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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
AMENDMENT NO. 3
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
EKCO GROUP, INC.
(Name of Subject Company)
EKCO GROUP, INC.
(Name of Person(s) Filing Statement)
COMMON STOCK, PAR VALUE $.01 PER SHARE
SERIES B ESOP CONVERTIBLE PREFERRED STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
282636109
(CUSIP NUMBER OF COMMON STOCK)
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DONATO A. DENOVELLIS
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
EKCO GROUP, INC.
98 SPIT BROOK ROAD, SUITE 102
NASHUA, NEW HAMPSHIRE 03062
(603) 888-1212
(Name, address and telephone number of person authorized to receive
notice and communication on behalf of the person(s) filing statement).
WITH A COPY TO:
PETER S. LAWRENCE, ESQ.
MICHAEL L. FANTOZZI, ESQ.
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
(617) 542-6000
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Amendment No. 3 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 filed on August 12, 1999 (as amended, the "Schedule
14D-9") relating to the offer by EG Two Acquisition Co., a Delaware corporation
(the "Purchaser"), and a subsidiary of CCPC Acquisition Corp., a Delaware
corporation (the "Parent"), and an affiliate of Borden, Inc., a New Jersey
corporation ("Borden"), to purchase all of the outstanding shares of Common
Stock, par value $0.01 per share (the "Common Stock") including the associated
preferred stock purchase rights (the "Rights") issued pursuant to the Rights
Agreement dated March 27, 1987, as amended on June 9, 1998, January 10, 1989,
March 23, 1992 and December 22, 1992, and as amended and restated as of March
21, 1997 and as amended on August 4, 1999 (as so amended, the "Rights
Agreement") between EKCO Group, Inc., a Delaware corporation (the "Company") and
American Stock Transfer & Trust Company, as rights agent ( the "Rights Agent"),
and all of the outstanding shares of Series B ESOP Convertible Preferred Stock,
par value $0.01 per share (the "ESOP Preferred Stock", and together with the
Common Stock, the "Shares") of the Company, at a purchase price of $7.00 per
Share (including, if applicable, the associated Right) 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 August 11, 1999 (the "Offer to Purchase")
and in the related Letter of Transmittal (which, together with the Offer to
Purchase, constitute the "Offer"). Unless otherwise indicated, all capitalized
terms used, but not defined herein, shall have the meanings assigned to them in
the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND--AGREEMENTS WITH THE PARENT, PURCHASER, OR THEIR
AFFILIATES--THE MERGER AGREEMENT--CONDITIONS OF THE OFFER
Item 3 of the Schedule 14D-9 is hereby amended and supplemented as follows:
On September 2, 1999, the Company issued a press release announcing that the
waiting period under the HSR Act had expired. The full text of the press release
is set forth in Exhibit 35 and is incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
On September 2, 1999, the Company issued a press release announcing that the
waiting period under the HSR Act had expired. The full text of the press release
is set forth in Exhibit 35 and is incorporated herein by reference.
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ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
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@ Exhibit 1 Agreement and Plan of Merger among Ekco Group, Inc., CCPC Acquisition Corp.
and EG Two Acquisition Co., dated as of August 5, 1999.
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@ Exhibit 2 Amendment to the Agreement and Plan of Merger among Ekco Group, Inc., CCPC
Acquisition Corp. and EG Two Acquisition Co., dated as of August 10, 1999.
@ Exhibit 3 Guarantee dated August 5, 1999 exclusively executed by Borden, Inc. in
favor of Ekco Group, Inc.
@ Exhibit 4 Confidentiality Agreement between Ekco Group, Inc. and Borden, Inc., dated
as of May 3, 1999.
@ Exhibit 5 Letter to Stockholders of Ekco Group, Inc., dated August 12, 1999.*
+ Exhibit 6 Press Release issued by Ekco Group, Inc., CCPC Acquisition Corp. and EG TWO
Acquisition Co. on August 5, 1999 (incorporated by reference to Exhibit
99.1 to Ekco Group, Inc.'s Current Report on Form 8-K reporting events
occurring on August 5, 1999).
@ Exhibit 7 Opinion of Lehman Brothers, Inc., dated as of August 4, 1999.*
+ Exhibit 8 1984 Restricted Stock Purchase Plan, as amended (incorporated herein by
reference to Exhibit 10.1(a) to Form 10-K for the year ended December 29,
1996).
+ Exhibit 9 1985 Restricted Stock Purchase Plan, as amended (incorporated herein by
reference to Exhibit 10.1(b) to Form 10-K for the year ended December 29,
1996).
+ Exhibit
10 Form of Restricted Stock Purchase Agreement, as amended (incorporated
herein by reference to Exhibit 10.1(b) to Form 10-K for the year ended
January 1, 1995, Exhibit 10.1(c)(3) to Form 10-K for the year ended
December 31, 1995 and schedule thereto in Exhibit 10.1(c)(2) to Form 10-K
for the year ended December 29, 1996).
+ Exhibit
11 Form of Restricted Stock Purchase Agreement, as amended (incorporated by
reference to Exhibits 10.1(d) to Form 10-K for the year ended December 31,
1995).
+ Exhibit
12 1987 Stock Option Plan, as amended, including forms of incentive stock
option and non-qualified stock option agreements (incorporated herein by
reference to Exhibit 10.2(a) to Form 10-K for the year ended December 28,
1997).
+ Exhibit
13 Form of Non-Qualified Stock Option and Repurchase Agreement, as amended
(incorporated herein by reference to Exhibit10.2(b)(2)(i) to Form 10-K for
the year ended December 31, 1995).
@ Exhibit
14 Schedule to Form of Non-Qualified Stock Option and Repurchase Agreement, as
amended.
+ Exhibit
15 Form of Non-Qualified Stock Option Agreement (incorporated herein by
reference to Exhibit 10.2(e) to Form 10-K for the year ended December 29,
1996).
+ Exhibit
16 Form of Non-Qualified Stock Option and Repurchase Agreement (incorporated
herein by reference to Exhibit 10.2(e) to Form 10-K for the year ended
December 28, 1997 and Exhibit 10.2(b)(2) to Form 10-K for the year ended
January 3, 1999).
+ Exhibit
17 Form of Non-Qualified Stock Option Agreement (incorporated herein by
reference to Exhibit 10.2(f) to Form 10-K for the year ended December 28,
1997).
+ Exhibit
18 Form of Indemnity Agreement for officers and directors, originally filed as
Exhibit 10.3(c) to Form 10-K for the year ended January 1, 1995
(incorporated herein by reference to Exhibit 10.3 to Form 10-K for the year
ended January 3, 1999).
+ Exhibit
19 Ekco Group, Inc. 1988 Directors' Stock Option Plan, as amended, and form of
Non-Qualified Stock Option and Repurchase Agreement (incorporated herein by
reference to Exhibit 10.4 to Form 10-K for the year ended December 28,
1997).
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+ Exhibit
20 Schedule to Form of Non-Qualified Stock Option and Repurchase Agreement
(incorporated herein by reference to Exhibit 10.4(a)(2) to Form 10-K for
the year ended January 3, 1999).
+ Exhibit
21 Ekco Group, Inc. Employees' Stock Ownership Plan ("ESOP") effective as of
January 1, 1989, as amended (incorporated herein by reference to Exhibits
10.6(a)(1) and (2) to Form 10-K for the year ended January 1, 1995,
Exhibits 10.5(a)(2) and 10.5(a)(3) to Form 10-K for the year ended December
29, 1996 and Exhibit 10.5(b) to Form 10-K for the year ended January 3,
1999).
+ Exhibit
22 Employment Agreement with Malcolm L. Sherman dated December 4, 1996, as
amended (incorporated herein by reference to Exhibit 10.6 to Form 10-K for
the year ended January 3, 1999).
+ Exhibit
23 Amended and Restated Employment Agreement with Donato A. DeNovellis dated
as of May 25, 1995, as amended (incorporated herein by reference to Exhibit
10.3 to Form 10-Q for the quarterly period ended October 1, 1995, Exhibit
10.9(b) to Form 10-Q for the period ended June 30, 1996 and Exhibit 10.10
to Form 10-K for the year ended December 29, 1996).
+ Exhibit
24 Amended and Restated Employment Agreement with Jeffrey A. Weinstein dated
as of May 25, 1995 (incorporated herein by reference to Exhibit 10.2 to
Form 10-Q for the quarterly period ended October 1, 1995 and Exhibit 10.10
to Form 10-K for the year ended December 29, 1996).
+ Exhibit
25 Form of Amended and Restated Employment Agreement with Brian R. McQuesten
and another officer dated as of May 25, 1995, as amended (incorporated
herein by reference to Exhibit 10.5 to Form 10-Q for the quarterly period
ended October 1, 1995).
@ Exhibit
26 Employment Agreement with J. Jay Althoff dated September 16, 1997, as
amended.
+ Exhibit
27 1995 Restatement of Incentive Compensation Plan for Executive Employees of
Ekco Group, Inc. and its Subsidiaries, as amended (incorporated herein by
reference to Exhibit 10.12 to Form 10-K for the year ended December 28,
1997).
+ Exhibit
28 Ekco Group, Inc. Supplemental Executive Retirement Plan dated as of July 1,
1992, (incorporated herein by reference to Exhibit 10.12 to Form 10-K for
the year ended January 3, 1999).
+ Exhibit
29 Form of Split Dollar Agreement (incorporated herein by reference to Exhibit
10.13 to Form 10-K for the year ended January 3, 1999).
@ Exhibit
30 Resolutions dated May 25, 1995 re: Ekco Group, Inc. Severance Policy.
@ Exhibit
31 Letter to Participants in Ekco Group, Inc. Employees' Stock Ownership Plan
dated August 13, 1999
@ Exhibit
32 Instruction Form
@ Exhibit
33 Letter to Holder of Options to Purchase Ekco Group, Inc. Common Stock
@ Exhibit
34 Form of Option Election Agreement
Exhibit
35 Press Release issued by Ekco Group, Inc. on September 2, 1999
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* Included with Schedule 14D-9 mailed to stockholders
@ Previously filed.
+ Incorporated by reference.
3
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SIGNATURE
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.
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Dated: September 7, 1999 EKCO GROUP, INC.
By: /s/ J. JAY ALTHOFF
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J. Jay Althoff
Title: Vice President and General Counsel
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EXHIBIT 35
[LETTERHEAD OF EKCO GROUP, INC.]
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For: EKCO Group, Inc.
Contact: Don DeNovellis
Chief Financial Officer
(603) 888-1212
Investors: Stacey Bibi/Caroline Eustace/
Bernadette Garfinkle
Morgen-Walke Associates
FOR IMMEDIATE RELEASE (212) 850-5600
Media: Michael McMullan/
Stacy Roth
Morgen-Walke Associates
(212) 850-5600
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EKCO GROUP, INC. ANNOUNCES EXPIRATION OF THE HART-SCOTT-RODINO WAITING
PERIOD RELATING TO THE TENDER OFFER BY CCPC ACQUISITION
CORP. FOR THE STOCK OF EKCO GROUP,
INC.
Nashua, NH, September 2, 1999--EKCO Group, Inc. (ASE:EKO) announced today
that the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 in connection with the pending acquisition of the Company by CCPC
Acquisition Corp. (the parent of Corning Consumer Products Company) pursuant to
a tender offer commenced on August 11, 1999 expired at 11:59 p.m. on September
1, 1999 Eastern Time.
The tender offer and withdrawal rights thereunder will expire at 12:00
Midnight, New York City time, on Wednesday, September 8, 1999, unless the tender
offer is extended. The tender offer is subject to the valid tender of at least a
majority of the existing EKCO Group shares and to other customary conditions.
EKCO Group, Inc., based in Nashua, NH, is a leading manufacturer and
marketer of branded consumer products that are broadly marketed primarily
through major mass merchant, supermarket, home, hardware, specialty and
department stores. The Company's products include household items such as
bakeware, kitchenware, pantryware, brooms, brushes and mops, as well as
nonpoisonous and low-toxic household pest control products and small animal care
and control products. In addition, the Company also markets pet supplies and
accessories, such as ropes, chews, collars and leashes, through its subsidiary,
Aspen Pet Products.
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EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN, THE MATTERS
DISCUSSED IN THIS PRESS RELEASE ARE FORWARD-LOOKING STATEMENTS MADE PURSUANT TO
THE SAFE HARBOR PROVISIONS OF SECTION 27A OF THE SECURITIES ACT OF 1933 AND
SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934. SUCH STATEMENTS ARE BASED ON
MANAGEMENT'S CURRENT EXPECTATIONS AND ARE SUBJECT TO A NUMBER OF FACTORS AND
UNCERTAINTIES WHICH COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
DESCRIBED IN THE FORWARD-LOOKING STATEMENTS. SUCH FACTORS AND UNCERTAINTIES
INCLUDE, BUT ARE NOT LIMITED TO: THE IMPACT OF THE LEVEL OF EKCO'S INDEBTEDNESS;
RESTRICTIVE COVENANTS CONTAINED IN EKCO'S VARIOUS DEBT DOCUMENTS; GENERAL
ECONOMIC CONDITIONS AND CONDITIONS IN THE RETAIL ENVIRONMENT; EKCO'S DEPENDENCE
ON A FEW LARGE CUSTOMERS; PRICE FLUCTUATIONS IN THE RAW MATERIALS USED BY EKCO;
COMPETITIVE CONDITIONS IN EKCO'S MARKETS; THE TIMELY INTRODUCTION OF NEW
PRODUCTS AND COSTS ASSOCIATED THEREWITH; THE IMPACT OF COMPETITIVE PRODUCTS AND
PRICING; CERTAIN ASSUMPTIONS RELATED TO CONSUMER PURCHASING PATTERNS; THE
SEASONAL NATURE OF EKCO'S BUSINESS; THE TIMELY IMPLEMENTATION BY EKCO OF ITS
YEAR 2000 PROJECT, THE FUTURE COSTS ASSOCIATED WITH ITS YEAR 2000 PROJECT AND
THE TIMELY CONVERSION BY KEY VENDORS, CUSTOMERS, SUPPLIERS AND OTHER THIRD
PARTIES ON WHICH EKCO'S BUSINESS RELIES; AND THE IMPACT OF FEDERAL, STATE AND
LOCAL ENVIRONMENTAL REQUIREMENTS (INCLUDING THE IMPACT OF CURRENT OR FUTURE
ENVIRONMENTAL CLAIMS AGAINST EKCO). AS A RESULT, EKCO'S RESULTS MAY FLUCTUATE.
ADDITIONAL INFORMATION CONCERNING RISK FACTORS THAT COULD CAUSE ACTUAL RESULTS
TO DIFFER MATERIALLY FROM THOSE PROJECTED IN THE FORWARD-LOOKING STATEMENTS IS
CONTAINED IN EKCO'S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
FORWARD-LOOKING STATEMENTS REPRESENT EKCO'S BEST ESTIMATES AS OF THE DATE OF
THIS PRESS RELEASE. EKCO ASSUMES NO OBLIGATION TO UPDATE SUCH ESTIMATES EXCEPT
AS REQUIRED BY THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION.
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