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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
AMENDMENT NO. 2
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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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
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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: August 20, 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 33
EKCO GROUP, INC.
Dear Holder of Options to Purchase
Ekco Common Stock:
As you know, the Board of Directors of Ekco Group, Inc. has unanimously
approved a Merger Agreement among Ekco, CCPC Acquisition Corp. and EG Two
Acquisition Co. ("Acquisition Co."). Both CCPC Acquisition Corp. and Acquisition
Co. are affiliates of Corning Consumer Products and Borden. Under the terms of
the Merger Agreement, Acquisition Co. is obligated to offer to purchase all
outstanding shares of Ekco Common Stock at a purchase price of $7.00 per share,
net to the seller in cash.
We are very excited about the prospects this transaction brings to Ekco.
Corning and Borden bring outstanding records in financial and management
success, in addition to well-respected reputations for building strong
companies. We see this as a unique and timely opportunity for Ekco.
As part of the tender offer, Acquisition Co. has agreed to purchase all the
outstanding options for common stock of Ekco, WHETHER VESTED OR UNVESTED, for a
cash payment per share equal to $7.00 less the per share exercise price. As a
result, your options can be tendered to Acquisition Co. in exchange for a cash
payment equal to $7.00 multiplied by the aggregate number of shares subject to
your options, less the aggregate exercise price of your option shares and all
withholding taxes attributable to such payment (the "Option Payment"). All of
your Ekco options will terminate upon your receipt of the Option Payment as set
forth in the enclosed Option Election Agreement. If you do not sign the Option
Election Agreement and the offer is consummated, your options will be converted
in the merger into the right to receive the Option Payment at a later date.
You are urged to read the enclosed Offer to Purchase dated August 11, 1999
and our letter to shareholders and Solicitation/Recommendation Statement dated
August 12, 1999.
If you would like to participate in this offer PLEASE SIGN THE ENCLOSED
OPTION ELECTION AGREEMENT AND SEND IT IN THE ENCLOSED ENVELOPE TO EKCO's
COUNSEL:
MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER
BOSTON, MA 02111
ATTENTION: KATIE HUGHES
YOUR OPTION ELECTION AGREEMENT MUST BE RECEIVED PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON WEDNESDAY SEPTEMBER 8, 1999 IN ORDER FOR YOUR OPTIONS TO BE
PURCHASED IN THE TENDER OFFER.
Please feel free to call Linda Millman at Ekco at (603) 888-1212 or Nancy
Prior at Mintz Levin, Ekco's counsel, at (617) 348-3045 with any questions.
Sincerely,
/s/ Malcolm L. Sherman
Malcolm L. Sherman
Chairman of the Board and Chief
Executive Officer
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EXHIBIT 34
FORM OF
OPTION ELECTION AGREEMENT
THIS OPTION ELECTION AGREEMENT (this "Agreement") is entered into as of the
date set forth on the last page of this Agreement, by and among [NAME] ("you")
and Ekco Group, Inc., a Delaware corporation ("EKCO"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to such
terms in the Agreement and Plan of Merger, dated as of August 5, 1999 as
amended, by and among EKCO, EG Two Acquisition Co. (the "Purchaser") and CCPC
Acquisition Corp. (the "Merger Agreement").
WHEREAS, as of August 16, 1999, you hold an option or options (collectively,
"Option(s)") to purchase that number of shares of common stock, par value $.01
per share, of EKCO (the "Option Shares") set forth on Schedule A hereto granted
to you under either EKCO's 1987 Stock Option Plan or EKCO's 1998 Directors'
Stock Option Plan (the "EKCO Plans") under written stock option agreement(s)
between EKCO and you ("Option Agreement(s)");
WHEREAS, Purchaser has agreed to purchase all the outstanding shares of
common stock of EKCO through a tender offer at a purchase price of $7.00 per
share of EKCO common stock, net to the seller in cash, in connection with the
Merger Agreement upon the satisfaction of certain conditions set forth therein;
and
WHEREAS, if you agree to enter into this Agreement to terminate your
Option(s) and the Option Agreement(s), you will receive a cash payment from
Purchaser equal to the aggregate amount that you would receive if each of your
Option Shares (whether or not such Options are vested) had been tendered
pursuant to the terms of the Offer, less the payment of the exercise price of
each Option Share and all withholding taxes attributable to such payment.
NOW, THEREFORE, in consideration of the premises contained herein, the
parties agree as follows:
1. You hereby agree that, immediately prior to the consummation of the
Offer, and subject to the consummation of the Offer, each outstanding Option
shall be deemed to be fully exercisable (whether or not otherwise exercisable)
and shall be cancelled as of the date thereof, in exchange for a cash payment
from the Purchaser equal to the aggregate amount that you would receive if each
of the Option Shares had been tendered to Purchaser pursuant to the terms of the
Offer, less the payment of the exercise price of each Option Share and all
withholding taxes attributable to such payment (the "Option Payment") as set
forth on Schedule A attached hereto and incorporated herein by reference. The
Option Payment shall be paid to you by the Purchaser as soon as practicable
after the consummation of the Offer but in no event later than 10 business days
after the consummation of the Offer.
2. You hereby acknowledge that you have been advised that (i) Options for
which a valid Stock Option Election Agreement has been executed and delivered to
Ekco that are not already vested will become vested immediately prior to the
consummation of the Offer (but subject to the purchase by Purchaser of shares of
EKCO common stock pursuant to the Offer), and (ii) upon the receipt by you of
the Option Payment pursuant to this Agreement, you shall have no further rights
under any Options. By signing this Agreement, you are deemed to have agreed to
the cancellation of your Options in exchange for receipt of the Option Payment.
Pursuant to this Agreement, you shall have no further rights under such Options
other than receipt of the Option Payment.
3. If, for any reason, the Offer is not consummated, this Agreement shall be
void and of no effect and your Option(s) shall remain outstanding and shall
continue to vest in accordance with their terms.
4. The right to receive the Option Payment under this Agreement may not be
assigned, alienated, pledged or hypothecated, and any attempted assignment,
alienation, pledge or hypothecation shall be void and of no effect.
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5. This Agreement may be signed in one or more identical counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this OPTION ELECTION AGREEMENT
this 20th day of August, 1999.
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EKCO GROUP, INC.
By:
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Name: J. Jay Althoff
Title: Vice President and General Counsel
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Optionee
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SCHEDULE A
OPTIONEE:_____________
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OPTION PAYMENT
(TOTAL PURCHASE
PRICE - AGGREGATE
AGGREGATE EXERCISE PRICE TOTAL PURCHASE PRICE EXERCISE PRICE OF
TOTAL OPTION SHARES OF OPTION SHARES FOR OPTION SHARES OPTION SHARES)
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