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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
AMENDMENT NO. 1
TO
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
GRIST MILL CO.
(Name of Issuer)
INTERNATIONAL HOME FOODS, INC.
IHF/GM HOLDING CORPORATION
IHF/GM ACQUISITION CORPORATION
(Bidders)
COMMON STOCK, $0.10 PAR VALUE (AND ASSOCIATED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
398629204
(CUSIP Number of Class of Securities)
M. KELLEY MAGGS
INTERNATIONAL HOME FOODS, INC.
1633 LITTLETON ROAD
PARSIPPANY, NEW JERSEY 07054
(973) 359-9920
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of the Bidders)
Copy to:
A. WINSTON OXLEY
VINSON & ELKINS, L.L.P.
3700 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-7891
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EXPLANATORY NOTE
On March 17, 1998, IHF/GM Acquisition Corporation ("Purchaser"), IHF/GM
Holding Corporation ("Parent") and International Home Foods, Inc. ("IHF")
initially filed their Tender Offer Statement on Schedule 14D-1 (the "Schedule
14D-1"). As initially filed, the Schedule 14D-1 also constituted a Statement on
Schedule 13D (the "Schedule 13D") of each of (i) Purchaser, (ii) Parent, (iii)
IHF, and (iv) Hicks, Muse, Tate & Furst Equity Fund III, L.P. ("Fund"), (v)
HM3/GP Partners, L.P. ("HM3"), (vi) Hicks, Muse GP Partners III, L.P. ("HM GP"),
(vii) Hicks, Muse Fund III, Incorporated ("Fund, Inc.") and (viii) Thomas O.
Hicks. In connection with the joint filing of the Schedule 14D-1 and Schedule
13D each of the Fund, HM3, HM GP, Fund, Inc. and Mr. Hicks disclaimed that it is
a "bidder" within the meaning of Schedule 14D-1.
In response to the Commission's comments, in addition to the joint Schedule
14D-1 and Schedule 13D previously filed as described above, Purchaser, Parent,
IHF, the Fund, HM3, HM GP, Fund, Inc. and Mr. Hicks have filed a joint Schedule
13-D (which is separate from the previously filed Schedule 14D-1) prior to the
filing of this Amendment.
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TENDER OFFER
IHF/GM Acquisition Corporation, a Delaware corporation ("Purchaser"), a
direct wholly owned subsidiary of IHF/GM Holding Corporation, a Delaware
corporation ("Parent"), and an indirect wholly owned subsidiary of International
Home Foods, Inc., a Delaware corporation ("IHF"), Parent and IHF hereby amend
and supplement the Tender Offer Statement on Schedule 14D-1 dated March 17, 1998
(as amended or supplemented from time to time, the "Schedule 14D-1"), which has
been previously filed with the Securities and Exchange Commission, relating to
the offer by Purchaser to purchase all outstanding shares of common stock
("Common Stock"), par value $0.10 per share, of Grist Mill Co., a Delaware
corporation (the "Company"), including the associated stock purchase rights (the
"Rights," and together with the shares of Common Stock, the "Shares"), at a
price of $14.50 per Share, net to the seller in cash, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated March 17, 1998, and
the related Letter of Transmittal (as each of such may be amended or
supplemented from time to time). All capitalized terms shall have the meanings
assigned to them in the Schedule 14D-1, as amended to date, unless otherwise
indicated herein.
ITEM 1. SECURITY AND SUBJECT COMPANY.
Item 1(b) is amended to also incorporate by reference the information set
forth under "Certain Conditions of the Offer", "Bylaw Amendment" and "HSR Act"
of the Supplement dated April 2, 1998, to the Offer to Purchase (the
"Supplement"), a copy of which is attached as Exhibit (a)(9).
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is amended and restated as follows:
"(a)-(d) and (g) This Statement is being filed by Purchaser, Parent
and IHF. The information set forth on the cover page of, in the
"Introduction" to, in Section 9, "Certain Information Concerning Purchaser,
Parent and IHF," of the Offer to Purchase, and in Schedule I, "General
Partners, Directors and Executive Officers of Purchaser, Parent, IHF, the
Fund, HM3, HM GP and Fund Inc." to the Offer to Purchase is incorporated
herein by reference. The name, residence or business address, citizenship,
present principal occupation or employment and material occupations during
the last 5 years of each executive officer and director of Purchaser,
Parent and IHF, the Fund, HM3, HM GP and Fund Inc. is set forth in Schedule
I of the Offer to Purchase.
(e) and (f) During the last five years, none of Purchaser, Parent,
IHF, the Fund, HM3, HM GP, Fund Inc. and Thomas D. Hicks or, to their
knowledge, any of the persons listed on Schedule I to the Supplement, has
been (i) convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or (ii) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of
which any such person was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting activities subject to,
or finding any violation of, federal or state securities laws.
Items 2(a)-(d) and (g) are amended to also incorporate by reference
the information set forth under "State of Incorporation" of the
Supplement."
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
Item 3 is amended to also incorporate by reference the information set
forth under Section 8 "Certain Information Concerning the Company" of the Offer
to Purchase and Section 9 "Certain Information Concerning Purchaser, Parent and
IHF" of the Offer to Purchaser. Item 3(b) is amended to also incorporate by
reference the information set forth under "Projections", "HSR Act" and "State of
Incorporation" of the Supplement.
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ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF BIDDERS.
Items 5(a)-(e) are amended to also incorporate by reference the information
set forth under "HSR Act" of the Supplement.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 6 is amended to also incorporate by reference the information set
forth under "HSR Act" of the Supplement.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
Item 7 is amended to also incorporate by reference the information set
forth under "HSR Act" and "State of Incorporation" of the Supplement.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Item 9 is amended to also incorporate by reference the information under
"State of Incorporation" of the Supplement.
ITEM 10. ADDITIONAL INFORMATION.
Items 10(b), (c) and (d) are amended to also incorporate by reference the
information set forth under "Settlement of Litigation" of the Supplement. Items
10(d) and (e) are amended to also incorporate by reference the information set
forth under "Certain Legal Matters" of the Supplement.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is amended to add the following exhibits:
(a)(9) Supplement Dated April 2, 1998, to Offer to Purchase dated
March 17, 1998.
(a)(10) Text of Press Release, dated April 2, 1998.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: April 1, 1998 IHF/GM ACQUISITION CORPORATION
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
IHF/GM HOLDING CORPORATION
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
INTERNATIONAL HOME FOODS, INC.
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
HICKS, MUSE, TATE & FURST EQUITY
FUND III, L.P.
By: HM3/GP Partners, L.P.
By: Hicks, Muse GP Partners III,
L.P.
By: Hicks, Muse Fund III,
Incorporated
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
By: HM3/GP PARTNERS L.P.
By: Hicks, Muse GP Partners III,
L.P.
By: Hicks, Muse Fund III,
Incorporated
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
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HICKS, MUSE GP PARTNERS III, L.P.
By:Hicks, Muse Fund III,
Incorporated
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
HICKS, MUSE FUND III, INCORPORATED
By: /s/ ANDREW S. ROSEN
----------------------------------
Name: Andrew S. Rosen
Title: Vice President
THOMAS O. HICKS
By: /s/ THOMAS O. HICKS
----------------------------------
Name: David W. Knickel
Title: Attorney-in-Fact
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*(a)(1) -- Offer to Purchase, dated March 17, 1998.
*(a)(2) -- Letter of Transmittal
*(a)(3) -- Notice of Guaranteed Delivery.
*(a)(4) -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
*(a)(5) -- Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
*(a)(6) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
*(a)(7) -- Form of Summary Advertisement, dated March 17, 1998.
*(a)(8) -- Text of Press Release, dated March 11, 1998.
+(a)(9) -- Supplement dated April 2, 1998, to Offer to Purchase
dated March 17, 1998.
+(a)(10) -- Text of Press Release, dated April 2, 1998.
*(b)(1) -- Credit Agreement, dated as of November 1, 1996, as
amended and restated as of November 21, 1997, among IHF,
the several banks and other financial institutions or
entities from time to time parties thereto, Morgan
Stanley Senior Funding, Inc., as documentation agent,
Bankers Trust Company, as syndication agent, and The
Chase Manhattan Bank, as administrative agent, for the
lenders thereunder.
*(b)(2) -- Waiver No. 1, dated February 18, 1998, with respect to
the Credit Agreement.
*(c)(1) -- Agreement and Plan of Merger, dated March 10, 1998, among
Purchaser, Parent, IHF and the Company.
*(c)(2) -- Stockholder Agreement, dated March 10, 1998, among
Purchaser, Parent, the Company and the Selling
Stockholder.
*(c)(3) -- Form of Option Surrender Agreement, Release and Waiver
dated March 10, 1998, among the Company and holders of
options to acquire shares of the Company's Common Stock.
*(c)(4) -- Employment and Noncompetition Agreement, dated March 10,
1998, between IHF and the Selling Stockholder.
*(c)(5) -- Confidentiality Agreement, dated as of February 2, 1998,
between IHF and the Company.
*(c)(6) -- Confidentiality Agreement, dated as of February 9, 1998,
between IHF and the Company.
*(c)(7) -- Standstill Agreement, dated as of March 10, 1998, between
IHF and the Company.
(d) -- None.
(e) -- Not applicable.
(f) -- None.
*(g) -- Power of Attorney for Thomas O. Hicks.
*(h) -- Joint Filing Agreement, dated March 16, 1998, among
Purchaser, Parent, IHF, the Fund, HM3, HM GP, the Fund,
Inc., and Thomas O. Hicks.
</TABLE>
- ---------------
* previously filed
+ filed herewith
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EXHIBIT (a)(9)
SUPPLEMENT TO OFFER TO PURCHASE
DATED MARCH 17, 1998
FOR CASH ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED STOCK PURCHASE RIGHTS)
OF
GRIST MILL CO.
AT
$14.50 NET PER SHARE
BY
IHF/GM ACQUISITION CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
INTERNATIONAL HOME FOODS, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, APRIL 13, 1998, UNLESS
THE OFFER IS EXTENDED.
The Dealer Manager for the Offer is:
CHASE SECURITIES INC.
April 2, 1998
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The information set forth herein supplements the Offer to Purchase (the
"Offer to Purchase") dated March 17, 1998 prepared and distributed in connection
with the offer by IHF/GM Acquisition Corporation, a Delaware corporation
("Purchaser"), a direct wholly owned subsidiary of IHF/GM Holding Corporation, a
Delaware corporation ("Parent"), and an indirect wholly owned subsidiary of
International Home Foods, Inc., a Delaware corporation ("IHF"), to purchase all
outstanding shares of common stock ("Common Stock"), par value $0.10 per share,
of Grist Mill Co., a Delaware corporation (the "Company"), including the
associated stock purchase rights (the "Rights," and together with the shares of
Common Stock, the "Shares"), at a price of $14.50 per Share, net to the seller
in cash, upon the terms and subject to the conditions set forth in the Offer to
Purchase and the related Letter of Transmittal (as each of such may be amended
or supplemented from time to time). All capitalized terms shall have the
meanings assigned to them in the Offer to Purchase, as amended to date, unless
otherwise indicated herein.
PROJECTIONS
The discussion contained under the heading, "Projections" of Section 8
"Certain Information Concerning the Company" of the Offer to Purchase is
restated as follows:
"To the knowledge of Purchaser, Parent and IHF, the Company does not
as a matter of course make public forecasts as to its future economic
performance. However, in connection with IHF's due diligence investigation
of the Company, the Company provided IHF with estimates of net sales and
net earnings for the fiscal year ending on May 31, 1998 of $106.2 million
and $5.4 million, respectively. Such estimates are hereinafter collectively
referred to as the "Projections."
THE PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR
COMPLIANCE WITH THE PUBLISHED GUIDELINES OF THE COMMISSION REGARDING
PROJECTIONS, NOR WERE THEY PREPARED IN ACCORDANCE WITH THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS FOR
PREPARATION AND PRESENTATION OF FINANCIAL PROJECTIONS. THE PROJECTIONS DO
NOT PURPORT TO PRESENT OPERATIONS IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES AND HAVE NOT BEEN AUDITED, COMPILED OR OTHERWISE
EXAMINED BY INDEPENDENT ACCOUNTANTS. THE PROJECTIONS WERE INCLUDED HEREIN
ONLY BECAUSE SUCH INFORMATION WAS PROVIDED TO PURCHASER, PARENT AND IHF IN
CONNECTION WITH THEIR DUE DILIGENCE INVESTIGATION OF THE COMPANY. THESE
FORWARD LOOKING STATEMENTS ARE SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES
THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE PROJECTIONS.
THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS, ALL MADE BY MANAGEMENT OF THE
COMPANY, WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC,
MARKET AND FINANCIAL CONDITIONS AND OTHER MATTERS, ALL OF WHICH ARE
DIFFICULT TO PREDICT, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND
NONE OF WHICH WERE SUBJECT TO APPROVAL BY PURCHASER, PARENT OR IHF.
ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT THE ASSUMPTIONS MADE IN
PREPARING THE PROJECTIONS WILL PROVE TO BE ACCURATE, AND ACTUAL RESULTS MAY
BE MATERIALLY GREATER OR LESS THAN THOSE CONTAINED IN THE PROJECTIONS.
IN LIGHT OF THE UNCERTAINTIES DESCRIBED ABOVE AND THE UNCERTAINTIES
INHERENT IN PROJECTIONS OF ANY KIND, THE INCLUSION OF THE PROJECTIONS
HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT ANY OF PURCHASER,
PARENT, IHF, THE COMPANY OR THEIR RESPECTIVE FINANCIAL ADVISORS CONSIDERED
OR CONSIDER THE PROJECTIONS TO BE A RELIABLE PREDICTION OF FUTURE EVENTS,
AND THE PROJECTIONS SHOULD NOT BE RELIED UPON AS SUCH. NONE OF PURCHASER,
PARENT, IHF OR THEIR FINANCIAL ADVISOR ASSUMES ANY RESPONSIBILITY FOR THE
VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE PROJECTIONS. NONE
OF PURCHASER, PARENT, IHF, OR THEIR FINANCIAL ADVISOR HAS MADE, OR MAKES,
ANY REPRESENTATION TO ANY PERSON REGARDING THE INFORMATION CONTAINED IN THE
PROJECTIONS AND NONE OF THEM INTENDS TO UPDATE OR OTHERWISE REVISE THE
PROJECTIONS TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR
TO REFLECT THE OCCURRENCE OF FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR
ALL OF THE ASSUMPTIONS UNDERLYING THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
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Purchaser, Parent and IHF have been informed by the Company that
certain of the key factors and assumptions considered by the Company's
management in preparing the Projections were as follows:
(i) Actual results for the six month period ending November 28,
1997. During this period the Company generated $2.7 million in net
earnings on sales of $54.7 million.
(ii) Then anticipated growth in the Company's core grocery business
which was then estimated to lead to sales growth for fiscal year 1998 of
approximately 8% for the Company's core grocery business. This projected
growth over the prior year was attributable primarily to the Company's
wholesale snack bar business which was then estimated to have a
projected growth from fiscal year 1997 of approximately 23% for fiscal
year 1998.
(iii) Then anticipated decline in the Company's contract sales of
$9.5 million or 44% from the prior year offsetting core grocery growth.
The Company's largest contract customer had reduced the amount of
product ordered from the Company compared to fiscal year 1997.
(iv) Slightly higher operating margins were then projected over the
six month period ending May 31, 1998 reflecting the product mix being
more heavily weighted to the Company's higher margin core products."
CERTAIN CONDITIONS OF THE OFFER
The discussion contained under Section 14 "Certain Conditions of the Offer"
of the Offer to Purchase is restated as follows:
"Notwithstanding any other provision of the Offer, Purchaser shall not
be required to accept for payment any Shares tendered, may postpone the
acceptance for payment and, to the extent permitted by the Merger
Agreement, may amend or terminate the Offer if, (i) as of the Expiration
Date, the Minimum Condition has not been satisfied, (ii) as of the
Expiration Date, any applicable waiting periods under the HSR Act shall not
have expired or been terminated, (iii) as of the Expiration Date, the
financing necessary for the consummation of the Offer shall not have been
received by Parent or (iv) at any time on or after the date of the Merger
Agreement and prior to the Expiration Date (except in the case of clause
(a) below which shall be determined as of the Expiration Date) any of the
following events shall have occurred and as of such date be continuing:
(a) there shall be pending any Injunction (as defined in the Merger
Agreement), proceeding, action, suit or litigation by any Governmental
Entity (as defined in the Merger Agreement) that seeks to (i) challenge
the acquisition by Parent, Purchaser or any of their respective
affiliates or subsidiaries of Shares pursuant to the Offer or restrain,
prohibit or delay the making or consummation of the Offer or the Merger,
(ii) make the purchase of or payment for some or all of the Shares
pursuant to the Offer or the Merger illegal, (iii) impose material
limitations on the ability of Parent, Purchaser, the Company or any of
their respective affiliates or subsidiaries effectively to acquire or
hold, or to require Parent, Purchaser, the Company or any of their
respective affiliates or subsidiaries to dispose of or hold separate,
any material portion of their assets or business, (iv) impose material
limitations on the ability of Parent, Purchaser, the Company or any of
their respective affiliates or subsidiaries to continue to conduct, own
or operate, as heretofore conducted, owned or operated, all or any
material portion of their business or assets, (v) impose or result in
material limitations on the ability of Parent, Purchaser or any of their
respective affiliates or subsidiaries to exercise full rights of
ownership of the Shares purchased by them, including, without
limitation, the right to vote the Shares purchased by them on all
matters properly presented to the stockholders of the Company, or (vi)
prohibit or restrict in a material manner the financing of any of the
transactions contemplated by the Transaction Documents (as defined in
the Merger Agreement).
(b) there shall have been promulgated, enacted, entered, enforced
or deemed applicable to the Offer or the Merger, any Law (defined as any
judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Company or any of its subsidiaries or any of their
respective properties
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or assets), or there shall have been issued any decree, order or
injunction, that results in any of the consequences referred to in
subsection (a) above;
(c) other than any event relating to (i) the economy or securities
markets in general or (ii) the industries or markets in which the
Company operates and not relating specifically to the Company, there
shall have occurred any event or events (whether or not covered by
insurance) that, individually or in the aggregate, have had, or would be
reasonably expected to have, a Material Adverse Effect (as defined in
the Merger Agreement) on the Company;
(d) there shall have occurred and be continuing (i) any general
suspension of trading in, or general limitation on prices for,
securities on any national securities exchange or in the over-the-
counter market in the United States for a period in excess of
forty-eight hours, (ii) the declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States, (iii)
the commencement of a war, armed hostilities or other international or
national calamity, involving the United States having a significant
adverse effect on the functioning of the financial markets in the United
States, (iv) any material limitations (whether or not mandatory) imposed
by any governmental authority on the nature or extension of credit or
further extension of credit by banks or other lending institutions, or
(v) in the case of clauses (iii) and (iv) above, if existing at the time
of the commencement of the Offer, a material acceleration or worsening
thereof;
(e) any of the representations and warranties of the Company
contained in the Merger Agreement (without giving effect to any
"Materials Adverse Effect," "materiality" or similar qualifications
contained therein) shall not be true and correct in all respects as of
the date of the Merger Agreement and (except to the extent that such
representations and warranties speak as of an earlier date) as of the
Expiration Date as though made on and as of such date except for
breaches that would not, individually or in the aggregate with any other
breaches on the part of the Company (i) have a Material Adverse Effect
on the Company or (ii) materially adversely affect the ability of the
parties to the Merger Agreement to consummate the transactions
contemplated thereby;
(f) the Company shall not have performed in all material respects
(without giving effect to any "Material Adverse Effect," "materiality"
or similar qualifications contained therein) all obligations required to
be performed by it under the Merger Agreement at or prior to the
acceptance of Shares for payment pursuant to the Offer.
(g) the Merger Agreement shall have been terminated in accordance
with its terms;
(h) (i) the Board of Directors of the Company shall have failed to
make or shall have withdrawn or modified or changed (including by
amendment of the Schedule 14D-9) in a manner adverse to Purchaser its
recommendation of the Offer, the Merger Agreement or the Merger, or
approved or recommended any Acquisition Proposal or any other
acquisition of the Shares other than the Offer and the Merger, or (ii)
any person or other entity or group shall have entered into a definitive
agreement or an agreement in principle with the Company with respect to
any Acquisition Proposal;
(i) the Company shall have failed to amend the Company's by-laws as
provided under Section 1.4(a) of the Merger Agreement;
(j) each of the representations and warranties contained in the
Stockholder Agreement of the Selling Stockholder shall not be true and
correct in all respects as of the date of the acceptance of Shares for
payment pursuant to the Offer as though made on and as of such date;
(k) the Company or the Selling Stockholder shall have not performed
in all material respects or shall have otherwise materially breached or
threatened to materially breach any obligations required to be performed
by the Company or such Stockholder under the Stockholder Agreement at or
prior to the acceptance of Shares for payment pursuant to the Offer;
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(l) (i) any person has become an Acquiring Person (as defined in
the Rights Agreement), (ii) a Stock Acquisition Date (as defined in the
Rights Agreement) has occurred, or (iii) a Flip-In Event (as defined in
the Rights Agreement) has occurred; or
(m) the beneficial and record holders of Options relating to not
less than 90% of the shares of Company Common Stock that may be issued
upon the exercise of all Options (whether or not vested) shall have not
executed and delivered to the Company an Option Release Agreement.
The foregoing conditions are for the sole benefit of Purchaser and its
affiliates and may be asserted by Purchaser regardless of the circumstances
(including, without limitation, any action or inaction by Purchaser or any of
its affiliates, but except for a breach by Purchaser or any of its affiliates of
the Merger Agreement) giving rise to any such condition or may be waived by
Purchaser, in whole or in part, from time to time in its sole discretion, except
as otherwise provided in the Merger Agreement. The failure by Purchaser at any
time to exercise any of the foregoing rights shall not be deemed a waiver of any
such right and each such right shall be deemed an ongoing right and may be
asserted at any time and from time to time."
BYLAW AMENDMENT
During the course of the telephonic meeting of the Company's Board of
Directors held on March 10, 1998, the Board unanimously adopted an amendment to
the Company's bylaws, which amendment was required to be effected pursuant to
the terms of the Merger Agreement. The amendment modified Section 7 of Article
II of the Company's bylaws to conform to Section 228 of the DGCL. Prior to said
amendment, the section purported to require unanimous consent in order for
stockholders to act by written consent in lieu of a meeting. As amended, the
section now permits action to be taken by written consent of stockholders in
lieu of a meeting if a consent or consents to such action are signed by the
holders of outstanding shares of Common Stock having not less than the minimum
number of votes that would be necessary to authorize such actions at a meeting
at which all shares entitled to vote thereon were present and voted.
STATE OF INCORPORATION
Purchaser, Parent and IHF are Delaware corporations.
HSR ACT
On March 26, 1998, the waiting period under the HSR Act expired without any
action on part of the U.S. Department of Justice or the Federal Trade
Commission.
CERTAIN LEGAL MATTERS
The initial paragraph of Section 15 "Certain Legal Matters" of the Offer to
Purchase is restated as follows:
"Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other
publicly available information concerning the Company, neither Purchaser
not Parent is aware of any license or regulatory permit that appears to be
material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by Purchaser's acquisition of
Shares as contemplated herein or of any approval or other action by any
Governmental Authority that would be required for the acquisition or
ownership of Shares by Purchaser as contemplated herein. Should any such
approval or other action be required, Purchaser and Parent currently
contemplate that such approval or other action will be sought, except as
described below under "State Takeover Laws." While, except as otherwise
expressly described in this Section 15, Purchaser does not presently intend
to delay the acceptance for payment of or payment for Shares tendered
pursuant to the Offer pending the outcome of any such matter, there can be
no assurance that any such approval or other action, if needed, would be
obtained or would be obtained without substantial conditions or that
failure to obtain any such approval or other action might not result in
consequences adverse to the Company's business or that certain parts of the
Company's business might not have to be disposed of if
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such approvals were not obtained or such other actions were not taken or in
order to obtain any such approval or other action. If certain types of
adverse action are taken with respect to the matters discussed below,
Purchaser could decline to accept for payment any Shares tendered. See
Section 14 above for certain conditions to the Offer."
SETTLEMENT OF LITIGATION
On March 20, 1998, Plaintiff filed an amended complaint with the Court (the
"Amended Complaint") and added Purchaser as a Defendant. The Amended Complaint
repeats the claim that the Company's directors breached their fiduciary duties
in connection with their recommendation of the transaction and alleges new
claims which include, among others, the lack of certain disclosures in the
Schedule 14D-1 and Schedule 14D-9. The Amended Complaint seeks as relief, among
other things, an order enjoining consummation of the proposed transaction and
requiring the Company to make additional disclosures to the Company's
stockholders concerning the proposed transaction.
IHF and Purchaser believe the allegations in the Amended Complaint are
without merit. However, IHF and Purchaser believe that this litigation could
delay and cause uncertainty with respect to the acquisition of Shares in
connection with the Offer and consummation of the Merger. Accordingly,
representatives of the Defendants entered into discussions with counsel for
Plaintiff concerning a potential settlement of the action.
The Defendants entered into an agreement in principle on March 31, 1998
with Plaintiff to settle the action. Pursuant to the agreement in principle, the
Company has agreed to make certain additional disclosures in the Schedule 14D-9.
In connection with the agreement in principle, Plaintiff agreed that it will
refrain from further proceedings and withdraw its motion for a preliminary
injunction pending approval of a final settlement agreement by the Court.
Finally, pursuant to the agreement in principle, the Defendants agreed not to
oppose an application by Plaintiff's counsel for an award of counsel fees and
expenses not to exceed $200,000 in the aggregate. If the fee application is
approved, such amount will be payable by the Company.
IHF/GM ACQUISITION CORPORATION
April 2, 1998
6
<PAGE> 7
Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, certificates for Shares and
any other required documents should be sent or delivered by each Stockholder or
his broker, dealer, commercial bank, trust company or other nominee to the
Depositary, at one of the addresses set forth below:
The Depositary for the Offer is:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C>
By Mail: By Facsimile
ChaseMellon Shareholder Transmission:
Services, L.L.C. (201) 329-8936
Post Office Box 3301
South Hackensack, NJ 07606 To Confirm Facsimile
Attn: Reorganization Transmission Only Call:
Department (201) 296-4860
By Hand: By Overnight Courier:
ChaseMellon Shareholder ChaseMellon Shareholder
Services, L.L.C. Services, L.L.C.
120 Broadway -- 13th Floor 85 Challenger Road
New York, NY 10271 Mail Drop Reorg. Dept.
Attn: Reorganization Ridgefield Park, NJ 07660
Department
</TABLE>
Any questions and request for assistance or additional copies of this
Supplement, the Offer to Purchase, the Letter of Transmittal and the Notice of
Guaranteed Delivery may be directed to the Information Agent at the telephone
numbers and addresses below. You may also contact your local broker, dealer,
commercial bank or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
MACKENZIE PARTNERS, INC.
156 Fifth Avenue
New York, New York 10010
(212) 929-5000 (Call Collect) or
Call Toll-Free (800) 322-2885
The Dealer Manager for the Offer is:
CHASE SECURITIES INC.
270 Park Avenue
New York, New York 10017
(212) 270-4867 (Call Collect)
<PAGE> 1
EXHIBIT (a)(10)
INTERNATIONAL HOME FOODS
AND GRIST MILL CO.
ANNOUNCE SETTLEMENT OF
LITIGATION
PARSIPPANY, N.J. and LAKEVILLE, Minn., April 2, 1998 - International Home Foods,
Inc. (NYSE: IHF), a leading branded food products company, and Grist Mill Co.
(Nasdaq: GRST), a leading U.S. manufacturer of private-label cereal bars and
fruit snack products, today announced the settlement of litigation filed in
connection with the pending cash tender offer by IHF/GM Acquisition Corporation,
an indirect wholly owned subsidiary of IHF, for the common stock of Grist Mill
and related merger.
Following the public announcement of the transaction, attorneys for a Grist Mill
stockholder filed a class action suit against Grist Mill, Grist Mill's directors
and IHF alleging, among other things, that Grist Mill's directors breached their
duties to Grist Mill's public stockholders by failing to investigate other
potential transactions, failing to take adequate steps to maximize stockholder
value, and failing to make certain disclosures in public filings related to the
transaction. The plaintiff sought, among other things, an injunction against the
transaction and an award of costs of suit and attorneys' and experts' fees.
Believing that the delay and uncertainty with respect to the transaction caused
by this litigation was not in the best interests of Grist Mill and its
stockholders, Grist Mill, Grist Mill's directors, IHF and IHF/GM Acquisition
Corporation entered into an agreement in principle on March 31, 1998 with the
plaintiff to settle the action. Under the terms of the agreement in principle,
Grist Mill has agreed to make additional disclosures in its publicly filed
materials relating to the tender offer. In addition, Grist Mill has agreed not
to oppose an application by the plaintiff to the court for an award of counsel
fees and expenses not to exceed $200,000, in the aggregate. If the proposed
settlement and the fee application is approved, such fees and expenses will be
payable by Grist Mill.
The tender offer will expire at 12:00 midnight, New York City time, on Monday,
April 13, 1998, unless the tender offer is extended. The cash tender offer and
merger are subject to customary conditions, including the tender of a majority
of Grist Mill's fully diluted shares of common stock. One such condition, the
expiration of the applicable waiting period under the Hart-Scott-Rodino Act, was
satisfied on March 26, 1998.
Grist Mill is a manufacturer and distributor of store brand and value-priced
branded food products, including ready-to-eat cereals, fruit snacks, granola
bars, fruit-filled cereal bars, crisp rice marshmallow bars and preformed pie
crusts.
International Home Foods, Inc., is a nationally prominent manufacturer,
distributor and marketer of food products. Its significant established brands
include Chef Boyardee(R) prepared foods, Bumble Bee(R) canned seafood, PAM(R)
cooking spray, Polaner(R) fruit spreads and spices, Gulden's(R) mustard, Crunch
`n Munch(R) glazed popcorn, Campfire(R) marshmallows and crisped rice bars,
Ro*Tel(R) tomatoes with green chilies, Dennison's(R) chili, and Ranch Style(R)
and Luck's(R) beans.
Contacts: International Home Foods
Lynn Misericordia
IHF Treasurer
973-359-3195
or
Roy Winnick/Mark Semer
Kekst and Company
212-521-4842 or 4802
Grist Mill Co.
Ardie Thorson
Shareholder Relations
612-469-7407
or
Dan Kinsella
Vice President/CFO
612-469-4981
