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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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NATIONAL EDUCATION CORPORATION
(NAME OF SUBJECT COMPANY)
NICK ACQUISITION CORPORATION
HARCOURT GENERAL, INC.
(BIDDER)
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COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
63577110
(CUSIP NUMBER OF CLASS OF SECURITIES)
ERIC P. GELLER
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
27 BOYLSTON STREET
CHESTNUT HILL, MASSACHUSETTS 02167
TELEPHONE: (617) 232-8200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
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Copy to:
ROBERT L. FRIEDMAN, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
TELEPHONE: (212) 455-2000
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This Amendment No. 5 amends and supplements the Tender Offer Statement on
Schedule 14D-1 filed on April 21, 1997 (as amended and supplemented, the
"Schedule 14D-1") relating to the offer by Nick Acquisition Corporation, a
Delaware corporation (the "Purchaser") and a wholly-owned subsidiary of Harcourt
General, Inc., a Delaware corporation (the "Parent" or "Harcourt"), to purchase
all of the outstanding shares of Common Stock, par value $.01 per share (the
"Shares"), of National Education Corporation, a Delaware corporation (the
"Company"), at an amended purchase price of $21.00 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 April 21, 1997 as amended and
supplemented on May 14, 1997 (the "Offer to Purchase"), and in the related
Letter of Transmittal. Unless otherwise indicated, all capitalized terms used
but not defined herein shall have the meanings assigned to them in the Schedule
14D-1.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
Item 3(b) is amended and supplemented as follows:
Pursuant to an Agreement dated May 30, 1997, by and between Harcourt and
Steck-Vaughn (the "Steck-Vaughn Agreement"), Harcourt has agreed that, until
June 4, 2000, Harcourt shall not consummate any Business Combination (as such
term is defined in Section 203 of the Delaware General Corporation Law) with
Steck-Vaughn unless and until each of the following steps have been complied
with: (i) any proposed Business Combination shall be submitted by Harcourt in
writing to the Board of Directors of Steck-Vaughn; (ii) the Board of Directors
of Steck-Vaughn shall appoint a committee of the Board (the "Committee")
comprised solely of Disinterested Directors; (iii) the Committee may retain such
financial and legal advisors as it deems necessary or desirable, at the sole
cost and expense of Steck-Vaughn; (iv) the Business Combination shall not be
consummated unless and until the Committee has affirmatively recommended its
approval by the Board of Directors, finding that the terms of such Business
Combination are fair to the shareholders of Steck-Vaughn, other than NEC and
Harcourt; and (v) the Business Combination is approved by a majority of
Steck-Vaughn's Board of Directors, including a majority of the Disinterested
Directors.
In order to effectuate the foregoing during such three-year period,
Harcourt will cause Steck-Vaughn's Board to at all times have at least three
Disinterested Directors and, subject to their willingness to serve, will invite
the following outside directors (Messrs. Jaffe, Justiz, Klein and Lind) to serve
initially as Disinterested Directors and, if a Committee is formed, so long as
such individuals remain Disinterested Directors, to constitute a majority of the
members of such Committee.
For purposes of the Steck-Vaughn Agreement, the term "Disinterested
Director" means a member of the Board of Directors of Steck-Vaughn who is not an
officer, director, employee or affiliate of Harcourt, NEC (after the merger of
NEC with the Purchaser) or their respective affiliates, who does not have a
direct or indirect material financial interest in Harcourt, NEC, or its
affiliates, and who would be deemed to be an outside director qualified to serve
on the audit committee of Steck-Vaughn under the rules of the New York Stock
Exchange.
Pursuant to the Steck-Vaughn Agreement, following consummation of the
Offer, if requested by Harcourt, and subject to complying with applicable
requirements of the Commission, Steck-Vaughn and the Board of Directors of
Steck-Vaughn have agreed to promptly take all action necessary, including
increasing the size of the Board of Directors, to cause a number of designees of
Harcourt to be elected to the Steck-Vaughn Board of Directors such that the
Harcourt designees will constitute a majority of the entire Board of Directors
of Steck-Vaughn. In addition, pursuant to the Steck-Vaughn Agreement, following
consummation of the Offer, Steck-Vaughn and the Board of Directors of
Steck-Vaughn have agreed to promptly take all action necessary, including
increasing the size of the Board of Directors, to cause a number of designees of
Harcourt to be elected to the Steck-Vaughn Board of Directors such that the
Harcourt designees will constitute half of the entire Board of Directors of
Steck-Vaughn.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 is amended and supplemented as follows:
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The information provided in this Amendment No. 5 under Items 3 and 6 is
hereby incorporated by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 6 is amended and supplemented as follows:
At 5:00 P.M., New York City time, on Wednesday, June 4, 1997, the Offer
expired. Based on information provided by the Depositary, a total of
approximately 34.6 million Shares (or approximately 96.0% of the Shares
outstanding) (including approximately 475,000 Shares subject to guarantee of
delivery) were validly tendered and not properly withdrawn pursuant to the
Offer. The Purchaser has accepted for payment, and has notified the Depositary
to promptly pay for, the tendered and accepted Shares at the purchase price of
$21.00 per Share in cash.
Pursuant to the Merger Agreement, effective June 5, 1997, the Board of
Directors of the Company was reconstituted and is now comprised of the following
three designees of the Parent: Richard A. Smith, Brian J. Knez and Robert A.
Smith.
Pursuant to the Merger Agreement, the Purchaser intends to merge itself
into the Company in accordance with the Delaware General Corporation Law as
promptly as practicable. As a result of the Merger, the Company will become a
wholly-owned subsidiary of the Parent and each outstanding Share (other than
Shares held in the treasury of the Company, Shares owned by the Parent, the
Purchaser or any other direct or indirect wholly-owned subsidiary of the Parent
or the Company, and Shares owned by stockholders who choose to dissent and
demand appraisal of their Shares) shall be cancelled, extinguished, and
converted into the right to receive $21.00 per Share in cash, without interest,
less any applicable withholding taxes.
The consummation of the Offer was publicly announced in a press release
issued by the Parent on June 5, 1997, a copy of which is filed as Exhibit
11(a)(20) hereto and incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented to add the following:
(a)(20) Press Release issued by the Parent on June 5, 1997.
(a)(21) Agreement dated May 30, 1997 by and between Harcourt General, Inc.
and Steck-Vaughn Publishing Corporation.
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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.
HARCOURT GENERAL, INC.
By: /s/ ERIC P. GELLER
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Name: Eric P. Geller
Title: Senior Vice President, General
Counsel and Secretary
NICK ACQUISITION CORPORATION
By: /s/ ERIC P. GELLER
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Name: Eric P. Geller
Title: Vice President and Secretary
Date: June 5, 1997
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. DESCRIPTION NO.
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<S> <C> <C>
11(a)(20) Press Release issued by the Parent on June 5, 1997........................
11(a)(21) Agreement dated May 30, 1997 by and between Harcourt General, Inc. and
Steck-Vaughn Publishing Corporation.......................................
</TABLE>
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EXHIBIT 11(A)(20)
HARCOURT GENERAL, INC.
27 BOYLSTON STREET,
CHESTNUT HILL, MA 02167
TEL 617 232 8200
Peter Farwell News Release
Vice President George Sard or Anna Cordasco
Corporate Relations Sard Verbinnen & Co.
(617) 232-8200 (212) 687-8080
FOR IMMEDIATE RELEASE
HARCOURT GENERAL COMPLETES NEC TENDER OFFER
CHESTNUT HILL, MA, June 5, 1997 -- Harcourt General, Inc. (NYSE:H)
announced today that it has successfully completed its tender offer for all
shares of National Education Corporation (NYSE:NEC) at $21 per share in cash.
The offer expired at 5 p.m. EDT on Wednesday, June 4, 1997.
Based on information provided by IBJ Schroder Bank & Trust Company, the
depositary for the offer, approximately 34.6 million shares, equal to
approximately 96% of the 36.0 million outstanding shares of NEC, were tendered.
Harcourt General indicated that it would begin payment for the accepted shares
promptly.
In the second step of the acquisition, NEC will be merged with a subsidiary
of Harcourt General and each NEC share not previously purchased in the tender
offer will be converted into the right to receive $21 in cash. The merger is
expected to be completed by June 10th.
Harcourt General also announced that with its acquisition of the NEC
shares, it has acquired control of Steck-Vaughn Publishing Corporation
(NASDAQ:STEK). NEC owns approximately 83% of Steck-Vaughn's common stock.
"With the successful completion of our tender offer for NEC, we can now
devote our energies to integrating these business and building our presence in
the fast-growing educational services market," said Richard A. Smith, chairman
and chief executive officer of Harcourt General. "We look forward to working
together with our new colleagues at NEC to take full advantage of the many
synergies between our two companies."
Harcourt General, Inc. is a growth-oriented company with core businesses in
publishing and specialty retailing. The Company also provides professional
outplacement services to clients worldwide.
National Education Corporation's operations include ICS Learning Systems,
the largest provider of distance education in vocational, academic and
professional studies; National Education Training Group, the leader in
information technology interactive multimedia-based learning products; and 83%
ownership of Steck-Vaughn Publishing Corporation, one of the largest publishers
of supplemental education materials.
# # #
H A R C O U R T
Contact G E N E R A L
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EXHIBIT 11(a)(21)
AGREEMENT
AGREEMENT made this 30th day of May, 1997, by and between STECK-VAUGHN
PUBLISHING CORPORATION ("Steck-Vaughn") and HARCOURT GENERAL, INC. ("Harcourt")
with reference to the following facts:
1. In connection with its merger (the "Merger") with National Education
Corporation ("NEC"), and related tender offer (the "Tender Offer") for shares of
NEC's common stock, Harcourt will become the indirect owner of approximately 83%
of the issued and outstanding common stock of Steck-Vaughn.
2. Harcourt has requested the Board of Directors of Steck-Vaughn to
approve Harcourt's acquisition of such interest in Steck-Vaughn for purposes of
Section 203 of the Delaware General Corporation Law ("Section 203").
3. The Board of Directors of Steck-Vaughn has indicated to Harcourt that
it would not approve such acquisition in the absence of the agreement by
Harcourt not to engage in any Business Combination (as defined in Section 203)
with Steck-Vaughn for a period of three years from the date of the consummation
of the Tender Offer, unless such Business Combination was approved by the vote
of a committee of the Board of Directors comprised exclusively of Disinterested
Directors (as defined) of Steck-Vaughn.
4. In order to induce the Board of Directors of Steck-Vaughn to grant the
aforesaid approval, Harcourt is willing to enter into the agreements contained
herein.
Accordingly, in consideration of the foregoing premises and mutual
agreements contained herein, Harcourt and Steck-Vaughn agree as follows:
1. Approval Of Harcourt's Acquisition Of Interest In Steck-Vaughn. The
Board of Directors of Steck-Vaughn has approved Harcourt's acquisition of an
indirect ownership interest of approximately 83% of Steck-Vaughn's common stock
pursuant to the Tender Offer by reason of the adoption of the resolution annexed
as Exhibit A hereto (the "Resolution"), which Resolution has not been rescinded
or modified.
2. Acquisition Only With Approval Of Disinterested Directors. For a
three-year period ending on the third anniversary date of the consummation of
the Tender Offer, Harcourt shall not consummate any Business Combination with
Steck-Vaughn unless and until each of the following steps have been complied
with:
a. Any proposed Business Combination shall be submitted by Harcourt in
writing to the Board of Directors of Steck-Vaughn;
b. The Board of Directors of Steck-Vaughn shall appoint a committee of
the Board (the "Committee") comprised solely of Disinterested Directors;
c. The Committee may retain such financial and legal advisors as it
deems necessary or desirable, at the sole cost and expense of Steck-Vaughn;
d. The Business Combination shall not be consummated unless and until
the Committee has affirmatively recommended its approval by the Board of
Directors, finding that the terms of such Business Combination are fair to
the shareholders of Steck-Vaughn, other than NEC and Harcourt; and
e. The Business Combination is approved by a majority of the
Steck-Vaughn Board, including a majority of the Disinterested Directors.
In order to effectuate the foregoing during such three year period,
Harcourt will cause Steck-Vaughn's Board to at all times have at least three
Disinterested Directors and, subject to their willingness to serve, will invite
the following outside directors (Messrs. Jaffe, Justiz, Klein and Lind) to serve
initially as Disinterested Directors (which directors shall be compensated
consistent with the compensation of outside directors of comparable public
companies) and, if a Committee is formed, so long as such individuals remain
Disinterested Directors, to constitute a majority of the members of such
Committee.
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Harcourt acknowledges and agrees that the directors of Steck-Vaughn are
acting within the scope of their responsibilities as Directors of Steck-Vaughn
in connection with their actions in connection with this Agreement and adoption
of the Resolution and that the Disinterested Directors of Steck-Vaughn shall be
so acting in connection with any service on the Committee or consideration of
any Business Combination and all such directors shall be entitled to
indemnification and advance of expenses to the maximum extent permitted by
applicable Delaware law and, absent a final non-appealable judicial
determination that indemnification is not proper, such Directors shall be
conclusively deemed to have met the applicable standard for such
indemnification. If for any reason whatsoever indemnification by Steck-Vaughn is
held not to be appropriate, Harcourt shall indemnify and hold harmless each of
the Steck-Vaughn directors from and against all cost, loss, liability or expense
(including attorneys' fees) arising out of or relating to their actions as
directors in connection with this Agreement, adoption of the Resolution or the
matters contemplated hereby if such director acted in good faith and in a manner
the director reasonably believed to be in or not opposed to the best interests
of Steck-Vaughn and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such director's conduct was unlawful.
For purposes of this Agreement, the term "Disinterested Director" shall
mean a member of the Board of Directors of Steck-Vaughn who is not an officer,
director, employee or affiliate of Harcourt, NEC (after the Merger) or their
respective affiliates, who does not have a direct or indirect material financial
interest in Harcourt, NEC, or its affiliates, and who would be deemed to be an
outside director qualified to serve on the audit committee of the corporation
under the rules of the New York Stock Exchange.
3. Third Party Beneficiaries. This Agreement is for the express benefit
of the shareholders of Steck-Vaughn, other than NEC, and for the express benefit
of the Disinterested Directors of Steck-Vaughn, whether or not currently in
office or elected or appointed to office during such three-year period and may
be enforced by any of them.
4. Miscellaneous. The Delaware Chancery Court shall have exclusive
jurisdiction to determine the validity, rights and obligations of the parties
hereto and the beneficiaries hereof. In connection with any such proceeding, the
prevailing party will be entitled to recover attorneys' fees and costs. In
connection with any action to enforce this Agreement by a Disinterested
Director, Steck-Vaughn shall pay all costs incurred by such director, including
attorneys' fees, for prosecuting or defending any such action. Such costs and
fees shall not be recoverable by Steck-Vaughn absent a non-appealable judicial
determination that such director did not act in good faith and in a manner he or
she deemed to be in the best interests of the corporation. In addition, in
connection with any litigation or proceeding, the Disinterested Director shall
be entitled to be paid for their time as a witness or for depositions or trial
preparation on a reasonable per diem basis.
5. Harcourt Directors. Following consummation of the Tender Offer, if
requested by Harcourt, and subject to complying with applicable requirements of
the Securities and Exchange Commission, Steck-Vaughn and the Board of Directors
of Steck-Vaughn shall promptly take all action necessary, including increasing
the size of the Board of Directors, to cause a number of designees of Harcourt
to be elected to the Steck-Vaughn Board of Directors such that the Harcourt
designees will constitute a majority of the entire Board of Directors of
Steck-Vaughn. In addition to the foregoing, following consummation of the Tender
Offer, Steck-Vaughn and the Board of Directors of Steck-Vaughn shall promptly
take all action necessary, including increasing the size of the Board of
Directors, to cause a number of designees of Harcourt to be elected to the
Steck-Vaughn Board of Directors such that the Harcourt designees will constitute
half of the entire Board of Directors of Steck-Vaughn.
6. No Inconsistent Actions. Harcourt agrees not to vote for any amendment
to the certificate of incorporation or bylaws of Harcourt or Steck-Vaughn which
is inconsistent with the terms of this agreement.
7. Specific Performance and Injunctive Relief. The parties hereto
acknowledge that irreparable harm would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms and that the parties shall be entitled to an injunction to
prevent breaches and to enforce specifically the terms and provisions hereof.
Nothing in this paragraph shall exclude or limit any other remedies that the
parties may be entitled to pursue at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
HARCOURT GENERAL, INC.
By: /s/ ERIC P. GELLER
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Its: Senior Vice President,
General Counsel and Secretary
STECK-VAUGHN PUBLISHING
CORPORATION
By: /s/ PHILIP C. MAYNARD
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Its: Vice President and Secretary
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