SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 3)
PSC Inc.
(Name of Subject Company)
Mohawk Acquisition Corp.
Mohawk Corp.
(Names of Filing Persons (identifying status as offeror, issuer or other
person))
Common Stock, Par Value $0.01 Per Share
(Including the Associated Preferred Share Purchase Rights)
Series A Convertible Preferred Stock, Par Value $0.01 Per Share
Warrants to Purchase Common Stock
(Title of Class of Securities)
69361E107 (Common Stock)
(CUSIP Number of Class of Securities)
Joseph M. Hennigan
Mohawk Acquisition Corp.
Mohawk Corp.
4341 State Street, P.O. Box 220
Skaneateles Falls, New York 13153-0220
(315) 685-2949
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
Copy to:
Spencer D. Klein, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
CALCULATION OF FILING FEE
===================================== =========================================
Transaction Valuation* Amount of Filing Fee**
------------------------------------- -----------------------------------------
$118,338,092.50 $23,667.82
===================================== =========================================
* Estimated for purposes of calculating the amount of the filing fee
only. Calculated by adding (i) the product of $8.45, the per common
share tender offer price, multiplied by 16,222,970, the sum of the
12,034,866 currently outstanding shares of Common Stock sought in the
Offer the 3,033,104 shares of Common Stock currently issuable pursuant
to stock options and 1,155,000 shares of Common Stock currently
issuable exercise of outstanding warrants and (b) the product of
$105.625, the per preferred share tender offer price, multiplied by
110,000, the total number of outstanding shares of Preferred Stock, and
subtracting $30,363,754.00, (which equals 4,188,104 multiplied by
$7.25, the average exercise price of the outstanding options and
warrants).
** Calculated as 1/50 of 1% of the transaction value.
|X| 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: $23,667.82 Filing Party: Mohawk Corp.
Mohawk Acquisition Corp.
Form or Registration No.: Schedule TO Date Filed: June 19, 2000
Check the box if the filing relates solely to preliminary communications made
before the commencement of a tender offer.
Check the appropriate boxes 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>
This Amendment No. 3 (this "Amendment") amends and supplements
the Tender Offer Statement on Schedule TO, as previously amended and
supplemented, originally filed with the Securities and Exchange Commission on
June 19, 2000 (as previously amended and supplemented, the "Schedule TO"), by
Mohawk Corp., a Delaware corporation ("Parent"), and Mohawk Acquisition Corp., a
New York corporation ("Purchaser") and a wholly owned subsidiary of Parent. The
Schedule TO relates to the offer by Purchaser to purchase (i) all outstanding
shares of common stock, par value $0.01 per share ("Common Stock") of PSC Inc.,
a New York corporation ("PSC"), including the associated preferred share
purchase rights issued pursuant to the Rights Agreement, dated as of December
30, 1997, as amended, between PSC and ChaseMellon Shareholder Services, L.L.C.,
as rights agent, at a purchase price of $8.45 per share of Common Stock, (ii)
all outstanding shares of Series A Convertible Preferred Stock, par value $0.01
per share (the "Preferred Stock"), of PSC at a purchase price of $105.625 per
share and (iii) the warrant, exercisable prior to July 12, 2006, representing
rights to purchase an aggregate of 180,000 shares of Common Stock, at a purchase
price of $0.45 for each underlying share of Common Stock represented by the
warrant, and the warrants exercisable prior to July 12, 2006, representing
rights to purchase an aggregate of 975,000 shares of Common Stock, at a purchase
price of $3.20 for each underlying share of Common Stock represented by each
warrant (collectively, "Warrants"), in each case net to the seller in cash, upon
the terms and subject to the conditions set forth in the Offer to Purchase dated
June 19, 2000 (the "Offer to Purchase") and in the related Letters of
Transmittal for Common Stock, Preferred Stock and Warrants, as applicable,
copies of which are filed as Exhibits (a)(1) and (a)(2) through (a)(4),
respectively, to the Schedule TO (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"). Capitalized terms
used and not defined herein shall have the meanings ascribed to such terms in
the Offer to Purchase or in the Schedule TO.
Item 4. Terms of the Transaction
Item 4 of the Schedule TO is hereby amended and supplemented to include the
following information:
On July 24, 2000, Parent, Purchaser and PSC entered into a Termination
Agreement (the "Termination Agreement") pursuant to which Parent, Purchaser and
PSC agreed to terminate the Agreement and Plan of Merger, dated June 5, 2000, as
amended, and to terminate the Offer. The Termination Agreement and the press
release issued by Parent, Purchaser and PSC are incorporated herein by reference
and have been filed as Exhibits (d)(3) and (a)(15), respectively, to the
Schedule TO.
Item 12. Material to Be Filed as Exhibits.
(a)(15) Press Release issued by Parent and Purchaser on July 25, 2000.
(d)(3) Termination Agreement, dated July 24, 2000, among Parent,
Purchaser and PSC.
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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.
Dated: July 25, 2000
MOHAWK ACQUISITION CORP.
By: /s/ Joseph M. Hennigan
-----------------------------------
Name: Joseph M. Hennigan
Title: Vice President & Treasurer
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.
Dated: July 25, 2000
MOHAWK CORP.
By: /s/ Joseph M. Hennigan
-----------------------------------
Name: Joseph M. Hennigan
Title: Vice President & Treasurer
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EXHIBIT INDEX
Exhibit No.
-----------
*(a)(1) Offer to Purchase dated June 19, 2000.
*(a)(2) Form of Letter of Transmittal for Common Stock.
*(a)(3) Form of Letter of Transmittal for Series A Convertible Common
Stock.
*(a)(4) Form of Letter of Transmittal for Warrants to Purchase Common
Stock.
*(a)(5) Form of Notice of Guaranteed Delivery for Common Stock.
*(a)(6) Form of Notice of Guaranteed Delivery for Series A Convertible
Preferred Stock.
*(a)(7) Form of Notice of Guaranteed Delivery for Warrants to
Purchase Common Stock.
*(a)(8) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
*(a)(9) Form of Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees to Clients.
*(a)(10) Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
*(a)(11) Summary Advertisement as published in The Wall Street Journal
on June 19, 2000.
*(a)(12) Press Release issued by PSC on June 6, 2000.
*(a)(13) Press Release issued by Parent and Purchaser on June 19, 2000.
*(a)(14) Press Release issued by Parent on June 21, 2000.
(a)(15) Press Release issued by Parent on July 25, 2000.
*(b)(1) Commitment Letter, dated as of June 9, 2000 of The Chase
Manhattan Bank and Chase Securities Inc.
*(d)(1) Agreement and Plan of Merger, dated as of June 5, 2000, among
Parent, Purchaser and PSC.
*(d)(2) Stockholders Agreement, dated as of June 5, 2000 among Parent,
Purchaser and certain shareholders of PSC.
(d)(3) Termination Agreement, dated July 24, 2000, among Parent,
Purchaser and PSC.
(g) None.
(h) None.
------------
* Previously filed.
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Exhibit (a)(15)
MOHAWK CORP. AND PSC INC. AGREE TO TERMINATE MERGER AGREEMENT AND TENDER OFFER
Rochester, New York and Skaneateles Falls, New York, July 25,
2000--Mohawk Corp., an affiliate of Welch Allyn Data Collection, Inc., Mohawk
Acquisition Corp., a wholly owned subsidiary of Mohawk Corp., and PSC Inc.
(Nasdaq: "PSCX"), announced today that they have mutually agreed to terminate
the Agreement and Plan of Merger, dated June 5, 2000, as amended, and to
terminate the pending announced tender offer for all of the outstanding shares
of common stock, Series A Preferred Stock and warrants of PSC Inc.
The parties are terminating the transaction due to a number of
unforeseen circumstances in the financing markets which make it impracticable to
obtain financing.
All shares of common stock, Series A Preferred Stock and warrants of
PSC tendered and not withdrawn in the tender offer will be returned promptly by
Mohawk Acquisition Corp. Questions regarding the tender offer may be directed to
Innisfree M&A Incorporated, which is acting as Information Agent with respect to
the tender offer, at (212) 750-5833 or (888) 750-5834.
<PAGE>
Exhibit (d)(3)
TERMINATION AGREEMENT
TERMINATION AGREEMENT, dated as of July 24, 2000 (this
"Agreement"), among MOHAWK CORP., a Delaware corporation ("Parent"), MOHAWK
ACQUISITION CORP., a New York corporation and a wholly owned subsidiary of
Parent ("Purchaser"), and PSC Inc., a New York corporation ("PSC").
WHEREAS, Parent, Purchaser and PSC are parties to an Agreement
and Plan of Merger, dated as of June 5, 2000, as amended on July 17, 2000 (the
"Merger Agreement"; capitalized terms used but not otherwise defined herein have
the meanings assigned to such terms in the Merger Agreement);
WHEREAS, Section 9.01(a) of the Merger Agreement provides that
the Merger Agreement may be terminated at any time prior to the Effective Time
by mutual written consent duly authorized by the Boards of Directors of Parent,
Purchaser and PSC; and
WHEREAS, the Board of Directors of each of Parent, Purchaser
and PSC has determined that it is in the best interests of their respective
companies and stockholders to terminate the Merger Agreement, and has authorized
the termination of the Merger Agreement pursuant to Section 9.01(a) thereof,
upon the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements set forth in this Agreement, the parties
hereto agree as follows:
SECTION 1. Termination. Effective immediately upon execution
of this Agreement, the Merger Agreement is hereby terminated pursuant to Section
9.01(a) of the Merger Agreement by the mutual written consent of the parties
thereto.
SECTION 2. Effect of Termination; Mutual Discharge and Waiver.
(a) Except as expressly provided in this Agreement and notwithstanding Section
9.02 of the Merger Agreement, as a result of the termination of the Merger
Agreement pursuant hereto, the Merger Agreement shall become void, and there
shall be no liability under the Merger Agreement on the part of any party hereto
or any of their respective affiliates, subsidiaries, directors, officers,
stockholders, employees, agents, financial and legal advisors and other
representatives, and all rights and obligations of each party thereto shall
cease, including, without limitation, the rights and obligations set forth in
Section 9.03 of the Merger Agreement and any liability for the willful or
intentional breach of any representations, warranties, covenants or agreements
contained therein.
(b) All costs and expenses incurred in connection with this
Agreement, the Merger Agreement or the transactions contemplated hereby and
thereby shall be paid by the party incurring such expenses.
(c) Each party hereto, on behalf of itself and, to the extent
permitted by law, its affiliates, subsidiaries, directors, officers,
stockholders, employees, agents, financial and legal advisors and other
representatives, and the successors and assigns of each of them (each, a
"Releasing Party"), hereby releases each other party hereto and each of their
respective affiliates, subsidiaries, directors, officers, stockholders,
employees, agents, financial and legal advisors and other representatives, and
the successors and assigns of each of them, from any and all liabilities and
obligations, claims, causes of action and suits, at law or in equity, whether
now known or unknown, whether arising under any United States federal, state or
local or any foreign law or otherwise, that any Releasing Party has, has had or
may have in the future arising out of, relating to, or in connection with the
Merger Agreement, the Stockholders Agreement and the transactions contemplated
thereby, including, without limitation, any liability or obligation set forth in
Section 9.03 of the Merger Agreement and any liability or obligation arising out
of any breach or alleged breach of any representation, warranty, covenant or
agreement contained in the Merger Agreement, provided that nothing in this
Section 2 shall impair the survival and full force of the terms of the
Confidentiality Agreements (as defined in Section 5 below).
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SECTION 3. Termination of the Offer. Effective immediately
upon the execution of this Agreement and the issuance of the press release
attached hereto at Addendum A, the Offer is hereby terminated by Parent and
Purchaser.
SECTION 4. Acknowledgement of Termination of Stockholders
Agreement. Parent, Purchaser and PSC each acknowledge that, by virtue of the
termination of the Merger Agreement pursuant to Section 1 hereof and the
termination of the Offer pursuant to Section 3 hereof, the Stockholders
Agreement is simultaneously terminated in accordance with its terms and no
obligations, rights, responsibilities or other encumbrances or restrictions of
any kind shall result or arise therefrom.
SECTION 5. Survival of Confidentiality Agreements.
Notwithstanding anything contained in this Agreement or in the Merger Agreement
to the contrary, the provisions of the Confidentiality Agreement dated as of
December 16, 1999, between Welch Allyn Data Collection, Inc. ("WADC") and PSC,
the Confidentiality and Non-Waiver Agreement, dated as of January 19, 2000,
between WADC and PSC and the Confidentiality and Non-Waiver Agreement, dated as
of April 6, 2000, between WADC and PSC (collectively, the "Confidentiality
Agreements") shall survive and remain in full force and effect in accordance
with their terms. By July 28, 2000, pursuant to the Confidentiality Agreements,
WADC, Parent, Purchaser and the Company agree to return to the other party all
Proprietary Information and Investigative Analysis Information (both as defined
in the Confidentiality Agreements) held by it or any of its affiliates,
directors, officers, employees, agents, financing sources, financial advisors,
legal advisors, accountants or controlling persons (the "Representatives"), and
to destroy all other documents, memoranda, notes, summaries, analyses, extracts,
compilations, studies or other material prepared by or in the possession of the
other party or their Representatives, based on the Proprietary Information. By
July 28, 2000, WADC, Parent, Purchaser and the Company agree to provide a
written certification, executed by an officer of the party certifying that the
party and their Representatives have returned or destroyed all Proprietary
Information and Investigative Analysis Information in their possession.
SECTION 6. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any New York state court sitting in the Fifth Judicial
District or Seventh Judicial District of the New York Supreme Court or any
federal court sitting in the Northern District of the State of New York or the
Western District of the State of New York. The parties hereto hereby (a) submit
to the exclusive jurisdiction of any New York state court sitting in the Fifth
Judicial District or Seventh Judicial District of the New York Supreme Court or
any federal court sitting in the Northern District of the State of New York or
the Western District of the State of New York for the purpose of any Action
arising out of or relating to this Agreement brought by any party hereto, and
(b) irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement may not be enforced in or by any of the above-named courts.
SECTION 7. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable law any right it may
have to a trial by jury with respect to any litigation directly or indirectly
arising out of, under or in connection with this Agreement or the Merger
Agreement.
SECTION 8. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 9. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 10. Miscellaneous. This Agreement may be modified or
amended only by a writing signed by the parties hereto. This Agreement may be
executed and delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
MOHAWK CORP.
By: /s/ Joseph M. Hennigan
-----------------------------------
Name: Joseph M. Hennigan
Title: VP & CFO
MOHAWK ACQUISITION CORP.
By: /s/ J.M. Hennigan
-----------------------------------
Name: J.M. Hennigan
Title: VP & CFO
PSC INC.
By: /s/ William J. Woodard
-----------------------------------
Name: William J. Woodard
Title: VP & CFO
The undersigned executes this Agreement so as to be bound by
all applicable provisions, in particular the provisions of Section 5 hereto, and
agrees to abide by the terms of this Agreement as if a party to the foregoing
agreement.
WELCH ALLYN DATA COLLECTION, INC.
By: /s/ J.M. Hennigan
-----------------------------------
Name: J.M. Hennigan
Title: VP & CFO
