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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
AMENDMENT NO. 1
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
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* Included with Schedule 14D-9 mailed to stockholders
@ Previously filed.
+ Incorporated by reference.
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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 13, 1999 EKCO GROUP, INC.
By: /s/ DONATO A. DENOVELLIS
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Donato A. DeNovellis
Title: Executive Vice President and Chief
Financial Officer
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EXHIBIT 31
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED SHARE PURCHASE RIGHTS)
AND
ALL OF THE OUTSTANDING SHARES OF
SERIES B ESOP CONVERTIBLE PREFERRED STOCK
OF
EKCO GROUP, INC.
AT
$7.00 NET PER SHARE
BY
EG TWO ACQUISITION CO.,
A SUBSIDIARY OF
CCPC ACQUISITION CORP.
AND AN AFFILIATE OF BORDEN, INC.
August 13, 1999
To Participants In The Ekco Group, Inc. Employees' Stock Ownership Plan (the
"ESOP"or "Plan"):
Enclosed for your consideration is the Offer to Purchase, dated August 11,
1999 (the "Offer to Purchase"), which together with any amendments or
supplements thereto constitutes the "Offer," relating to an offer by EG Two
Acquisition Co., a Delaware corporation (the "Purchaser"), a subsidiary of CCPC
Acquisition Corp., a Delaware Corporation ("Parent"), and an affiliate of
Borden, Inc., a New Jersey Corporation ("Borden") to purchase all outstanding
shares of Common Stock, $.01 par value per share (the "Common Stock"), and the
associated preferred share purchase rights (the "Rights") issued pursuant to the
Rights Agreement, dated as of March 27, 1987, as amended on June 9, 1988,
January 10, 1989, March 23, 1992 and December 22, 1992 and as amended and
restated on March 21, 1997 and amended on August 4, 1999 (as so amended, the
"Rights Agreement") between the Company and American Stock Transfer & Trust
Company as Rights Agent, and all of the outstanding shares of Series B ESOP
Convertible Preferred Stock, par value $.01 per share (the "ESOP Preferred
Stock", and together with the Common Stock, the "Shares"), of Ekco Group, Inc.,
a Delaware Corporation (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, upon the terms and subject to the conditions set forth in the
Offer. The Offer is being made in connection with the Agreement and Plan of
Merger, dated as of August 5, 1999, among Parent, the Purchaser and the Company
(the "Merger Agreement"). Also enclosed for your consideration are the Company's
letter to the shareholders and Solicitation Recommendation Statement pursuant to
Schedule 14D-9. Unless the context requires otherwise, all references to
"Shares" shall be deemed to refer also to the associated Rights, and all
references to "Rights" shall be deemed to include all benefits that may inure to
the stockholders of the Company or to the holders of the Rights pursuant to the
Rights Agreement.
PLEASE NOTE THAT THE SHARES IN THE ESOP ACCOUNT ARE HELD IN TRUST FOR YOUR
BENEFIT AND THE ESOP TRUSTEE, DONATO A. DENOVELLIS (THE "TRUSTEE"), IS THE
ACTUAL HOLDER OF RECORD FOR THE ESOP SHARES. A TENDER OF SUCH SHARES CAN BE MADE
ONLY BY THE TRUSTEE AS HOLDER OF RECORD IN ACCORDANCE WITH THE TERMS OF THE
PLAN, TO THE EXTENT CONSISTENT WITH APPLICABLE LAW, INCLUDING THE EMPLOYEE
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RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"). THE TRUSTEE WILL
TENDER SOME OR ALL OF THE ESOP SHARES ACCORDING TO EACH PARTICIPANT'S ELECTION.
THE TRUSTEE SHALL TENDER THE SHARES HELD IN THE ESOP SUSPENSE ACCOUNT WHICH HAVE
NOT BEEN ALLOCATED TO PARTICIPANTS) IN THE SAME PROPORTION AS THE SHARES
TENDERED BY ESOP PARTICIPANTS. THE PROCEEDS FROM ANY SALE OF SHARES FROM YOUR
ESOP ACCOUNT WILL NOT BE DISTRIBUTED TO YOU. INSTEAD, ANY PROCEEDS FROM THE SALE
OF SHARES SHALL BE HELD IN YOUR ESOP ACCOUNT AND INVESTED IN A GOVERNMENT MONEY
MARKET FUND. ALTERNATIVE INVESTMENTS SIMILAR TO OR THE SAME AS THOSE OFFERED
UNDER THE EKCO GROUP, INC. 401(K) RETIREMENT SAVINGS PLAN SHALL BE AVAILABLE AS
SOON AS POSSIBLE AND YOU WILL BE PROVIDED WITH INFORMATION WHEN THEY ARE
AVAILABLE.
PLEASE ALSO NOTE THAT YOUR DECISION TO TENDER SHALL NOT ALTER OR MODIFY THE
PROVISIONS OF THE PLAN IN ANY WAY. THUS, FOR EXAMPLE, YOUR ESOP ACCOUNT WILL
CONTINUE TO VEST IN ACCORDANCE WITH THE TERMS OF THE PLAN AND NO ACCELERATION OF
VESTING SHALL OCCUR AS A RESULT OF YOUR TENDER.
The Trustee requests instructions as to whether or not you wish to have the
Trustee tender any or all of the Shares held in your ESOP account, upon the
terms and conditions set forth in the Offer. As required by the Plan, individual
participant information SHALL BE KEPT CONFIDENTIAL AND SHALL NOT BE DISCLOSED TO
THE TRUSTEE. Thus, your tender instructions for the Trustee must be sent to IBJ
Whitehall Bank & Trust Company, the depositary for the Offer (the "Depositary"),
which shall tabulate the responses received from ESOP participants and provide
the results (but not individual participant information) to the Trustee.
Please note the following:
1. The tender price is $7.00 per Share, net to the seller in cash,
without interest thereon.
2. The Offer is being made for all of the outstanding Shares.
3. The Offer and withdrawal rights will expire at 12:00 Midnight, New
York City time, on Wednesday, September 8, 1999, unless the Offer is
extended by the Purchaser, at its discretion, for example, to meet
certain conditions, including the HSR condition and the Minimum
Condition referred to in the Offer to Purchase. The Offer may be
extended in other circumstances as described in the Offer to
Purchase. PLEASE NOTE: IN ORDER THAT YOUR WISHES WITH RESPECT TO THE
OFFER ARE GIVEN FULL CONSIDERATION BY THE TRUSTEE, YOUR INSTRUCTION
FORM MUST BE RECEIVED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON
MONDAY, SEPTEMBER 6, 1999.
4. The Board of Directors of the Company has unanimously determined that
the Offer and Merger (as defined in the Offer to Purchase) are fair
to, and in the best interests of the Company and its shareholders,
and recommends that shareholders accept the Offer and tender their
Shares pursuant to the Offer.
5. The United States Department of Labor has taken the position that
applicable law imposes on the Trustee the responsibility to decide on
whether to tender Shares (i) for which the Trustee receives no
affirmative direction from a participant, or (ii) as to which the
Trustee concludes that complying with a participant's instructions
will be a breach of the Trustee's fiduciary duties arising under
applicable law, including ERISA. Accordingly, the Trustee reserves
the right to tender or not tender the Shares to the extent required
by applicable law irrespective of participant instructions.
If you wish to have the Trustee TENDER any or all of the Shares held in your
account under the ESOP, please check the applicable box on the enclosed
Instruction Form, sign the Instruction Form, fill in the requested information,
and send the completed Instruction Form to the Depositary, which shall tabulate
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the results and forward them to the Trustee. If you authorize the tender of your
Shares, it will be assumed that you wish all such Shares to be tendered unless
otherwise indicated on the Instruction Form. If you wish that the Trustee NOT
TENDER the Shares held in your account under the ESOP, please check the
applicable box on the enclosed Instruction Form, sign the Instruction Form, fill
in the requested information, and send the completed Instruction Form to the
Depositary, which shall tabulate the results and forward them to the Trustee.
The Trustee will follow your instructions unless otherwise required by
applicable law.
Certain terms of the Company's Certificate of Designation for the ESOP
Preferred Stock (the "Certificate Designation") may require the Purchaser to
acquire all of the outstanding shares of ESOP Preferred Stock to effect he
Merger without a stockholder vote. If it should be determined that the
Certificate of Designation does require the Purchaser to acquire all of the
outstanding shares of ESOP Preferred Stock to the effect the Merger without a
stockholder vote, and if less than all of the ESOP Preferred Stock is tendered,
then the Purchaser would be required to solicit the vote of the Company's
stockholders, including holders of the ESOP Preferred Stock voting together as a
single class, in order to effect the Merger. Because the Offer may only be
consummated if the Purchaser acquires more than 50% of the Company's outstanding
capital stock, upon consummation of the Offer the Purchaser will control the
requisite voting power to effect the Merger. In addition, pursuant to the
Certificate of Designation, the Company retains the right to redeem the ESOP
Preferred Stock at a per share price equal to 105% of the ESOP Preferred Stock's
fair market value (as defined in the Certificate of Designation).
The Trustee does not make any recommendations to any participant as to
whether to tender or not tender Shares. Before making a decision, you should
read carefully the materials enclosed.
An envelope in which to return your instructions is enclosed. Your
Instruction Form may be returned by mail or by hand or overnight courier to IBJ
WHITEHALL BANK & TRUST COMPANY, the Depositary for the Offer, at the following
addresses:
Donato A. DeNovellis
c/o IBJ Whitehall Bank & Trust Company
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BY MAIL: BY HAND OR OVERNIGHT COURIER:
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Post Office Box 84 1 State Street
Bowling Green Station New York, New York 10004
New York, New York 10274-0084 Attention: Reorganization Department
Attention: Reorganization Department Securities Processing Window SC-1
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PLEASE FORWARD THE ENCLOSED INSTRUCTION FORM TO THE DEPOSITARY SO THAT IT IS
RECEIVED PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON MONDAY, SEPTMBER 6, 1999, TO
ALLOW THE TRUSTEE AMPLE TIME TO CONSIDER YOUR INSTRUCTIONS PRIOR TO THE
EXPIRATION OF THE OFFER. IF THE TRUSTEE RECEIVES INSTRUCTIONS AFTER SUCH DATE
AND TIME, THE TRUSTEE WILL UNDERTAKE TO CONSIDER SAME TO THE EXTENT POSSIBLE,
BUT NO GUARANTEES CAN BE OFFERED TO PARTICIPANTS THAT LATE INSTRUCTIONS WILL BE
FULLY CONSIDERED. THE INSTRUCTION FORM MUST BE SIGNED. INSTRUCTIONS ON AN
UNSIGNED FORM SHALL NOT BE ACCEPTED. YOU ONLY NEED TO COMPLETE THE INSTRUCTION
FORM AND DO NOT NEED TO COMPLETE ANY OTHER FORMS INCLUDED IN THE PACKAGE.
If you have any questions regarding this letter or the attached Instruction
Form, please call: Maureen Silva at (603) 888-1212, ext. 612.
Very truly yours,
/s/ DONATO A. DeNOVELLIS,
TRUSTEE, EKCO GROUP, INC.
EMPLOYEES' STOCK OWNERSHIP PLAN
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EXHIBIT 32
INSTRUCTION FORM
(TO BE SIGNED AND RETURNED BY PARTICIPANTS)
I am a participant in the Ekco Group, Inc. Employees' Stock Ownership Plan
(the "Plan") and as such I received a copy of the letter from the Plan Trustee
(the "Trustee") regarding the Trustee's request for instructions regarding ESOP
stock, the Offer to Purchase dated August 11, 1999 (the "Offer to Purchase")
which together with any amendments or supplements thereto constitute the
"Offer," in connection with the offer by EG Two Acquisition Co., a Delaware
corporation, a subsidiary of CCPC Acquisition Corp., a Delaware Corporation, and
an affiliate of Borden, Inc., a New Jersey corporation, to purchase all
outstanding shares of Common Stock, $.01 par value per share (the "Common
Stock") and the associated preferred share purchase rights (the "Rights") and
all of the outstanding shares of Series B ESOP Convertible Preferred Stock, par
value $.01 per share (the "ESOP Preferred Stock", and together with the Common
Stock, the "Shares"), including the associated preferred stock purchase rights,
of EKCO Group, Inc., a Delaware corporation (the "Company"), at a purchase price
of $7.00 per Share (the "Offer Price"), net to the seller in cash, without
interest, upon the terms and subject to the conditions set forth in the Offer to
Purchase. I also received the Company's letter to the shareholders and schedule
14D-9 and the Information Statement relating to the Offer.
PLEASE CHECK ONE OF THE FOLLOWING BOXES:
/ / TENDER OF SHARES: CHECK HERE TO INSTRUCT THE TRUSTEE TO TENDER THE
SHARES HELD BY THE TRUSTEE FOR YOUR ACCOUNT IN THE PLAN, UPON THE TERMS
AND SUBJECT TO THE CONDITIONS SET FORTH IN THE OFFER. UNLESS OTHERWISE
INDICATED, IT WILL BE ASSUMED THAT ALL SHARES HELD BY THE TRUSTEE FOR
YOUR ACCOUNT ARE TO BE TENDERED. IF YOU WANT TO INSTRUCT THE TRUSTEE TO
TENDER LESS THAN ALL OF THE SHARES HELD BY THE TRUSTEE FOR YOUR ACCOUNT,
PLEASE SPECIFY THE NUMBER OF SHARES TO BE TENDERED IN THE FOLLOWING
SPACE: _________________________
/ / NO TENDER OF SHARES. CHECK HERE TO INSTRUCT THE TRUSTEE TO NOT TENDER
ANY OF THE SHARES HELD BY THE TRUSTEE FOR YOUR ACCOUNT.
SIGN HERE: _________________________________
Date: __________________________1999
Signature __________________________________________________________________
Print Name _________________________________________________________________
Print Address, City, State, Zip Code _______________________________________
________________________________________
Area Code and Telephone Number _____________________________________________
________________________________________
Social Security Number
IN ORDER THAT YOUR WISHES WITH RESPECT TO THE OFFER ARE GIVEN FULL
CONSIDERATION BY THE TRUSTEE, IT IS IMPERATIVE THAT THIS INSTRUCTION FORM BE
RECEIVED ON OR BEFORE 5:00 P.M., NEW YORK CITY TIME, ON MONDAY, SEPTEMBER 6,
1999.
* PRIOR TO A DISTRIBUTION DATE (AS DEFINED IN THE OFFER TO PURCHASE), A VALID
TENDER OF SHARES TO WHICH RIGHTS ARE ATTACHED WILL CONSTITUTE A TENDER OF
THE ASSOCIATED RIGHTS.
