UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
Congoleum Corporation
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(Name of Issuer)
Class A Common Stock, par value $.01 per share
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(Title of Class of Securities)
207195 10 8
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(CUSIP Number)
Henry W. Winkleman, Esq.
c/o American Biltrite Inc.
57 River Street
Wellesley Hills, Massachusetts 02481
(781) 237-6655
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
With a copy to:
Louis A. Goodman, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-4800
January 6, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box |_|.
Exhibit Index is on Page 21
- ----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
American Biltrite Inc.
I.R.S. Identification No. 04-1701350
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 0
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,439,705
EACH -------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 0
WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER (See Item 5)
4,439,705
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,439,705
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* (See Item 5)|X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
53.75%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Natalie S. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 0
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,439,705
EACH -------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 0
WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER (See Item 5)
4,439,705
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,439,705
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* (See Item 5)|X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
53.75%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard G. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |X|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 160,000
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,439,705
EACH -------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 160,000
WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER (See Item 5)
4,439,705
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,599,705
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* (See Item 5)|X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
54.63%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Roger S. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 160,000
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,439,705
EACH -------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 160,000
WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER (See Item 5)
4,439,705
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,599,705
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* (See Item 5)|X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
54.63%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
William M. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 0
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,439,705
EACH -------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 0
WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER (See Item 5)
4,439,705
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,439,705
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* (See Item 5)|X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
53.75 %
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
- ----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cynthia S. Marcus
- ----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- ----------------------------------------------------------------------------
3 SEC USE ONLY
- ----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO (See Item 3)
- ----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
- ----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
- ----------------------------------------------------------------------------
7 SOLE VOTING POWER (See Item 5)
NUMBER OF 0
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER (See Item 5)
OWNED BY 4,439,705
EACH -------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER (See Item 5)
PERSON 0
WITH -------------------------------------------------
10 SHARED DISPOSITIVE POWER (See Item 5)
4,439,705
- ----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
(See Item 5)
4,439,705
- ----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* (See Item 5)|X|
- ----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
53.75%
- ----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ----------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
The title of the class of equity securities to which this Amendment
No. 2 (this "Amendment No. 2") to a joint statement on Schedule 13D (the
"Statement") relates is the Class A Common Stock, par value $.01 per share
(the "Class A Stock"), of Congoleum Corporation, a Delaware corporation
(the "Company"), 3705 Quakerbridge Road, Mercerville, New Jersey
08619-0127. The persons filing this Amendment No. 2 beneficially own
shares of Class A Stock both directly and as a result of their beneficial
ownership of shares of the Class B Common Stock, par value $.01 per share,
of the Company (the "Class B Stock"), which shares of Class B Stock are
convertible under certain circumstances into shares of Class A Stock (the
"Conversion Feature"), as more fully set forth in Item 3 of the Statement
as originally filed with the Securities and Exchange Commission (the
"Commission"). Each holder of Class A Stock is entitled to one vote for
each share thereof held by such holder, and each holder of Class B Stock is
entitled to two votes for each share thereof held by such holder.
Item 2. Identity and Background.
(a) This Amendment No. 2 is filed on behalf of American
Biltrite Inc., a Delaware corporation ("American Biltrite"), and the
persons listed on Exhibit A hereto (the "Filing Persons"). American
Biltrite owns of record and beneficially 44,100 shares of Class A
Stock and, as a result of the Conversion Feature referenced in Item 1
above, beneficially owns an additional 4,395,605 shares of Class A Stock.
The Filing Persons together beneficially own a 58.05% interest in the
common stock, par value $.01 per share, of American Biltrite (the "American
Biltrite Common Stock"), as to which they have a joint statement on
Schedule 13D on file with the Commission, and therefore may be deemed to
indirectly beneficially own the shares of Class A Stock directly
beneficially owned by American Biltrite. Reference is made to that joint
statement on Schedule 13D for additional information regarding the Filing
Persons' beneficial ownership of American Biltrite Common Stock. Other than
as a result of their combined 58.05% interest in American Biltrite Common
Stock, none of the Filing Persons except Richard G. Marcus and Roger S.
Marcus beneficially owns any shares of Class A Stock. Richard G. Marcus and
Roger S. Marcus each beneficially own 160,000 shares of Class A Stock which
are purchasable upon exercise of options (the "Options") that are
exercisable within 60 days of the date of this Amendment No. 2. Other terms
and conditions of the Options are set forth in two forms of stock option
agreement between the Company and each of Richard G. Marcus and Roger S.
Marcus, one filed as Exhibit C to Amendment No. 1 to the Statement
("Amendment No. 1) and incorporated by reference therein and the other
filed as Exhibit B hereto and incorporated by reference herein.
Any reference herein to the beneficial ownership of shares of Class A
Stock by American Biltrite shall be deemed to also constitute reference to
the indirect beneficial ownership of the same shares which may be
attributed to the Filing Persons, whether or not such indirect beneficial
ownership is expressly referenced.
American Biltrite claims no responsibility for the accuracy or
completeness of information in this Amendment No. 2 provided by or relating
to any Filing Person. None of the Filing Persons claims responsibility for
the accuracy or completeness of information in this Amendment No. 2
provided by or relating to any other Filing Person or American Biltrite.
(b) The principal business and principal office address of American
Biltrite is 57 River Street, Wellesley Hills, Massachusetts 02481. The
business address of each of the Filing Persons is c/o American Biltrite
Inc., 57 River Street, Wellesley Hills, Massachusetts 02481.
(c) American Biltrite is: a producer of protective paper, film and
pressure sensitive tapes and adhesive products for various applications; a
national supplier, distributor and servicer of fashion jewelry and related
accessories; and, through the Company, a manufacturer and producer of
resilient vinyl flooring. The present principal occupation or employment of
each of the Filing Persons and the name, principal business and address of
the corporation or other organization in which such employment is conducted
is set forth on Exhibit A hereto and incorporated by reference herein.
(d) and (e) During the last five years, neither American Biltrite nor
any Filing Person other than Richard G. Marcus has (i) been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors)
or (ii) been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction which resulted in a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
any activities subject to, federal or state securities laws or finding any
violation of such laws. In February 1996, Richard G. Marcus entered into a
settlement agreement in the form of a consent decree with the Commission in
connection with the Commission's investigation covering trading in the
American Biltrite Common Stock by an acquaintance of Richard G. Marcus.
Richard G. Marcus, without admitting or denying the Commission's
allegations of securities law violations, agreed, among other things, to
the entry of a permanent injunction against future violations of Section
10(b) of the Exchange Act of 1934, as amended (the "Exchange Act"), and
Rule 10b-5 under the Exchange Act.
(f) American Biltrite is incorporated under the laws of the
State of Delaware. Each of the Filing Persons is a United States
citizen.
Item 3. Source and Amount of Funds or Other Consideration.
On January 6, 2000, American Biltrite acquired record ownership
of 44,100 shares of Class A Stock. These shares were purchased in an open
market transaction for an aggregate purchase price of $165,375 (net of
commissions), or 3.75 per share. The purchase price for these shares was
paid by American Biltrite out of its working capital. Since the date of
filing of Amendment No. 1 on February 26, 1998, neither American Biltrite
nor any of the Filing Persons has acquired beneficial ownership of any
other shares of Class A Stock or Class B Stock, except through vesting of
the Options. The Options were granted to Richard G. Marcus and Roger S.
Marcus in their capacities as executive officers of the Company.
Item 4. Purpose of the Transaction.
The purchase of shares of Class A Stock described in Item 3 above was
made by American Biltrite for investment purposes. Although none of them
have any current plans to do so (other than as set forth or incorporated by
reference in the Statement as the same has been amended by Amendment No. 1
and this Amendment No. 2), from time to time, American Biltrite or the
Filing Persons may acquire beneficial ownership of additional Class A Stock
or dispose of some or all of the Class A Stock beneficially owned by any of
them. Three of the Filing Persons, Roger S. Marcus, Richard G. Marcus and
William M. Marcus, serve as directors or executive officers of the Company.
Therefore, each may be deemed to be a "controlling person" of the Company.
With respect to the Company and except as set forth or incorporated
by reference in this Amendment No. 2, neither American Biltrite nor any of
the Filing Persons currently has any plans or proposals which would relate
to or which would result in:
(a) the acquisition by any person of additional securities of
the Company or the disposition of securities of the Company;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its
subsidiaries;
(c) a sale or transfer of a material amount of assets of the
Company or any of its subsidiaries;
(d) any change in the present board of directors or management of the
Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or
dividend policy of the Company;
(f) any other material change in the Company's business or
corporate structure;
(g) changes in the Company's Certificate of Incorporation, as
amended, Amended and Restated By-Laws or instruments corresponding thereto
or other actions which may impede the acquisition of control of the Company
by any person;
(h) causing a class of securities of the Company to be delisted from
a national securities exchange or to cease to be authorized to be quoted in
an inter-dealer quotation system of a registered national securities
association;
(i) a class of equity securities of the Company becoming
eligible for termination of registration pursuant to Section 12(g)(4)
of the Exchange Act; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) As a result of the purchase of Class A shares described in Item 3
above and the Conversion Feature, as of February 6, 2000, American
Biltrite beneficially owned 4,439,705 shares of Class A Stock, representing
approximately 53.75% of the total number of shares of Class A Stock
outstanding as of such date (such 4,439,705 shares of Class A Stock being
deemed to be outstanding for the purpose of computing such percentage, as
required by Rule 13d-3 under the Exchange Act). As set forth in
subparagraph (a) of Item 2 above, the Filing Persons may be deemed to
indirectly beneficially own the same shares of Class A Stock, and Richard
G. Marcus and Roger S. Marcus each beneficially own an additional 160,000
shares of Class A Stock purchasable upon exercise of the Options (which are
exercisable within 60 days of the date of this Amendment No. 2).
Collectively, as of February 6, 2000, American Biltrite and the Filing
Persons beneficially owned 4,759,705 shares of Class A Stock, representing
approximately 55.47% of the total number of shares of Class A Stock
outstanding as of such date (such 4,759,705 shares of Class A Stock being
deemed to be outstanding for the purpose of computing such percentage, as
required by Rule 13d-3 under the Exchange Act). In addition, as of February
16, 2000, based on information made available to American Biltrite and the
Filing Persons by the Company, Hillside Capital Incorporated ("Hillside")
beneficially owned 213,340 shares of Class A Stock on the same basis.
Neither American Biltrite nor any Filing Person has the sole or shared
power to vote or direct the vote or sole or shared power to dispose or
direct the disposition of the Class A Shares beneficially owned by
Hillside. As a result of the voting agreement made by American Biltrite and
Hillside in the Stockholders Agreement described in Item 3 of the Statement
as originally filed with the Commission, however, American Biltrite and
Hillside may be deemed to be members of a group. American Biltrite
expressly disclaims membership in this group. The 4,439,705 shares of Class
A Stock reported as beneficially owned by American Biltrite in this
Amendment No. 2 do not include the 213,340 shares of Class A Stock
beneficially owned by Hillside, as to which shares American Biltrite and
the Filing Persons disclaim beneficial ownership for the purposes of
Section 13(d) or 13(g) of the Exchange Act and for each and every other
purpose.
(b) In the event of a conversion of any portion of the shares of
Class B Stock owned of record by American Biltrite into shares of Class A
Stock (the "Conversion"), (i) American Biltrite would have the power to
vote or direct the vote and to dispose or direct the disposition of each of
the shares of Class A Stock held of record by American Biltrite as a result
of the Conversion and (ii) the Filing Persons, as a result of their
combined 58.05% interest in American Biltrite Common Stock, collectively
may be deemed to have the power to vote or direct the vote and to dispose
or direct the disposition of each of the shares of Class A Stock held of
record by American Biltrite as a result of the Conversion.
In the event of an exercise of all or a portion of the Options,
Richard G. Marcus or Roger S. Marcus, as the case may be, would have the
power to vote or direct the vote and dispose or direct the disposition of
each of the shares of Class A Stock purchased by him upon exercise of his
Options.
Reference is made to subparagraph (a) of this Item 5 for information
concerning shares of Class A Stock beneficially owned by Hillside, which
information is incorporated by reference herein.
(c) On January 6, 2000, American Biltrite purchased 44,100 shares of
Class A Stock as described in Item 2 above. Neither American Biltrite nor
any of the Filing Persons has effected any other transaction in the shares
of Class A Stock during the past 60 days.
(d) As a result of the combined 58.05% interest of the Filing Persons
in American Biltrite Common Stock, the Filing Persons may be deemed to have
the right to receive or direct the receipt of dividends from, or the
proceeds from the sale of, the 4,439,705 shares of Class A Stock
beneficially owned by American Biltrite. In the event of an exercise of all
or a portion of the Options, only Richard G. Marcus or Roger S. Marcus, as
the case may be, would have the right to receive or direct the receipt of
dividends from, or the proceeds from the sale of, each of the shares of
Class A Stock purchased by him upon exercise of his Options.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities Of the Issuer.
Reference is made to information regarding the Stockholders Agreement
described in Item 3 of the Statement as originally filed with the
Commission, which information is incorporated by reference herein.
In connection with the filing of the Statement, American Biltrite and
the Filing Persons entered into a Joint Filing Agreement, which agreement
was attached as Exhibit E to the Statement as initially filed with the
Commission and is incorporated by reference herein.
The Filing Persons have in the past taken, and may in the future
take, actions which direct or cause the direction of the management of
American Biltrite and their voting of shares of American Biltrite Common
Stock in a manner consistent with each other. Accordingly, the Filing
Persons may be deemed to be acting together for the purpose of acquiring,
holding, voting or disposing of shares of American Biltrite Common Stock,
within the meanings of Section 13(d)(3) of the Exchange Act and Rule 13d-5
thereunder. However, the Filing Persons have no express agreement to act
together for the purpose of acquiring, holding, voting or disposing of such
shares. The foregoing description of the relationship among the Filing
Persons with respect to shares of American Biltrite Common Stock is
qualified in its entirety by reference to the joint statement on Schedule
13D filed by the Filing Persons with the Commission with respect to their
beneficial ownership of American Biltrite Common Stock, including all
amendments thereto, and incorporated by reference herein. The information
set forth in subparagraph (a) of Item 2 above also is incorporated by
reference herein. Other than agree ments for Options granted by the Company
for the purchase of shares of Class A Stock, the Filing Persons have no
contract, arrangement, understanding or relationship with respect to the
shares of Class A Stock or Class B Stock.
Except as set forth or incorporated by reference in the Statement as
the same has been amended by Amendment No. 1 and this Amendment No. 2,
neither American Biltrite nor the Filing Persons have any contracts,
arrangements, understandings or relationships (legal or otherwise) with any
person with respect to any securities of the Company, including but not
limited to the transfer or voting of any of the shares of Class A Stock or
Class B Stock, finders fees, joint ventures, loan or option agreements,
puts or calls, guarantees of profits, division of profits or loss or the
giving or withholding of proxies.
Item 7. Material to be filed as Exhibits.
Exhibit A: Names of Filing Persons and Certain Other Information
Required By Item 2 of Schedule 13D
Exhibit B: Form of stock option agreement between Congoleum
Corporation and each of Richard G. Marcus and Roger
S. Marcus
SIGNATURE
After reasonable 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: February 17, 2000
AMERICAN BILTRITE INC.
By /s/ Richard G. Marcus
-----------------------------------
Richard G. Marcus
President
/s/ Natalie S. Marcus*
- -------------------------------------
Natalie S. Marcus
/s/ Richard G. Marcus
- -------------------------------------
Richard G. Marcus
/s/ Roger S. Marcus*
- -------------------------------------
Roger S. Marcus
/s/ William M. Marcus*
- -------------------------------------
William M. Marcus
/s/ Cynthia S. Marcus*
- -------------------------------------
Cynthia S. Marcus
/s/ Richard G. Marcus
- -------------------------------------
Richard G. Marcus
Attorney-in-fact
- -------------------
* Signed by Richard G. Marcus pursuant to a power of attorney dated
February 16, 1995, a copy of which was attached as Exhibit E to the
Statement as originally filed with the Commission and is incorporated
by reference herein.
EXHIBIT INDEX
Sequentially
Exhibit Description Numbered Page
- ------- ----------- -------------
A Names of Filing Persons and Certain Other 22
Information Required By Item 2 of Schedule 13D
B Form of stock option agreement between 23
Congoleum Corporation and each of
Richard G. Marcus and Roger S. Marcus
EXHIBIT A
NAMES OF FILING PERSONS
AND CERTAIN OTHER
INFORMATION REQUIRED BY ITEM 2 OF SCHEDULE 13D
Name of Filing Principal Occupation or
Person Employment, Etc.
- -------------- -----------------------
Natalie S. Marcus Private investor
Richard G. Marcus Vice Chairman of Congoleum Corporation and
President and Chief Operating Officer of
American Biltrite Inc.
Roger S. Marcus Chairman, President and Chief Executive Offi-
cer of Congoleum Corporation and Chairman and
Chief Executive Officer of American Biltrite
Inc.
William M. Marcus Executive Vice President and Treasurer of
American Biltrite Inc.
Cynthia S. Marcus Not employed
American Biltrite Inc. is: a producer of protective paper, film and
pressure sensitive tapes and adhesive products for various applica-
tions; a national supplier, distributer and servicer of fashion
jewelry and related accessories; and, through Congoleum Corporation,
a manufacturer and producer of resilient vinyl flooring. The address
of American Biltrite Inc. is 57 River Street, Wellesley Hills, Mas-
sachusetts 02481. Congoleum Corporation is a manufacturer of resil-
ient vinyl flooring located at 3705 Quakerbridge Road, Mercerville,
New Jersey 08619-0127.
Natalie Marcus is the mother of Roger S. Marcus and Richard G. Marcus
and the aunt of William M. Marcus. William M. Marcus is the husband
of Cynthia S. Marcus.
EXHIBIT B
FORM OF NONQUALIFIED STOCK OPTION AWARD AGREEMENT
UNDER THE CONGOLEUM CORPORATION
1995 STOCK OPTION PLAN
Congoleum Corporation, a Delaware corporation (the "Company"),
hereby grants to _____________ (the "Optionee"), an employee of the
Company, an option (the "Option") to purchase from the Company up to, but
not exceeding, in the aggregate, 50,000 shares (the "Shares") of Class A
Common Stock, par value $.01 per share, of the Company ("Stock") at $9.00
per share (the "Option Price"), subject to the following terms and
conditions:
1. The Option is granted pursuant to the Congoleum Corporation 1995
Stock Option Plan (the "Plan"), as established by certain resolutions
adopted by the Board of Directors and stockholders of the Company. By
executing this Agreement, the Optionee acknowledges that he or she
has received a copy of, and is familiar with the terms of, the Plan,
which is incorporated herein by reference. Any capitalized terms not
defined herein shall have the same meanings assigned to them in the
Plan.
2. The Option shall not be treated as an "incentive stock option" within
the meaning of Section 422 of the Code.
3. (a) Subject to the terms of the Plan and the other terms of this
Agreement regarding the exercisability of the Option, the Option may
be exercised with respect to 20% of the Shares upon each anniversary
of the date of grant of the Option (November 17, 1998), commencing on
the first anniversary of the date of grant of the Option. Once
available for purchase in accordance with the foregoing, unpurchased
Shares shall remain subject to purchase until the Option terminates
in accordance with the terms of Sections 3(b), 3(c) or 4 hereof.
(b) In the event of the Optionee's employment by the Company shall
terminate for any reason other than for cause, death, disability or
retirement, the Optionee may exercise the Option within one month
after the termination of employment, but only to the extent that the
Optionee may be entitled to do so at the date of termination of
employment, except as may otherwise be determined by the Committee.
In the event of the Optionee's termination of employment by the
Company shall terminate for cause, the Option shall cease to be
exercisable from and after such date of termination of employment,
except as may otherwise be determined by the Committee.
(c) In the event of the death of the Optionee (i) while an employee
of the Company or any Subsidiary or Affiliate of the Company, (ii)
within three months after termination of employment with the Company
or any Subsidiary or Affiliate of the Company because of retirement
or (iii) within twelve months after termination of such employment
because of disability, the Option may be exercised, notwithstanding
any installment schedule otherwise applicable to the Option, by the
person or persons to whom the Optionee's rights under the Option
pass by will or applicable law or, if no such person has such right,
by his or her executors or administrators, at any time, or from time
to time, within twelve months after the Optionee's death, but not
later than ten years after the date of the granting of the Option.
(d) The Option Price of the Shares as to which the Option shall be
exercised shall be paid to the Company at the time of exercise in (i)
cash, (ii) Stock already owned by the Optionee having a total fair
market value on the date of such exercise equal to the Option Price,
or (iii) a combination of cash and Stock having a total fair market
value on the date of such exercise equal to the Option Price. The
Committee, in its sole discretion, may also provide that the Option
Price may be paid by delivering a properly executed exercise notice
in a form approved by the Committee, together with irrevocable
instructions to a broker to promptly deliver to the Company, against
receipt of the certificates representing the shares of Stock issuable
upon such exercise, the amount of the applicable sale or loan
proceeds to pay the Option Price.
4. The Option shall terminate and be of no force or effect with respect
to any Shares not previously purchased by the Optionee upon the
expiration of ten years following the date the Option was granted.
5. Subject to the limitations set forth herein and in the Plan, the
Option may be exercised by written notice mailed or delivered to
Congoleum Corporation, 3705 Quakerbridge Road, P.O. Box 3127,
Mercerville, New Jersey 08619-0127, Attention: Corporate Secretary,
which notice shall (a) state the number of Shares with respect to
which the Option is being exercised and (b) be accompanied by payment
of the full amount of the Option Price for the Shares being purchased
as set forth in Section 3(e) hereof. The Optionee shall not be or
have any of the rights or privileges of a stockholder of the Company
in respect of any Shares unless and until certificates representing
such Shares shall have been issued or transferred by the Company to
the Optionee.
6. The Optionee hereby represents and acknowledges that he or she is
acquiring the Option and the underlying Shares for his or her own
account for investment and not with a view to, or for sale in
connection with, the distribution of any interest therein or part
thereof, provided that nothing shall prohibit or restrict the sale of
such Shares by the Optionee in compliance with the Securities Act of
1933, as amended, and the rules and regulations thereunder. If any
law or regulation requires the Company to take any action with
respect to the Option or the Shares, the time for delivery thereof,
which would otherwise be as promptly as possible, shall be postponed
for the period of time necessary to take such action.
7. The Option shall not be transferable, other than under a qualified
domestic relations order (as defined under Section 414(p) of the
Code) (a "QDRO"), by will or by the laws of descent and distribution,
and no transfer under a QDRO, by will or by the laws of descent and
distribution shall be effective to bind the Company, unless the
Committee shall have been furnished with a copy of such QDRO, such
will or such other evidence as the Committee may deem necessary to
establish the validity of the transfer. During the lifetime of the
Optionee, only the Optionee or his or her guardian, custodian or
legal representative may exercise the Option and receive cash pay-
ments and deliveries of Shares of Stock pursuant to the Option.
8. (a) Neither the existence of the Plan nor the existence of the Option
shall affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior
preference stocks ahead of or affecting the Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise.
(b) In the event of any change in the Stock by reason of any stock
dividend, recapitalization, reorganization, merger, consolidation,
split-up, combination or exchange of shares, or any rights offering
to purchase Stock at a price substantially below fair market value,
or of any similar change affecting the Stock, the number and kind of
Shares subject to the Option and the Option Price per Share thereof
shall be appropriately adjusted consistent with such change in such
manner as the Committee may deem equitable to prevent substantial
dilution or enlargement of the rights granted to the Optionee
hereunder. The Committee shall give notice to the Optionee of any
adjustment made pursuant to this Section 8(b), and, upon notice,
such adjustment shall be effective and binding for all purposes of
the Option and the Plan.
(c) Notwithstanding any other provision of the Option, in the event
of a Change in Control, the following rules shall apply:
i. The Option shall be accelerated immediately prior to or
concurrently with the occurrence of the Change in Control and the
Optionee shall have the right to exercise the Option notwithstanding
any installment schedule otherwise applicable to the Option, at any
time, or from time to time.
ii. The obligations of the Company under the Plan and this
Agreement shall be binding upon any successor corporation or
organization resulting from the merger, consolidation or other
reorganization of the Company and upon any successor corporation or
organization succeeding to substantially all of the assets and
business of the Company. The Company agrees that it will make
appropriate provisions for the preservation of Optionee's rights
under the Plan and this Agreement in any agreement or plan which it
may enter into or adopt to effect any such merger, consolidation,
reorganization or transfer of assets.
iii. Except as hereinbefore expressly provided, the issuance by
the Company of shares of stock of any class, rights or warrants to
purchase shares of stock of any class, or securities convertible
into shares of stock of any class, for cash or property, or for labor
or services, either upon direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number of Shares subject to the
Option.
Dated as of November 18, 1998
CONGOLEUM CORPORATION
By: ____________________________
Name: Howard N. Feist
Title: Sr. Vice President -
Finance
The Option has been accepted by
the undersigned, subject to the
terms and provisions of the Plan
and of this Award Agreement.
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Optionee
