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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
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GROW GROUP, INC.
(Name of Subject Issuer)
GGI ACQUISITION, INC.
THE SHERWIN-WILLIAMS COMPANY
(Bidders)
SHARES OF COMMON STOCK
(Title of Class of Securities)
39382-010
(Cusip Number of Class of Securities)
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LOUIS E. STELLATO, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
THE SHERWIN-WILLIAMS COMPANY
101 PROSPECT AVENUE, N.W.
CLEVELAND, OHIO 44115-1075
(216) 566-2000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
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Copy to:
JOHN A. HEALY, ESQ.
ROGERS & WELLS
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
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This Amendment No. 3 amends and supplements the Tender Offer Statement on
Schedule 14D-1 originally filed with the Commission on May 8, 1995, as amended
by Amendment No. 1 filed with the Commission on May 9, 1995 and Amendment No. 2
filed with the Commission on May 10, 1995 (the "Schedule 14D-1"), by GGI
Acquisition, Inc. (the "Purchaser"), a New York corporation and a wholly-owned
subsidiary of The Sherwin-Williams Company, an Ohio corporation (the "Parent"),
relating to the tender offer of the Purchaser to purchase all of the outstanding
shares of Common Stock, par value $0.10 per share (the "Shares"), of Grow Group,
Inc., a New York corporation (the "Company"), and, unless and until the
Purchaser declares that the Rights Condition is satisfied, the associated Rights
at a purchase price of $19.50 per Share (and associated Right), 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 May 8, 1995 and in the
related Letter of Transmittal (which, together with any supplements or
amendments, collectively constitute the "Offer"). Unless the context otherwise
requires, capitalized terms not otherwise defined herein have the meanings
ascribed to them in the Schedule 14D-1 and the Offer to Purchase.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
On May 12, 1995, the Company and the Parent entered into a Confidentiality
Agreement (the "Confidentiality Agreement"). The following is a summary of
certain provisions of the Confidentiality Agreement a copy of which is filed as
Exhibit (c)(3) hereto and is incorporated herein by reference. Pursuant to the
Confidentiality Agreement, the Parent agreed, among other things, (i) to keep
confidential certain information furnished to it by the Company, provided that
the Parent is permitted to disclose such of the information as it is advised by
counsel it is legally required to disclose under the federal securities laws,
and (ii) to restrict certain acquisitions by the Purchaser and the Parent of
Shares. These provisions expressly do not prevent the Parent or the Purchaser
from acquiring Shares pursuant to the Offer (including any extensions or
modifications thereof) at a price of $19.50 per Share or more in cash. The
following paragraphs describe the "stand-still" arrangements in greater detail.
The Parent has agreed that, except as described in the next paragraph, for
a period of three years, neither the Parent nor any of its affiliates will,
without the prior written consent of the Company: (i) acquire, offer to acquire,
or agree to acquire, directly or indirectly, by purchase or otherwise, any
voting securities or direct or indirect rights to acquire any voting securities
of the Company or any subsidiary thereof, or any assets of the Company or any
subsidiary or division thereof; (ii) make, or in any way participate in,
directly or indirectly, any solicitation of proxies to vote, or seek to advise
or influence any person or entity with respect to the voting of, any voting
securities of the Company; (iii) make any public announcement with respect to,
or submit a proposal for, or offer of (with or without conditions) any
extraordinary transaction involving the Company or any of its subsidiaries or
their securities or assets; (iv) form, join or in any way participate in a
"group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) in connection with any of the foregoing; (v)
seek to acquire control of the Company or influence the Board of Directors,
management or policies of the Company; (vi) induce any other person or entity to
do any of the foregoing; or (vii) request the Company or any of its
representatives, directly or indirectly, to amend or waive any of the foregoing
provisions.
Notwithstanding the restrictions described in the preceding paragraph, the
Parent or any direct or indirect wholly-owned subsidiary of the Parent is
permitted to acquire Shares pursuant to the Offer (including any extensions or
modifications of the Offer) at a price not less than $19.50 net per Share in
cash to the seller. In addition, the Parent or any direct or indirect
wholly-owned subsidiary of the Parent is permitted to acquire Shares in the
future pursuant to a cash tender for all outstanding Shares made in accordance
with Regulation 14D under the Exchange Act at the amount per Share offered (or
any greater amount per Share offered) in any merger, tender offer or similar
transaction that shall have been approved by the Company's Board of Directors
within 90 days prior to the commencement of such cash tender offer by the Parent
or its direct or indirect wholly-owned subsidiary.
This last provision expressly does not apply to the ICI Tender Offer.
Accordingly, unless the Company's Board of Directors approves another merger,
tender offer or similar transaction in the future, at a price below $19.50 per
Share, the Parent will be prohibited from making a tender offer at a price below
$19.50.
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The foregoing description of the Confidentiality Agreement is qualified in
its entirety by reference to the full text of that Agreement, a copy of which is
filed as Exhibit (c)(3) to this Amendment.
Beginning on Friday, May 12, 1995, the Company has afforded the Parent
access to certain documents and personnel for the Parent's "due diligence"
activities.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(c)(3) Confidentiality Agreement, dated May 12, 1995, between Grow Group, Inc. and
the Parent.
(z)(1) Power of Attorney (contained on Signature Page to original Schedule 14D-1,
filed with the Commission on May 8, 1995).
</TABLE>
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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.
Dated: May 15, 1995
GGI ACQUISITION, INC.
By: /s/ L.E. Stellato*
L.E. Stellato
Secretary
THE SHERWIN-WILLIAMS COMPANY
By: /s/ L.E. Stellato*
L.E. Stellato
Vice President, General Counsel
and Secretary
*By: /s/ Jeffrey P. Cohen
Jeffrey P. Cohen
Attorney-in-Fact
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- --------------------------------------------------------------------------------
<S> <C>
(c)(3) Confidentiality Agreement, dated May 12, 1995, between Grow Group, Inc. and the
Parent.
(z)(1) Power of Attorney (contained on Signature Page to original Schedule 14D-1, filed
with the Commission on May 8, 1995).
</TABLE>
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GROW GROUP, INC.
200 PARK AVENUE
NEW YORK, NEW YORK 10166
May 11, 1995
Mr. Conway G. Ivy
Vice President Corporate Planning
& Development
The Sherwin-Williams Company
101 Prospect Avenue N.W.
Cleveland, Ohio 44115
CONFIDENTIALITY AGREEMENT
Dear Mr. Ivy:
The Sherwin-Williams Company has requested that Grow Group, Inc. (the
"Company") furnish it with certain information relating to the Company which is
non-public, confidential and proprietary in nature in connection with its
proposed acquisition of the Company (the "Transaction"). All such information
(whether written or oral) furnished (whether before or after the date hereof) by
the Company or its directors, officers, employees, affiliates, representatives
(including, without limitation, financial advisors, attorneys and accountants)
or agents (collectively, "our Representatives") to you or your directors,
officers, employees, affiliates, representatives (including without limitation,
financial advisors, attorneys and accountants) or agents (collectively, "your
Representatives") and all analyses, compilations, forecasts, studies or other
notes or documents prepared by you or your Representatives which contain or
reflect, or are generated from, any such information or which reflect you or
your Representatives review of, or your interest in, the Transaction (other than
any documents prepared by you or your Representatives in connection with any
public tender offer for the shares of the Company's common stock) is hereinafter
referred to as the "Information." The term Information will not, however,
include information which (i) is or becomes publicly available other than as a
result of a disclosure by you or your Representatives in breach of this
Agreement or (ii) is or becomes available to you on a nonconfidential basis from
a source (other than the Company or our Representatives) which, to the best of
your knowledge after due inquiry, is not prohibited from disclosing such
information to you by a legal, contractual, fiduciary or other obligation to the
Company.
As a condition to, and in consideration of the Company providing you with
Information, you acknowledge and agree as follows:
1. You and your Representatives for a period of five (5) years from the date
hereof (i) will keep the Information confidential and will not (except as
required by applicable law, regulation or legal process, and only after
compliance with paragraph 3 below), without our prior written consent,
disclose any Information in any manner whatsoever, and (ii) will not use
any Information other than in connection with the Transaction. You further
agree to disclose the Information only to your Representatives (a) who need
to know the Information in connection with negotiating the Transaction, (b)
who are informed by you of the confidential nature of the Information and
(c) who agree to be bound by the terms of this letter agreement.
Notwithstanding any provision to the contrary contained herein, you shall
be permitted to disclose such of the Information as you are advised by
counsel is legally required to be disclosed under the federal securities
laws. You agree that you will be responsible for any breach of this letter
agreement by any of your Representatives.
2. In the event that you or any of your Representatives are requested or
required (by oral questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand, any informal or formal
investigation by any government or governmental agency or authority or
otherwise) to disclose any of the Information, you will notify the Company
promptly in writing so that we may seek a protective order or other
appropriate remedy or, in our sole discretion, waive compliance with the
terms of this letter agreement. You agree not to oppose any action by the
Company to obtain a protective order or other appropriate remedy. In the
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event that no such protective order or other remedy is obtained, or that
the Company waives compliance with the terms of this letter agreement, you
will furnish only that portion of the Information which you are advised
by counsel is legally required.
3. You shall keep a record of each location of the Information. You agree,
immediately upon a request from the Company, to return to the Company all
Information, and no copies, extracts or other reproductions of the
Information shall be retained by you or your Representatives, except that
one copy may be kept by your legal Representatives solely for the purpose
of monitoring your obligations hereunder. Any portion of the Information
that consists solely of analyses, compilations, forecasts, schedules or
other notes or documents prepared by you or your Representatives, in lieu
of being returned to the Company, may be destroyed by you, in which event
one of your authorized officers shall provide certification to the Company
that materials have in fact been so destroyed. Any oral Information that is
retained by you or your Representatives will continue to be subject to this
letter agreement.
4. You acknowledge that none of the Company, nor our Representatives, nor any
of our or their respective officers, directors, employees, agents or
controlling persons within the meaning of Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), makes any express or
implied representation or warranty as to the accuracy or completeness of
the Information, and you agree, to the fullest extent permitted by law,
that no such person will have any liability to you or any of your
Representatives on any basis (including, without limitation, in contract,
tort, under federal or state securities laws or otherwise) with respect to
the Transaction as a result of this letter agreement, your participation in
evaluating the Transaction, your review of the Company, the use of the
Information by you or your Representatives, any errors therein or omissions
from the Information, or otherwise. Nothing in the foregoing provision
shall be deemed to waive or limit in any respect any rights or claims you
may have based on any actual or alleged breaches of the fiduciary duties
owed by the Company's board of directors to the Company and its
stockholders. You further agree that you are not entitled to rely on the
accuracy or completeness of the Information and that you will be entitled
to rely solely on such representations and warranties as may be included in
any definitive agreement with respect to the Transaction, subject to such
limitations and restrictions as may be contained therein.
5. You are aware, and you will advise your Representatives who are informed of
the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase
or sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of
such information to any other person.
6. (a) Except as otherwise expressly provided in paragraph 6(b) below, you
agree that, for a period of three years from the date of this letter
agreement, neither you nor any of your affiliates will, without the
prior written consent of the Company: (i) acquire, offer to acquire,
or agree to acquire, directly or indirectly, by purchase or
otherwise, any voting securities or direct or indirect rights to
acquire any voting securities of the Company or any subsidiary
thereof, or of any successor to or person in control of the Company,
or any assets of the Company or any subsidiary or division thereof or
of any such successor or controlling person; (ii) make, or in any way
participate in, directly or indirectly, any "solicitation" of
"proxies" (as such terms are used in the rules of the Securities and
Exchange Commission) to vote, or seek to advise or influence any
person or entity with respect to the voting of, any voting securities
of the Company; (iii) make any public announcement with respect to,
or submit a proposal for, or offer of (with or without conditions)
any extraordinary transaction involving the Company or any of its
subsidiaries or their securities or assets; (iv) form, join or in any
way participate in a "group" (as defined in Section 13(d)(3) of the
Exchange Act) in connection with any of the foregoing; (v) seek to
acquire control of the Company or influence the Board of Directors,
management or policies of the Company; (vi) induce any other person
or entity to do any of the foregoing; or (vii) request the Company or
any of our Representatives, directly or indirectly, to amend or waive
any provision of this paragraph.
(b) Notwithstanding paragraph 6(a) above, you or any direct or indirect
wholly-owned subsidiary of yours shall be permitted to acquire shares
of Company common stock pursuant to the pending cash tender offer
commenced on May 8, 1995 by your wholly-owned subsidiary for all
outstanding shares of the Company common stock, at a price not less
than $19.50 net per share in cash to the seller or such higher price
in cash that you or one of your direct wholly-owned subsidiaries may
offer to pay
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for shares of the Company's common stock pursuant to such pending
cash tender offer; provided, however, you shall be permitted to
acquire shares of the Company's common stock pursuant to a cash
tender for all outstanding shares by you or any direct or indirect
wholly-owned subsidiary of yours made in accordance with Regulation
14D under the Exchange Act at the amount per share offered (or any
greater amount per share offered) in any merger, tender offer or
similar transaction that shall have been approved by the Company's
Board of Directors within 90 days prior to the commencement of
such cash tender offer by you or your direct or indirect wholly-owned
subsidiary, except that it is understood and agreed that this proviso
shall not be applicable to approval by the Company's Board of
Directors of the tender offer commenced by Imperial Chemical
Industries PLC on May 4, 1995.
7. (a) You agree that the Company could be irreparably injured by a breach of
this letter agreement by you or your Representatives, that monetary
remedies might be inadequate to protect us against any actual or
threatened breach of this letter agreement by you or by your
Representatives.
(b) It is further agreed that no failure or delay in exercising any right,
power or privilege hereunder will operate as a waiver thereof, nor
will any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or
privilege hereunder.
(c) This letter agreement will be governed by and construed in accordance
with the laws of the State of New York, without regard to the
principles of conflict of laws thereof.
(d) This letter agreement contains the entire agreement between you and us
concerning the subject matter hereof and supersedes all previous
agreements, written or oral, relating to the subject matter hereof. No
modifications of this letter agreement or waiver of the terms and
conditions hereof will be binding upon you or us, unless approved in
writing by each of you and us.
(e) If any provision of this letter agreement shall, for any reason, be
adjudged by any court of competent jurisdiction to be invalid or
unenforceable, such judgment shall not affect, impair or invalidate
the remainder of this letter agreement but shall be confined in its
operation to the provision of this agreement directly involved in the
controversy in which such judgment shall have been rendered.
(f) This letter agreement may be executed in counterparts, each of which
shall be deemed to be an original, but both of which shall constitute
the same agreement.
(g) This letter agreement shall inure to the benefit of and be binding
upon our respective successors and assigns, as well as any person that
may acquire, after the date hereof, any subsidiary or division of
either of us with respect to Information concerning the business or
affairs of such subsidiary or division.
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Please confirm your agreement with the foregoing by signing and returning
to the undersigned the duplicate copy of this letter enclosed herewith.
Very truly yours,
GROW GROUP, INC.
By: /s/ Lloyd Frank
Name: Lloyd Frank
Title: Secretary
Accepted and Agreed
as of the date first
written above:
THE SHERWIN-WILLIAMS COMPANY
By: /s/ Conway G. Ivy
Name: Conway G. Ivy
Title: Vice President
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