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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)
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MOORCO INTERNATIONAL INC.
(NAME OF SUBJECT COMPANY)
MII ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
FMC CORPORATION
(BIDDER)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
61559L100
(CUSIP NUMBER OF CLASS OF SECURITIES)
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ROBERT L. DAY, ESQ.
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
TELEPHONE: (312) 861-6000
(NAMES AND ADDRESSES AND TELEPHONE NUMBERS OF PERSONS AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPY TO:
GLEN E. HESS, P.C.
KIRKLAND & ELLIS
CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022-4675
TELEPHONE: (212) 446-4800
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MII Acquisition Corp., a Delaware corporation ("Purchaser") and FMC
Corporation, a Delaware corporation ("FMC"), hereby amend and supplement their
Tender Offer Statement on Schedule 14D-1, filed with the Securities and
Exchange Commission on May 5, 1995, with respect to Purchaser's offer to
purchase all of the outstanding shares of Common Stock, par value $0.01 per
share (the "Shares"), of Moorco International Inc., a Delaware corporation (the
"Company"), not presently owned by Parent, including the associated Preferred
Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement,
dated as of November 8, 1994, between the Company and The Bank of New York, a
New York banking corporation, as Rights Agent, at a purchase price of $20.00
per Share and associated Right, net to the seller in cash.
ITEM 10. ADDITIONAL INFORMATION.
The information set forth in paragraph (a) of Item 10 of the Schedule 14D-1
is hereby amended and supplemented by adding thereto the following:
On May 23, 1995, the Company and FMC entered into a Confidentiality
Agreement (the "Confidentiality Agreement"), a copy of which is filed as
Exhibit 11(c)(1) attached hereto.
The information set forth in paragraph (e) of Item 10 of the Schedule 14D-1
is hereby amended and supplemented by adding thereto the following:
On May 22, 1995, the 214th District Court of Nueces County, Texas denied
the Company's motion for reconsideration of the order reported in Amendment
No. 3 to the Schedule 14D-1 staying the lawsuit that the Company had
commenced against FMC (See Exhibit No. 11(g)(2) filed with Amendment No. 2
to the Schedule 14D-1).
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by adding thereto the following exhibit:
11(c)(1) Confidentiality Agreement dated May 23, 1995, by and between the
Company and FMC.
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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.
FMC Corporation
/s/ Robert L. Day, Esq.
By: _________________________________
Robert L. Day, Esq.
Secretary
MII Acquisition Corp.
/s/ Charlotte Mitchell Smith,
Esq.
By: _________________________________
Charlotte Mitchell Smith, Esq.
Secretary
Dated: May 24, 1995
IV-2
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EXHIBIT INDEX
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11(c)(1) Confidentiality Agreement dated May 23, 1995, by and
among the Company and FMC.
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EXHIBIT 11(c)(1)
MOORCO INTERNATIONAL INC.
2800 Post Oak Boulevard, Suite 5701
Houston, Texas 77056-6111
May 23, 1995
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Ladies and Gentlemen:
You have commenced an unsolicited tender offer for all of the
outstanding Common Stock of Moorco International Inc. (the "Company") on the
terms and subject to the conditions contained in the Offer to Purchase dated May
5, 1995 and the related Letter of Transmittal (collectively the "FMC Offer").
In connection with the FMC Offer, you have requested confidential information
from the Company. As a condition to furnishing such information to you, the
Company requires that you agree, as set forth below, to treat confidentially any
information (whether prepared by the Company, its advisors or otherwise, and
whether oral or written) that the Company or its agents or advisors, furnish to
you or your representatives (which term shall include your directors, officers,
employees, agents, advisors and potential financing sources)(such information
being collectively referred to herein as the "Evaluation Material") and to take
or abstain from taking certain other actions set forth herein. The term
"Evaluation Material" does not include information that (i) is already in your
possession, provided that such information is not known by you to be subject to
another confidentiality agreement with or other obligation of secrecy to the
Company or another party or (ii) becomes generally available to the public other
than as a result of a disclosure by you or your representatives or(iii) becomes
available to you on a non-confidential basis from a source other than the
Company or its advisors, provided that such source is not known by you to be
bound by a confidentiality agreement with or other obligation of secrecy to the
Company or another party.
You hereby agree that the Evaluation Material will be used by you or
your representatives solely for the purpose of
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evaluating and/or implementing a possible transaction between the Company or its
stockholders and you, will not be used in any way directly or indirectly
detrimental to the Company, and will be kept confidential by you and your
representatives; provided, however, that any of such information may be
disclosed to your representatives who need to know such information for the
purpose of evaluating any such possible transaction between the Company or its
stockholders and you and who agree to keep such information confidential and to
be bound by this agreement to the same extent as if they were parties hereto.
You will be responsible for any breach of this agreement by your representatives
and the Company shall be entitled to directly enforce such agreements.
You hereby acknowledge that you are aware, and that you will advise
your representatives who are informed as to the matters which are the subject of
this letter, that the United States securities laws prohibit any person who has
received from an issuer material, non-public information concerning the matters
which are the subject of this letter from purchasing or selling securities of
such issuer or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities.
Notwithstanding the foregoing, disclosure of information contained in
the Evaluation Material may be made in a filing with the Securities and Exchange
Commission if and to the extent that in the opinion of Kirkland & Ellis you are
required to make such disclosure pursuant to the federal securities laws.
In the event that you or your representatives receive a request to
disclose all or any part of the information contained in the Evaluation Material
under the terms of a valid and effective subpoena or order issued by a court of
competent jurisdiction or by a governmental body, you agree to (i) immediately
notify the Company of the existence, terms and circumstances surrounding such a
request, so that it may seek an appropriate protective order and/or waive your
compliance with the provisions of this letter agreement (and, if the Company
seeks such an order, to provide such cooperation at the Company's request as the
Company shall reasonably request) and (ii) if disclosure of such information is
required in the opinion of your counsel, who shall be reasonably satisfactory to
the Company, exercise your best efforts at the Company's request to obtain an
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order or other reliable assurance that confidential treatment will be accorded
to such of the disclosed information which the Company so designates.
You also hereby agree that, for the period ending two (2) years from
the date of this letter, you will not, without the Company's written consent,
directly or indirectly, solicit for employment any person who is currently
employed in a management position with the Company; provided that you may engage
in negotiations with or extend an offer of employment to any individual that
makes an unsolicited inquiry regarding employment or that responds to a
newspaper or other general solicitation regarding your available employment
opportunities.
In addition, without the prior written consent of the other party
hereto, neither the Company nor you will, nor will either party permit their
respective representatives to, disclose to any person either the fact that
discussions or negotiations are taking place concerning a possible transaction
between the Company or its stockholders and you or any of the terms, conditions
or other facts with respect to any such possible transaction, including the
status thereof, provided, however, disclosure of such information may be made in
a filing with the Securities and Exchange Commission if and to the extent that
in the opinion of Kirkland & Ellis or Wachtell, Lipton, Rosen & Katz, as
applicable, such disclosure is required pursuant to the federal securities laws.
Although the Company has endeavored to include in the Evaluation
Material information which it believes to be relevant for the purpose of your
investigation, you understand that neither the Company nor any of its
representatives or advisors have made or make any representation or warranty as
to the accuracy or completeness of the Evaluation Material. You agree that
neither the Company nor its representatives or advisors shall have any liability
to you or any of your representatives resulting from the use or content of the
Evaluation Material or from any action taken or any inaction occurring in
reliance on the Evaluation Material.
At the request of the Company or in the event that you do not proceed
with a transaction which is the subject of this letter, you and your
representatives shall promptly redeliver to the Company all written Evaluation
Material and, subject to the following sentence, any other written material
containing or
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reflecting any information in the Evaluation Material (whether prepared by the
Company, its advisors, agents or otherwise) and will not retain any copies,
extracts or other reproductions in whole or in part of such written material.
All documents, memoranda, notes and other writings whatsoever prepared by you or
your representatives based on the information in the Evaluation Material shall
be destroyed, and such destruction shall be certified in writing to the Company
by an authorized officer supervising such destruction.
It is further understood and agreed that no failure or delay by the
Company in exercising any right, power or privilege under this letter shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
You agree that unless and until a definitive agreement between the
Company and you with respect to any transaction referred to in the first
paragraph of this letter has been executed and delivered, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a transaction by virtue of this or any written or oral expression with
respect to such a transaction by any of its directors, officers, employees,
agents or any other representatives or its advisors except for the matters
specifically agreed to in this letter. You further acknowledge and agree that
(i) the Company shall have no obligation to authorize or pursue with you or any
other party any transaction referred to in the first paragraph of this letter,
(ii) you understand that the Company has not, as of the date hereof, authorized
any such transaction and (iii) the Company reserves the right, in its sole and
absolute discretion, to reject all proposals and to terminate discussions and
negotiations with you at any time. The agreements set forth in this letter
agreement may be modified or waived only by a separate writing between the
Company and you expressly so modifying or waiving such agreements.
The parties hereto acknowledge that money damages are an inadequate
remedy for breach of this letter agreement because of the difficulty of
ascertaining the amount of damage that will be suffered by the Company in the
event that this agreement is breached. Therefore, you agree that the Company
may obtain specific performance of this agreement and injunctive or other
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equitable relief as a remedy for any action or inaction found to be a breach of
this agreement, and you further waive any requirement for the securing or
posting of any bond in connection with any such remedy. Such remedy shall not
be deemed to be the exclusive remedy for your breach of this letter agreement,
but shall be in addition to all other remedies available at law or equity to the
Company. If any term, provision, covenant or restriction of this letter
agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
This letter agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof. Venue for any action to
enforce the provisions of this letter agreement shall be properly laid in any
state or federal court In the State of Delaware.
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If you are in agreement with the foregoing, please so indicate by
signing and returning one copy of this letter agreement, which will constitute
our agreement with respect to the matters set forth herein.
Very truly yours,
MOORCO INTERNATIONAL INC.
By: /s/ Michael Tiner
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Confirmed and Agreed to:
FMC CORPORATION
By: \s\ Randall Ellis
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