SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
AMENDMENT NO. 1
TO
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934.
MILLER BUILDING SYSTEMS, INC.
(Name of Subject Company (Issuer))
DELAWARE MILLER ACQUISITION CORPORATION
COA HOUSING GROUP, INC.
COACHMEN INDUSTRIES, INC. (OFFERORS)
(Names of Filing Persons
(identifying status as offeror, issuer or other person))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
600404-10-7
(CUSIP Number of Class of Securities)
RICHARD M. LAVERS, ESQ.
EXECUTIVE VICE PRESIDENT/GENERAL COUNSEL
COACHMEN INDUSTRIES, INC.
2831 DEXTER DRIVE
ELKHART, IN 46515
(219) 262-0123
(Name, address, and telephone number of person authorized to receive notices
and communications on behalf of filing person)
WITH A COPY TO:
FREDERICK W. AXLEY, ESQ.
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606
(312) 984-7574
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CALCULATION OF FILING FEE: Previously Paid
--------------------------------------------------------------------------------
/ / CHECK THE BOX IF ANY PART OF THE FEE IS OFFSET AS PROVIDED BY RULE
0-11(A)(2) AND IDENTIFY THE FILING WITH WHICH THE OFFSETTING FEE WAS PREVIOUSLY
PAID. IDENTIFY THE PREVIOUS FILING BY REGISTRATION STATEMENT NUMBER, OR THE FORM
OR SCHEDULE AND THE DATE OF ITS FILING.
Amount Previously Paid: Not applicable.
Form or Registration No.: Not applicable.
Filing Party: Not applicable.
Date Filed: Not applicable.
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
/X/ third-party tender offer subject to Rule 14d-1.
/ / issuer tender offer subject to Rule 13e-4.
/ / going-private transaction subject to Rule 13e-3.
/ / amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: / /
<PAGE>
INTRODUCTION
This Amendment No. 1 amends and supplements the Tender Offer Statement
on Schedule TO (this "Statement") filed with the SEC on September 20, 2000 by
Delaware Miller Acquisition Corporation ("Purchaser"). The Schedule TO relates
to the offer by Purchaser to purchase any and all outstanding shares of common
stock, par value $0.01 per share, of Miller Building Systems, Inc., a Delaware
corporation (the "Company"), at a purchase price of $8.40 per share, plus a
future right to receive $.30 per share, 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 September 20, 2000 (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"), copies of which are
filed as Exhibits (a)(1)(i) and (a)(1)(ii) hereto, respectively, and which are
incorporated herein by reference. All information in the Offer to Purchase,
including all schedules thereto, and in the Letter of Transmittal is
incorporated by reference in answer to all of the items in this Statement.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Schedule TO and the Offer to Purchase. Except as
amended and supplemented hereby, the Schedule TO remains in effect.
ITEMS 1 THROUGH 9 AND 11 THROUGH 13
Items 1 through 9 and Items 11 through 13 of the Schedule TO, which incorporate
by reference the information contain in the Offer to Purchase, are hereby
amended and supplemented as follows:
The Section of the Offer to Purchase entitled "Can the offer be
extended and under what circumstances?" is hereby amended and supplemented to
insert the following after the first sentence of the paragraph following the
third bullet point:
"During a subsequent offering period, tendering stockholders will
not have withdrawal rights, and we will promptly purchase and pay for
any shares tendered at the same price paid in the offer."
The Section of the Offer to Purchase entitled "Until what time can I
withdraw previously tendered shares?" is hereby amended and supplemented to
insert the following after the first sentence:
"If your shares are tendered, but we have not accepted for payment
and paid for your shares, they may also be withdrawn at any time after
60 days from the date hereof."
Section 1 of the Offer to Purchase ("Terms of the Offer") is hereby
amended and supplemented to insert the following after the first paragraph:
"Purchaser has agreed to deposit with Bank One Trust Company,
National Association (the "Escrow Agent"), the sum of thirty cents
($.30) for each Share purchased in the tender offer, and deposit an
additional thirty cents ($.30) per Share for each Share converted in
the Merger, to be held in an escrow account. The escrowed funds will be
<PAGE>
invested in short-term U.S. government interest-bearing securities. The
escrowed funds will be used to pay the Company's obligations, including
legal fees and escrow fees, relating to any claim that Modtech has
against the Company. The Merger Agreement provides that the escrow
agreement between the Company and the Escrow Agent, the terms of which
have not been finalized as of the date hereof, will be mutually
reasonably acceptable to the Company, Parent, Coachmen and the Escrow
Agent. Upon the entrance of a final judgment with regard to any claim,
or the execution of a release or settlement agreement with Modtech, any
amount remaining in escrow, net of all costs, charges and expenses
incurred, will be distributed to the Company's former stockholders on a
pro rata basis, without any action by them. As of October 6, 2000, the
amount of expenses incurred by the Company with respect to the
litigation between the Company and Modtech (See Section 10 of this
Offer to Purchase -- "Background of the Offer; Past Contacts and
Negotiations with the Company"), which amount will be deducted from the
escrowed funds, is estimated to be $18,650. The Company is currently
unable to predict the likelihood that the Company's stockholders will
receive any or all of the escrowed amount. ACCORDINGLY, THE OFFER PRICE
PAID TO THE COMPANY'S STOCKHOLDERS MAY NOT EXCEED $8.40 PER SHARE.
Tendering stockholders are third party beneficiaries of the escrow
agreement. Therefore, tendering stockholders will be able to enforce
their rights under the escrow agreement through a contract action
against the Purchaser brought in a court of competent jurisdiction."
Section 1 of the Offer to Purchase ("Terms of the Offer") is hereby
amended and supplemented to insert the following at the end of the fifth
paragraph:
"During a Subsequent Offering Period, tendering stockholders will not
have withdrawal rights and Purchaser will promptly purchase and pay the
Offer Price for any Shares tendered."
Section 2 of the Offer to Purchase ("Acceptance for Payment and Payment
of Shares") is hereby amended and supplemented by deleting the first sentence of
the sixth paragraph.
Section 4 of the Offer to Purchase ("Withdrawal Rights") is hereby
amended and supplemented to insert the following after the second sentence of
the first paragraph:
"In addition, if Shares are not accepted for payment and paid for by
Purchaser, they may also be withdrawn at any time after 60 days from
the date hereof."
Section 4 of the Offer to Purchase ("Withdrawal Rights") is hereby
amended and supplemented to insert the following after the first sentence of the
fourth paragraph:
"The same consideration, the Offer Price, would be paid to stockholders
tending Shares in the Offer or in any Subsequent Offering Period, if
one is included."
<PAGE>
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the first paragraph in its entirety with the following:
"In July 1998, the Company engaged Morgan Keegan & Company, Inc.
("Morgan Keegan") to explore its strategic alternatives, including the
possibility of a sale of the Company. On September 22, 1998, Morgan
Keegan presented a report to the Company Board on its evaluation of the
strategic alternatives available, identifying the options of either
selling the Company or continuing to grow its operations. As directed
by the Company Board, between September 1998 and April 1999, Morgan
Keegan identified and contacted approximately 57 candidates, including
Coachmen and Modtech, for potential merger with or acquisition of, the
Company. On January 15, 1999, the Company Board heard a full report on
the results of Morgan Keegan's contacts to date, including the values
of and interests in the Company expressed by various companies.
Although Morgan Keegan received a limited number of indications of
interest in purchasing individual divisions of the Company, the Company
was unwilling to consider such transactions given the unfavorable tax
implications for the Company thereof. Furthermore, Morgan Keegan
advised the Company Board that Modtech was the only entity which had
expressed any interest in purchasing the Company as a whole, although
neither Modtech nor any other entity contacted by Morgan Keegan had
made a definitive proposal for the purchase of the Company or any
portion thereof. Based on such report, the Company Board determined
that the Company should commence negotiations with Modtech."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the third sentence of the second paragraph in its entirety with the
following:
"Under the terms of the agreement, the Company's stockholders were to
receive in exchange for their shares of the Company's Common Stock (a)
shares of Modtech's common stock such that the Company's stockholders
would own, on the closing date of the transaction, 16% of the issued
and outstanding common stock of the combined entity, on a fully diluted
basis, but no less than 2,710,000 shares, and (b) one dollar ($1.00) in
cash per Share. However, in November 1999, the parties mutually agreed
to discontinue pursuit of a merger based on market and other
conditions. Following the Company Board's review of Modtech's financial
condition and prospects for obtaining funding the Company Board
believed was paramount to Modtech's continued growth, the Company Board
determined that the terms of the proposed merger, which included the
purchase of a significant portion of Modtech's equity securities, were
not in the best interests of the Company's stockholders."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the seventh paragraph in its entirety with the following:
<PAGE>
"On July 13, 2000, during a meeting of the Company Board the Company
received a written conditional proposal from Acquisitor (the
"Acquisitor Proposal"). Pursuant to the Acquisitor Proposal, Acquisitor
proposed that the Company would make a tender offer for all of its
outstanding Shares other than those owned by Acquisitor at a price of
no less than $9.00 per Share and Acquisitor would purchase from the
Company Shares representing no less than 20% of the currently
outstanding Shares at the same price paid by the Company for Shares in
the tender offer. The Acquisitor Proposal stated that, to the extent
that Shares remained outstanding after such transactions, the Company
would continue to report under the Securities Exchange Act of 1934 and
that the funding for the Company's tender offer would come from cash
paid by Acquisitor for the 20% of the Shares that it purchases from the
Company and through a credit facility that Acquisitor would assist the
Company in arranging. The Company also received a letter from Coachmen
during the meeting, indicating its interest in purchasing all of the
Company's Shares. The letter stated that Coachmen would furnish a per
share price range subject to approval of the Board of Directors of
Coachmen by July 17, 2000."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
to insert the following at the end of the twelfth paragraph:
"These conditions included approval of the Company Board and the Board
of Directors of Coachmen and the negotiation of a mutually acceptable
merger agreement, including non-solicitation and break-up fee
provisions, in addition to due diligence and other conditions customary
to the type of transaction proposed."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
to insert the following after the first sentence of the fourteenth paragraph:
"In terminating the letter agreement with Modtech, the Company informed
Coachmen that it relied upon the termination provision thereof, which
stated that either party may terminate the agreement if the parties
have not entered into a definitive merger agreement by July 10, 2000."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
to insert the following after the fourteenth paragraph:
"The Company terminated its letter agreement with Modtech in accordance
with the letter agreement based on the parties' failure to enter into a
definitive agreement. At the time of termination, Modtech had failed to
obtain a binding commitment for financing the transaction.
Additionally, many material terms and conditions of the merger
agreement remained unresolved including, but not limited to, the
following: Modtech requested that the Company obtain the written advice
of its financial advisors prior to agreeing to any alternative
proposal, even a proposal considered superior to that of Modtech by the
Company Board. The Company Board believed that this condition would not
enable it to fulfill its fiduciary duty to the Company's stockholders;
<PAGE>
The parties disagreed as to the date on which Modtech's representations
and warranties would expire; The parties disagreed on the definition of
the term 'knowledge' as used in the proposed merger agreement; The
parties disagreed on the terms of the Company's representations and
warranties with respect to its employee benefit plans, whether the
Company was entitled to set off fees and expenses owed to the Company
by Modtech against amounts the Company owed to Modtech, the condition
that Modtech obtain financing for the transaction and the terms and
conditions of the termination fee. However, the Company confirmed that
it was continuing to engage in negotiations with Modtech toward seeking
a mutually acceptable definitive agreement of merger as of July 21,
2000. Certain, but not all (including obtaining financing), of these
disagreements were later resolved immediately prior to the Company
Board meeting held on August 22, 2000 to consider the Coachmen offer."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the fifteenth paragraph in its entirety with the following:
"On July 28, 2000, the Company received a written indication of
interest from Coachmen to acquire all of the outstanding shares of the
Company for a cash price of $8.75 to $9.00 per Share, subject to
certain conditions. Such conditions included the completion of due
diligence, the confirmation that no break-up fees were due to any other
company that has attempted to acquire the Company, re-negotiation of
the change-in-control provisions in certain executives' employment
agreements, execution of mutually satisfactory employment and
non-competition agreements between Coachmen and certain key Company
executives and management, execution of a mutually agreeable plan of
merger and final approval by Coachmen's Board of Directors."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the last sentence of the sixteenth paragraph in its entirety with
the following:
"In accordance with its fiduciary obligations, the Company Board then
agreed with the Investment Committee's suggestion that Messrs. Craig
and Noble should meet with Coachmen, which had presented an
unsolicited indication of interest to the Company, given that (i) the
price range per Share indicated by Coachmen was higher than the $8.05
price offered by Modtech and (ii) Acquisitor had not presented a
formal offer to the Company, while the Committee continued to
negotiate with Modtech and to encourage Acquisitor to submit a
definitive offer for the purchase of the Shares."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the twenty-first paragraph in its entirety with the following:
"Based on such presentations, and after conducting an in-depth
discussion with respect to the offers submitted by Modtech, at $8.05
per Share, and Coachmen, at $8.40 per Share and the possibility of an
<PAGE>
additional $0.30 per Share, and the Acquisitor Proposal which had not
become a formal offer, and the advice of legal counsel and Morgan
Keegan regarding each of its options, the Company Board determined at
the August 22, 2000 meeting that the Merger Agreement and the
transactions contemplated thereby, including the Offer and the Merger,
were fair to, and in the best interests of, the Company's stockholders,
approved the Merger Agreement and the transactions contemplated by the
Merger Agreement, including the Offer and the Merger, and unanimously
resolved to recommend that the Company's stockholders accept the Offer
and tender their Shares thereunder and, if required by applicable law,
approve and adopt the Merger Agreement and the Merger."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
by replacing the twenty-fourth paragraph in its entirety with the following:
"Between August 22 and August 31, 2000, the Company and Coachmen
continued to negotiate minor changes of the Merger Agreement. The
Company Board agreed to the non-solicitation and termination provisions
set forth in the Merger Agreement (see Section 11 of this Offer to
Purchase -- "The Merger Agreement; Other Arrangements") based on the
fact that such provisions permitted the Company Board to furnish to
certain third parties who submit unsolicited acquisition proposals
information concerning the Company and to participate in discussions or
negotiations with such third parties. Accordingly, the Company Board
was reassured that it would be permitted to fulfill its fiduciary duty
to the Company's stockholders without breaching the terms of the Merger
Agreement. In addition, the Company Board believed that the Offer and
the Merger were in the best interests of the Company's stockholders and
agreed to the non-solicitation and termination fee provisions of the
Merger Agreement in order to provide assurance to Coachmen that the
Company intended to work together with Coachmen in good faith toward
the consummation of the Merger. Furthermore, at the time of the
execution of the Merger Agreement, Modtech had indicated to the Company
Board on several prior occasions that it had no intention of increasing
its offer price to more than $8.05 per Share and Acquisitor had not
submitted a definitive offer to purchase all of the outstanding Shares.
On August 31, 2000, the Merger Agreement was executed by Coachmen,
Parent, the Purchaser and the Company."
Section 10 of the Offer to Purchase ("Background of the Offer; Past
Contacts or Negotiations with the Company") is hereby amended and supplemented
to insert the following after the twenty-fifth paragraph:
"On September 19, 2000, the Company filed a Motion for Partial Summary
Judgment in its favor in the Indiana Court on the issue of whether the
Company was entitled to terminate the letter agreement with Modtech
without having to pay a $1 million breakup fee.
<PAGE>
On September 26, 2000, the Company filed a Motion to Dismiss or to Stay
in the Delaware Court on the grounds that an earlier filed, related
action is currently pending in the Indiana Court."
Section 11 of the Offer to Purchase ("The Merger Agreement; Other
Arrangements") is hereby amended and supplemented by replacing the first
sentence of the subsection "The Merger Agreement" in its entirety with the
following:
"The following is a summary of the material provisions of the Merger
Agreement, a copy of which is filed as an exhibit to the Tender Offer
Statement on Schedule TO filed by Coachmen, Parent and Purchaser with
the SEC in connection with the Offer (the "Schedule TO")."
Section 15 of the Offer to Purchase ("Conditions of the Offer") is
hereby amended and supplemented by replacing roman numeral (iii) of the first
paragraph in its entirety with the following:
"at any time on or prior to the Expiration Date, any of the following
shall occur and be continuing:"
Section 15 of the Offer to Purchase ("Certain Conditions of the Offer")
is hereby amended and supplemented to insert the words "on or prior to the
expiration date" at the end of the last paragraph.
Section 18 of the Offer to Purchase ("Fees and Expenses") is hereby
amended and supplemented to insert the following sentence after the third
sentence of the paragraph:
"The Information Agent will receive a $5,000 fee plus reimbursable
expenses for its services in connection with the Offer, while the
Depositary will receive a project management fee of $10,000, plus
handling fees of between $9 and $15 per item based on the nature of
the processing required. If the Offer is extended, additional fees
will be negotiated with the Information Agent and will be payable to
the Depositary."
Section 19 of the Offer to Purchase ("Miscellaneous") is hereby amended
and supplemented by replacing the first sentence in its entirety with the
following:
"Purchaser, Parent and Coachmen have filed with the SEC a Tender Offer
Statement on Schedule TO pursuant to Rule 14d-3 of the General Rules
and Regulations under the Exchange Act, together with exhibits
furnishing certain additional information with respect to the Offer,
and may file amendments thereto."
<PAGE>
SIGNATURE
After due 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.
DELAWARE MILLER ACQUISITION CORPORATION
By: /s/ Richard M. Lavers
-------------------------------------------
Richard M. Lavers
Secretary
COA HOUSING GROUP, INC.
By: /s/ Richard M. Lavers
-------------------------------------------
Richard M. Lavers
Secretary
COACHMEN INDUSTRIES, INC.
By: /s/ Richard M. Lavers
------------------------------------------
Richard M. Lavers
Executive Vice President, General Counsel &
Secretary
Dated: October 13, 2000
