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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 4)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
WAVERLY, INC.
(NAME OF SUBJECT COMPANY)
WAVERLY, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $2.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
943614107
(CUSIP NUMBER OF CLASS OF SECURITIES)
EDWARD B. HUTTON, JR.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
351 WEST CAMDEN STREET
BALTIMORE, MARYLAND 21117
(410) 528-4000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICE
AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
WITH A COPY TO:
MICHAEL P. ROGAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 NEW YORK AVENUE, N.W.
WASHINGTON, D.C. 20005-2111
(202) 371-7000
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This Amendment No. 4 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 of Waverly, Inc., a
Maryland corporation (the "Company"), filed with the Securities and
Exchange Commission on February 18, 1998, as amended, relating to the
tender offer for all outstanding shares of common stock, par value $2.00
per share (the "Shares"), of the Company (the "Offer"), by MP Acquisition
Corp., a Maryland corporation ("Newco") and an indirect wholly owned
subsidiary of Wolters Kluwer U.S. Corporation, a Delaware corporation
("Wolters Kluwer"). Capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to such terms in the Schedule
14D-9.
ITEM 3. IDENTITY AND BACKGROUND
Item 3 is hereby amended by adding thereto the following:
Waiver Agreement
On May 6, 1998, the Company, Newco and Wolters Kluwer entered into a
letter agreement (the "Waiver Agreement") whereby Wolters Kluwer and Newco
waived certain provisions of the Merger Agreement and the Stock Option
Agreement relating to the exercise of options to purchase Shares
("Options") and the issuance of Shares by the Company pursuant to the
exercise of Options. The following summary of the Waiver Agreement does
not purport to be complete and is qualified in its entirety by reference to
the complete text of the Waiver Agreement which is attached as Exhibit 10
hereto and is incorporated by reference.
Pursuant to the Waiver Agreement, Wolters Kluwer and Newco agreed to
waive provisions of the Merger Agreement that prohibit the Company from (i)
issuing any new Shares; (ii) taking any action to issue new Shares; and (iii)
authorizing or recommending, proposing or announcing any intention to issue
new Shares. In addition, Wolters Kluwer and Newco agreed to waive
provisions of the Stock Option Agreement in which (i) Stockholders
represent they have title to the Shares they will tender; (ii) Stockholders
agree they will not acquire additional Shares; and (iii) Stockholders agree
they will not exercise their Options. Such waiver shall be effective (A)
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only to the extent necessary (i) to permit any holder of an Option to
exercise such Option and (ii) for the Company to issue Shares pursuant to
such exercise, and (B) as to each Option holder, only if the Company
obtains from such holder an acknowledgment and agreement by such holder,
enforceable by and for the benefit of Wolters Kluwer and Newco, that such
holder will tender into and not withdraw from the Offer the Shares received
upon such exercise. Subject to the other conditions to the Offer, Wolters
Kluwer and Newco have agreed to pay the Offer Price (as defined in the
Merger Agreement) with respect to each such Share tendered and not
withdrawn in the Offer.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended by the addition of the following exhibit
thereto:
Exhibit 10: Waiver Agreement, by and among the Company, Wolters
Kluwer and Newco, dated May 6, 1998.
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After reasonable 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 8, 1998
WAVERLY, INC.
By: /s/ Edward B. Hutton, Jr.
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Name: Edward B. Hutton, Jr.
Title: President and Chief Executive
Officer
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EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
Exhibit 10 Waiver Agreement, by and among the Company, Wolters
Kluwer and Newco, dated May 6, 1998.
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Exhibit 10
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May 6, 1998
Mr. Peter W. van Wel
Wolters Kluwer U.S. Corporation
161 North Clark Street
Chicago, IL 60601
Bruce C. Lenz
MP Acquisition Corp.
161 North Clark Street
Chicago, IL 60601
Dear Messrs. van Wel and Lenz:
Reference is made to the Agreement and Plan of Merger (the
"Merger Agreement") dated as of February 10, 1998 by and among Wolters
Kluwer U.S. Corporation ("Parent"), MP Acquisition Corp. ("Newco") and
Waverly, Inc. (the "Company") and to the Stock Option and Tender Agreement
(the "Option and Tender Agreement") dated February 10, 1998 by and among
Parent, Newco and the stockholders set forth on Schedule I thereof (the
"Stockholders").
By signing below, Parent and Newco confirm that subject
to the terms and conditions set forth in this paragraph, each of them
hereby waives Sections 5.1(i) (which prohibits the Company from issuing
any new shares of the Company's Common Stock, par value $2.00 per share
(the "Shares")), 5.1(xi) (which prohibits the Company from taking any
action to issue new Shares) and 5.1(xii) (which prohibits the Company from
authorizing, recommending proposing or announcing any intention to issue
new Shares) of the Merger Agreement and Sections 3.3 (which relates to the
Shares held by the Stockholders), 3.4 (which states that the Stockholders
presently have title to the Shares they will tender), 5.1 (which states
that the Stockholders will not acquire any more Shares) and 8 (which states
that the Stockholders will not exercise any of their options and will
accept the cash payment described above in exchange for the options) of the
Option and Tender Agreement. Such waiver shall be effective (A) only to
the extent necessary (i) to permit any holder of any option to purchase
Shares to exercise such options and (ii) for the Company to issue Shares
pursuant to such exercise, and (B) as to each such holder, only if the
Company obtains from such holder (simultaneously with the notice of
exercise and prior to any issuance of Shares to such holder) an
acknowledgment and agreement by such holder enforceable by and for the
benefit of Parent and Newco that such holder will tender into and not
withdraw from the Offer the Shares received upon such exercise. Subject to
the other conditions to the Offer, Parent and Newco agree to pay the Offer
Price (as defined in the Merger Agreement) with respect to each such Share
tendered and not withdrawn in the Offer. Nothing contained herein shall
waive the obligation of the Stockholders, including with respect to Shares
obtained upon exercise of the options, to tender and not withdraw their
Shares.
A list of currently outstanding stock options is attached as
Exhibit A hereto.
Very truly yours,
/s/ E. Philip Hanlon
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E. Philip Hanlon
Vice President and
Chief Financial Officer
Agreed to and accepted:
WOLTERS KLUWER U.S. MP ACQUISITION CORP.
CORPORATION
By: /s/ Peter van Wel By: /s/ Bruce C. Lenz
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Peter van Wel Bruce C. Lenz
President Vice President
cc: Arnold J. Schaab, Esq.
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, NY 10022
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