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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported): August 13, 1999
EKCO GROUP, INC.
(Exact name of registrant as specified in its charter)
1-7484
(Commission
File Number)
Delaware 11-2167167
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(State or other (IRS Employer
jurisdiction of Identification No.)
incorporation)
98 Spit Brook Road, Suite 102
Nashua, NH 03062
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (603) 888-1212
N/A
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(Former name or former address, if changed since last report.)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On August 5, 1999, EKCO Group, Inc. ("EKCO"), a Delaware corporation,
announced the signing of a definitive merger agreement pursuant to which CCPC
Acquisition Corp. ("CCPC," the parent of Corning Consumer Products Company) has
agreed to acquire EKCO (the "Merger Agreement") for $7.00 per share in a cash
transaction valued at approximately $300 million, including the assumption of
debt.
Under the Merger Agreement, CCPC and EG Two Acquisition Co., a
subsidiary of CCPC ("EG Two"), have agreed to commence an all-cash tender offer
on or about August 12, 1999 for all of the outstanding common stock and Series B
Convertible Preferred Stock of EKCO. The tender offer is expected to close by
September 10, 1999, unless extended, and is subject to the valid tender of at
least a majority of the outstanding EKCO shares on a fully diluted basis, and to
customary government filings and other customary conditions. The tender offer is
to be followed by a merger of EG Two, with and into EKCO, with EKCO as the
surviving corporation.
On August 10, 1999, EKCO, CCPC and EG Two entered into Amendment No. 1
to Agreement and Plan of Merger ("Amendment No. 1"), which amended certain
provisions of the Merger Agreement.
On August 13, 1999, EKCO announced and issued a press release with
respect to the commencement of a fixed spread tender offer for all of its
outstanding $125,000,000 9.24% Series B Senior Notes due April 1, 2006 (the
"Notes"). The tender offer for the Notes and consent solicitation are subject to
the terms and conditions in the Offer to Purchase and Consent Solicitation
Statement dated August 13, 1999. The tender offer for the Notes will expire on
September 13, 1999, unless extended, and the consent solicitation will expire on
the solicitation expiration date, which is one business day after the later of
August 27, 1999 and the first date that EKCO receives the requisite consents.
Neither the consummation of the tender offer for the Notes nor the consent
solicitation is a condition to any of the transactions contemplated by the
Merger Agreement, including the tender offer for the outstanding common stock of
EKCO.
The Amendment No. 1 and press release are attached hereto as
Exhibits 2.1 and 99.1 respectively, and are incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
2.1 Amendment No.1 to Agreement and Plan of Merger by and
among EKCO Group, Inc., CCPC Acquisition Corp. and EG
Two Acquisition Co., dated as of August 10, 1999.
99.1 Press Release dated August 13, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EKCO GROUP, INC.
Date: August 13, 1999 By: /s/ J. Jay Althoff
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J. Jay Althoff
Vice President and General Counsel
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AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (the "Amendment") to the Agreement and Plan of
Merger (the "Agreement") by and among CCPC Acquisition Corp., a Delaware
corporation ("ACQUIROR"), EG Two Acquisition Co., a Delaware corporation
("Acquisition Subsidiary"), and ECKO Group, Inc., a Delaware corporation
("ECKO"), dated as of August 5, 1999, is made and entered into as of the 10th
day of August, 1999 by and among ACQUIROR, Acquisition Subsidiary, and ECKO.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Agreement.
WHEREAS, ACQUIROR, Acquisition Subsidiary and ECKO are parties to the
Agreement and wish to clarify and amend certain of the provisions of the
Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and in the Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. The last sentence of Section 1.3(a) of the Agreement is hereby
amended and restated to read as follows:
Notwithstanding the foregoing, following the election or appointment of
Acquisition Subsidiary's designees to the Board of Directors of EKCO pursuant to
this Section 1.3 and until the Effective Time, (i) Acquisition Subsidiary shall
only be entitled to designate up to that number of directors that is one less
than the total number of directors on the EKCO Board, regardless of the total
number of such directors, and the Board of Directors of EKCO shall have at least
one director who was a director on August 5, 1999 (provided that EKCO will cause
there to be at least three directors at all times prior to the Effective Time),
(ii) any amendment of this Agreement adverse to EKCO, its stockholders, holders
of options, holders of warrants, directors, officers or employees, any
termination of this Agreement by EKCO, any amendment of the indemnification or
exculpation provisions of the certificate of incorporation or by-laws of EKCO in
effect on August 5, 1999, any extension of time for the performance of
ACQUIROR's or Acquisition Subsidiary's obligations hereunder, any waiver of any
condition for the benefit of EKCO or any of the obligations or other acts of
ACQUIROR or Acquisition Subsidiary, or any waiver or exercise of EKCO's or its
stockholder's rights, remedies or benefits hereunder shall require the approval
(in addition to the approval of the Board of Directors as a whole) of a majority
of the directors, or of the director, of EKCO then in office who was or were
director(s) on August 5, 1999, and (iii) ACQUIROR will cause Acquisition
Subsidiary not to, and Acquisition Subsidiary will not take any action to cause
its designees to constitute a greater number of directors than provided in this
Agreement.
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2. The third sentence of Section 5.5 of the Agreement is hereby amended and
restated as follows:
For purposes of this Section 5.5, Section 5.9, Section 6.1(a), Section
7.1(b) and condition (a) set forth in Annex A, "reasonable best efforts" of
ACQUIROR shall not require ACQUIROR to agree to any prohibition, limitation, or
other requirement which would prohibit or materially limit the ownership or
operation by EKCO or any of the EKCO Subsidiaries, or by ACQUIROR, Acquisition
Subsidiary or any of ACQUIROR's subsidiaries of all or any material portion of
the business or assets of EKCO or any of the EKCO Subsidiaries or ACQUIROR or
any of its material subsidiaries, or compel Acquisition Subsidiary, ACQUIROR or
any of ACQUIROR's subsidiaries to dispose of or hold separate all or any
material portion of the business or assets of EKCO or any of the EKCO
Subsidiaries or ACQUIROR or any of its material subsidiaries.
3. The first sentence of Section 5.8 of the Agreement is amended and
restated as follows:
Until the six year anniversary date of the Effective Time, the ACQUIROR
and Acquisition Subsidiary agree that all rights to indemnification or
exculpation now existing in favor of the present and former officers, directors,
employees and other indemnified parties (the "Indemnified Parties") of EKCO as
provided in EKCO's Certificate of Incorporation or by-laws or otherwise in
effect as of the date hereof shall survive the Merger and shall continue in full
force and effect, and ACQUIROR shall cause the Surviving Corporation to, and the
Surviving Corporation shall, keep in effect all such indemnification and
exculpation provisions to the fullest extent permitted under applicable law,
which provisions shall not be amended, repealed or otherwise modified for such
six-year period after the Effective Time, except as required by applicable law
or except to make changes permitted by applicable law that would enlarge the
exculpation or rights of indemnification thereunder.
4. Section 5.9(d) of the Agreement is amended and restated as follows:
At or prior to consummation of the Debt Offer, ACQUIROR will provide to
EKCO all necessary funds to purchase the Senior Notes pursuant to the Debt
Offer. For the avoidance of doubt, consummation of the Offer shall be a
condition to consummation of the Debt Offer.
5. Section 6.1(a) of the Agreement is hereby amended and restated as
follows:
no Governmental Entity shall have issued an Order or injunction or
shall have enacted or promulgated any statute, rule or regulation which would
prohibit or restrict the consummation of the Merger; provided, however, that if
the foregoing has occurred, each party shall use its reasonable best efforts to
lift, rescind, cause to expire, terminate or ameliorate the effects of any such
Order or injunction or statute, rule or regulation;
6. Section 7.1(c) of the Agreement is hereby amended and restated as
follows:
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(c) by either ACQUIROR or EKCO if the consummation of the
Offer shall not have occurred on or before 120th day following the date hereof;
provided that the right to terminate this Agreement under this Section 7.1(c)
shall not be available to any party whose failure to fulfill any covenant,
agreement or obligation under this Agreement has been the cause of or resulted
in the failure of the consummation of the Offer to occur on or before such date;
and provided, further, that if the Offer or the Merger shall not have been
consummated solely due to the waiting period (or any extension thereof) or
approvals under the HSR Act or any applicable foreign competition laws not
having expired or been terminated or received, then such date shall be extended
to the 180th day following the date hereof;
7. Section 7.2(a) of the Agreement is hereby amended and restated as
follows:
In the event of termination of this Agreement pursuant to this Article
VII, this Agreement, except for the provisions of Section 5.4(b), Section 5.7,
this Section 7.2 and Article VIII, and, provided that the Offer shall have been
consummated prior to termination, Section 5.8 (which shall survive for a period
of six years from the date of termination) and Section 5.11 (which, as to
Sections 5.11(a) and 5.11(b), shall survive for one year after termination and,
as to Sections 5.11(c) and 5.11(d), shall survive termination), shall forthwith
become void and have no further effect, without liability on the part of any
party or its affiliates, directors, officers or stockholders. Nothing in this
Section 7.2 or Section 8.4 shall relieve any party to this Agreement of
liability for breach of this Agreement on or prior to the date of termination.
8. Section 8.4 of the Agreement is amended and restated as follows:
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective Time
or the termination of this Agreement; provided, however, that this Section 8.4
shall in no way limit the obligations of the parties under any covenant or
agreement contained herein or therein that by its terms applies or is to be
performed in whole or in part after the Effective Time, including Article II,
and Sections 5.8, 5.11 and 5.12, which shall survive the Effective Time.
9. Section 8.12 of the Agreement is hereby amended deleting the term "5.9"
and inserting the term "5.8" in place thereof.
10. The last paragraph of the Agreement immediately preceding the
signature blocks thereof is hereby amended by deleting the clause ", and have
caused their respective corporate seals to be hereunto affixed," from such
paragraph.
11. Except as expressly modified hereby, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect.
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IN WITNESS WHEREOF, ACQUIROR, Acquisition Subsidiary and EKCO have duly
executed this Amendment or caused this Amendment to be duly executed by their
respective duly authorized officers as of the day and year first written above.
CCPC ACQUISITION CO
By: /s/Phyllis R. Yeatman
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Title: President
EG TWO ACQUISITION CO.
By: /s/Thomas V. Barr
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Title: Vice President
EKCO GROUP, INC.
By: /s/ Malcolm L. Sherman
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Title: Chairman & Chief Executive Officer
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For: EKCO Group, Inc.
Contact: Don DeNovellis
Chief Financial Officer
(603) 888-1212
Stacey Bibi/Caroline Eustace/
FOR IMMEDIATE RELEASE Morgen-Walke Associates
(212) 850-5600
Michael McMullen/
StaceyRoth
Morgen-Walke Associates
(212) 850-5600
EKCO GROUP, INC. COMMENCES TENDER OFFER FOR $125 MILLION OF
OUTSTANDING NOTES
Nashua, NH, August 12, 1999 --EKCO Group, Inc. (ASE:EKO) announced
today that it has commenced a tender offer and consent solicitation for all of
its outstanding $125 million 9 1/4% Series B Senior Notes due 2006 (the
"Notes").
The tender offer and consent solicitation are suject to terms and
conditions in the Offer to Purchase and Consent Solicitation Statement dated
August 13, 1999. The tender offer will expire at 11:59 p.m., New York City
time, on Monday, September 13, 1999, unless extended. The consent solicitation
will expire at 5:00 p.m., New York City time, on the solicitation expiration
date, which is one business day after the later of Friday, August 27, 1999 and
the first date that EKCO recieves the requisite consents.
The total consideration offered in the tender offer and the consent
solicitation will be equal to an amount based on the yield to the earliest
redemption date using a fixed spread of 50 basis points over the bid side yield
on the 6 3/8% U.S. Treasury Note due March 31, 2001 on the second business day
immediately preceding the scheduled expiration date of the offer.
EKCO is also seeking consents from the registered holders of the Notes
to certain proposed amendments to the Indenture relating to the Notes. Holders
will be required to tender their Notes in order to consent to the proposed
amendments, and Holders will be required to consent to the proposed amendments
in order to tender. If all the conditions are satisfied, Holders who deliver
consents on or prior to the solicitation expiration date, will receive a
consent payment of $30 per $1,000 principal amount of Notes. The total
consideration for timely tender and consent includes the $30 consent payment.
Holders who tender their Notes after the solicitation expiration date will
receive the total consideration minus the consent payment.
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On August 5, 1999, EKCO, EG Two Acquisition Co., a Delaware corporation
(the "Purchaser"), and CCPC Acquistion Corp., entered into an Agreement and
Plan of Merger, dated as of August 5, 1999 in which the Purchaser agreed to
purchase all of EKCO's common stock and all of EKCO's Series B ESOP Convertible
Preferred Stock. Neither the consummation of the tender offer for the Notes nor
the consent solicitation is a condition to any of the transactions contemplated
by the Merger Agreement, including the tender offer for the outstanding common
stock of EKCO. However, the consummation of the equity tender offer
contemplated by the Merger Agreement is a condition to the consummation of the
tender offer for the Notes.
EKCO is a leading U.S. developer, manufacturer and marketer of branded
consumer products that are broadly marketed primarily in the United States
through major mass merchant, supermarket, home, hardware, specialty and
department stores. EKCO's products include household items such as bakeware,
kitchenware, pantryware, brooms, brushes and mops, as well as non-poisonous and
low-toxic household pest control products and small animal care and control
products. EKCO also markets pet products, such as pet food, ropes, chews,
collars and leashes.
Lehman Brothers, Inc. and Salomon Smith Barney are the Dealer Managers
for the tender offer and the Solicitation Agents for the consent solicitation.
They can be reached at (800) 438-3242 and (800) 558-3745, respectively.
Requests for assistance or additional sets of the offer materials may be
directed to MacKenzie Partners, Inc. at (212) 929-5500 or (800) 322-2885.
This anouncement is not an offer to purchase, a solicitation of an
offer to purchase or a solicitation of consents with respect to the Notes. The
tender offer and consent solicitation are being made solely by the Offer to
Purchase and Consent Solicitation Statement dated August 13, 1999.
Except for historical information contained herein, the matters
discussed in the 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 the Company's
indebtedness; restrictive covenants contained in the Company's various debt
documents; general economic conditions and conditions in the retail
environment; the Company's dependence on a few large customers; price
fluctuations in the raw materials used by the Company; competitive conditions
in the Company'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 the
Company's business; the timely implementation by the Company of its year 2000
project, the future cost associated with its year 2000 project and the timely
conversion by key vendors, customers, suppliers and other third parties on
which the Company's business relies; and the impact of federal, state and local
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environmental requirements (including the impact of current or future
environmental claims against the Company). As a result, the Company'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 the Company's filings with the Securities and
Exchange Commission. These forward-looking statements represent the Company's
best estimates as of the date of this press release. The Company 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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