purchase and Sale Agreement, dated as of January 21, 2000, by
and among Echelon International Corporation and certain of its
subsidiaries, collectively, as seller, and Echelon Residential
LLC, as buyer.*
(d) (3) Subscription Agreement, dated as of January 21, 2000, by and
among Echelon International Corporation and certain of its
subsidiaries, collectively, as transferor, and Heller Affordable
Housing of Florida, Inc., as issuer.*
(d) (4) Lease Agreement, dated as of January 21, 2000, between Heller
Affordable Housing of Florida, Inc., as Lessor, and Echelon
Commercial LLC, as Lessee.*
(d) (5) Omnibus Agreement, dated January 21, 2000, between EIN
Acquisition Corp. and Heller Financial, Inc.*
</TABLE>
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<TABLE>
<C> <S>
(d)(6) Purchase Agreement, dated as of January 13, 2000, by and between
Echelon International Corporation and Echelon Affordable Housing, Inc.,
collectively, as sellers, and Heller Affordable Housing, Inc., as
purchaser.*
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(e) Not applicable.
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(f) Not applicable.
(g) None.
(h) None.
</TABLE>
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* Previously filed.
Item 13. Information Required by Schedule 13E-3.
Not applicable.
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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.
ETA Holding LLC
By: ETA Holding Corp., its Manager
/s/ James Haber
By: _________________________________
James Haber
President
EIN Acquisition Corp.
/s/ James Haber
By: _________________________________
James Haber
President
ETA Holding Corp.
/s/ James Haber
By: _________________________________
James Haber
President
The 1999 Haber Family Trust
/s/ Eric B. Woldenberg
By: _________________________________
Eric B. Woldenberg, as trustee
/s/ James Haber
_____________________________________
James Haber
Date: February 28, 2000
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EXHIBIT INDEX
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Exhibit Page
No. Description No.
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<C> <S> <C>
(a)(1)(i) Offer to Purchase dated January 28, 2000*.................
(a)(1)(ii) Letter of Transmittal*....................................
(a)(1)(iii) Notice of Guaranteed Delivery*............................
(a)(1)(iv) Letter from the Dealer Manager to Brokers, Dealers,
Commercial Banks,
Trust Companies and Nominees*.............................
(a)(1)(v) Letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust
Companies and Nominees*...................................
(a)(1)(vi) Guidelines for Certification of Taxpayer Identification
Number on
Substitute Form W-9*......................................
(a)(1)(vii) Summary Advertisement as published on January 28, 2000*...
(a)(1)(viii) Press Release dated January 22, 2000*.....................
(a)(1)(ix) Press release dated February 28, 2000.....................
(b)(1) Credit Agreement dated as of January 21, 2000 among EIN
Acquisition
Corp., Utrecht-America Finance Co., as Initial Lender, and
Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland," New York
Branch, as Agent (the "Credit Agreement")*................
(b)(2) Security Agreement dated as of January 21, 2000 made by
EIN Acquisition Corp.
in favor of Cooperatieve Centrale Raiffeisen-
Boerenleenbank B.A.,
"Rabobank Nederland," New York Branch, as Agent for the
lenders party to
the Credit Agreement*.....................................
(b)(3) Amendment dated February 28, 2000 to the Credit
Agreement.................................................
(d)(1) Agreement and Plan of Merger, dated as of January 21,
2000, by and among
ETA Holding LLC, EIN Acquisition Corp. and Echelon
International Corporation*................................
(d)(2) Purchase and Sale Agreement, dated January 21, 2000, by
and among Echelon International Corporation and certain of
its subsidiaries, collectively, as seller,
and Echelon Residential LLC, as buyer*....................
(d)(3) Subscription Agreement, dated as of January 21, 2000, by
and among Echelon International Corporation and certain of
its subsidiaries, collectively, as transferor
and Heller Affordable Housing of Florida, Inc., as
issuer*...................................................
(d)(4) Lease Agreement, dated as of January 21, 2000, between
Heller Affordable
Housing of Florida, Inc., as Lessor, and Echelon
Commercial LLC, as Lessee*................................
(d)(5) Omnibus Agreement, dated January 21, 2000, between EIN
Acquisition Corp.
and Heller Financial, Inc.*...............................
(d)(6) Purchase Agreement, dated as of January 13, 2000, by and
between Echelon International Corporation and Echelon
Affordable Housing, Inc., collectively, as sellers and
Heller Affordable Housing, Inc., as purchaser*............
</TABLE>
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* Previously filed.
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EXHIBIT (a)(1)(ix)
For Immediate Release:
New York, New York, February 28, 2000 - EIN Acquisition Corp. ("EIN
Acquisition"), a wholly-owned subsidiary of ETA Holding LLC ("ETA Holding"),
today announced that it has extended the expiration date for the tender offer
(the "Offer") for all shares of common stock of Echelon International
Corporation ("Echelon") originally announced on January 28, 2000, to 12:00
midnight, New York time, on Tuesday, March 7, 2000. The Offer had originally
been scheduled to expire at 12:00 midnight, New York time, on Tuesday, February
29, 2000.
Under the terms of the Agreement and Plan of Merger, dated as of January
21, 2000, by and among Echelon, ETA Holding, and EIN Acquisition, the Offer is
conditioned upon, among other things, the satisfaction of certain conditions to
the closings of transactions with respect to certain sales or financings of
Echelon's real estate assets, not all of which have been satisfied. Echelon has
advised ETA Holding that substantial progress has been made towards meeting all
conditions to those closings and that it believes that those conditions can be
satisfied by the extended expiration date of the Offer.
As of 6:00 PM, New York time, on Friday, February 25, 2000, 1,463,170
shares of common stock of Echelon were validly tendered in connection with the
Offer comprising approximately 21.7% of the outstanding shares of Common Stock
of Echelon (or approximately 20.2% on a fully diluted basis).
Questions regarding the Offer may be directed to the Dealer Manager or the
Information Agent at their respective addresses and telephone numbers:
The Information Agent for the Offer is:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
17 State Street, 10th Floor
New York, New York 10004
Banks & Brokers Call Collect: (212) 440-9884
All Others Call Toll-Free: (800) 223-2064
The Dealer Manager for the Offer is:
GEORGESON
SHAREHOLDER
SECURITIES CORPORATION
member NASD, SIPC
17 State Street, 10th Floor
New York, New York 10004
Banks & Brokers Call Collect: (212) 440-9884
All Others Call Toll-Free: (800) 445-1790
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EXHIBIT(b)(3)
AMENDMENT
Dated as of February 28, 2000
This AMENDMENT among EIN ACQUISITION CORP., a Florida corporation (together
with any successor by merger, the "Borrower"), UTRECHT-AMERICA FINANCE CO., a
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Delaware corporation (the "Initial Lender"), and COOPERATIEVE CENTRALE
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RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH,
("Rabobank"), as Agent (as defined in the Credit Agreement referred to below)
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for the Lenders (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS. The Borrower, the Initial Lender and the Agent
have entered into a Credit Agreement dated as of January 21, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
the terms defined in the Credit Agreement being used herein as therein defined).
Each of the Borrower, the Initial Lender and the Agent wish to amend the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, the Borrower, the Initial Lender and the Agent hereby agree
as follows:
SECTION 1. Amendment to Credit Agreement. Section 2.01 of the Credit
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Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 2 hereof, hereby amended by
deleting the date "March 6, 2000" appearing in clause (z) thereof and
substituting, in lieu thereof, the date "March 10, 2000".
SECTION 2. Conditions of Effectiveness. This Amendment shall become
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effective when, and only when, the Bank shall have received counterparts of this
Amendment executed by the Borrower.
SECTION 3. Representations and Warranties of the Borrower. The Borrower
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represents and warrants as follows:
(a) The representations and warranties contained in the Credit Agreement
are true and correct on and as of the date hereof as though made on and as of
the date hereof.
(b) The execution, delivery and performance by the Borrower of this
Amendment, and the Credit Agreement, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's charter or by-laws, or
(ii) any law or contractual restriction binding on or affecting the Borrower,
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or result in, or require, the creation of any lien, security interest or other
charge or encumbrance upon or with respect to any of its properties.
(c) No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
due execution, delivery and performance by the Borrower of this Amendment or the
Credit Agreement, as amended hereby.
(d) This Amendment and the Credit Agreement, as amended hereby,
constitute, legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective terms, subject,
however, to the effect on such enforceability of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) general principles of equity (regardless whether such
enforceability is considered in a proceeding in equity or at law).
(e) There is no pending or threatened action or proceeding affecting the
Borrower or any of its subsidiaries before any court, governmental agency or
arbitrator, which may materially adversely affect the condition, financial or
otherwise, or operations of the Borrower.
(f) No event has occurred and is continuing which constitutes an Event of
Default or would constitute an Event of Default but for the requirement that
notice be given or time elapse or both.
SECTION 4. Reference to and Effect on the Credit Agreement. (a) Upon the
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effectiveness of Section 1 hereof, on and after the date hereof, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall mean and be a reference to the Credit Agreement as
amended hereby, and each reference in the Note and the other Loan Documents to
the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended above, the Credit Agreement and the
Note shall remain in full force and effect and are hereby ratified and confirmed
in all respects.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Bank under the Credit Agreement, nor constitute a waiver of any
provision of the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment may be executed in
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any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
SECTION 6. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws (without giving effect to the conflicts
of laws principles thereof) of the State of New York.
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SECTION 7. Final Agreement. This Amendment represents the final agreement
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between the Borrower, the Initial Lender and the Agent as to the subject matter
hereof and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
EIN ACQUISITION CORP.
By /s/ James Haber
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Name: James Haber
Title: President
UTRECHT-AMERICA FINANCE CO.
By /s/ Hans den Baas
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Authorized Officer
By /s/ Nancy J. McIver
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Authorized Officer
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By /s/ Hans den Baas
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Authorized Officer
By /s/ Nancy J. McIver
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Authorized Officer
