SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
SCHEDULE 13D/A
Statement Under Section 13(d) of the
Securities Exchange Act of 1934
(Amendment No. 1)
and
SCHEDULE 14D-1/A
Tender Offer Statement Pursuant to Section
14(d)(1) of the Securities Exchange Act of 1934
(Amendment No. 5)
Grow Group, Inc.
(Name of Subject Company)
GDEN Corporation
(Bidder)
an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC
Common Stock, $.10 Par Value
(Title of Class of Securities)
39382-010
(CUSIP Number of Class of Securities)
Stanley A. Lokitski Copies to:
The Glidden Company Paul R. Kingsley
925 Euclid Avenue Davis Polk & Wardwell
Cleveland, Ohio 44115 450 Lexington Avenue
(Name, Address and Telephone Number New York, New York 10017
of Person Authorized to Receive Notices Telephone: (212) 450-4000
and Communications on Behalf of Bidder)
CALCULATION OF FILING FEE
Transaction Valuation(1) Amount of Filing Fee(2)
$361,249,042 $72,250
(1) Based upon $22.00 cash per share for 16,420,411 shares.
(2) 1/50 of 1% of transaction valuation.
[X] Check 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: $58,389, including $100 as the Schedule 13D filing
fee. Filing Party: GDEN Corporation; Imperial Chemical Industries PLC
Form or Registration No.: Combined Schedules 13D and 14D-1
Date Filed: May 4, 1995
SCHEDULES 13D AND 14D-1
______________________________ ________________________________
| | | |
|CUSIP No. 39382-010 | | Page 2 |
|____________________________| |______________________________|
___________________________________________________________________________
| 1 | NAME OF REPORTING PERSON |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON |
| | Imperial Chemical Industries PLC |
| | |
|____|____________________________________________________________________|
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | _ |
| | (a) |_| |
| | _ |
| | (b) |X| |
| | - |
|____|____________________________________________________________________|
| 3 | SEC USE ONLY |
| | |
|____|____________________________________________________________________|
| 4 | SOURCE OF FUNDS* |
| | AF |
|____|____________________________________________________________________|
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED _ |
| | PURSUANT TO ITEMS 2(d) or 2(E) |_| |
| | |
|____|____________________________________________________________________|
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | England |
|____|____________________________________________________________________|
| | 7 | SOLE VOTING POWER |
| | | -0- (see Item 6) |
| NUMBER OF |____|_______________________________________________|
| SHARES | 8 | SHARED VOTING POWER |
| BENEFICIALLY | | -0- (see Item 6) |
| OWNED BY |____|_______________________________________________|
| EACH | 9 | SOLE DISPOSITIVE POWER |
| REPORTING | | -0- (see Item 6) |
| PERSON |____|_______________________________________________|
| WITH | 10 | SHARED DISPOSITIVE POWER |
| | | -0- (see Item 6) |
|____________________|____|_______________________________________________|
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | -0- (see Item 6) |
|____|____________________________________________________________________|
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES _ |
| | CERTAIN SHARES* |_| |
|____|____________________________________________________________________|
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | 0% |
|____|____________________________________________________________________|
| 14 | TYPE OF REPORTING PERSON* |
| | HC, CO |
|____|____________________________________________________________________|
*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULES 13D and 14D-1
______________________________ ________________________________
| | | |
|CUSIP No. 39382-010 | | Page 3 |
|____________________________| |______________________________|
___________________________________________________________________________
| 1 | NAME OF REPORTING PERSON |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON |
| | |
| | GDEN Corporation |
|____|____________________________________________________________________|
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | _ |
| | (a) |_| |
| | _ |
| | (b) |X| |
| | - |
|____|____________________________________________________________________|
| 3 | SEC USE ONLY |
| | |
|____|____________________________________________________________________|
| 4 | SOURCE OF FUNDS* |
| | AF |
|____|____________________________________________________________________|
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED _ |
| | PURSUANT TO ITEMS 2(d) or 2(E) |_| |
| | |
|____|____________________________________________________________________|
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | New York |
|____|____________________________________________________________________|
| | 7 | SOLE VOTING POWER |
| | | -0- (see Item 6) |
| NUMBER OF |____|_______________________________________________|
| SHARES | 8 | SHARED VOTING POWER |
| BENEFICIALLY | | -0- (see Item 6) |
| OWNED BY |____|_______________________________________________|
| EACH | 9 | SOLE DISPOSITIVE POWER |
| REPORTING | | -0- (see Item 6) |
| PERSON |____|_______________________________________________|
| WITH | 10 | SHARED DISPOSITIVE POWER |
| | | -0- (see Item 6) |
|____________________|____|_______________________________________________|
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | -0- (see Item 6) |
|____|____________________________________________________________________|
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES _ |
| | CERTAIN SHARES* |_| |
|____|____________________________________________________________________|
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | 0% |
|____|____________________________________________________________________|
| 14 | TYPE OF REPORTING PERSON* |
| | CO |
|____|____________________________________________________________________|
*SEE INSTRUCTIONS BEFORE FILLING OUT!
This amends and supplements the Combined Statement on Schedule 13D
(the "Schedule 13D") and Tender Offer Statement on Schedule 14D-1 (the
"Schedule 14D-1") of GDEN Corporation, a New York corporation ("Purchaser"),
and Imperial Chemical Industries PLC, a corporation organized under the laws
of England and the parent corporation of Purchaser ("Parent"), filed by
Purchaser and Parent with the Securities and Exchange Commission (the
"Commission") on May 4, 1995 as the Schedule 14D-1 was amended by Amendment
No. 1 filed on May 5, 1995, Amendment No. 2 filed on May 9, 1995, Amendment
No. 3 filed on May 12, 1995 and Amendment No. 4 filed on May 19, 1995, in
connection with the offer by Purchaser for all outstanding shares of Common
Stock, $.10 par value, of Grow Group, Inc., a New York corporation (the
"Company").
Item l. Security and Subject Company.
Item 1(b) is hereby amended and supplemented by reference to the
Introduction and Section 1 of the Supplement dated May 22, 1995 (the
"Supplement") to the Offer to Purchase dated May 4, 1995, a copy of which is
attached hereto as Exhibit (a)(9), which Introduction and Section are
incorporated herein by reference.
Item 1(c) is hereby amended and supplemented by reference to
Section 2 of the Supplement, which Section is incorporated herein by
reference.
Item 3. Past Contacts, Transactions or Negotiations with the Subject
Company.
Item 3(b) is hereby amended and supplemented by reference to
Section 4 of the Supplement, which Section is incorporated herein by
reference.
Item 4. Source and Amount of Funds or Other Consideration.
Item 4(a) is hereby amended and supplemented by reference to
Section 3 of the Supplement, which Section is incorporated herein by
reference.
Item 5. Purpose of the Tender Offer and Plans or Proposals of the Bidder.
Item 5 is hereby amended and supplemented by reference to Section
5 of the Supplement, which Section is incorporated herein by reference.
Item 7. Contracts, Arrangements, Understandings or Relationships with
Respect to the Subject Company's Securities.
Item 7 is hereby amended and supplemented by reference to the
Introduction and Section 4 of the Supplement, which Introduction and Section
are incorporated herein by reference.
Item 10. Additional Information.
Items 10(c) and (e) are hereby amended and supplemented by
reference to Section 6 of the Supplement, which Section is incorporated herein
by reference.
Item 11. Material to be Filed as Exhibits.
Item 11 is hereby amended to add the following exhibits:
(a)(9) Form of Supplement to Offer to Purchase dated May 22,
1995.
(a)(10) Form of Revised Letter of Transmittal (including
Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9).
(a)(11) Form of Revised Notice of Guaranteed Delivery.
(a)(12) Form of Revised Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(13) Form of Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(14) Form of Letter to Shareholders and Withdrawal Notice for
use by shareholders to withdraw Shares tendered into the
Sherwin-Williams Offer.
(a)(15) Text of press release issued by Parent dated May 22,
1995.
(a)(16) Form of summary advertisement dated May 22, 1995.
(c)(5) Amendment No. 1 to the Merger Agreement dated as of May
21, 1995 among the Company, Parent and Purchaser.
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 22, 1995
GDEN CORPORATION
By /s/ John Thompson
-----------------------
Name: John Thompson
Title: President
IMPERIAL CHEMICAL INDUSTRIES PLC
By /s/ John Thompson
-----------------------
Name: John Thompson
Title: Attorney in Fact
EXHIBIT INDEX
Exhibit No. Title
(a)(9) Form of Supplement to Offer to Purchase dated May 22,
1995.
(a)(10) Form of Revised Letter of Transmittal (including
Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9).
(a)(11) Form of Revised Notice of Guaranteed Delivery.
(a)(12) Form of Revised Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(13) Form of Revised Letter to Clients for use by Brokers,
Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(14) Form of Letter to Shareholders and Withdrawal Notice
for use by shareholders to withdraw Shares tendered
into the Sherwin-Williams Offer.
(a)(15) Text of press release issued by Parent dated May 22,
1995.
(a)(16) Form of summary advertisement dated May 22, 1995.
(c)(5) Amendment No. 1 to the Merger Agreement dated as of
May 21, 1995 among the Company, Parent and Purchaser.
Supplement to Offer to Purchase Dated May 4, 1995
GDEN Corporation
an indirect wholly owned subsidiary
of
Imperial Chemical Industries PLC
Has Increased the Price of Its Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Rights)
of
Grow Group, Inc.
to
$22.00 Net Per Share
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 5, 1995, UNLESS THE
OFFER IS FURTHER EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES OF COMMON STOCK, PAR VALUE $.10 PER SHARE (INCLUDING THE ASSOCIATED
RIGHTS, COLLECTIVELY, THE "SHARES") OF GROW GROUP, INC. (THE "COMPANY")
REPRESENTING (TOGETHER WITH THE CORIMON SHARES (AS DEFINED IN THE OFFER TO
PURCHASE) AND ANY OTHER SHARES OWNED BY PURCHASER) AT LEAST TWO-THIRDS OF
THE TOTAL NUMBER OF SHARES OUTSTANDING ON A FULLY DILUTED BASIS.
-----------------
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT
THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTEREST OF, THE
COMPANY'S SHAREHOLDERS, AND RECOMMENDS THAT THE COMPANY'S SHAREHOLDERS
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER. IMPORTANT
-----------------
IMPORTANT
Any shareholder desiring to tender Shares should either (1) complete
and sign one of the Letters of Transmittal which accompany the Offer to
Purchase or this Supplement (or facsimile thereof) in accordance with the
instructions in the Letter of Transmittal and deliver it with the
certificate(s) representing tendered Shares and all other required
documents to the Depositary or tender such Shares pursuant to the
procedures for book-entry transfer set forth in Section 3 of the Offer to
Purchase or (2) request such shareholder's broker, dealer, commercial bank,
trust company or other nominee to effect the transaction for such
shareholder. A shareholder having Shares registered in the name of a
broker, dealer, commercial bank, trust company or other nominee must
contact such person if such shareholder desires to tender such Shares.
Any shareholder who desires to tender Shares and cannot deliver such
Shares and all other required documents to the Depositary by the expiration
of the Offer or who cannot comply with the procedures for book-entry
transfer on a timely basis must tender such Shares pursuant to the
guaranteed delivery procedure set forth in Section 3 of the Offer to
Purchase.
Questions and requests for assistance may be directed to the
Information Agent or the Dealer Managers at their respective addresses and
telephone numbers set forth on the back cover of this Supplement.
Additional copies of the Offer to Purchase, this Supplement, the revised
Letter of Transmittal and the revised Notice of Guaranteed Delivery may
also be obtained from the Information Agent, the Dealer Managers, brokers,
dealers, commercial banks or trust companies.
-----------------
The Dealer Managers for the Offer are:
Goldman, Sachs & Co.
-----------------
May 22, 1995
INTRODUCTION
To the Holders of Common Stock of
Grow Group, Inc.:
The following information amends and supplements the Offer to Purchase
dated May 4, 1995 (the "Offer to Purchase") of GDEN Corporation, a New York
corporation ("Purchaser") and an indirect wholly owned subsidiary of Imperial
Chemical Industries PLC, a company organized under the laws of England
("Parent"). Pursuant to this Supplement, Purchaser is now offering to
purchase all outstanding shares of Common Stock, $.10 par value (the "Common
Stock"), of Grow Group, Inc., a New York corporation (the "Company"), and the
associated stock purchase rights (the "Rights", and together with the Common
Stock, the "Shares") issued pursuant to the Amended and Restated Rights
Agreement dated as of August 7, 1992, as amended on April 30, 1995, between
the Company and The Bank of New York, as Rights Agent (as so amended, the
"Rights Agreement") (until the Distribution Date (as such term is defined in
the Rights Agreement as described in the Offer to Purchase) the Rights will be
evidenced by and trade with certificates evidencing the Common Stock), at
$22.00 per Share, net to the seller in cash, subject to any amounts required
to be withheld under applicable federal, state, local or foreign income tax
regulations, upon the terms and subject to the conditions set forth in the
Offer to Purchase, as amended and supplemented by this Supplement, and in the
related Letters of Transmittal (which together constitute the "Offer").
Except as otherwise set forth in this Supplement, the terms and
conditions previously set forth in the Offer to Purchase remain applicable in
all respects to the Offer, and this Supplement should be read in conjunction
with the Offer to Purchase. Unless the context requires otherwise, terms not
defined herein have the meanings ascribed to them in the Offer to Purchase.
THE BOARD OF DIRECTORS OF THE COMPANY ("THE BOARD OF DIRECTORS" OR THE
"BOARD") HAS UNANIMOUSLY DETERMINED THAT THE OFFER AND THE MERGER (AS DEFINED
BELOW) ARE FAIR TO, AND IN THE BEST INTEREST OF, THE SHAREHOLDERS OF THE
COMPANY AND RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES PURSUANT TO THE OFFER.
WERTHEIM SCHRODER & CO. INCORPORATED, FINANCIAL ADVISOR TO THE COMPANY,
HAS DELIVERED TO THE BOARD OF DIRECTORS ITS WRITTEN OPINION TO THE EFFECT
THAT, AS OF THE DATE OF THE MERGER AGREEMENT AMENDMENT, THE $22.00 IN CASH TO
BE RECEIVED BY THE HOLDERS (OTHER THAN CORIMON AND CORIMON PARENT) OF SHARES
IN THE OFFER AND THE MERGER IS FAIR TO SUCH HOLDERS FROM A FINANCIAL POINT OF
VIEW. THE FULL TEXT OF THE WRITTEN OPINION OF WERTHEIM SCHRODER CONTAINING
THE ASSUMPTIONS MADE, THE MATTERS CONSIDERED AND THE SCOPE OF THE REVIEW
UNDERTAKEN IN RENDERING SUCH OPINION AS WELL AS THE LIMITATIONS OF SUCH
OPINION IS INCLUDED WITH THE COMPANY'S AMENDMENT NO. 9 TO THE SCHEDULE 14D-9
WHICH IS BEING MAILED TO SHAREHOLDERS CONCURRENTLY HEREWITH. SHAREHOLDERS ARE
URGED TO READ THE FULL TEXT OF SUCH OPINION IN CONJUNCTION WITH THIS OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED BY THE EXPIRATION DATE (AS DEFINED BELOW) AND NOT WITHDRAWN PRIOR TO
THE EXPIRATION DATE A NUMBER OF SHARES REPRESENTING, TOGETHER WITH THE CORIMON
SHARES AND ANY OTHER SHARES OWNED BY PURCHASER, AT LEAST TWO-THIRDS OF THE
TOTAL NUMBER OF OUTSTANDING SHARES ON A FULLY DILUTED BASIS (THE "MINIMUM
CONDITION").
According to the Company, as of May 17, 1995, there were outstanding (i)
16,103,212 Shares and (ii) employee stock options to purchase 317,199 Shares.
Based upon the foregoing, there were approximately 16,420,411 Shares
outstanding on a fully diluted basis. Accordingly, Purchaser believes that
the Minimum Condition would be satisfied if at least 6,921,100 Shares are
validly tendered pursuant to the Offer and not withdrawn, as such Shares
together with the Corimon Shares would constitute two-thirds of the
outstanding Shares on a fully diluted basis. As of May 21, 1995, 25,101
shares had been tendered pursuant to the Offer.
The Offer is being made pursuant to an Agreement and Plan of Merger,
dated as of April 30, 1995 (the "Original Merger Agreement"), as amended by
Amendment No. 1 thereto dated as of May 21, 1995 (the "Merger Agreement
Amendment"), among the Company, Parent and Purchaser (as so amended, the
"Merger Agreement"). The Merger Agreement provides, among other things, that
as soon as practicable after the consummation of the Offer and satisfaction
of, or to the extent permitted under the Merger Agreement, waiver of all
conditions to the Merger, Purchaser will be merged with and into the Company
(the "Merger"), with the Company as the surviving corporation. Thereupon, each
outstanding Share (other than Shares held by Parent, Purchaser or any other
subsidiary of Parent and Shares held by shareholders properly exercising
appraisal rights) will be converted into and represent the right to receive
$22.00 in cash, or any higher price that may be paid per Share in the Offer,
without interest.
The Merger Agreement Amendment provides, among other things, for
Purchaser to increase the cash price of the Offer to $22.00 per Share, net to
the seller in cash, subject to any amounts required to be withheld under
applicable federal, state, local or foreign income tax regulations and to
extend the Offer until 12:00 midnight, New York City time, on Monday, June 5,
1995.
If pursuant to the Offer and the Option Agreement, Purchaser acquires
more than two-thirds of the outstanding Shares, Purchaser will have sufficient
voting power to approve the Merger without the affirmative vote of any other
shareholder. If required by law, a proxy statement or information statement
relating to the Merger will be mailed to all shareholders of the Company. If
Purchaser acquires 90% or more of the Shares, such Merger could be
accomplished under the New York Business Corporation Law (the "New York Law")
without a shareholders' meeting.
Procedures for tendering Shares are set forth in Section 3 of the Offer
to Purchase. Tendering shareholders may use either the original (blue) Letter
of Transmittal and the original (grey) Notice of Guaranteed Delivery
previously circulated with the Offer to Purchase, or the revised (green)
Letter of Transmittal and the revised (blue) Notice of Guaranteed Delivery
circulated with this Supplement. While the original Letter of Transmittal
refers only to the Offer to Purchase, shareholders using such document to
tender their Shares will nevertheless receive $22.00 per Share for each Share
validly tendered and not properly withdrawn and accepted for payment pursuant
to the Offer, subject to the conditions of the Offer. Shareholders who have
previously validly tendered and not properly withdrawn their Shares pursuant
to the Offer are not required to take any further action, in order to receive,
subject to the conditions of the Offer, the increased tender price of $22.00
per Share, if the Shares are accepted for payment and paid for by Purchaser
pursuant to the Offer, except as may be required by the guaranteed delivery
procedure if such procedure was used.
To be assured of participation in the Offer, shareholders who have
tendered Shares pursuant to the Sherwin-Williams Offer (as defined below) must
withdraw their Shares from that offer and tender them to Purchaser. Included
in the materials accompanying this Supplement is a Notice of Withdrawal which
may be used to withdraw Shares tendered pursuant to the Sherwin-Williams
Offer. Shareholders who desire assistance in withdrawing Shares tendered
pursuant to the Sherwin Williams Offer may contact the Information Agent at
the address and telephone number set forth on the back cover of this
Supplement.
THE OFFER TO PURCHASE AND THIS SUPPLEMENT CONTAIN IMPORTANT INFORMATION
WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
1. Amended Terms of the Offer; Expiration Date. The price per Share to
be paid pursuant to the Offer has been increased from $18.10 per Share to
$22.00 per Share, net to the seller in cash, subject to any amounts required
to be withheld under applicable federal, state, local or foreign income tax
regulations, upon the terms and subject to the conditions of the Offer. All
shareholders whose Shares are validly tendered and not withdrawn and accepted
for payment pursuant to the Offer (including Shares tendered prior to the date
of this Supplement) will receive the increased price.
Pursuant to the Merger Agreement Amendment, the Offer has been extended.
The term "Expiration Date" shall mean 12:00 midnight, New York City time, on
Monday, June 5, 1995, unless and until Purchaser, subject to the provisions of
the Merger Agreement, shall have further extended the period during which the
Offer is open, in which event the term "Expiration Date" shall mean the latest
time and date at which the Offer, as so extended by Purchaser, shall expire.
The Merger Agreement Amendment amended the Original Merger Agreement to
provide that if the Minimum Condition has not been satisfied by the new
Expiration Date, Parent and Purchaser will extend the Expiration Date for one
or more periods for up to an aggregate of 30 calendar days until the Minimum
Condition is satisfied.
This Supplement, the revised (green) Letter of Transmittal and other
relevant materials will be mailed to holders of record of Shares whose names
appear on the Company's shareholder list and will be furnished, for subsequent
transmittal to beneficial owners of Shares, to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of whose
nominees, appear on the shareholder list or, if applicable, who are listed as
participants in a clearing agency's security position listing.
2. Price Range of Shares; Dividends. The discussion set forth in
Section 6 of the Offer to Purchase is hereby supplemented as follows.
The Company has paid no cash dividends on the Shares since the date of
the Offer to Purchase.
The high and low sales prices per Share for the current fiscal quarter
through May 19, 1995, were $21-3/8 and $15-1/2, respectively.
On May 5, 1995, the last full trading day prior to the commencement of
The Sherwin-Williams Company's ("Sherwin-Williams") unsolicited tender offer
for all of the outstanding Shares (the "Sherwin-Williams Offer") at a purchase
price of $19.50 per Share, the closing price per Share as reported on the NYSE
Composite Tape was $19.50. On May 16, 1995, the last full trading day prior
to the announcement by the Company that the Board of Directors had instituted
the Company's Formal Bidding Procedures (as defined below), the closing price
per Share as reported on the NYSE Composite Tape was $21.00. On May 19, 1995,
the last full trading day prior to the announcement of the increase in the
price per Share to be paid pursuant to the Offer, the closing price per Share
as reported on the NYSE Composite Tape was $21-1/8.
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE
SHARES.
3. Sources and Amount of Funds. As a result of the increase in the
price to be paid for the Shares by Purchaser, the estimated total amount of
funds required by Purchaser to purchase Shares pursuant to the Offer and the
Option Agreement and to pay related fees and out-of-pocket expenses will
increase by approximately $70 million to approximately $365 million.
Purchaser will obtain such funds through a capital contribution from ICI
American, its parent company. ICI American will obtain such funds from its
general corporate funds.
4. Background of the Offer since May 4, 1995; Contacts with the
Company; Merger Agreement.
On May 8, 1995, Sherwin-Williams commenced an unsolicited tender offer
for all of the outstanding shares of the Common Stock of the Company at a
purchase price of $19.50 per share.
On May 10, 1995, the Company informed Parent and announced that the
Board of Directors of the Company had authorized senior management of the
Company and the Company's financial and legal advisors to engage in
discussions and negotiations with, and provide non-public information to,
Sherwin-Williams in connection with its unsolicited tender offer.
On May 11, 1995, the Company informed Parent that upon Sherwin-Williams'
request, the Company would provide Sherwin-Williams with non-public
information relating to, and give Sherwin-Williams access to the properties,
books and records of, the Company and its subsidiaries, subject to the
execution of an acceptable confidentiality agreement.
Also on May 11, 1995, the Company informed Parent that counsel to the
Company received a telephone call from the New York State Attorney General's
Office requesting that the Company furnish the Attorney General's Office with
copies of the Company's public filings with the Commission since June 30, 1994
and copies of press releases relating to material corporate developments issued
by the Company between June 30, 1994 and January 1995. The Company informed
Parent that the Company intended to comply with such request for information.
On May 15, 1995, the Company informed Parent and announced that the
Board of Directors of the Company had adopted a "neutral" position with
respect to the Sherwin-Williams Offer and that the Company had filed a
Schedule 14D-9 with the Commission with respect to the Sherwin-Williams Offer.
In a letter dated May 17, 1995, the Company informed Parent and
Sherwin-Williams that the Board of Directors had instituted certain formal
bidding procedures (the "Company's Formal Bidding Procedures") and requested
Parent and Sherwin-Williams to submit their proposals to acquire the Company
by 12:00 p.m., Sunday, May 21, 1995. A copy of such letter is included as an
exhibit to the Company's Amendment No. 7 to the Schedule 14D-9 filed with the
Commission on May 17, 1995. The Company's Formal Bidding Procedures stated
that the "rules and procedures are designed to constitute a single and final
round of bids, and accordingly each of you should submit your best and highest
offer". Also in a letter dated May 17, 1995, the Company requested Parent and
Sherwin-Williams to provide the Company with any comments either party may
have on the Company's Formal Bidding Procedures.
In addition to the contacts set forth above, Parent's legal and
financial advisors have had numerous contacts with the Company's legal and
financial advisors.
On May 18, 1995, in a hearing held in the Supreme Court of the State of
New York, County of New York, the court denied Sherwin-Williams' motion to
enjoin the Company's Formal Bidding Procedures. The hearing was held in
connection with a suit brought by Sherwin-Williams against the Company, the
Board of Directors, Parent and Purchaser. See Section 6.
In accordance with the Company's Formal Bidding Procedures, on May 21,
1995, Parent and Purchaser submitted to the Company their proposal to increase
the price in the Offer to $22.00 per Share ("Parent and Purchaser's Proposal").
Later in the day, on May 21, 1995, the Board of Directors of the Company
unanimously approved Parent and Purchaser's Proposal and thereafter the
Company, Parent and Purchaser entered into the Merger Agreement Amendment.
Prior to the announcement of trading on the NYSE on May 22, 1995, Parent
issued a press release announcing that the price in the Offer has increased.
The following is a summary of the provisions of the Merger Agreement
Amendment, a copy of which is filed with the Commission as an exhibit to
Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1")
and is incorporated herein by reference. Such summary is qualified in its
entirety by reference to the Merger Agreement Amendment.
Pursuant to the Merger Agreement Amendment, Purchaser is increasing the
price per Share to be paid in the Offer from $18.10 per Share to $22.00 per
Share, net to the seller in cash, subject to any amounts required to be
withheld under applicable federal, state, local or foreign income tax
regulations, upon the terms and subject to the conditions of the Offer and
extending the Offer until 12:00 midnight, New York City time on Monday, June
5, 1995. As a result of the Merger Agreement Amendment and subject to the
terms and conditions of the Merger Agreement, each holder of any Employee
Option shall be paid an amount determined by multiplying (i) the excess, if
any, of $22.00 per Share over the applicable exercise price of such Option by
(ii) the number of Shares such holder could have purchased had such holder
exercised such Employee Option in full immediately prior to the Effective
Time. In addition, the Merger Agreement Amendment amended the Original Merger
Agreement to provide that if the Minimum Condition has not been satisfied by
the new Expiration Date, Parent and Purchaser will extend the Expiration Date
for one or more periods for up to an aggregate of 30 calendar days until the
Minimum Condition is satisfied.
As a result of the Merger Agreement Amendment, the purchase price at
which Purchaser may exercise the Option to purchase the Corimon Shares in
accordance with the Option Agreement has increased to $21.40.
The Merger Agreement Amendment amended the Original Merger Agreement to
include a provision that the Company will pay in respect of Parent's expenses
and lost opportunity costs an amount in immediately available funds equal to
$16,000,000 promptly, but in no event later than two business days, after the
occurrence of the events specified below in both clauses (a) and (b): (a) a
Trigger Event (as defined below) shall have occurred at any time from or after
the date of the Merger Agreement Amendment and, as a result thereof, the
Merger Agreement is terminated, and (b) within six months after such
termination of the Merger Agreement has occurred, an Acquisition Transaction
shall have been consummated with any Person (as defined in Sections 3(a)(9)
and 13(d)(3) of the Exchange Act) other than Parent or a subsidiary or other
Affiliate (as defined in Rule 12b-2 under the Exchange Act) of Parent.
"Acquisition Transactions" means (i) a merger or consolidation, or any similar
business combination transaction, involving the Company; (ii) a purchase,
lease or acquisition of all or substantially all of the assets of the Company
and its subsidiaries taken as a whole; or (iii) the purchase or acquisition by
any Person of securities representing more than 50% of the then outstanding
Shares.
For purposes of the Merger Agreement, a "Trigger Event" is defined as
the occurrence of any of the following events: (i) the Company shall have
entered into or shall have publicly announced its intention to enter into, an
agreement or an agreement in principle with respect to any Acquisition
Proposal (as defined below) other than the transactions contemplated by the
Merger Agreement; (ii) the Board of Directors shall have withdrawn or
materially modified its approval or recommendation of the Offer or the Merger
Agreement other than as a result of Parent's breach of the Merger Agreement; or
(iii) any person or group (as defined in Section 13(d)(3) of the Exchange
Act)) (other than Parent or any of its affiliates) shall have become the
beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act)
of at least 25% of any class or series of capital stock of the Company
(including the Shares), or shall have acquired, directly or indirectly, at
least 25% of the assets of the Company other than acquisitions of securities
for bona fide arbitrage purposes only and other than Corimon Parent or its
affiliates; or Corimon Parent and its affiliates shall beneficially own more
than 28% of the Shares. "Acquisition Proposal" means any offer or proposal
for, or any indication of interest in, a merger or other business combination
involving the Company or any Subsidiary or the acquisition of any equity
interest in, or a substantial portion of the assets of, the Company or any
Subsidiary, other than the transactions contemplated by the Merger Agreement.
The $16,000,000 payment referred to above is in addition to, and not in
lieu of or offset by, the $8,000,000 payment to be paid by the Company to
Parent pursuant to the Original Merger Agreement upon the occurrence of a
Trigger Event. The description in the Offer to Purchase regarding the
$8,000,000 payment is hereby amended as follows: The $8,000,000 million
payment is required to be paid regardless of whether the Merger Agreement is
terminated.
EXCEPT FOR THE AMENDMENTS EFFECTED BY THE MERGER AGREEMENT AMENDMENT, ALL
OF THE TERMS AND CONDITIONS OF THE ORIGINAL MERGER AGREEMENT REMAIN IN FULL
FORCE AND EFFECT, INCLUDING WITHOUT LIMITATION, THE REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS OF EACH OF THE COMPANY, PARENT AND
PURCHASER AND THE CONDITIONS TO PURCHASER'S OBLIGATIONS TO CONSUMMATE THE
OFFER AND PURCHASER'S AND THE COMPANY'S OBLIGATIONS TO CONSUMMATE THE MERGER.
SEE SECTIONS 10 AND 15 OF THE OFFER TO PURCHASE.
5. Waiver Of Minimum Condition. The discussion set forth in Section 14
of the Offer to Purchase is hereby supplemented as follows.
Pursuant to the Merger Agreement, Purchaser may waive the Minimum
Condition, provided that Purchaser will not be permitted to accept Shares for
payment pursuant to the Offer unless the Shares so accepted for payment,
together with the Corimon Shares and any other Shares then owned by Purchaser,
represent at least a majority of the outstanding Shares on a fully diluted
basis. Currently, Purchaser does not intend to so waive the Minimum
Condition. However, if Purchaser determined to waive the Minimum Condition
and then purchased Shares pursuant to the Offer which represented, together
with the Corimon Shares and any other Shares then owned by Purchaser, less
than two-thirds of the total number of outstanding Shares, Purchaser would not
have sufficient voting power to approve the Merger without the affirmative
vote of other shareholders. Under such circumstances, the Merger Agreement
provides that the Company would call and hold a meeting of its shareholders to
vote on the approval and the adoption of the Merger Agreement and Purchaser
would vote all Shares beneficially owned by it or its affiliates in favor of
the Merger Agreement. There can be no assurances that under such
circumstances the Merger Agreement would be approved. If such circumstances
arise and the Merger Agreement is not approved, Purchaser reserves the right,
subject to applicable law, including Rule 13e-3 under the Exchange Act, to
purchase additional Shares through open market purchases, privately negotiated
transactions, a tender offer, an exchange offer, a merger or otherwise, and to
sell all or a portion of the Shares owned by Purchaser in the open market, in
privately negotiated transactions, through a public offering or otherwise, in
each case at such prices and on such terms as Purchaser deems appropriate.
6. Certain Legal Matters; Regulatory Approvals. The discussion set
forth in Section 16 of the Offer to Purchase is hereby supplemented as follows.
Antitrust. Pursuant to the requirements of the Hart-Scott-Rodino Act of
1976, as amended (the "HSR Act"), Purchaser filed a Notification and Report
Form with respect to the Offer with the Antitrust Division of the Department
of Justice (the "Antitrust Division") and the Federal Trade Commission (the
"FTC") on May 2, 1995. On Tuesday, May 16, 1995, Purchaser was informed by
the FTC that early termination of the waiting period under the HSR Act
applicable to the purchase of Shares pursuant to the Offer had been granted.
Certain Litigation. Parent understands that on May 2, 1995, a complaint
was filed naming the Company and its directors as defendants in a purported
class action for breach of fiduciary duty. The complaint was filed with the
Supreme Court of the State of New York, County of New York. The plaintiffs in
such action are Miriam Sarnoff and Frederick Rand, on behalf of themselves and
purportedly all persons similarly situated. The complaint alleges that the
proposed acquisition of the Company by Parent is unfair to the Company's
public shareholders and that the defendants breached their fiduciary duties by
authorizing such acquisition. The complaint seeks, among other things,
injunctive relief and unspecified damages.
Parent is named as a co-defendant, together with the Company and its
directors, in a complaint that was filed on May 5, 1995, in a purported class
action for breach of fiduciary duty. The complaint was filed with the Supreme
Court of the State of New York, County of New York. The plaintiffs in such
action are Martin Applebaum and Rosalyn Younger. The complaint alleges that
directors of the Company breached their fiduciary duties by entering into a
merger agreement with Parent and by failing to respond in a reasonable and
informed manner to Sherwin-Williams' interest in entering into a business
combination with the Company. The complaint also alleges that Parent is an
aider and abettor of such breach. The complaint seeks, among other things,
injunctive relief and unspecified damages.
Parent understands that on May 5, 1995, a complaint was filed naming the
Company and its directors as defendants in a purported class action for breach
of fiduciary duty. The complaint was filed with the Supreme Court of the
State of New York, County of New York. The plaintiff in such action is Samuel
Pill. The complaint alleges that the proposed acquisition of the Company by
Parent is unfair to the Company's public shareholders and that the defendants
breached their fiduciary duties by agreeing for the Company to be acquired by
Parent and by failing to auction the Company to the highest bidder. The
complaint seeks, among other things, injunctive relief and unspecified damages.
Parent and Purchaser are named as co-defendants, together with the
Company and its directors, in a complaint that was filed on May 8, 1995 in an
action for breach of fiduciary duty and violation of the New York Law. The
complaint was filed with the Supreme Court of the State of New York, County
of New York. The plaintiff in such action is Sherwin-Williams. The complaint
alleges that directors of the Company breached their fiduciary duties by
placing the interests of the Company's management above those of the Company's
shareholders and that directors of the Company and the Company breached their
fiduciary duties by agreeing to be acquired by Parent and by refusing to
attempt to determine whether Sherwin-Williams would offer a transaction
superior to Parent's and that Parent and Purchaser aided and abetted such
breach. The complaint also alleges that Parent and the Company violated
Section 912 of the New York Law. The complaint seeks, among other things,
injunctive relief and unspecified damages. On May 8, 1995, the court held a
hearing upon plaintiff's motion for a temporary restraining order.
Plaintiff's motion was denied and the court scheduled a hearing for May 25,
1995 on plaintiff's motion for a preliminary injunction against the Offer. In
connection with such complaint, on May 18, 1995, the court held a hearing on
Sherwin-Williams' motion for preliminary injunctive relief to enjoin the
Company's Formal Bidding Procedures. At such hearing, the court denied
Sherwin-Williams' motion.
Parent and Purchaser are named as co-defendants, together with the
Company, in a complaint that was filed on May 8, 1995 in an action for
violations of the Exchange Act. The complaint was filed with the Northern
District of Ohio Eastern Division of the United States District Court. The
plaintiff in such action is Sherwin-Williams. The complaint alleges that the
defendants' false and misleading tender offer documents are depriving the
Company's shareholders of the information they need fairly to consider the
merits of Parent's and Sherwin Williams' competing tender offers and are
creating confusion in the market place, thereby depriving Sherwin Williams of
the opportunity to acquire the Company. The complaint seeks, among other
things, injunctive relief and unspecified damages.
Parent understands that on May 8, 1995, a complaint was filed naming the
Company and its directors as defendants in a purported class action for breach
of fiduciary duty. The complaint was filed with the Supreme Court of the
State of New York, County of New York. The plaintiff in such action is A.D.
Gilhart & Co., Inc., on behalf of itself and purportedly all others similarly
situated. The complaint alleges that the directors of the Company breached
their fiduciary duties by entering into the Merger Agreement without properly
exploring other offers and rejecting possible offers out of hand and by
failing to insure that the shareholders of the Company receive maximum value
for their shares of the Common Stock of the Company. The complaint seeks,
among other things, injunctive relief and unspecified damages.
Parent understands that on May 9, 1995, a complaint was filed naming the
Company and three of its directors and officers in a purported class action
for violations of the Exchange Act. The complaint was filed with the Southern
District of New York of the United States District Court. The plaintiffs in
such action are Kim J. Hammond and Jeffrey Dell who sold their securities of
the Company during the period from April 29, 1995 to May 4, 1995. The
complaint alleges that the defendants violated and/or aided and abetted
violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated
thereunder in that they, among other things, made untrue statements of
material fact or omitted to state material facts necessary in order to make
certain statements the defendants made with respect to the Merger, the Offer
and Sherwin-Williams' interest in pursuing a transaction with the Company not
misleading. The complaint seeks, among other things, unspecified damages and
the plaintiffs demand a trial by jury.
Parent understands that on May 9, 1995, a complaint was filed naming the
Company and its directors as defendants in a class action for breach of
fiduciary duty. The complaint was filed with the Supreme Court of the State
of New York, County of New York. The plaintiff in such action is Kenneth
Steiner. The complaint alleges that the defendants breached their fiduciary
duties by entering into the Original Merger Agreement and by excluding Sherwin
Williams from bidding to acquire the Company and failing to seek other bids.
The complaint seeks, among other things, injunctive relief and unspecified
damages.
7. Miscellaneous. Purchaser has filed with the Commission certain
amendments to the Schedule 14D-1, together with exhibits, pursuant to Rule
14d-3 of the General Rules and Regulations under the Exchange Act, furnishing
certain additional information with respect to the Offer. The Schedule 14D-1
and any amendments thereto, including exhibits, may be examined and copies may
be obtained from the offices of the Commission in the manner set forth in
Section 7 of the Offer to Purchase (except that such information will not be
available at the regional offices of the Commission).
GDEN Corporation
May 22, 1995
Facsimile copies of the Letters of Transmittal will be accepted. The
Letter of Transmittal and certificates for Shares and any other required
documents should be sent to the Depositary at one of the addresses set forth
below:
The Depositary for the Offer is:
Morgan Guaranty Trust Company of New York
(For Information Call Collect 617-774-4237)
By Mail: By Overnight Courier: By Hand:
Attn: Corporate Attn: Corporate State Street Bank
Reorganization Reorganization & Trust Company
P.O. Box 8216 2 Heritage Drive 61 Broadway - Concourse
Boston, MA 02266-8216 N. Quincy, MA 02171 Level
New York, NY 10006
By Facsimile:
(617) 774-4519
Questions or requests for assistance or additional copies of the
Offer to Purchase, this Supplement, the revised (green) Letter of Transmittal
and the revised (blue) Notice of Guaranteed Delivery may be directed to the
Information Agent or the Dealer Managers at their respective addresses and
telephone numbers set forth below. Shareholders may also contact their
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) 929-5500 (call collect)
(800) 322-2885 (toll free)
The Dealer Managers for the Offer are:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000 (call collect)
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
of
Grow Group, Inc.
Pursuant to the Offer to Purchase
dated May 4, 1995
and the Supplement thereto
dated May 22, 1995
of
GDEN Corporation
an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 5, 1995, UNLESS THE OFFER IS
FURTHER EXTENDED.
To: MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Depositary
By Mail: By Overnight Courier: By Hand:
Attn: Corporate Attn: Corporate Reorganization Street Bank
Reorganization State & Trust Company
P.O. Box 8216 2 Heritage Drive 61 Broadway -
Concourse Level
Boston, MA 02266-8216 N. Quincy, MA 02171 New York, NY 10006
By Facsimile:
(617) 774-4519
Delivery of this instrument to an address other than as set forth above or
transmission of instructions to a facsimile number other than the ones listed
above will not constitute a valid delivery.
This revised Letter of Transmittal or the previously circulated (blue)
Letter of Transmittal is to be used if certificates are to be forwarded
herewith or, unless an Agent's Message (as defined in the Offer to Purchase)
is utilized, if delivery of Shares (as defined below) is to be made by
book-entry transfer to the Depositary's account at The Depository Trust
Company, Midwest Securities Trust Company or Philadelphia Depository Trust
Company (hereinafter collectively referred to as the "Book-Entry Transfer
Facilities") pursuant to the procedures set forth in Section 3 of the Offer to
Purchase.
Shareholders who cannot deliver their Shares and all other documents
required hereby to the Depositary by the Expiration Date (as defined in the
Offer) must tender their Shares pursuant to the guaranteed delivery procedure
set forth in Section 3 of the Offer to Purchase. See Instruction 2.
DESCRIPTION OF SHARES TENDERED
<TABLE>
<S> <C> <C> <C>
Name(s) and Address(es) of Registered Holder(s) Shares Tendered
(Please fill in, if blank) (Attach additional list if necessary)
Total Number* of
Shares Number of
Certificate Represented by Shares
Number(s)** Certificate(s)** Tendered***
Total Shares
* Include number of Shares (including fractional Shares) held in dividend
reinvestment plan to be tendered.
** Need not be completed by shareholders tendering by book-entry transfer.
*** Unless otherwise indicated, it will be assumed that all Shares
represented by any certificates delivered to the Depositary are being
tendered. See Instruction 4.
</TABLE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
TO THE DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution............................................
Account No.............................................................at
[ ] The Depository Trust Company
[ ] Midwest Securities Trust Company
[ ] Philadelphia Depository Trust Company
Transaction Code No......................................................
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Tendering Shareholder(s)......................................
Date of Execution of Notice of Guaranteed Delivery.......................
Name of Institution which Guaranteed Delivery............................
If delivery is by book-entry transfer:...................................
Name of Tendering Institution............................................
Account No.............................................................at
[ ] The Depository Trust Company
[ ] Midwest Securities Trust Company
[ ] Philadelphia Depository Trust Company
Transaction Code No......................................................
____________________________
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to GDEN Corporation, a New York
corporation ("Purchaser") and an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC, a company organized under the laws of
England ("Parent"), the above-described shares of Common Stock, $.10 par
value (the "Common Stock"), of Grow Group, Inc., a New York corporation
(the "Company"), and the associated stock purchase rights (the "Rights",
and together with the Common Stock, the "Shares") issued pursuant to the
Amended and Restated Rights Agreement dated as of August 7, 1992, as
amended on April 30, 1995, between the Company and the Bank of New York, as
Rights Agent, pursuant to Purchaser's offer to purchase all outstanding
Shares at a price of $22.00 per Share, net to the seller in cash, subject
to any amounts required to be withheld under applicable federal, state,
local or foreign income tax regulations, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated May 4, 1995 (the "Offer
to Purchase"), as amended and supplemented by the Supplement thereto dated
May 22, 1995 (the "Supplement"), receipt of both of which is hereby
acknowledged, and in the related Letters of Transmittal (which collectively
constitute the "Offer"). The undersigned understands that Purchaser
reserves the right to transfer or assign, in whole or from time to time in
part, to one or more of its direct or indirect wholly owned subsidiaries,
the right to purchase Shares tendered pursuant to the Offer.
Upon the terms and subject to the terms and conditions of the
Offer and effective upon acceptance for payment of and payment for the
Shares tendered herewith, the undersigned hereby sells, assigns and
transfers to or upon the order of Purchaser all right, title and interest
in and to all the Shares that are being tendered hereby (and any and all
other Shares or other securities issued or issuable in respect thereof on
or after April 30, 1995) and appoints the Depositary the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares
(and all such other Shares or securities), with full power of substitution
(such power of attorney being deemed to be an irrevocable power coupled
with an interest), to (a) deliver certificates for such Shares (and all
such other Shares or securities), or transfer ownership of such Shares (and
all such other Shares or securities) on the account books maintained by any
of the Book-Entry Transfer Facilities, together, in any such case, with all
accompanying evidences of transfer and authenticity, to or upon the order
of Purchaser, (b) present such Shares (and all such other Shares or
securities) for transfer on the books of the Company and (c) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and all such other Shares or securities), all in accordance with
the terms of the Offer.
The undersigned hereby irrevocably appoints John K. Thompson,
Stanley A. Lockitski and Norman Schueftan and each of them, the attorneys
and proxies of the undersigned, each with full power of substitution, to
exercise all voting and other rights of the undersigned in such manner as
each such attorney and proxy or his substitute shall in his sole discretion
deem proper, with respect to all of the Shares tendered hereby which have
been accepted for payment by Purchaser prior to the time of any vote or
other action (and any and all other Shares or other securities issued or
issuable in respect thereof on or after April 30, 1995), at any meeting of
shareholders of the Company (whether annual or special and whether or not
an adjourned meeting), by written consent or otherwise. This proxy is
irrevocable and is granted in consideration of, and is effective upon, the
acceptance for payment of such Shares by Purchaser in accordance with the
terms of the Offer. Such acceptance for payment shall revoke any other
proxy or written consent granted by the undersigned at any time with respect
to such Shares (and all such other Shares or securities), and no subsequent
proxies will be given or written consents will be executed by the
undersigned (and if given or executed, will not be deemed to be effective).
The undersigned hereby represents and warrants that the
undersigned has full power and authority to tender, sell, assign and
transfer the Shares tendered hereby (and any and all other Shares or other
securities issued or issuable in respect thereof on or after April 30,
1995) and that when the same are accepted for payment by Purchaser,
Purchaser will acquire good and unencumbered title thereto, free and clear
of all liens, restrictions, charges and encumbrances and not subject to any
adverse claims. The undersigned will, upon request, execute and deliver
any additional documents deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby (and all such other Shares or securities).
All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the undersigned, and any obligation of
the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned. Except as
stated in the Offer, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to
any one of the procedures described in Section 3 of the Offer to Purchase
and in the instructions hereto will constitute an agreement between the
undersigned and Purchaser upon the terms and subject to the conditions of
the Offer.
Unless otherwise indicated under "Special Payment Instructions",
please issue the check for the purchase price of any Shares purchased, and
return any Shares not tendered or not purchased, in the name(s) of the
undersigned (and, in the case of Shares tendered by book-entry transfer, by
credit to the account at the Book-Entry Transfer Facility designated
above). Similarly, unless otherwise indicated under "Special Delivery
Instructions", please mail the check for the purchase price of any Shares
purchased and any certificates for Shares not tendered or not purchased
(and accompanying documents, as appropriate) to the undersigned at the
address shown below the undersigned's signature(s). In the event that both
"Special Payment Instructions" and "Special Delivery Instructions" are
completed, please issue the check for the purchase price of any Shares
purchased and return any Shares not tendered or not purchased in the
name(s) of, and mail said check and any certificates to, the person(s) so
indicated. The undersigned recognizes that Purchaser has no obligation,
pursuant to the "Special Payment Instructions", to transfer any Shares from
the name of the registered holder(s) thereof if Purchaser does not accept
for payment any of the Shares so tendered.
SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 5, 6 and 7)
To be completed ONLY if the check for the
purchase price of Shares purchased (less the
amount of any federal income and backup
withholding tax required to be withheld) or
certificates for Shares not tendered or not
purchased are to be issued in the name of
someone other than the undersigned.
Mail [ ] check
[ ] certificate(s) to:
Name ____________________________________________
(Please Print)
Address__________________________________________
_________________________________________________
(Zip Code)
_________________________________________________
(Taxpayer Identification No.)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 5 and 7)
To be completed ONLY if the check for the
purchase price of Shares purchased (less the
amount of any federal income and backup
withholding tax required to be withheld) or
certificates for Shares not tendered or not
purchased are to be mailed to someone other
than the undersigned or to the undersigned at an
address other than that shown below the
undersigned's signature(s)
Mail [ ] check
[ ] certificate(s) to:
Name_____________________________________________
(Please Print)
Address _________________________________________
_________________________________________________
(Zip Code)
SIGN HERE
(Please complete Substitute Form W-9 below)
_________________________________________________
_________________________________________________
Signature(s) of Owner(s)
Dated ____________________________________ , 1995
Name(s)__________________________________________
(Please Print)
_________________________________________________
Capacity (full title)____________________________
Address__________________________________________
_________________________________________________
(Include Zip Code)
Area Code and
Telephone Number_________________________________
(Must be signed by registered holder(s)
exactly as name(s) appear(s) on stock
certificate(s) or on a security position listing
or by person(s) authorized to become
registered holder(s) by certificates and
documents transmitted herewith. If
signature is by a trustee, executor,
administrator, guardian, attorney-in-fact,
agent, officer of a corporation or other
person acting in a fiduciary or representative
capacity, please set forth full title and see
Instruction 5.)
Guarantee of Signature(s)
(If required; see Instructions 1 and 5)
Name of Firm_____________________________________
Authorized Signature_____________________________
Dated ____________________________________ , 1995
<TABLE>
<S> <C> <C> <C>
SUBSTITUTE Part I Taxpayer Identification No. -- For All Accounts Part II For Payees
FORM W-9 Enter your taxpayer Exempt from
identification number in the Backup
Department of the Treasury appropriate box. For most Withholding (see
Internal Revenue Service individuals and sole proprietors, enclosed
this is your social security Social Security Number Guidelines)
Payer's Request for number. For other entities, it is
Taxpayer Identification No. your Employer Identification
Number. If you do not have a
number, see How to Obtain a
TIN in the enclosed Guidelines.
OR
Note: If the account is in more
than one name, see the chart on
page 2 of the emclosed
Guidelines to determine what
number to enter. Employer identification number
Certification. -- Under penalties of perjury, I certify that:
<FN>
(1) The number shown on this form is my correct Taxpayer Identification
Number (or I am waiting for a number to be issued to me), and either
(a) I have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (b) I intend to
mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number within sixty
(60) days, 31% of all reportable payments made to me thereafter will
be withheld until I provide a number;
(2) I am not subject to backup withholding either because (a) I am exempt
from backup withholding, or (b) I have not been notified by the
Internal Revenue Service ("IRS") that I am subject to backup
withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding; and
(3) Any other information provided on this form is true, correct and
complete.
You must cross out item (2) above if you have been notified by the IRS that
you are currently subject to backup withholding because of underreporting
interest or dividends on your tax return and you have not received a notice
from the IRS advising you that backup withholding has terminated.
SIGNATURE.............................. DATE...........................,1995
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
</TABLE>
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a firm which is
a member of a recognized Medallion Program approved by The Securities Transfer
Associations, Inc. (an "Eligible Institution"). Signatures on this Letter of
Transmittal need not be guaranteed (a) if this Letter of Transmittal is signed
by the registered holder(s) of the Shares (which term, for purposes of this
document, shall include any participant in one of the Book-Entry Transfer
Facilities whose name appears on a security position listing as the owner of
Shares) tendered herewith and such holder(s) have not completed the
instruction entitled "Special Payment Instructions" on this Letter of
Transmittal or (b) if such Shares are tendered for the account of an Eligible
Institution. See Instruction 5.
2. Delivery of Letter of Transmittal and Shares. This Letter of
Transmittal is to be used either if certificates are to be forwarded herewith
or, unless an Agent's Message is utilized, if delivery of Shares is to be made
by book-entry transfer pursuant to the procedures set forth in Section 3 of
the Offer to Purchase. Certificates for all physically delivered Shares, or a
confirmation of a book-entry transfer into the Depositary's account at one of
the Book-Entry Transfer Facilities of all Shares delivered electronically, as
well as a properly completed and duly executed Letter of Transmittal (or
facsimile thereof or, in the case of a book-entry transfer, an Agent's
Message) and any other documents required by this Letter of Transmittal, must
be received by the Depositary at one of its addresses set forth on the front
page of this Letter of Transmittal by the Expiration Date. Shareholders who
cannot deliver their Shares and all other required documents to the Depositary
by the Expiration Date must tender their Shares pursuant to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. Pursuant
to such procedure: (a) such tender must be made by or through an Eligible
Institution, (b) a properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by Purchaser must be received by
the Depositary by the Expiration Date and (c) the certificates for all
physically delivered Shares, or a confirmation of a book-entry transfer into
the Depositary's account at one of the Book-Entry Transfer Facilities of all
Shares delivered electronically, as well as a properly completed and duly
executed Letter of Transmittal (or facsimile thereof or, in the case of a
book-entry delivery, an Agent's Message) and any other documents required by
this Letter of Transmittal, must be received by the Depositary within five New
York Stock Exchange, Inc. trading days after the date of execution of such
Notice of Guaranteed Delivery, all as provided in Section 3 of the Offer to
Purchase.
THE METHOD OF DELIVERY OF SHARES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE
OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF CERTIFICATES FOR SHARES ARE
SENT BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED,
IS RECOMMENDED.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. By executing this Letter of Transmittal
(or facsimile thereof), the tendering shareholder waives any right to receive
any notice of the acceptance for payment of the Shares.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. Partial Tenders (not applicable to shareholders who tender by
book-entry transfer). If fewer than all the Shares represented by any
certificate delivered to the Depositary are to be tendered, fill in the number
of Shares which are to be tendered in the box entitled "Number of Shares
Tendered". In such case, a new certificate for the remainder of the Shares
represented by the old certificate will be sent to the person(s) signing this
Letter of Transmittal, unless otherwise provided in the appropriate box on
this Letter of Transmittal, as promptly as practicable following the
expiration or termination of the Offer. All Shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the face of the certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby is held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of certificates or separate stock
powers are required unless payment of the purchase price is to be made, or
Shares not tendered or not purchased are to be returned, in the name of any
person other than the registered holder(s). Signatures on any such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, certificates must be
endorsed or accompanied by appropriate stock powers, in either case, signed
exactly as the name(s) of the registered holder(s) appear(s) on the
certificates for such Shares. Signature(s) on any such certificates or stock
powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of
a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of the authority of such person so to act must be
submitted.
6. Stock Transfer Taxes. Purchaser will pay any stock transfer taxes with
respect to the sale and transfer of any Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or
Shares not tendered or not purchased are to be returned in the name of, any
person other than the registered holder(s), or if a transfer tax is imposed
for any reason other than the sale or transfer of Shares to Purchaser pursuant
to the Offer, then the amount of any stock transfer taxes (whether imposed on
the registered holder(s), such other person or otherwise) will be deducted
from the purchase price unless satisfactory evidence of the payment of such
taxes, or exemption therefrom, is submitted herewith.
7. Special Payment and Delivery Instructions. If the check for the
purchase price of any Shares purchased is to be issued, or any Shares not
tendered or not purchased are to be returned, in the name of a person other
than the person(s) signing this Letter of Transmittal or if the check or any
certificates for Shares not tendered or not purchased are to be mailed to
someone other than the person(s) signing this Letter of Transmittal or to the
person(s) signing this Letter of Transmittal at an address other than that
shown above, the appropriate boxes on this Letter of Transmittal should be
completed. Shareholders tendering Shares by book-entry transfer may request
that Shares not purchased be credited to such account at any of the Book-Entry
Transfer Facilities as such shareholder may designate under "Special Payment
Instructions". If no such instructions are given, any such Shares not
purchased will be returned by crediting the account at the Book-Entry Transfer
Facilities designated above.
8. Substitute Form W-9. Under the federal income tax laws, the Depositary
will be required to withhold 31% of the amount of any payments made to certain
shareholders pursuant to the Offer. In order to avoid such backup
withholding, each tendering shareholder, and, if applicable, each other payee,
must provide the Depositary with such shareholder's or payee's correct
taxpayer identification number and certify that such shareholder or payee is
not subject to such backup withholding by completing the Substitute Form W-9
set forth above. In general, if a shareholder or payee is an individual, the
taxpayer identification number is the Social Security number of such
individual. If the Depositary is not provided with the correct taxpayer
identification number, the shareholder or payee may be subject to a $50
penalty imposed by the Internal Revenue Service. Certain shareholders or
payees (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. In order to satisfy the Depositary that a foreign individual
qualifies as an exempt recipient, such shareholder or payee must submit a
statement, signed under penalties of perjury, attesting to that individual's
exempt status. Such statements can be obtained from the Depositary. For
further information concerning backup withholding and instructions for
completing the Substitute Form W-9 (including how to obtain a taxpayer
identification number if you do not have one and how to complete the
Substitute Form W-9 if Shares are held in more than one name), consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Shares to be deemed invalidly tendered, but may require the Depositary to
withhold 31% of the amount of any payments made pursuant to the Offer. Backup
withholding is not an additional federal income tax. Rather, the federal
income tax liability of a person subject to backup withholding will be reduced
by the amount of tax withheld. If withholding results in an overpayment of
taxes, a refund may be obtained provided that the required information is
furnished to the Internal Revenue Service. NOTE: FAILURE TO COMPLETE AND
RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY
PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9 FOR ADDITIONAL DETAILS.
9. Requests for Assistance or Additional Copies. Requests for assistance
or additional copies of the Offer to Purchase, the Supplement and this Letter
of Transmittal may be obtained from the Information Agent or the Dealer
Managers at their respective addresses or telephone numbers set forth below.
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
(DO NOT WRITE IN SPACES BELOW)
Date Received______________ Accepted By_____________ Checked By___________
Shares Shares Shares Check Amount Shares Certificate Block
Surrendered Tendered Accepted No. of Check Returned No. No.
----------- -------- -------- ------ -------- -------- ----------- -----
Gr______
Net_____
Delivery Prepared By_________ Checked By_________ Date______________
</TABLE>
The Information Agent is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
(800) 322-2885 (toll free)
The Dealer Managers are:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
(212) 902-1000 (call collect)
GUIDELINES FOR CERTIFICATE OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give to
the Depositary. Social Security numbers have nine digits separated by two
hyphens: i.e. 000-00-0000. Employer identification numbers have nine
digits separated by only one hyphen: i.e. 00-0000000. The table below will
help determine the number to give the Depositary.
For this type of account:
1. Individual
2. Two or more individuals (joint account)
3. Custodian account of a minor (Uniform Gift to Minors Act)
4. a. The usual revocable savings trust (grantor is also trustee)
b. The so-called trust account that is not a legal or valid trust
under State law
5. Sole proprietorship
6. Account in the name of guardian or committee for a designated
ward, minor or incompetent person
For this type of account:
7. A valid trust, estate or pension trust
8. Corporation
9. Association, club, religious, charitable, educational or other tax-
exempt organization 10. Partnership 11. A broker or registered nominee
12. Account with the Department of Agriculture in the name of a public
entity (such as a State or local government, school district, or prison)
that receives agricultural program payments
Give the name and
SOCIAL SECURITY
number of:
The individual
The actual owner of the account or, if combined funds, the first
individual on the account(1)
The minor(2)
The grantor-trustee(1)
The actual owner(1)
The owner(4)
The ward, minor or incompetent person(5)
Give the name and
EMPLOYER IDENTIFICATION
number of:
Legal entity (do not furnish the identification number of the personal
representative or trustee unless the legal entity itself is not designated in
the account title)(3)
The corporation
The organization
The partnership
The broker or nominee
The public entity
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) List first and circle the name of the legal trust, estate or pension trust.
(4) Show the name of the owner.
(5) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
Note: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
Obtaining a Number
If you don't have a taxpayer identification number or you don't know
your number, obtain Form SS-5, Application for a Social Security Number
Card, or Form SS-4, Application for Employer Identification Number, at the
local office of the Social Security Administration or the Internal Revenue
Service and apply for a number.
Shareholders Exempt from Backup Withholding
Shareholders specifically exempted from backup withholding on ALL
payments include the following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under section 403(b)(7).
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
o An international organization or any agency or instrumentality thereof.
o A dealer in securities or commodities registered in the United States or a
possession of the United States.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of 1940.
o A foreign central bank of issue.
Payment of dividends and patronage dividends not generally subject to backup
withholding include the following:
o Payments to nonresident aliens subject to withholding under section 1441.
o Payments to partnerships not engaged in a trade or business in the United
States and which have at least one nonresident partner.
o Payments of patronage dividends where the amount received is not paid in
money.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Exempt shareholders described above should file Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE DEPOSITARY, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM,
SIGN AND DATE THE FORM AND RETURN IT TO THE DEPOSITARY.
Payments that are not subject to information reporting are also not
subject to backup withholding. For details, see the regulations under
sections 6041, 6041(A)(a), 6042, 6044, 6045, 6049, 6050(A) and 6050(N).
Privacy Act Notice
Section 6109 requires most recipients of dividends, interest, or other
payments to give taxpayer identification numbers to the Depositary who must
report the payments to IRS. The IRS uses the numbers for identification
purposes and to help verify the accuracy of your tax return. The
Depositary must be given the numbers whether or not shareholders are
required to file tax returns. The Depositary must generally withhold 31%
of taxable interest, dividends, and certain other payments to a shareholder
who does not furnish a taxpayer identification number to the Depositary.
Certain penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number.
If you fail to furnish your taxpayer identification number to the
Depositary, you are subject to a penalty of $50 for each such failure
unless your failure is due to reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding.
If you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information. Falsifying
certifications or affirmations may subject you to criminal penalties
including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION, CONTACT YOUR TAX CONSULTANT
OR THE INTERNAL REVENUE SERVICE.
NOTICE OF GUARANTEED DELIVERY
This form, or a form substantially equivalent to this form, must be used
to accept the Offer (as defined below) if the shares of Common Stock of Grow
Group, Inc. and all other documents required by the Letter of Transmittal
cannot be delivered to the Depositary by the expiration of the Offer. Such
form may be delivered by hand or facsimile transmission, telex or mail to the
Depositary. See Section 3 of the Offer to Purchase.
To: Morgan Guaranty Trust Company of New York, as Depositary
By Hand: By Overnight Courier: By Mail:
State Street Bank & Attn: Corporate Attn: Corporate
Trust Company Reorganization Reorganization
61 Broadway - l2 Heritage Drive P.O. Box 8216
Concourse Level N. Quincy, MA 02171 Boston, MA 02266-8216
New York, NY 10006
By Facsimile:
(617) 774-4519
Ladies and Gentlemen:
The undersigned hereby tenders to GDEN Corporation, a New York
corporation ("Purchaser") and an indirect wholly owned subsidiary of Imperial
Chemical Industries PLC, upon the terms and subject to the conditions set
forth in the Offer to Purchase dated May 4, 1995 (the "Offer to Purchase"), as
amended and supplemented by the Supplement thereto dated May 22, 1995 (the
"Supplement"), and the related Letters of Transmittal (which collectively
constitute the "Offer"), receipt of which is hereby acknowledged, ____________
shares of Common Stock, $.10 par value per share (the "Shares"), of Grow
Group, Inc., a New York corporation, pursuant to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase.
Certificate Nos. (if available): SIGN HERE
-------------------------------- --------------------------------
(Signature(s))
-------------------------------- --------------------------------
(Name(s)) (Please Print)
If shares will be tendered by
book-entry transfer:
--------------------------------
Name of Tendering (Address)
Institution______________________
Account No.___________________ at ---------------------------------
(Zip Code)
[ ]The Depository Trust Company
[ ]Midwest Securities Trust Company
[ ]Philadelphia Depository Trust ---------------------------------
Company (Area Code and Telephone No.)
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm which is a member of a registered national
securities exchange or the National Association of Securities Dealers, Inc.,
or a commercial bank or trust company having an office or correspondent in the
United States, guarantees (a) that the above named person(s) "own(s)" the
Shares tendered hereby within the meaning of Rule 10b-4 under the Securities
Exchange Act of 1934, (b) that such tender of Shares complies with Rule 10b-4
and (c) to deliver to the Depositary the Shares tendered hereby, together with
a properly completed and duly executed Letter(s) of Transmittal (or
facsimile(s) thereof) or an Agent's Message (as defined in the Offer to
Purchase) in the case of a book-entry delivery and any other required
documents, all within five New York Stock Exchange, Inc. trading days of the
date hereof.
____________________________________________
(Name of Firm)
____________________________________________
(Authorized Signature)
____________________________________________
(Name)
____________________________________________
(Address)
____________________________________________
(Zip Code)
____________________________________________
(Area Code and Telephone No.)
Dated: __________________, 1995
GDEN Corporation
an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC
Has Increased the Price of Its Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Grow Group, Inc.
to
$22.00 Net Per Share
May 22, 1995
To Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees:
We have been appointed by GDEN Corporation, a New York corporation
("Purchaser") and an indirect wholly owned subsidiary of Imperial Chemical
Industries PLC, to act as Dealer Managers in connection with its offer to
purchase all outstanding shares of Common Stock, $.10 par value (the
"Shares"), of Grow Group, Inc., a New York corporation (the "Company"), at
$22.00 per Share, net to the seller in cash, subject to any amounts required
to be withheld under applicable federal, state, local or foreign income tax
regulations, upon the terms and subject to the conditions set forth in
Purchaser's Offer to Purchase dated May 4, 1995 (the "Offer to Purchase"), as
amended and supplemented by the Supplement thereto dated May 22, 1995 (the
"Supplement"), and in the related Letters of Transmittal (which collectively
constitute the "Offer").
For your information and for forwarding to your clients for whom you
hold Shares registered in your name or in the name of your nominee, we are
enclosing the following documents:
1. The Supplement dated May 22, 1995;
2. The revised (green) Letter of Transmittal for your use and for
the information of your clients, together with Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9 providing information relating to backup federal
income tax withholding;
3. The revised (blue) Notice of Guaranteed Delivery to be used to
accept the Offer if the Shares and all other required documents
cannot be delivered to the Depositary by the Expiration Date
(as defined in the Offer);
4. A revised letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name
of your nominee, with space provided for obtaining such
clients' instructions with regard to the Offer; and
5. Return envelope addressed to Morgan Guaranty Trust Company of
New York, Attn: Corporate Reorganization, P.O. Box 8216,
Boston, MA 02266-8216, the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 5, 1995, UNLESS THE
OFFER IS FURTHER EXTENDED.
Purchaser will not pay any fees or commissions to any broker or
dealer or other person (other than the Dealer Managers, the Information Agent
or the Depositary as described in the Offer to Purchase) for soliciting
tenders of Shares pursuant to the Offer. Purchaser will, however, upon
request, reimburse brokers, dealers, commercial banks and trust companies for
reasonable and necessary costs and expenses incurred by them in forwarding
materials to their customers. Purchaser will pay all stock transfer taxes
applicable to its purchase of Shares pursuant to the Offer, subject to
Instruction 6 of the Letter of Transmittal.
In order to accept the Offer a duly executed and properly completed
Letter of Transmittal and any required signature guarantees, or an Agent's
Message (as defined in the Offer to Purchase) in connection with a book-entry
delivery of Shares, and any other required documents, should be sent to the
Depositary by 12:00 midnight, New York City time, on Monday, June 5, 1995.
Any inquiries you may have with respect to the Offer should be
addressed to, and additional copies of the enclosed materials may be obtained
from, the Information Agent or the undersigned at the addresses and telephone
numbers set forth on the back cover of the Supplement.
Very truly yours,
GOLDMAN, SACHS & CO.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL
CONSTITUTE YOU THE AGENT OF GDEN CORPORATION, IMPERIAL CHEMICAL INDUSTRIES
PLC, THE DEALER MANAGERS, THE INFORMATION AGENT OR THE DEPOSITARY, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
GDEN Corporation
an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC
Has Increased the Price of Its Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Grow Group, Inc.
to
$22.00 Net Per Share
May 22, 1995
To Our Clients:
Enclosed for your consideration is a Supplement dated May 22, 1995
(the "Supplement") to the Offer to Purchase dated May 4, 1995 (the "Offer to
Purchase") and the revised (green) Letter of Transmittal (which together
constitute the "Offer") in connection with the offer by GDEN Corporation, a
New York corporation ("Purchaser") and an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC, to purchase for cash all outstanding shares
of Common Stock, $.10 par value (the "Shares"), of Grow Group, Inc., a New York
corporation (the "Company"). We are the holder of record of Shares held for
your account. A tender of such Shares can be made only by us as the holder of
record and pursuant to your instructions. The Letter of Transmittal is
furnished to you for your information only and cannot be used by you to tender
Shares held by us for your account.
We request instructions as to whether you wish us to tender any or
all of the Shares held by us for your account, upon the terms and subject to
the conditions set forth in the Offer.
Your attention is invited to the following:
1. The tender price is $22.00 per Share, net to you in cash, subject
to any amounts required to be withheld under applicable federal, state, local
or foreign income tax regulations.
2. The Offer has been extended. The Offer and withdrawal rights
expire at 12:00 Midnight, New York City time, on Monday, June 5, 1995, unless
the Offer is further extended.
3. The Offer is conditioned upon, among other things, there being
validly tendered by the Expiration Date (as defined in the Offer) and not
withdrawn a number of Shares which, together with the Corimon Shares (as
defined in the Offer) and any other Shares owned by Purchaser, represents at
least two-thirds of the total number of outstanding Shares on a fully diluted
basis.
4. Any stock transfer taxes applicable to the sale of Shares to
Purchaser pursuant to the Offer will be paid by Purchaser, except as otherwise
provided in Instruction 6 of the Letter of Transmittal.
If you wish to have us tender any or all of your Shares, please so
instruct us by completing, executing, detaching and returning to us the
instruction form on the detachable part hereof. An envelope to return your
instructions to us is enclosed. If you authorize tender of your Shares, all
such Shares will be tendered unless otherwise specified on the detachable part
hereof. Your instructions should be forwarded to us in ample time to permit
us to submit a tender on your behalf by the expiration of the Offer.
The Offer is not being made to, nor will tenders be accepted from or
on behalf of, holders of Shares in any jurisdiction in which the making of the
Offer or acceptance thereof would not be in compliance with the laws of such
jurisdiction.
Payment for Shares purchased pursuant to the Offer will in all cases
be made only after timely receipt by Morgan Guaranty Trust Company of New York
(the "Depositary") of (a) Share Certificates or timely confirmation of the
book-entry transfer of such Shares into the account maintained by the
Depositary at The Depository Trust Company, the Midwest Securities Trust
Company or the Philadelphia Depository Trust Company (collectively, the
"Book-Entry Transfer Facilities"), pursuant to the procedures set forth in
Section 3 of the Offer to Purchase, (b) the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined in the Offer to
Purchase), in connection with a book-entry delivery, and (c) any other
documents required by the Letter of Transmittal. Accordingly, payment may not
be made to all tendering shareholders at the same time depending upon when
certificates for or confirmations of book-entry transfer of such Shares into
the Depositary's account at a Book-Entry Transfer Facility are actually
received by the Depositary.
Instructions with Respect to
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Grow Group, Inc.
The undersigned acknowledge(s) receipt of your letter, the Offer to
Purchase dated May 4, 1995, the enclosed Supplement dated May 22, 1995 to the
Offer to Purchase and the revised (green) Letter of Transmittal (which
collectively constitute the "Offer"), in connection with the offer by GDEN
Corporation to purchase all outstanding shares of Common Stock, $.10 par value
per share (the "Shares"), of Grow Group, Inc.
This will instruct you to tender the number of Shares indicated below
held by you for the account of the undersigned, upon the terms and subject to
the conditions set forth in the Offer.
Number of Shares to be Tendered: SIGN HERE
_________________________Shares(1) -------------------------------
Signature(s)
Dated:_____________________, 1995
--------------------------------
--------------------------------
--------------------------------
Please print name(s) and address(es)
here
--------------------
(1) Unless otherwise indicated, it will be assumed that all Shares
held by us for your account are to be tendered.
Withdrawal of
Shares of Common Stock
(Including the Associated Rights)
of
Grow Group, Inc.
Tendered Pursuant to the Offer by
GGI Acquisition, Inc.
a wholly-owned subsidiary
of
The Sherwin-Williams Company
To The Shareholders of Grow Group, Inc.
Who Have Tendered Shares Pursuant
to the Offer of GGI Acquisition, Inc.:
Shares of Common Stock of Grow Group, Inc., par value $.10 per share
(the "Shares"), that have been tendered pursuant to the offer by GGI
Acquisition, Inc., for all outstanding Shares and the associated stock
purchase rights (the "Rights"), if any, may be withdrawn until 12:00 Midnight,
New York City time, on Monday June 5, 1995, if the applicable procedures set
forth in Section 4 of the Offer to Purchase dated May 8, 1995 (the
"Sherwin-Williams Offer to Purchase") and related Letter of Transmittal (which
together constitute the "Sherwin-Williams Offer") are followed.
SHAREHOLDERS WHO DESIRE ASSISTANCE IN WITHDRAWING SHARES TENDERED
PURSUANT TO THE SHERWIN-WILLIAMS OFFER MAY CALL MACKENZIE PARTNERS, INC., TOLL
FREE, AT 1-800-223-2064.
With respect to withdrawal of Shares (and Rights, if any), Section 4 of
the Sherwin-Williams Offer to Purchase provides in relevant part:
For a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission notice of withdrawal must be timely received by
the Depositary at one of its addresses set forth on the back cover of
[the Sherwin-Williams Offer to Purchase]. Any notice of withdrawal must
specify the name of the person who tendered the Shares or Rights to be
withdrawn, the number of Shares or Rights to be withdrawn and the name
of the registered holder, if different from that of the person who
tendered the Shares or Rights. If Share Certificates or Rights
Certificates to be withdrawn have been delivered or otherwise identified
to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on the certificates must be
submitted to the Depositary and the signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution, unless such
Shares or Rights have been tendered for the account of any Eligible
Institution. If Shares or Rights have been tendered pursuant to the
procedure for book-entry transfer as set forth in Section 3 [of the
Sherwin-Williams Offer to Purchase], any notice of withdrawal must
specify the name and number of the account at the Book-Entry Transfer
Facility to be credited with the withdrawn Shares or Rights, in which
case a notice of withdrawal will be effective if delivered to the
Depositary by any method of delivery described in the first sentence of
this paragraph. A withdrawal of Shares or Rights shall also constitute
a withdrawal of the associated Rights or Shares, as applicable.
In connection with the offer to purchase Shares by GDEN Corporation
("Purchaser"), described in the Offer to Purchase dated May 4, 1995 (the
"Offer to Purchase"), as amended and supplemented by the Supplement thereto
dated May 22, 1995 (the "Supplement") and the revised (green) Letter of
Transmittal (which collectively constitute the "Offer"), Purchaser, for the
convenience of the holders of Shares, has enclosed a Form of "Notice of
Withdrawal," which, if properly completed and timely delivered to First
Chicago Trust Company of New York ("First Chicago"), depositary for the
Sherwin-Williams Offer, will enable a shareholder to withdraw Shares, if any,
or Rights tendered pursuant to the Sherwin-Williams Offer. This form,
facsimile thereof, or any other proper notice of withdrawal may be delivered
by hand or sent by telegram, facsimile transmission or letter to First Chicago.
Shares held by First Chicago under the Sherwin-Williams Offer must first
be withdrawn before they can be tendered into the Offer.
Copies of the Offer to Purchase, the Supplement and the revised (green)
Letter of Transmittal are available from MacKenzie Partners, Inc. at the phone
number listed above or at the phone numbers and addresses listed on the back
cover of the Supplement. Upon proper withdrawal of Shares from the
Sherwin-Williams Offer, Shares may be tendered into the Offer, which will
expire at 12:00 Midnight, New York City time, on Monday, June 5, 1995, unless
further extended. For information concerning the circumstances in which the
Offer and the Sherwin-Williams Offer may be extended, shareholders are
referred to the Offer to Purchase, the Supplement and the Sherwin-Williams
Offer to Purchase.
Notice of Withdrawal
of
Shares of Common Stock
(Including the Associated Rights)
of
Grow Group, Inc.
previously tendered to
GGI Acquisition, Inc.
THE WITHDRAWAL DEADLINE IS 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON MONDAY JUNE 5, 1995, UNLESS EXTENDED
TO: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By Mail: By Facsimile Transmission:
(for Eligible Institutions only)
Tenders & Exchanges (201) 222-4720 or 4721
Suite 4660-GRO
P.O. Box 2559 Confirmation of Facsimile
Jersey City, NJ 07303-2559 Transmissions Only:
(201) 222-4707
By Hand or Overnight Delivery:
Tenders & Exchanges
Suite 4680-GRO
14 Wall Street
8th Floor
New York, New York 10005
Ladies and Gentlemen:
The following shares of Common Stock, par value $0.10 per share (the
"Shares"), of Grow Group, Inc., and the associated stock purchase rights (the
"Rights"), if any, previously tendered to GGI Acquisition, Inc. are hereby
withdrawn. Please return the certificates representing the Shares and Rights,
if any, promptly to the undersigned.
DESCRIPTION OF SHARES AND RIGHTS, IF ANY, WITHDRAWN
Name(s) of tendering shareholders(s)...............
Name(s) of registered holder(s) (if different).....
Number of Shares (and Rights, if any), withdrawn...
FURTHER DESCRIPTION OF WITHDRAWN SHARES AND RIGHTS, IF ANY
(to be completed only if certificates have been delivered or otherwise
identified to First Chicago Trust Company of New York or tendered by book-
entry transfer)
Share Certificate Number(s).............................................
If applicable, Rights Certificate Number(s).............................
If applicable, DTC, MSTC or PHDTC account number........................
Name of DTC, MSTC, or PHDTC account.....................................
(Must be signed on other side)
SHAREHOLDER SIGN HERE
Must be signed by the registered holder(s) as name(s) appear(s) on
stock certificate(s) or by person(s) authorized to become registered
holder(s) by certificates and documents transmitted. If signature is by
trustee, executor, administrator, guardian, officer or other person acting
in a fiduciary or representative capacity, please set forth full title.
........................................................................
........................................................................
Signature(s) of Owner(s)
Dated:............................................., 1995
Name(s)..................................................................
........................................................................
(Please Print)
Capacity.................................................................
Address..................................................................
GUARANTEE OF SIGNATURE(S)
(Required if certificates have been delivered or otherwise
identified to First Chicago Trust Company of New York)
FOR USE BY FINANCIAL INSTITUTIONS ONLY:
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
INSTRUCTIONS
1. Guarantees of Signatures. The terms of the Sherwin-Williams
Offer to Purchase require that if Share Certificates and Rights
Certificates, if any, have been delivered or otherwise identified to First
Chicago Trust Company of New York, then the signature on the notice of
withdrawal must be guaranteed by a firm that is a bank, broker, dealer,
credit union, savings association or other entity which is a member in good
standing of the Securities Transfer Agents Medallion Program (an "Eligible
Institution"), except in the case of Shares and Rights if any, tendered for
the account of an Eligible Institution.
2. Delivery of Notice of Withdrawal. The Notice of Withdrawal
should be mailed or delivered to First Chicago Trust Company of New York at
the addresses set forth above and must be received by First Chicago Trust
Company of New York prior to 12:00 Midnight, New York City time, on Monday,
June 5, 1995. It is recommended that shareholders contact their broker to
arrange sending the notice by telegram or facsimile transmission, or, if
time permits, to send the notice by certified mail with return receipt
requested.
3. Inadequate Space. If the space provided herein is inadequate,
the certificate serial numbers and the number of Shares and Rights, if any,
should be listed on a separate schedule attached hereto.
IMPORTANT: THIS NOTICE OF WITHDRAWAL MUST BE RECEIVED BY FIRST
CHICAGO TRUST COMPANY OF NEW YORK PRIOR TO 12:00
MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 5, 1995.
ICI MAKES INCREASED OFFER FOR GROW
AND WILL BECOME NO 1 PAINT PRODUCER
Imperial Chemical Industries PLC (ICI) has increased its cash offer for all
shares of Grow Group Inc. (Grow) common stock to $22.00 per share, and has
extended the expiration date of its offer to midnight on Monday June 5, 1995.
Successful completion of this transaction will make ICI the world's largest
producer of paint.
The Board of Directors of Grow has unanimously recommended the increased offer
to its shareholders. The increased offer was made following the completion of
formal bidding procedures established by the Board of Directors of Grow.
Pursuant to an agreement previously consented to by Grow, Corimon, a
Venezuelan Corporation, has agreed to sell its 25% stake in Grow to ICI for
$21.40 per share. This values the total transaction at approximately $350
million, and the average price per share to be paid by ICI is $21.85.
"ICI's objective is to maximise value for shareholders. We are confident
that the investment in the Grow acquisition will create value and enhance
ICI's earnings in its first full year", said John R Danzeisen, Chief
Executive of ICI Paints in North America.
"The merger will give ICI additional company-owned stores to expand service to
the professional-painting trade and will strengthen our penetration of
independent paint and wallcovering stores. The ICI business will also benefit
from the acquisition of the DEVOE, SINCLAIR, and AMERITONE brands," Mr
Danzeisen added.
Grow and ICI signed a merger agreement on April 30, 1995, and ICI subsequently
made a tender offer to Grow shareholders. As of 21 May, 1995 25,101 shares of
Grow common stock had been tendered to ICI pursuant to its offer.
Grow's sales at the end of the fiscal year, ending June 30, 1995 are expected
to exceed $500 million. In the last audited accounts of Grow for the year
ended June 30, 1994, the Group's net assets were $138.7 million and profit
before tax was $24.2 million. ICI is being advised by Goldman Sachs & Co.
- END -
May 22, 1995
This announcement is not an offer to purchase or a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase
dated May 4, 1995, the Supplement thereto dated May 22, 1995
and the related Letters of Transmittal, and the Offer is
not being made to, nor will tenders be accepted from
or on behalf of, holders of Shares in any jurisdic-
tion in which the making of the Offer or accep-
tance thereof would not be in compliance with
the laws of such jurisdiction.
GDEN Corporation
an indirect wholly owned subsidiary of
Imperial Chemical Industries PLC
Has Increased the Price of Its Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Rights)
of
Grow Group, Inc.
to
$22.00 Net per Share
GDEN Corporation, a New York corporation ("Purchaser") and an
indirect wholly owned subsidiary of Imperial Chemical Industries PLC, a
company organized under the laws of England ("Parent"), is now offering to
purchase all outstanding shares of Common Stock, $.10 par value (the
"Common Stock"), of Grow Group, Inc., a New York corporation (the
"Company"), and the associated stock purchase rights (together with the
Common Stock, the "Shares"), at $22.00 per Share, net to the seller in
cash, subject to any amounts required to be withheld under applicable
federal, state, local or foreign income tax regulations, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated May 4,
1995 (the "Offer to Purchase"), as amended and supplemented by the
Supplement thereto dated May 22, 1995 and in the related Letters of
Transmittal (which collectively constitute the "Offer"). Shares previously
tendered to Purchaser and not properly withdrawn constitute valid tenders
for purposes of the Offer.
THE OFFER HAS BEEN EXTENDED. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, JUNE 5, 1995, UNLESS THE
OFFER IS FURTHER EXTENDED.
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the Expiration Date (as defined in the
Offer) a number of Shares representing (together with the Corimon
Shares (as defined below) and any other Shares then owned by Purchaser) at
least two-thirds of the total number of Shares outstanding on a fully diluted
basis (the "Minimum Tender Condition").
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The Offer is being made pursuant to an Agreement and
Plan of Merger, dated as of April 30, 1995, as amended as of May 21, 1995 (as
so amended, the "Merger Agreement"), among the Company, Parent and Purchaser.
The Merger Agreement provides, among other things, that as soon as practicable
after the consummation of the Offer and satisfaction of, or to the extent
permitted under the Merger Agreement, waiver of all conditions to the Merger,
Purchaser will be merged with and into the Company (the "Merger"), with the
Company as the surviving corporation, whereupon the Company will become an
indirect wholly owned subsidiary of Parent. Thereupon, each outstanding Share
(other than Shares held by Parent, Purchaser or any other subsidiary of Parent
and Shares held by shareholders properly exercising appraisal rights) will be
converted into and represent the right to receive $22.00 in cash, or any
higher price that may be paid per Share in the Offer, without interest.
In addition, Parent, Purchaser, Corimon, S.A.C.A., a Venezuelan
corporation ("Corimon Parent"), and Corimon Corporation, a Delaware
corporation ("Corimon") and a wholly owned subsidiary of Corimon Parent,
entered into an Option Agreement, dated as of April 30, 1995 (the "Option
Agreement"), pursuant to which, upon the terms and subject to the conditions
set forth therein, Corimon granted to Parent an option (the "Option") to
purchase 4,025,841 Shares beneficially owned by Corimon (the "Corimon Shares")
at an agreed purchase price. As a result of the increased price in the Offer,
the purchase price for the Corimon Shares under the Option Agreement has
increased to $21.40 per Share. The Corimon Shares represent approximately 25%
of the outstanding Shares. The Option Agreement provides that Purchaser is not
entitled to exercise the Option unless the Corimon Minimum Condition is
satisfied, and Corimon cannot waive this condition without the consent of the
Company. The Corimon Minimum Condition shall have been satisfied only if (i)
Purchaser has paid for or accepted for payment all Shares properly tendered
and not withdrawn pursuant to the Offer and (ii) such Shares plus the Corimon
Shares constitute not less than a majority of the outstanding Shares on a
fully diluted basis. Parent is required to exercise the Option within two
business days of the date that the Corimon Minimum Condition is satisfied.
Corimon has agreed not to tender the Corimon Shares pursuant to the Offer
unless directed to do so by Parent.
The Board of Directors of the Company has unanimously determined that
the Offer and the Merger are fair to, and in the best interest of, the
Company's shareholders, and recommends that the Company's shareholders accept
the Offer and tender their Shares pursuant to the Offer.
The Offer is subject to certain conditions set forth in the Offer. If
any such condition is not satisfied, Purchaser may, subject to certain
limitations set forth in the Merger Agreement and described in the Offer, (i)
terminate the Offer and return all tendered Shares to tendering shareholders,
(ii) extend the Offer and, subject to withdrawal rights as set forth below,
retain all such Shares until the expiration of the Offer as so extended, (iii)
waive such condition and, subject to any requirement to extend the period of
time during which the Offer is open, purchase all Shares validly tendered
prior to the Expiration Date and not withdrawn (provided that Purchaser may
not accept Shares for payment pursuant to the Offer unless the Shares so
accepted for payment, together with the Corimon Shares and any other Shares
then owned by Purchaser, represent at least a majority of the outstanding
Shares on a fully diluted basis) or (iv) delay acceptance for payment or
payment for Shares, subject to applicable law, until satisfaction or waiver of
the conditions to the Offer.
Purchaser reserves the right, at any time or from time to time, to
extend the period of time during which the Offer is open by giving oral or
written notice of such extension to Morgan Guaranty Trust Company of New
York, the Depositary. Any such extension will be followed as promptly as
practicable by public announcement thereof. During any such extension, all
Shares previously tendered and not withdrawn will remain subject to the
Offer, subject to applicable withdrawal rights. Purchaser has agreed that
if the Minimum Condition has not been satisfied by the Expiration Date,
Purchaser will extend the Expiration Date for one or more periods for up to
an aggregate of 30 calendar days until the Minimum Condition is satisfied.
For purposes of the Offer, Purchaser shall be deemed to have accepted
for payment tendered Shares when, as and if the Purchaser gives oral or
written notice to the Depositary of its acceptance of the tenders of such
Shares. Payment for Shares accepted for payment pursuant to the Offer will be
made only after timely receipt by the Depositary of certificates for such
Shares (or a confirmation of a book-entry transfer of such Shares into the
Depositary's account at one of the Book-Entry Transfer Facilities (as defined
in the Offer to Purchase)), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) and any other required documents.
Tenders of Shares made pursuant to the Offer may be withdrawn at any
time prior to the Expiration Date. Thereafter, such tenders are irrevocable,
except that they may be withdrawn after July 2, 1995 unless theretofore
accepted for payment as provided in the Offer to Purchase. To be effective, a
written, telegraphic, telex or facsimile transmission notice of withdrawal
must be timely received by the Depositary at one of its addresses set forth in
the Offer to Purchase or the Supplement and must specify the name of the
person who tendered the Shares to be withdrawn and the number of Shares to be
withdrawn. If the Shares to be withdrawn have been delivered to the
Depositary, a signed notice of withdrawal with (except in the case of Shares
tendered by an Eligible Institution (as defined in the Offer to Purchase))
signatures guaranteed by an Eligible Institution must be submitted prior to
the release of such Shares. In addition, such notice must specify, in the case
of Shares tendered by delivery of certificates, the name of the registered
holder (if different from that of the tendering shareholder) and the serial
numbers shown on the particular certificates evidencing the Shares to be
withdrawn or, in the case of Shares tendered by book-entry transfer, the name
and number of the account at one of the Book-Entry Transfer Facilities to be
credited with the withdrawn Shares.
The information required to be disclosed by paragraph (e)(1)(vii) of
Rule 14d-6 of the General Rules and Regulations under the Securities Exchange
Act of 1934, as amended, is contained in the Offer to Purchase and the
Supplement and is incorporated herein by reference.
The Company has provided its shareholder list and security position
listings for the purpose of disseminating the Offer to holders of Shares. The
Supplement and the revised Letter of Transmittal will be mailed to record
holders of Shares and will be furnished to brokers, banks and similar persons
whose names, or the names of whose nominees, appear on the shareholder list
or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
The Offer to Purchase, the Supplement and the revised Letter of
Transmittal contain important information which should be read before any
decision is made with respect to the Offer.
Requests for copies of the Offer to Purchase, the Supplement and the
revised Letter of Transmittal and other tender offer materials may be directed
to the Information Agent or the Dealer Managers as set forth below, and copies
will be furnished promptly at Purchaser's expense. No fees or commissions will
be paid to brokers, dealers or other persons (other than the Information Agent
and the Dealer Managers) for soliciting tenders of Shares pursuant to the
Offer.
The Information Agent for the Offer is:
MacKenzie Partners, Inc.
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (call collect)
or
Call Toll-Free (800) 322-2885
The Dealer Managers for the Offer are:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
May 22, 1995
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Amendment No. 1 ("Amendment No. 1") dated as of May 21, 1995,
amending the Agreement and Plan of Merger, dated as of April 30, 1995
("Agreement"), among Grow Group, Inc., a New York corporation (the "Company"),
Imperial Chemical Industries PLC, a corporation organized under the laws of
England ("Buyer"), and GDEN Corporation, a New York corporation and an
indirect wholly owned subsidiary of Buyer ("Merger Subsidiary").
WHEREAS, the parties hereto desire to amend the Agreement in
certain respects in accordance with Section 11.03 of the Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meaning provided therefor in the
Agreement.
2. Amendments to Agreement. The Agreement is hereby amended
as set forth in this Section 2:
(i) Section 1.01 of the Agreement is amended to add the
following new paragraphs (c) and (d):
(c) Pursuant to an offer to purchase, dated May 4, 1995
(the "Offer to Purchase"), Merger Subsidiary has offered to
purchase all of the outstanding Shares at a price of $18.10 per
Share, net to the seller in cash (the "Offer"). On or prior to
the close of business on May 23, 1995, Buyer shall cause Merger
Subsidiary to amend and supplement the Offer to Purchase to (i)
increase the price being offered pursuant to the Offer from
$18.10 to $22.00 per Share (the "New Offer Price"), net to the
seller in cash, subject to any amounts required to be withheld
under applicable federal, state, local or foreign income tax
regulations, and (ii) extend the expiration date of the Offer
to the date which is ten (10) business days subsequent to the
date that such amendment and supplement to the Offer to Purchase
is first filed with the SEC (the "Expiration Date"); provided,
however, that if the Minimum Condition has not been satisfied
by the Expiration Date, Buyer and Merger Subsidiary agree to
extend the Expiration Date for one or more periods for up to an
aggregate of 30 calendar days until the Minimum Condition is
satisfied. The Offer as amended pursuant to the provisions
hereof is herein referred to as the "Amended Offer" and unless
the context otherwise requires, all references in the Agreement
to the "Offer" shall mean the "Amended Offer" and all
references in the Agreement to the "Offer Price" shall mean the
"New Offer Price".
(d) On the date the Offer is amended, Buyer and Merger
Subsidiary shall file (i) with the SEC an amendment to the
Tender Offer Statement on Schedule 14D-1 filed on May 4, 1995
(such Schedule 14D-1 together with all other amendments and
supplements thereto, the "Schedule 14D-1"), which shall include
as exhibits a supplement to the Offer to Purchase (the
"Supplement") and a revised letter of transmittal which
provides for the Amended Offer; and (ii) with the Attorney
General of the State of New York, an Amendment with respect to
the Registration Statement filed on May 4, 1995 in accordance
with the Security Takeover Disclosure Act. Buyer and the
Company each agrees promptly to correct any information
provided by it for use in the Offer Documents if and to the
extent that it shall have become false or misleading in any
material respect. Buyer agrees to take all steps necessary to
cause the Offer Documents as so corrected to be filed with the
SEC and with the Attorney General of the State of New York and
to be disseminated to holders of the Shares, in each case as
and to the extent required by applicable federal and state
laws. The Company and its counsel shall be given a reasonable
opportunity to review and comment on the amended Offer
Documents, including the Supplement, prior to their being filed
with the applicable authorities.
(ii) Section 1.02 of the Agreement is amended to add the
following new paragraphs (d) and (e):
(d) The Company hereby consents to the Amended Offer
and represents that its Board of Directors at a meeting duly
called and held on May 21, 1995, (i) has determined that the
Amended Offer is fair to, and in the best interests of, the
stockholders of the Company; (ii) has approved this Amendment
No. 1 and the Amended Offer; and (iii) has resolved to
recommend approval and adoption of this Amendment No. 1 and
acceptance of the Amended Offer by the Company's stockholders;
provided that such recommendation may be withdrawn, modified or
amended if, in the opinion of the Board of Directors, after
consultation with independent legal counsel, such recommendation
would be inconsistent with its fiduciary duties to the
Company's stockholders under applicable law. The Supplement
may contain reference to the recommendation of the Board of
Directors that the Company's stockholders accept the Amended
Offer. The Company shall promptly file with the SEC and mail to
the holders of Shares an amendment to the
Solicitation/Recommendation Statement on Schedule 14D-9
previously filed on behalf of the Company with the SEC (the
"Schedule 14D-9 Amendment"), which amendment shall reflect such
recommendation of the Board of Directors.
(e) The Company agrees promptly to correct any
information in the Schedule 14D-9 Amendment which shall have
become false or misleading in any material respect and take all
steps necessary to cause the Schedule 14D-9 Amendment as to
corrected to be filed with the SEC and disseminated to holders
of Shares, as and to the extent required by applicable law.
Buyer and its counsel shall be given a reasonable opportunity
to review and comment on the Schedule 14D-9 Amendment prior to
its being filed with the applicable authorities.
(iii) Section 2.05(a), clause (i) of the Agreement is
hereby amended to read in its entirety as follows:
(i) the excess, if any, of the Merger Consideration over the
applicable exercise price of such Option by
(iv) Section 11.04 of the Agreement is hereby amended to
add the following new paragraph (c) at the end of Section 11.04:
(c) The Company agrees to pay Buyer in respect of
Buyer's expenses and lost opportunity costs an amount in
immediately available funds equal to $16,000,000 promptly, but
in no event later than two business days, after the occurrence
of the events specified below in both clauses (A) and (B):
(A) A Trigger Event within the meaning of and as
specified in Section 11.04(b) of this Agreement shall
have occurred at any time from or after the date hereof
and, as a result thereof, this Agreement is terminated,
and (B) within six months after such termination of this
Agreement has occurred, an Acquisition Transaction shall
have been consummated with any Person (as defined in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act) other
than Buyer or a subsidiary or other Affiliate (as defined
in Rule 12b-2 under the Exchange Act) of Buyer.
For purposes of this Section, "Acquisition
Transaction" shall mean (i) a merger or consolidation, or
any similar business combination transaction, involving
the Company; (ii) a purchase, lease or acquisition of all
or substantially all of the assets of the Company and its
subsidiaries taken as a whole; or (iii) the purchase or
acquisition by any Person of securities representing more
than 50% of the then outstanding Shares.
4. Miscellaneous. Except as expressly amended hereby, the
terms and conditions of the Agreement shall continue in full force and effect.
This Amendment No. 1 is limited precisely as written and shall not be deemed
to be an amendment to any other term or condition of the Agreement or any of
the documents referred to therein. Wherever "Agreement" is referred to in the
Agreement or in any other agreements, documents and instruments, such
reference shall be to the Agreement as amended hereby.
5. Counterparts. This Amendment No. 1 may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
but all of which taken together shall constitute one and the same agreement.
6. Governing Law. This Amendment No. 1 shall be governed
by and construed in accordance with the laws of the State of New York without
giving effect to the provisions thereof relating to conflicts of law.
IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed
and delivered by the Company, Buyer and Merger Subsidiary on the date first
above written.
GROW GROUP, INC.
By: /s/ Russell Banks
---------------------------
Name: Russell Banks
Title: President and
CEO
IMPERIAL CHEMICAL INDUSTRIES PLC
By: /s/ John Thompson
---------------------------
Name: John Thompson
Title: Attorney-in-Fact
GDEN CORPORATION
By: /s/ John Thompson
---------------------------
Name: John Thompson
Title: President
