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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13E-4
Issuer Tender Offer Statement (Pursuant to Section 13(e)(1)
of the Securities Exchange Act of 1934)
RUBY TUESDAY, INC.
(NAME OF ISSUER)
RUBY TUESDAY, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
781182-10-0
(CUSIP NUMBER OF CLASS OF SECURITIES)
J. RUSSELL MOTHERSHED
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
RUBY TUESDAY, INC.
POST OFFICE BOX 160266
4721 MORRISON DRIVE
MOBILE, ALABAMA 36625
(334) 344-3000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
With a copy to:
GABRIEL DUMITRESCU, ESQ.
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 PEACHTREE STREET, N.E.
SIXTEENTH FLOOR
ATLANTA, GEORGIA 30303
(404) 572-6600
MAY 2, 1997
(DATE TENDER OFFER FIRST PUBLISHED, SENT OR GIVEN TO SECURITY HOLDERS)
CALCULATION OF FILING FEE:
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TRANSACTION AMOUNT OF
VALUATION*: FILING FEE:
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$22,000,000 $4,400
</TABLE>
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* Based upon the purchase of 1,000,000 Shares (the maximum number of Shares
offered to be purchased) at $22.00 per Share (the maximum per Share purchase
price which may be selected by the Company pursuant to the tender offer).
[_] Check box if any part of the fee is offset as provided by Rule 0-
11(a)(2) and identify the filing which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and date of its filing.
Amount Previously Paid: __________________
Form or Registration No.: ________________
Filing Party: ____________________________
Date Filed: ______________________________
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<PAGE>
ITEM 1.SECURITY AND ISSUER.
(a) Name: Ruby Tuesday, Inc.
Address of Principal Executive Office:
4721 Morrison Drive
Mobile, Alabama 36625
(b) Title of Securities Being Sought: Common Stock, par value $0.01 per
share (the "Common Stock"), including the associated rights to
purchase Series A Junior Participating Preferred Stock (the "Rights")
issued pursuant to the Rights Agreement between the Company and
AmSouth Bank of Alabama (together, the Common Stock and the Rights are
referred to as the "Shares")
Amount outstanding on April 28, 1997: 17,623,083 Shares
Information with respect to the exact amount of securities being
sought and the consideration being offered therefor is set forth in
"Number of Shares; Proration" beginning on Page 2 in the Offer to
Purchase (the "Offer to Purchase"), filed as Exhibit (a)(1) hereto,
which is incorporated herein by reference. The executive officers,
directors and affiliates of the Issuer have advised the Issuer that
they do not intend to tender any Shares pursuant to the Offer.
(c) Information with respect to the principal market for and price range
of the Shares is set forth in "Price Range of Shares; Dividends"
beginning on Page 9 in the Offer to Purchase, which is incorporated
herein by reference.
(d) Not applicable.
ITEM 2.SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) Information with respect to source and amount of funds to be used for
the purchase of Shares is set forth in "Source and Amount of Funds"
beginning on Page 11 in the Offer to Purchase, which is incorporated
herein by reference.
(b)(1) A summary of each loan agreement or arrangement containing the
identity of the parties, the term, the collateral, the stated and
effective interest rates, and other material terms or conditions
relative to such loan agreements is set forth in "Source and Amount
of Funds" beginning on Page 11 in the Offer to Purchase, which is
incorporated herein by reference.
(2) No formal plans or arrangements have been made to repay such
borrowings under the credit agreement described in "Source and Amount
of Funds" beginning on Page 11 in the Offer to Purchase, which is
incorporated herein by reference, other than in accordance with the
terms of such credit agreement.
ITEM 3.PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER OR
AFFILIATE.
Information with respect to the purpose of the tender offer and planned
disposition of the securities and possible effects of the tender offer is set
forth in "Background and Purpose of the Offer; Certain Effects of the Offer"
and "Interest of Directors and Executive Officers; Transactions and
Arrangements Concerning the Shares" beginning on Pages 10 and 16,
respectively, in the Offer to Purchase, which are incorporated herein by
reference. Other than as indicated, there are no current plans or proposals
that relate to or would result in:
(a) The acquisition by any person of additional securities of the Issuer,
or the disposition of any securities of the Issuer;
(b) An extraordinary corporate transaction, such as merger, reorganization
or liquidation, involving the Issuer or any of its subsidiaries;
1
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(c) A sale or transfer of a material amount of assets of the Issuer or any
of its subsidiaries;
(d) Any change in the present board of directors or management of the
Issuer including, but not limited to, any plans or proposals to change
the number or the term of directors, to fill any existing vacancy on
the board or to change any material term of the employment contract of
any executive officer;
(e) Any material change in the present dividend rate or policy, or
indebtedness or capitalization of the Issuer;
(f) Any other material change in the Issuer's corporate structure or
business including, if the issuer is a registered closed-end
investment company, any plans or proposals to make any changes in its
investment policy for which a vote would be required by Section 13 of
the Investment Company Act of 1940;
(g) Changes in the Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control
of the Issuer by any person;
(h) Causing a class of equity security of the Issuer 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 security of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934, as amended; or
(j) The suspension of the Issuer's obligation to file reports pursuant to
Section 15(d) of the Securities Exchange Act of 1934, as amended.
ITEM 4. INTEREST IN SECURITIES OF THE ISSUER.
Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the
Issuer, any of its executive officers or directors or any associate of any of
the foregoing has engaged in any transactions involving the Shares during the
40 business days prior to the date hereof, except as is set forth in "Interest
of Directors and Executive Officers; Transactions and Arrangements Concerning
the Shares" beginning on Page 16 and on Schedule A in the Offer to Purchase,
which are incorporated herein by reference.
ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE ISSUER'S SECURITIES.
Neither the Issuer nor, to the knowledge of the Issuer, any of its executive
officers, directors, or affiliates is a party to any contract, arrangement,
understanding or relationship relating directly or indirectly to the Offer and
the securities of the Issuer, except as set forth in "Fees and Expenses"
beginning on Page 19 in the Offer to Purchase, which is incorporated herein by
reference.
ITEM 6. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Information with respect to persons employed, retained or to be compensated
by the Issuer to make solicitations or recommendations in connection with the
tender offer is set forth in "Fees and Expenses" beginning on Page 19 in the
Offer to Purchase, which is incorporated herein by reference.
ITEM 7. FINANCIAL INFORMATION.
(a)(1)-(4) See "Certain Information Concerning the Company" beginning on
Page 11 in the Offer to Purchase, which is incorporated herein by
reference.
(b)(1)-(3) See "Certain Information Concerning the Company" beginning on
Page 11 in the Offer to Purchase, which is incorporated herein by
reference.
2
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ITEM 8. ADDITIONAL INFORMATION.
(a) Neither the Issuer nor, to the Issuer's knowledge, any of its
executive officers or directors is a party to any material contract,
arrangement, understanding or relationship between them and the Issuer
which are material to a decision by a shareholder whether to tender or
hold Shares in the tender offer.
(b) There are no applicable regulatory requirements which must be complied
with or approvals which must be obtained in connection with the tender
offer.
(c) Not applicable.
(d) There are no material pending legal proceedings relating to the tender
offer.
(e) Not applicable.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
The following Exhibits are filed herewith or incorporated by reference
herein to documents previously filed.
(a)(1) Form of Offer to Purchase dated May 2, 1997.
(2) Form of Letter of Transmittal (including Certification of Taxpayer
Identification Number on Substitute Form W-9).
(3) Form of Notice of Guaranteed Delivery.
(4) Form of Letter dated May 2, 1997 from Wheat, First Securities, Inc.
(Dealer Manager) to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(6) Form of Letter dated May 2, 1997 from Samuel E. Beall, III, Chairman
of the Board and Chief Executive Officer of the Issuer, to the
shareholders of the Issuer.
(7) Form of Letter to Participants for use by the Trustee of the Salary
Deferral Plan.
(8) Text of Press Release dated May 1, 1997.
(b) Credit Agreement dated as of March 6, 1996 among Ruby Tuesday
(Georgia), Inc., SunTrust Bank, Atlanta, for itself and as Agent and
Administrative Agent, and the other lenders signatories thereto, filed
as Exhibit 10.40 to the Issuer's Form 10-K for the fiscal year ended
June 1, 1996, which is incorporated herein by reference.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
RUBY TUESDAY, INC.
/s/ J. Russell Mothershed
By:__________________________________
J. Russell Mothershed
Senior Vice President and
Chief Financial Officer
Dated: May 2, 1997
4
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EXHIBIT INDEX
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DESCRIPTION EXHIBIT
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(a) (1) Form of Offer to Purchase dated May 2, 1997.
(2) Form of Letter of Transmittal (including Certification of Taxpayer
Identification Number on Substitute Form W-9).
(3) Form of Notice of Guaranteed Delivery.
(4) Letter dated May 2, 1997 from Wheat, First Securities, Inc.
(Dealer Manager) to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(6) Form of Letter dated May 2, 1997 from Samuel E. Beall, III,
Chairman of the Board and Chief Executive Officer of the Issuer,
to the shareholders of the Issuer.
(7) Form of Letter to Participants for use by the Trustee of the
Salary Deferral Plan.
(8) Text of Press Release dated May 1, 1997.
(b) Credit Agreement dated as of March 6, 1996 among Ruby Tuesday
(Georgia), Inc., SunTrust Bank, Atlanta, for itself and as Agent
and Administrative Agent, and the other lenders signatories
thereto, filed as Exhibit 10.40 to the Issuer's Form 10-K for the
fiscal year ended June 1, 1996, which is incorporated herein by
reference.
</TABLE>
5
<PAGE>
EXHIBIT (A)(1)
OFFER BY
RUBY TUESDAY, INC.
TO PURCHASE FOR CASH UP TO 1,000,000
SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT IN EXCESS OF $22.00
NOR LESS THAN $20.00 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON MONDAY, JUNE 2, 1997,
UNLESS THE OFFER IS EXTENDED.
Ruby Tuesday, Inc., a Georgia corporation (the "Company"), hereby invites
its shareholders to tender up to 1,000,000 shares of its Common Stock, $0.01
par value per share (the "Common Stock"), including the associated rights to
purchase Series A Junior Participating Preferred Stock (the "Rights") issued
pursuant to the Rights Agreement between the Company and AmSouth Bank of
Alabama (together, the Common Stock and the Rights are referred to as the
"Shares") to the Company at prices, not in excess of $22.00 nor less than
$20.00 per Share, specified by tendering shareholders, upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the
related Letter of Transmittal (which together constitute the "Offer"). The
Company will determine a single per Share price (not in excess of $22.00 nor
less than $20.00 per Share) (the "Purchase Price") that it will pay for Shares
properly tendered pursuant to the Offer, taking into account the number of
Shares so tendered and the prices specified by tendering shareholders. The
Company will purchase up to 1,000,000 Shares (or such lesser number of Shares
as are properly tendered at or below the Purchase Price) pursuant to the
Offer. Each shareholder who has properly tendered and not withdrawn Shares at
prices at or below the Purchase Price will receive the Purchase Price, net to
the shareholder in cash, for all Shares purchased upon the terms and subject
to the conditions of the Offer. In the event that prior to 5:00 p.m., New York
City time, on Monday, June 2, 1997, or such later time and date to which the
Offer may be extended by the Company, a greater number of Shares are properly
tendered and not withdrawn at or below the Purchase Price than will be
accepted for purchase by the Company, the Company will accept Shares for
purchase first from Shares properly tendered at or below the Purchase Price by
any shareholder who, on the date of tender, beneficially holds fewer than 100
Shares ("Odd Lot Holder") and who tenders all Shares beneficially owned by
such Odd Lot Holder and then from all other Shares tendered at or below the
Purchase Price on a pro rata basis. All Shares not purchased pursuant to the
Offer, including Shares tendered at prices in excess of the Purchase Price and
Shares not purchased because of proration or conditional tenders, will be
returned. The Company reserves the right, in its sole discretion, to purchase
more than 1,000,000 Shares pursuant to the Offer.
THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTION 5.
The Shares are traded on the New York Stock Exchange (the "NYSE") under the
symbol RI. On April 30, 1997, the last full trading day prior to the
announcement of the Offer, the closing per Share sales price as reported on
the NYSE was $19.875. Shareholders are urged to obtain current market
quotations for the Shares. See Section 6.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY
SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES. THE
COMPANY HAS BEEN ADVISED THAT NO DIRECTOR OR EXECUTIVE OFFICER OF THE COMPANY
INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER MUST MAKE
HIS OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO
TENDER AND AT WHAT PRICE.
<PAGE>
IMPORTANT
Any shareholder desiring to tender all or any portion of his Shares should
either (i) complete and sign the Letter of Transmittal (or a facsimile
thereof) in accordance with the instructions in the Letter of Transmittal and
deliver it and all other required documents to Harris Trust Company of New
York (the "Depositary") and either deliver the stock certificates for such
Shares to the Depositary or follow the procedure for book-entry delivery set
forth in Section 2, or (ii) request his broker, dealer, commercial bank, trust
company or other nominee to effect the transaction for him. Any shareholder
having Shares registered in the name of a broker, dealer, commercial bank,
trust company or other nominee should contact such person or institution if he
desires to tender such Shares.
Any shareholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply with the procedure
for book-entry transfer by the expiration of the Offer must tender such Shares
by following the procedures for guaranteed delivery set forth in Section 2.
SHAREHOLDERS MUST COMPLETE THE SECTION OF THE LETTER OF TRANSMITTAL RELATING
TO THE PRICE AT WHICH THEY ARE TENDERING SHARES IN ORDER TO EFFECT A VALID
TENDER OF THEIR SHARES.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal or Notice of Guaranteed Delivery may be
directed to D. F. King & Co., Inc. (the "Information Agent") or the Dealer
Manager at their respective addresses and the telephone numbers set forth on
the back cover of this Offer to Purchase.
The Dealer Manager for the Offer is:
WHEAT, FIRST SECURITIES, INC.
The date of this Offer to Purchase is May 2, 1997.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION ON BEHALF OF THE
COMPANY AS TO WHETHER SHAREHOLDERS SHOULD TENDER OR REFRAIN FROM TENDERING
SHARES PURSUANT TO THE OFFER. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER OTHER
THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE LETTER OF
TRANSMITTAL. IF GIVEN OR MADE, ANY SUCH RECOMMENDATION OR ANY SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY.
<PAGE>
TABLE OF CONTENTS
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PAGE
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INTRODUCTION.............................................................. 1
THE OFFER................................................................. 2
1. NUMBER OF SHARES; PRORATION......................................... 2
2. PROCEDURE FOR TENDERING SHARES...................................... 4
3. WITHDRAWAL RIGHTS................................................... 6
4. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE...... 7
5. CERTAIN CONDITIONS OF THE OFFER..................................... 8
6. PRICE RANGE OF SHARES; DIVIDENDS.................................... 9
7. BACKGROUND AND PURPOSE OF THE OFFER; CERTAIN EFFECTS OF THE OFFER... 10
8. SOURCE AND AMOUNT OF FUNDS.......................................... 11
9. CERTAIN INFORMATION CONCERNING THE COMPANY.......................... 11
10. INTEREST OF DIRECTORS AND EXECUTIVE OFFICERS; TRANSACTIONS AND
ARRANGEMENTS CONCERNING THE SHARES.................................. 16
11. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS......................... 16
12. CERTAIN FEDERAL INCOME TAX CONSEQUENCES............................. 16
13. EXTENSION OF THE OFFER; TERMINATION; AMENDMENTS..................... 18
14. FEES AND EXPENSES................................................... 19
15. MISCELLANEOUS....................................................... 19
SCHEDULE A--CERTAIN TRANSACTIONS INVOLVING SHARES
</TABLE>
<PAGE>
To the Holders of Common Stock of
Ruby Tuesday, Inc.
INTRODUCTION
Ruby Tuesday, Inc., a Georgia corporation (the "Company"), hereby invites
its shareholders to tender shares of its Common Stock, $0.01 par value per
share (the "Common Stock"), including the associated rights to purchase Series
A Junior Participating Preferred Stock (the "Rights") issued pursuant to the
Rights Agreement between the Company and AmSouth Bank of Alabama (together,
the Common Stock and the Rights are referred to as the "Shares"), to the
Company at a price, not in excess of $22.00 nor less than $20.00 per Share,
specified by such shareholders, upon the terms and subject to the conditions
set forth in this Offer to Purchase and the related Letter of Transmittal
(which together constitute the "Offer"). The Company will determine a single
per Share price (not in excess of $22.00 nor less than $20.00 per Share) (the
"Purchase Price") that it will pay for Shares properly tendered pursuant to
the Offer, taking into account the number of Shares so tendered and the prices
specified by tendering shareholders. The Company will purchase up to 1,000,000
Shares (or such lesser number of Shares as are properly tendered at or below
the Purchase Price) pursuant to the Offer. The Company reserves the right, in
its sole discretion, to purchase more than 1,000,000 Shares pursuant to the
Offer. The Board of Directors of the Company has concluded that the purchase
of Shares pursuant to the Offer is a prudent use of the Company's financial
resources.
THIS OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS, HOWEVER, SUBJECT TO OTHER CONDITIONS. SEE SECTION 5.
All shareholders who have properly tendered and not withdrawn their Shares
at prices at or below the Purchase Price will receive the Purchase Price, net
to the shareholder in cash, for all Shares purchased upon the terms and
subject to the conditions of the Offer, including the provisions relating to
proration and conditional tenders described herein. If, prior to the
Expiration Date (as defined in Section 1), more than 1,000,000 Shares (or such
greater number of Shares as the Company may elect to purchase pursuant to the
Offer) are properly tendered at or below the Purchase Price and not withdrawn,
the Company will accept Shares for purchase first from all Odd Lot Holders (as
defined in Section 1) who properly tender all their Shares at or below the
Purchase Price and then on a pro rata basis from all other shareholders who
properly tender Shares at or below the Purchase Price. If any shareholder
tenders Shares held by him and does not wish to have such Shares purchased
pursuant to the Offer subject to proration, such shareholder may tender Shares
subject to the condition that a designated number or none of such Shares be
purchased in the event of proration. See Sections 1 and 2. The Company will
return all Shares not purchased under the Offer, including Shares tendered at
prices greater than the Purchase Price and Shares not purchased because of
proration or conditional tenders. Tendering shareholders will not be obligated
to pay brokerage fees or commissions or, except as set forth in Instruction 7
of the Letter of Transmittal, stock transfer taxes on the purchase of Shares
by the Company pursuant to the Offer. In addition, the Company will pay all
fees and expenses of the Dealer Manager, the Depositary and the Information
Agent in connection with the Offer.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY
SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES. THE
COMPANY HAS BEEN ADVISED THAT NO DIRECTOR OR EXECUTIVE OFFICER OF THE COMPANY
INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER MUST MAKE
HIS OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO
TENDER AND AT WHAT PRICE.
As of April 28, 1997, there were outstanding 17,623,083 Shares. The
1,000,000 Shares that the Company is offering to purchase represent
approximately 5.7% of the Shares outstanding at that date. The Shares are
traded on the New York Stock Exchange (the "NYSE") under the symbol RI. On
April 30, 1997, the last full trading
<PAGE>
day on the NYSE prior to the announcement of the Offer, the closing per Share
sales price was $19.875. Shareholders are urged to obtain current market
quotations for the Shares. See Section 6.
Any Shares acquired by the Company pursuant to the Offer will be cancelled
and will be returned to the status of authorized but unissued shares of Common
Stock. Such Shares will be available for reissuance by the Company without
further shareholder action for general or other corporate purposes, including
stock options and other employee benefit plans, stock splits or dividends,
acquisitions and the raising of additional capital for use in the Company's
business. Except for stock options and other employee benefit plans, the
Company has no current plans for any such uses of such shares.
THE OFFER
1. NUMBER OF SHARES; PRORATION
Upon the terms and subject to the conditions of the Offer, the Company will
accept for payment and purchase up to 1,000,000 Shares, or such lesser number
of Shares as are properly tendered at or below the Purchase Price at or prior
to the Expiration Date (as defined herein), and not withdrawn in accordance
with Section 3. The term "Expiration Date" means 5:00 p.m., New York City
time, on June 2, 1997, unless the Company, in its sole discretion, shall have
extended the period of time during which the Offer is open, in which event the
term "Expiration Date" shall refer to the latest time and date at which the
Offer, as so extended by the Company, shall expire. For a description of the
Company's right to extend the period of time during which the Offer is open,
and to delay, terminate or amend the Offer, see Section 13. If the Offer is
oversubscribed, Shares tendered at or below the Purchase Price prior to the
Expiration Date will be subject to proration. The proration period also
expires on the Expiration Date.
The Company will, upon the terms and subject to the conditions of the Offer,
determine the Purchase Price that it will pay for Shares properly tendered
pursuant to the Offer, taking into account the number of Shares so tendered
and the prices specified by tendering shareholders. The Company will determine
a single per Share Purchase Price that it will pay for Shares properly
tendered pursuant to the Offer, taking into account the number of Shares so
tendered and the prices specified by the tendering shareholders. The Company
will purchase up to 1,000,000 Shares (or such lesser number of Shares as are
properly tendered at or below the Purchase Price) pursuant to the Offer. In
addition, the Company reserves the right, in its sole discretion, to purchase
more than 1,000,000 Shares pursuant to the Offer.
If (i) the Company increases or decreases the price to be paid for Shares,
or the Company increases the number of Shares being sought and such increase
in the number of Shares being sought exceeds 2% of the outstanding Shares, or
the Company decreases the number of Shares being sought and (ii) the Offer is
scheduled to expire at any time earlier than the expiration of a period ending
on the tenth business day from, and including, the date that notice of such
increase or decrease is first published, sent or given in the manner described
in Section 13, the Offer will be extended until the expiration of such period
of ten business days. For purposes of the Offer, a "business day" means any
day other than a Saturday, Sunday or federal holiday and consists of the time
period from 12:01 a.m. through 12:00 midnight, New York City time.
In accordance with Instruction 5 of the Letter of Transmittal, each
shareholder desiring to tender Shares must specify the price, not in excess of
$22.00 nor less than $20.00 per Share, at which such shareholder is willing to
have Shares purchased by the Company. As promptly as practicable following the
Expiration Date, the Company will determine the Purchase Price (not in excess
of $22.00 nor less than $20.00 per Share) that will allow it to purchase up to
1,000,000 Shares properly tendered and not withdrawn by the Expiration Date.
As promptly as practicable thereafter, the Company will publicly announce the
Purchase Price, and upon the terms and subject to the conditions of the Offer
(including the proration provisions described herein), all shareholders who
have properly tendered and not withdrawn Shares at prices at or below the
Purchase Price will receive the Purchase Price for all Shares purchased. All
Shares not purchased pursuant to the Offer, including Shares
2
<PAGE>
tendered at prices in excess of the Purchase Price and Shares not purchased
because of proration or conditional tenders, will be returned to the tendering
shareholders at the Company's expense as promptly as practicable following the
Expiration Date.
If the number of Shares properly tendered by the Expiration Date at prices
at or below the Purchase Price, and not withdrawn, is less than or equal to
1,000,000 (or such greater number of Shares as the Company may elect to
purchase pursuant to this Offer) the Company will, upon the terms and subject
to the conditions of this Offer, purchase at the Purchase Price all Shares so
tendered.
If the number of Shares properly tendered by the Expiration Date at prices
at or below the Purchase Price, and not withdrawn, is greater than 1,000,000
(or such greater number of Shares as the Company may elect to purchase
pursuant to the Offer), the Company will, upon the terms and subject to the
conditions of the Offer, purchase at the Purchase Price 1,000,000 Shares (or
such greater number of Shares) in the following order of priority: (i) Odd
Lots (as hereinafter defined), (ii) Shares unconditionally tendered at or
below the Purchase Price by the Expiration Date on a pro rata basis (with
adjustments to avoid the purchase of fractional Shares), and (iii) Shares
conditionally tendered at or below the Purchase Price by the Expiration Date
selected by lot. See the discussion below for further information relating to
conditional tenders of Shares.
For purposes of the Offer, the term "Odd Lots" means all Shares properly
tendered, in accordance with the procedures set forth in Section 2, by the
Expiration Date at prices at or below the Purchase Price and not withdrawn, by
or on behalf of shareholders ("Odd Lot Holders") who, on the date of tender,
beneficially hold fewer than 100 Shares. As set forth above, Odd Lots will be
accepted for purchase before any proration. In order to qualify for this
preference, an Odd Lot Holder must properly tender at a price at or below the
Purchase Price all Shares beneficially owned by him and must not make a
conditional tender. Partial tenders will not qualify for this preference. This
preference is not available to holders of 100 or more Shares, even if holders
have separate stock certificates for fewer than 100 Shares. Any Odd Lot Holder
wishing to tender all Shares beneficially owned free of proration must
complete the box captioned "Odd Lots" on the Letter of Transmittal and, if
applicable, on the Notice of Guaranteed Delivery. Shareholders owning an
aggregate of less than 100 Shares whose Shares are purchased pursuant to the
Offer not only will avoid the payment of brokerage commissions, but also will
avoid any applicable odd-lot discounts otherwise payable on a sale of their
Shares in a NYSE transaction.
The Company reserves the right, but will not be obligated, to purchase all
Shares properly tendered and not withdrawn, at or below the Purchase Price, by
any shareholder who has so tendered all Shares owned beneficially or of record
and as a result of any proration would then own an aggregate of fewer than 100
Shares. In addition, the Company reserves the right, but will not be
obligated, to purchase in excess of 1,000,000 Shares pursuant to the Offer to
avoid proration.
As described in Section 12, the number of Shares that the Company will
purchase from a shareholder may affect the federal income tax consequences to
the shareholder of such purchase and therefore may be relevant to a
shareholder's decision whether to tender Shares. If any shareholder tenders
Shares held by him and does not wish to have such Shares subject to proration
before purchase, such shareholder may tender Shares subject to the condition
that at least a designated minimum number or none of such Shares be purchased.
Any shareholder desiring to make such a conditional tender should so indicate
in the box captioned "Conditional Tender" on the Letter of Transmittal and, if
applicable, on the Notice of Guaranteed Delivery. It is the tendering
shareholder's responsibility to determine the minimum number of Shares to be
tendered. Shareholders should consult their tax advisors with respect to the
effects of proration of the Offer and the advisability of making a conditional
tender. See Section 12.
If as a result of proration the number of Shares to be purchased from any
shareholder making a conditional tender is reduced below the minimum number
specified by such shareholder, such tender will automatically be regarded as
withdrawn, except as provided below, and all Shares tendered by such
shareholder will be returned as promptly as practicable after the Expiration
Date at the Company's expense. If so many conditional tenders are withdrawn
that the total number of Shares available for purchase by the Company falls
below the number of
3
<PAGE>
Shares that the Company has determined to purchase pursuant to the Offer,
then, to the extent feasible, the Company will select enough of such
conditional tenders, which would otherwise have been withdrawn, to enable the
Company to purchase such desired number of Shares. In selecting among such
conditional tenders, the Company will select by lot and will limit its
purchase in each case to the designated minimum number of Shares to be
purchased.
2. PROCEDURE FOR TENDERING SHARES
Proper Tender of Shares. To validly tender Shares pursuant to the Offer,
either (i) a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees and any other
documents required by the Letter of Transmittal must be received by the
Depositary at its address set forth on the back cover of this Offer to
Purchase, and either (a) certificates for the Shares to be tendered must be
received by the Depositary at such address or (b) such Shares must be tendered
pursuant to the procedures for book-entry transfer described below (and a
confirmation of such tender received by the Depositary), in each case by the
Expiration Date, or (ii) the guaranteed delivery procedure described below
must be followed.
In accordance with Instruction 5 of the Letter of Transmittal, each
shareholder desiring to tender Shares pursuant to the Offer must indicate, in
the box captioned "Price (In Dollars) Per Share at Which Shares Are Being
Tendered" in the Letter of Transmittal, the price (in multiples of $0.125) at
which such Shares are being tendered. If a shareholder desires to tender
Shares in separate lots at a different price for each lot, such shareholder
must complete a separate Letter of Transmittal for each lot and price at which
he is tendering Shares. The same Shares cannot be tendered (unless properly
withdrawn previously in accordance with the terms of the Offer) at more than
one price. In order to tender Shares properly, a price box, but only one price
box, on each Letter of Transmittal must be checked.
In addition, Odd Lot Holders who tender all their Shares must complete the
box captioned "Odd Lots" in the Letter of Transmittal and, if applicable, on
the Notice of Guaranteed Delivery in order to qualify for the preferential
treatment available to Odd Lot Holders as set forth in Section 1. Shareholders
desiring to make a conditional tender of their Shares must complete the box
captioned "Conditional Tender" in the Letter of Transmittal and, if
applicable, on the Notice of Guaranteed Delivery.
Book-Entry Delivery. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company and Philadelphia Depository
Trust Company (collectively referred to as the "Book-Entry Transfer
Facilities") for purposes of the Offer within two business days after the date
of this Offer to Purchase. Any financial institution that is a participant in
the system of any Book-Entry Transfer Facility may make delivery of Shares by
causing such Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with the procedures of such Book-Entry
Transfer Facility. However, although delivery of Shares may be effected
through book-entry transfer into the Depositary's account at a Book-Entry
Transfer Facility, a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees and
any other required documents must, in any case, be received by the Depositary
at the address set forth on the back cover of this Offer to Purchase by the
Expiration Date, or the guaranteed delivery procedure described below must be
complied with by the tendering shareholder. Delivery of the Letter of
Transmittal and any other required documents to a Book-Entry Transfer Facility
does not constitute delivery to the Depositary.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if the Letter of Transmittal is signed by the registered holder of
the Shares exactly as the name of the registered holder appears on the
certificate (which term, for purposes of this Section 2, includes any
participant in a Book-Entry Transfer Facility whose name appears on a security
position listing as the owner of the Shares) tendered therewith, and payment
is to be made directly to such registered holder, or if Shares are tendered
for the account of a financial institution that is a member of the Securities
Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the
New York Stock Exchange, Inc. Medallion Signature Program (each such entity,
an "Eligible Institution"). In all other cases, all signatures on the Letter
of Transmittal must be guaranteed by an Eligible Institution. See Instruction
1 of the Letter of Transmittal. If a certificate representing Shares is
4
<PAGE>
registered in the name of a person other than the signatory of a Letter of
Transmittal, or if payment is to be made or Shares not purchased or tendered
are to be issued to a person other than the registered owner, the certificate
must be endorsed or accompanied by an appropriate stock power, in either case
signed exactly as the name of the registered owner appears on the certificate
with the signature on the certificate or stock power guaranteed by an Eligible
Institution.
Method of Delivery. 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 to be sent by mail, registered mail with return
receipt requested, properly insured, is recommended.
Backup Federal Income Tax Withholding. To prevent backup federal income tax
withholding equal to 31% of the gross payments made pursuant to the Offer,
each shareholder who does not otherwise establish an exemption from such
withholding must notify the Depositary of such shareholder's correct taxpayer
identification number (or certify that such taxpayer is awaiting a taxpayer
identification number) and provide certain other information by completing a
Substitute Form W-9 included in the Letter of Transmittal. Foreign
shareholders are required to submit a Form W-8 in order to avoid backup
withholding.
EACH SHAREHOLDER SHOULD CONSULT HIS OWN TAX ADVISOR AS TO WHETHER SUCH
SHAREHOLDER IS SUBJECT TO OR EXEMPT FROM FEDERAL INCOME TAX WITHHOLDING.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to
the Offer and cannot deliver certificates for such Shares (or the procedures
for book-entry transfer cannot be completed on a timely basis) or time will
not permit all required documents to reach the Depositary by the Expiration
Date, such Shares may nevertheless be tendered if all of the following
conditions are met:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed Delivery
substantially in the form provided by the Company (indicating the
price at which the Shares are being tendered) is received by the
Depositary (as provided below) by the Expiration Date; and
(iii) the 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), together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) and
any other documents required by the Letter of Transmittal, are
received by the Depositary within three NYSE trading days after the
date the Depositary receives such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice.
Salary Deferral Plan Beneficiaries. If a shareholder desires to tender such
shareholder's Salary Deferral Plan Shares pursuant to the Offer, such
shareholder must instruct the Trustee of the Salary Deferral Plan to tender
such Shares by properly completing, duly executing and returning to the
trustee the Instruction Form sent to such shareholder by the Trustee. The
Trustee will aggregate all such tenders and execute the requisite number of
Letters of Transmittal on behalf of all beneficiaries. DELIVERY OF A LETTER OF
TRANSMITTAL BY A SHAREHOLDER OF SALARY DEFERRAL PLAN SHARES DOES NOT
CONSTITUTE PROPER TENDER OF SALARY DEFERRAL PLAN SHARES. PROPER TENDER OF
SALARY DEFERRAL PLAN SHARES CAN ONLY BE MADE BY THE TRUSTEE, WHO IS THE RECORD
OWNER OF SUCH SHARES.
If a shareholder desires to tender non-Salary Deferral Plan Shares, as well
as Salary Deferral Plan Shares, such shareholder must properly complete and
duly execute a Letter of Transmittal for such Shares and deliver such Letter
of Transmittal directly to the Depositary as well as following the directions
above for tendering Salary Deferral Plan Shares. The trustee cannot include
non-Salary Deferral Plan Shares in its Letter(s) of Transmittal.
5
<PAGE>
Determination of Validity; Rejection of Shares; Waiver of Defects; No
Obligation to Give Notice of Defects. All questions as to the number of Shares
to be accepted, the price to be paid therefor, the form of documents and the
validity, eligibility (including time of receipt) and acceptance for payment
of any tender of Shares will be determined by the Company, in its sole
discretion, which determination shall be final and binding on all parties. The
Company reserves the absolute right to reject any or all tenders of Shares
determined by it not to be in proper form or the acceptance for payment of or
payment for which may be unlawful. The Company also reserves the absolute
right to waive any of the conditions of the Offer or any defect or
irregularity in any tender of Shares. No tender of Shares will be deemed to be
properly made until all defects and irregularities have been cured or waived.
None of the Company, the Dealer Manager, the Information Agent, the Depositary
or any other person will be under any duty to give notification of any defect
or irregularity in tenders or incur any liability for failure to give any such
notice.
Tender Constitutes an Agreement. The proper tender of Shares pursuant to any
one of the procedures described above will constitute the tendering
shareholder's acceptance of the terms and conditions of the offer and a
binding agreement between the tendering shareholder and the Company.
It is a violation of Rule 14e-4 promulgated under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), for a person, directly or
indirectly, to tender shares for such shareholder's own account unless, at the
time of the tender and at the end of the proration period, the person so
tendering (i) has a net long position equal to or greater than the amount of
(a) Shares tendered or (b) other securities immediately convertible into, or
exercisable or exchangeable for the amount of Shares tendered and will acquire
such Shares for tender by conversion, exercise or exchange of such other
securities, and (ii) will cause such Shares to be delivered in accordance with
the terms of the Offer. Rule 14e-4 promulgated under the Exchange Act provides
a similar restriction applicable to the tender or guarantee of a tender on
behalf of another person. The tender of Shares pursuant to any one of the
procedures described above will constitute the tendering shareholder's
acceptance of the terms and conditions of the Offer as well as his
representation and warranty that (A) such shareholder has a net long position
in the Shares being tendered within the meaning of Rule 14e-4 promulgated
under the Exchange Act and (B) the tender of such Shares complies with Rule
14e-4 promulgated under the Exchange Act.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares pursuant
to the Offer will be irrevocable. Shares tendered pursuant to the Offer may be
withdrawn at any time prior to the Expiration Date and, unless theretofore
accepted for payment by the Company as provided in this Offer to Purchase, may
also be withdrawn after 12:00 Midnight, New York City time, on June 30, 1997.
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 this Offer to Purchase.
Any such notice of withdrawal must specify the name of the person who tendered
the Shares to be withdrawn, the number of Shares to be withdrawn and the name
of the registered holder, if different from that of the person who tendered
such Shares. If the certificates have been delivered or otherwise identified
to the Depositary, then, prior to the release of such certificates, the
tendering shareholder must submit the serial numbers shown on the particular
certificates evidencing the Shares to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except in
the case of Shares tendered by an Eligible Institution. If Shares have been
tendered pursuant to the procedure for book-entry transfer set forth in
Section 2, the notice of withdrawal must specify the name and the number of
the account at the applicable Book-Entry Transfer Facility to be credited with
the withdrawn Shares and otherwise comply with the procedures of such
facility. All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Company, in its
sole discretion, which determination shall be final and binding. None of the
Company, the Dealer Manager, the Depositary, the Information Agent or any
other person shall be obligated to give any notice of any defects or
irregularities in any notice of withdrawal and none of them shall incur any
liability for failure to give any such notice. Any Shares properly withdrawn
will thereafter be deemed not
6
<PAGE>
tendered for purposes of the Offer. However, withdrawn Shares may be re-
tendered prior to the Expiration Date by again following any of the procedures
described in Section 2.
If, as a result of proration, the number of Shares to be purchased from any
shareholder making a conditional tender is reduced below the minimum number
specified by such shareholder, such tender will automatically be regarded as
withdrawn.
If the Company extends the Offer, is delayed in its purchase of Shares or is
unable to purchase Shares pursuant to the Offer for any reason, then, without
prejudice to the Company's rights under the Offer, the Depositary may, subject
to applicable law, retain on behalf of the Company all tendered Shares, and
such Shares may not be withdrawn except to the extent tendering shareholders
are entitled to withdrawal rights as described in this Section 3 subject to
Rule 13e-4(f)(5) under the Exchange Act which provides that the issuer making
the tender offer shall either pay the consideration offered, or return the
tendered securities, promptly after the termination or withdrawal of the tender
offer.
4. ACCEPTANCE FOR PAYMENT OF SHARES AND PAYMENT OF PURCHASE PRICE
Upon the terms and subject to the conditions of the Offer (including
proration), and promptly after the Expiration Date, the Company will determine
a single per Share Purchase Price (not in excess of $22.00 nor less than $20.00
per Share) that it will pay for Shares properly tendered and not withdrawn,
taking into account the number of Shares tendered and the prices specified by
tendering shareholders. The Company will accept for payment up to 1,000,000
Shares, or such lesser number of Shares, as provided in Section 1, as are
properly tendered and not withdrawn at or below the Purchase Price, as soon as
practicable after the Expiration Date. Following the determination of the
Purchase Price, the Company will announce the Purchase Price, and payment for
Shares accepted for payment pursuant to the Offer will be made promptly
(subject to possible delay in the event of proration) but only after timely
receipt by the Depositary of certificates for Shares (or of a confirmation of a
book-entry transfer of such Shares into the Depositary's account at one of the
Book-Entry Transfer Facilities), a properly completed and duly executed Letter
of Transmittal (or manually executed facsimile thereof) and any other required
documents.
For purposes of the Offer, the Company will be deemed to have accepted for
payment, subject to proration, Shares tendered at or below the Purchase Price
and not withdrawn if, as and when the Company gives oral or written notice to
the Depositary of its acceptance of such Shares for payment pursuant to the
Offer. Payment for Shares to be purchased pursuant to the Offer will be made by
depositing the aggregate Purchase Price for such Shares with the Depositary,
which will act as agent for the tendering shareholders for the purpose of
receiving payment from the Company and transmitting such payments to tendering
shareholders.
In the event of proration, the Company will determine the proration factor
and pay for those tendered Shares accepted for payment as soon as practicable
after the Expiration Date; however, the Company does not expect to be able to
announce the final results of any such proration until approximately five NYSE
trading days after the Expiration Date. Certificates for all Shares not
purchased, including all Shares tendered at prices in excess of the Purchase
Price and Shares not purchased due to proration or conditional tenders, will be
returned (or, in the case of Shares tendered by book-entry transfer, such
Shares will be credited to the account maintained within such Book-Entry
Transfer Facility by the participant therein who so delivered such Shares) as
soon as practicable after the Expiration Date or termination of the Offer
without expense to the tendering shareholder. Under no circumstances will
interest be paid by the Company by reason of any delay in paying for any Shares
or otherwise. In addition, if certain events occur, the Company may not be
obligated to purchase the Shares pursuant to the Offer. See Section 5.
The Company will pay all stock transfer taxes, if any, payable on the
transfer to it of Shares purchased pursuant to the Offer. If, however, payment
of the Purchase Price is to be made to, or (in the circumstances permitted by
the Offer) if Shares not tendered or not accepted for purchase are to be
registered in the name of any person other than the registered owner, or if
tendered certificates are registered in the name of any person other than the
person signing the Letter of Transmittal, the amount of all stock transfer
taxes, if any (whether imposed on the registered owner or such other person),
payable on account of the transfer to such person will be
7
<PAGE>
deducted from the Purchase Price unless evidence satisfactory to the Company
of the payment of such taxes or exemption therefrom is submitted. See
Instruction 7 of the Letter of Transmittal.
ANY TENDERING SHAREHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY AND SIGN
THE SUBSTITUTE FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE SUBJECT
TO REQUIRED FEDERAL INCOME TAX WITHHOLDING OF 31% OF THE GROSS PROCEEDS PAID
TO SUCH SHAREHOLDER OR OTHER PAYEE PURSUANT TO THE OFFER. SEE SECTION 2.
5. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, the Company shall not be
required to accept for payment or purchase or pay for any Shares tendered and
may terminate or amend the Offer or may postpone the acceptance for payment
of, or the payment for, Shares tendered, if at any time on or after May 2,
1997, but on or before the Expiration Date, any of the following events shall
have occurred (or shall have been determined by the Company to have occurred)
which, in the Company's sole judgment in any such case and regardless of the
circumstances (including any action or omission to act by the Company), makes
it inadvisable to proceed with the Offer or with such acceptance for purchase
or payment:
(a) There shall have occurred (i) the commencement of a war, armed
hostilities or other international or national calamity directly or indirectly
involving the United States, (ii) any general suspension of trading in, or
limitation on prices for, securities on any national securities exchange or in
the over-the-counter market, (iii) the declaration of a banking moratorium or
any suspension of payments in respect of banks in the United States, (iv) any
limitation by any governmental, regulatory or administrative authority or
agency or any other event that, in the sole judgment of the Company, might
affect the extension of credit by banks or other lending institutions, (v) a
decline in the last sales price of the Shares of more than 15% as reported on
the NYSE measured from the close of business on May 2, 1997, (vi) any change
in the general political, market, economic or financial conditions in the
United States or abroad that has or may have material adverse significance
with respect to the Company's business, operations or prospects or the trading
in the Shares, or (vii) any decline in either the Dow Jones Industrial Average
or the Standard and Poor's Index of 500 Industrial Companies of more than 15%,
measured from the close of business on May 2, 1997; or
(b) There shall have been threatened, instituted or pending any action or
proceeding by any government or governmental authority or regulatory or
administrative agency, domestic or foreign, or by any other person, domestic
or foreign, before any court or governmental authority or regulatory or
administrative agency, domestic or foreign, (i) challenging or seeking to make
illegal, or delay or otherwise directly or indirectly restrain or prohibit the
making of the Offer, the acceptance for payment of or payment for some or all
of the Shares by the Company or otherwise directly or indirectly relating in
any manner to or affecting the Offer, or (ii) that otherwise, in the sole
judgment of the Company, has or may have a material adverse effect on the
business, financial condition, income, operations or prospects of the Company
or its subsidiaries taken as a whole or has or may materially impair the
contemplated benefits of the Offer to the Company; or
(c) There shall have been any action threatened, pending or taken or
approval withheld or any statute, rule, regulation, judgment or order or
injunction proposed, sought, enacted, enforced, promulgated, amended, issued
or deemed applicable to the Offer or the Company or any of its subsidiaries by
any court, governmental authority or regulatory or administrative agency,
domestic or foreign, that, in the sole judgment of the Company might, directly
or indirectly, result in any of the consequences referred to in clauses (i) or
(ii) of paragraph (b) above; or
(d) A tender or exchange offer for some or all of the Shares (other than the
Offer) or a proposal with respect to a merger, consolidation or other business
combination with or involving the Company or any subsidiary shall have been
proposed to be made or shall have been made by another person; or
(e) Any entity, person or "group" (as that term is used in Section 13(d)(3)
of the Exchange Act) shall have acquired or proposed to acquire beneficial
ownership of more than 5% of the outstanding Shares, or any new group shall
have been formed which beneficially owns more than 5% of the outstanding
Shares; or
8
<PAGE>
(f) Any change or changes shall have occurred (or any development shall have
occurred involving any prospective change or changes) in the business, assets,
liabilities, condition (financial or otherwise), operations, results of
operations or prospects of the Company or its subsidiaries that, in the sole
judgement of the Company, have or may have material adverse significance with
respect to the Company or its subsidiaries.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company in its sole discretion regardless of the circumstances
(including any action or inaction by the Company) giving rise to any such
conditions, or may be waived by the Company, in its sole discretion, in whole
or in part at any time. The failure by the Company at any time to exercise its
rights under any of the foregoing conditions shall not be deemed a waiver of
any such right; the waiver of any such right with respect to particular facts
and other circumstances shall not be deemed a waiver with respect to any other
facts and circumstances; and each such right shall be deemed an ongoing right
which may be asserted at any time or from time to time. Any determination by
the Company concerning the events described in this Section shall be final and
binding on all parties.
6. PRICE RANGE OF SHARES; DIVIDENDS
Prior to March 9, 1996, the common stock of Morrison Restaurants Inc.
("Morrison") was traded on the NYSE under the ticker symbol RI. On March 9,
1996, Morrison distributed (the "Distribution") to its shareholders all of the
common stock of two of its wholly-owned subsidiaries. See Section 9. In
connection with the Distribution, Morrison effected a one-for-two reverse
stock split and changed its name to Ruby Tuesday, Inc. The common stock for
Ruby Tuesday, Inc. continues to be traded under the same ticker symbol, RI.
The following table sets forth the reported high and low prices for each
quarter during fiscal 1997, 1996 and 1995 for (i) common stock of Morrison
prior to the Distribution, not adjusted for either the Distribution or the
reverse stock split; and (ii) the common stock of Ruby Tuesday, Inc. after the
Distribution and the reverse stock split.
AS MORRISON RESTAURANTS INC.
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
FISCAL 1995:
First Quarter.............................................. $25.88 $20.88
Second Quarter............................................. 29.75 24.88
Third Quarter.............................................. 27.88 22.88
Fourth Quarter............................................. 26.88 20.88
FISCAL 1996:
First Quarter.............................................. $25.75 $19.13
Second Quarter............................................. 20.63 15.50
Third Quarter.............................................. 17.38 12.50
AS RUBY TUESDAY, INC.
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
FISCAL 1996:
Fourth Quarter............................................. $23.00 $17.25
FISCAL 1997:
First Quarter.............................................. $22.88 $19.38
Second Quarter............................................. 22.00 15.75
Third Quarter.............................................. 19.00 16.25
Fourth Quarter (Through April 23, 1997).................... 19.38 17.00
</TABLE>
On April 30, 1997, the last full trading day of the NYSE prior to the
announcement of the Offer, the closing per Share sales price for the Company
on the NYSE Composite Tape was $19.875.
9
<PAGE>
SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
7. BACKGROUND AND PURPOSE OF THE OFFER; CERTAIN EFFECTS OF THE OFFER
The Board of Directors of the Company has concluded that the purchase of
Shares pursuant to the Offer is a prudent use of the Company's financial
resources. The Offer provides shareholders who are considering the sale of all
or a portion of their Shares the opportunity to determine the price at which
they are willing to sell their Shares and, if any such Shares are purchased
pursuant to the Offer, to sell such Shares for cash at a price at or in excess
of current market prices at the date the Offer was announced without the usual
transaction costs associated with market sales. The Offer also allows
shareholders to sell a portion of their Shares while retaining a continuing
equity interest in the Company if they so desire. In addition, the
shareholders owning fewer than 100 shares whose Shares are purchased pursuant
to the Offer not only will avoid the payment of brokerage commissions but also
will avoid any applicable odd-lot discounts payable on a sale of their Shares
in a NYSE transaction. Shareholders who determine not to accept the Offer will
realize a proportionate increase in their equity interest in the Company if
the Shares are purchased pursuant to the Offer.
Shares acquired by the Company pursuant to the Offer will be cancelled and
will return to the status of authorized but unissued shares of Common Stock.
Such Shares will be available for reissuance by the Company without further
shareholder action for general or other corporate purposes, including stock
options and other employee benefit plans, stock splits or dividends,
acquisitions, and the raising of additional capital for use in the Company's
business. Except for stock options and other employee benefit plans, the
Company has no current plans for any such uses of such shares.
As of April 28, 1997 the Company had issued and outstanding 17,623,083
Shares. The 1,000,000 Shares that the Company is offering to purchase pursuant
to the Offer represent approximately 5.7% of the Shares then outstanding. As
of April 28, 1997, all executive officers and directors of the Company as a
group beneficially owned an aggregate of 2,576,682 Shares, or approximately
14.6% of the outstanding Shares on such date. If the Company purchases
1,000,000 Shares pursuant to the Offer and no executive officer or director
tenders Shares pursuant to the Offer, the Company's executive officers and
directors as a group would beneficially own approximately 15.5% of such
outstanding Shares.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO ANY
SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ANY OR ALL OF
SUCH SHAREHOLDER'S SHARES AND NEITHER HAS AUTHORIZED ANY PERSON TO MAKE ANY
SUCH RECOMMENDATION. SHAREHOLDERS ARE URGED TO EVALUATE CAREFULLY ALL
INFORMATION IN THE OFFER, CONSULT THEIR OWN INVESTMENT AND TAX ADVISORS AND
MAKE THEIR OWN DECISIONS WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES
TO TENDER AND AT WHAT PRICE OR PRICES.
The purchase of Shares pursuant to the Offer will reduce the number of
Shares that otherwise might trade publicly and may reduce the number of
shareholders. Nonetheless, it is anticipated that there still will be a
sufficient number of Shares outstanding and publicly traded following the
Offer to ensure a continued trading market in the Shares. Based upon published
guidelines, the Company does not believe that the purchase of Shares pursuant
to the Offer will cause the Company's remaining Shares to cease to be listed
on the NYSE.
The Shares are registered under the Exchange Act, which requires, among
other things, that the Company furnish certain information to its shareholders
and to the Securities and Exchange Commission (the "Commission") and comply
with the Commission's proxy rules in connection with meetings of the Company's
shareholders. The Company believes that the purchase of Shares pursuant to the
Offer will not result in the Shares becoming eligible for deregistration under
the Exchange Act.
The Shares are currently "margin securities" under the rules of the Federal
Reserve Board. This has the effect, among other things, of allowing brokers to
extend credit on the collateral of the Shares. The Company
10
<PAGE>
believes that, following the repurchase of Shares pursuant to the Offer, the
Shares will continue to be margin securities for purposes of the Federal
Reserve Board's margin regulations.
Although the Company has no current plans to acquire additional Shares, the
Company may in the future purchase additional Shares in the open market, in
private transactions, through tender offers or otherwise. Any such purchases
may be on the same terms or on terms which are more or less favorable to
shareholders than the terms of the Offer. However, Rule 13e-4 of the Exchange
Act prohibits the Company and its affiliates from purchasing any Shares, other
than pursuant to the Offer, until at least ten business days after the
Expiration Date or termination of the Offer. Any possible future purchases by
the Company will depend on many factors, including the market price of the
Shares, the Company's business and financial positions, the results of the
Offer and general economic and market conditions.
8. SOURCE AND AMOUNT OF FUNDS
If the Company were to purchase 1,000,000 Shares pursuant to the Offer at
the maximum Purchase Price of $22.00 per Share, the Company expects that the
maximum aggregate cost of the Offer, including all fees and expenses
applicable to the Offer, would be approximately $22,182,300. Consummation of
the Offer is not conditioned upon the Company obtaining financing. The funds
needed to purchase the Shares will be derived from the $50.0 million five-year
revolving credit facility portion of the Company's $100.0 million credit
facility (the "Credit Facility") under the Credit Agreement dated March 6,
1996 by and among the Company, the lenders listed therein, and SunTrust Bank,
Atlanta. In addition, the Company may make additional borrowings under its
current bank lines of credit, as needed. At April 28, 1997, the Company had
committed lines of credit amounting to $25.0 million (of which $20.2 million
remained available at that date). The Credit Facility provides the Company the
option of borrowing at various interest rate options. At April 28, 1997, the
Company had borrowings at interest rates ranging from 5.98% to 6.34%. The
weighted average interest rate for the quarter ended March 1, 1997 was 5.93%.
The Credit Facility provides for certain restrictions on incurring additional
indebtedness and certain funded debt, net worth, and fixed charge coverage
requirements. Provisions under the Credit Facility are not considered
restrictive to normal operations or anticipated shareholder dividends.
9. CERTAIN INFORMATION CONCERNING THE COMPANY
Prior to March 9, 1996, the Company was known as Morrison Restaurants Inc.
("Morrison"). Morrison operated three businesses in the food service industry.
These businesses were organized into two operating groups: the Ruby Tuesday
Group, consisting of the Company's casual dining concepts, and the Morrison
Group which was comprised of Morrison's family dining restaurant and health
care food and nutrition services businesses.
On March 7, 1996, the shareholders of Morrison approved the distribution
(the "Distribution") of its family dining restaurant business and its health
care food and nutrition services business to its shareholders effective March
9, 1996. In conjunction with the Distribution, the Company reincorporated in
the state of Georgia, effected a one-for-two reverse stock split of its common
stock and changed its name to Ruby Tuesday, Inc.
The Company is a corporation organized under the laws of the State of
Georgia, with its principal executive offices located at 4721 Morrison Drive,
Mobile, Alabama.
The Company operates three separate and distinct casual dining concepts:
Ruby Tuesday, Mozzarella's and Tia's. As of March 1, 1997, the Company
operated 386 casual dining restaurants in 33 states.
Ruby Tuesday
Ruby Tuesdays are casual, full-service restaurants with mahogany woods and
whimsical artifacts, classic brass and Tiffany lamps which create a
comfortable, nostalgic look and feel. Ruby Tuesday is the Company's primary
growth vehicle with 319 units which are concentrated primarily in the
Southeast, Northeast, Mid-
11
<PAGE>
Atlantic and Midwest. While the concept has historically been mall-based,
current development plans call for 85% of new units to be freestanding.
Existing prototypes range in size from 4,300 to 5,600 square feet with seating
for 180 to 210 guests. A new prototype measuring slightly below 4,000 square
feet is being tested in order to enable Ruby Tuesday to more efficiently fill
in existing markets and penetrate additional small markets.
Mozzarella's Cafe
Mozzarella's is a company-developed, full service restaurant with a menu
that features a variety of pastas and thin-crust gourmet pizzas, along with
made-from-scratch soups, entree salads and sandwiches, fresh seafood
selections, prime steak and grilled chicken all prepared with signature
recipes. With 48 Company-owned establishments, Mozzarella's are primarily
located in the Southeast and Mid-Atlantic with particular concentration in the
Washington, D.C. area, Florida and Virginia. New restaurants typically range
in size from 4,200 to 4,500 square feet and seat 140 to 160 visitors.
Tia's Tex-Mex
Tia's, the Company's newest concept, is a full-service, casual dining
restaurant. The decor is reminiscent of an authentic Mexican restaurant with
chandeliers replicating those of an old Mexican hotel and colors, textures and
artifacts that reflect the restaurants' genuine Southwestern heritage. Tia's
menu items, which are all fresh and made from scratch, include an array of
traditional Tex-Mex favorites such as: fajitas, enchiladas, tacos, nachos and
quesadillas and a selection of unique grilled and sauteed dishes. The menu
also provides the guest with a variety of appetizers and desserts. Chips are
cooked fresh throughout the day and served with just-made salsa to every
guest. The Company had 19 Tia's operational at March 1, 1997 which are located
in the Southwest, Southeast and Mid-Atlantic regions.
Summary Historical Financial Information. The following table sets forth
certain summary consolidated historical financial information of the Company
and its subsidiaries. The historical financial information at and for the
fiscal years ended June 1, 1996, June 2, 1995, and June 4, 1994 has been
summarized from the Company's audited consolidated financial statements in the
Company's Annual Report on Form 10-K for the fiscal year ended June 1, 1996.
The financial information for the thirty-nine weeks ended March 1, 1997 and
March 2, 1996 has been summarized from the unaudited consolidated financial
statements in the Company's Quarterly Report on Form 10-Q for the quarter
ended March 1, 1997. The following summary historical financial information
should be read in conjunction with and is qualified in its entirety by
reference to, such audited and unaudited consolidated financial statements and
their related notes and other financial information. Copies of the foregoing
reports may be obtained as described in Section 15 of this Offer.
12
<PAGE>
SUMMARY HISTORICAL FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
THIRTY-NINE
WEEKS ENDED FISCAL YEAR END
------------------ ---------------------------------
MARCH 1, MARCH 2, JUNE 1, JUNE 2, JUNE 4,
1997 1996 1996 1995 1994
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Revenues................ $486,205 $461,922 $620,134 $515,312 $459,039
-------- -------- -------- -------- --------
Operating costs and
expenses:
Cost of merchandise... 131,729 126,879 170,352 138,665 127,862
Payroll and related
costs................ 158,045 155,765 209,007 169,881 151,270
Other, net............ 105,407 100,327 134,043 106,028 94,330
Selling, general, and
administrative....... 32,162 30,301 39,139 37,521 34,250
Depreciation.......... 28,378 25,642 34,131 26,634 23,353
L&N conversion/closing
costs................ 19,727
Interest expense, net. 3,088 3,515 4,637 744 160
Loss on impairment of
assets............... 25,881 25,881
Restructure charges... 5,257 5,257
-------- -------- -------- -------- --------
458,809 473,567 622,447 499,200 431,225
-------- -------- -------- -------- --------
Income (loss) from
continuing operations
before income taxes.... 27,396 (11,645) (2,313) 16,112 27,814
Provision (benefit) for
income taxes........... 9,726 (5,104) (1,651) 5,027 9,707
-------- -------- -------- -------- --------
Income (loss) from
continuing operations.. 17,670 (6,541) (662) 11,085 18,107
Loss from discontinued
operations, net of
applicable income
taxes.................. (2,222) (2,222)(1) 51,086(2) 26,577
-------- -------- -------- -------- --------
Net income (loss)....... $ 17,670 $ (8,763) $ (2,884) $ 62,171 $ 44,684
======== ======== ======== ======== ========
Per share data:
Primary earnings (loss)
per common and common
equivalent share:
Continuing operations. $ 0.99 $ (0.37) $ (0.03) $ 0.62 $ 0.97
Discontinued
operations........... (0.13) (0.13) 2.84 1.42
-------- -------- -------- -------- --------
Earnings (loss) per
common and common
equivalent share....... $ 0.99 $ (0.50) $ (0.16) $ 3.46 $ 2.39
======== ======== ======== ======== ========
Fully diluted earnings
(loss) per common and
common equivalent
share.................. $ 0.99 $ (0.50) $ (0.16) $ 3.46 $ 2.39
======== ======== ======== ======== ========
Cash dividends per
share.................. $ 0.00 $ 0.54 $ 0.54 $ 0.70 $ 0.66
======== ======== ======== ======== ========
Ratio of earnings to
fixed charges.......... 2.03 1.72 2.13 1.63 2.26
======== ======== ======== ======== ========
FINANCIAL DATA:
Working capital......... $(41,365) $(38,394) $(33,333) $(44,780) $(43,007)
Gross property, plant &
equipment.............. 497,077 423,648 443,475 387,070 288,306
Total assets............ 414,146 375,467 381,116 484,051 408,453
Long-term debt.......... 71,032 74,035 76,108 32,003 5,467
Shareholders' equity.... 216,940 191,843 197,343 245,493 221,136
Book value per share.... 12.32 11.02 11.30 14.22 12.53
</TABLE>
- --------
(1) Includes a pre-tax loss of $23.7 million recognized for costs associated
with asset impairment and restructurings.
y(2) Includes a pre-tax gain of $46.8 million ($25.8 million net of tax)
realized upon the sale of certain business and industry contracts and
assets of Morrison Health Care, Inc., a business spun-off from the
Company on March 9, 1997.
13
<PAGE>
Pro Forma Financial Information. The following unaudited pro forma
consolidated financial information sets forth historical information as
adjusted to give affect to (i) the purchase of 1,000,000 Shares at $20.00 per
Share and (ii) the purchase of 1,000,000 Shares at $22.00 per share, utilizing
proceeds from the Company's revolving Credit Facility to finance the purchases.
The pro forma adjustments assume that the purchases occurred for purposes of
the consolidated statements of income as of the first day of the period and for
purposes of the condensed consolidated balance sheet as of its date. See "NOTES
TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS" beginning
on Page 15. The pro forma information does not purport to be indicative of the
results which may be obtained in the future or which would actually have been
obtained had the transactions and accompanying and related notes set forth in
the Company's Annual Report on Form 10-K for the year ended June 1, 1996.
PRO FORMA
UNAUDITED PRO FORMA CONDENSED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
THIRTY-NINE WEEKS ENDED
MARCH 1, 1997 YEAR ENDED JUNE 1, 1996
--------------------------------- ----------------------------------
1,000,000 1,000,000 1,000,000 1,000,000
SHARES AT SHARES AT SHARES AT SHARES AT
$20.00 $22.00 $20.00 $22.00
PURCHASE PURCHASE PURCHASE PURCHASE
HISTORICAL PRICE PRICE HISTORICAL PRICE PRICE
---------- --------- --------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Revenue................. $486,205 $486,205 $486,205 $620,134 $620,134 $620,134
-------- -------- -------- -------- -------- --------
Operating costs and
expenses:
Cost of merchandise... 131,729 131,729 131,729 170,352 170,352 170,352
Payroll and related
costs................ 158,045 158,045 158,045 209,007 209,007 209,007
Other, net............ 105,407 105,407 105,407 134,043 134,043 134,043
Selling, general and
administrative....... 32,162 32,162 32,162 39,139 39,139 39,139
Depreciation.......... 28,378 28,378 28,378 34,131 34,131 34,131
Interest expense, net. 3,088 4,024(1) 4,117(1) 4,637 5,885(1) 6,009(1)
Loss on impairment of
assets............... 25,881 25,881 25,881
Restructure charges... 5,257 5,257 5,257
-------- -------- -------- -------- -------- --------
458,809 459,745 459,838 622,447 623,695 623,819
-------- -------- -------- -------- -------- --------
Income (loss) from
continuing operations
before income taxes.... 27,396 26,460 26,367 (2,313) (3,561) (3,685)
Provision (benefit) for
income taxes........... 9,726 9,393(2) 9,360(2) (1,651) (2,098)(2) (2,142)(2)
-------- -------- -------- -------- -------- --------
Income (loss) from
continuing operations.. $ 17,670 $ 17,067 $ 17,007 $ (662) $ (1,463) $ (1,543)
======== ======== ======== ======== ======== ========
Per share data:
Primary earnings (loss)
per common and common
equivalent share from
continuing operations.. $ 0.99 $ 1.01 $ 1.01 $ (0.03) $ (0.09) $ (0.09)
-------- -------- -------- -------- -------- --------
Ratio of earnings to
fixed charges.......... 2.03 1.98 1.98 2.13 2.03 2.02
Weighted average shares
outstanding............ 17,881 16,881 16,881 17,689 16,689 16,689
-------- -------- -------- -------- -------- --------
</TABLE>
14
<PAGE>
UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED BALANCE SHEETS--CONTINUED
(IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
<TABLE>
<CAPTION>
MARCH 1, 1997
----------------------------------------
1,000,000 1,000,000
SHARES AT SHARES AT
$20.00 $22.00
HISTORICAL PURCHASE PRICE PURCHASE PRICE
---------- -------------- --------------
<S> <C> <C> <C>
Assets
Cash and Short-Term Investments..... $ 9,216 $ 9,216 $ 9,216
Receivables......................... 3,979 3,979 3,979
Inventories......................... 9,075 9,075 9,075
Deferred Income Taxes............... 4,313 4,313 4,313
Other Current Assets................ 10,057 10,057 10,057
-------- -------- --------
Total Current Assets.............. 36,640 36,640 36,640
Property and Equipment, Net......... 341,122 341,122 341,122
Costs in Excess of Net Assets
Acquired........................... 20,562 20,562 20,562
Other Assets........................ 15,822 15,822 15,822
-------- -------- --------
Total Assets...................... $414,146 $414,146 $414,146
======== ======== ========
Liabilities
Current Liabilities................. $ 78,005 $ 78,005 $ 78,005
Long Term Debt...................... 71,032 91,214(3) 93,214(3)
Deferred Income Taxes............... 12,743 12,743 12,743
Other Deferred Liabilities.......... 35,426 35,426 35,426
-------- -------- --------
197,206 217,388 219,388
Shareholders' Equity.................. 216,940 196,758(4) 194,758(4)
-------- -------- --------
$414,146 $414,146 $414,146
======== ======== ========
FINANCIAL DATA:
Working capital....................... $(41,365) $(41,365) $(41,365)
Gross property, plant & equipment..... 497,077 497,077 497,077
Total assets.......................... 414,146 414,146 414,146
Long-term debt........................ 71,032 91,214 93,214
Shareholders' equity.................. 216,940 196,758 194,758
Book value per share.................. 12.32 12.20 12.08
</TABLE>
NOTES TO UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS
The pro forma adjustments reflect:
(1) the increase in interest expense resulting from the borrowings under the
Company's revolving Credit Facility and bank lines of credit to finance the
Share repurchases. The additional interest expense has been calculated at the
assumed rate of 6.1852%;
(2) the adjustment to the provision for income taxes to reflect the
increased interest expense utilizing the Company's effective income tax rates
of 35.5% and 35.8% (excluding effects of restructure and impairment charges)
for the thirty-nine weeks ended March 1, 1997 and the fiscal year ended June
1, 1996, respectively;
(3) the increase in long-term debt resulting from borrowings under the
Company's revolving Credit Facility and bank lines of credit to finance the
Share repurchases; and
(4) the reduction in shareholders' equity resulting from the repurchase and
retirement of the Company's Common Stock.
15
<PAGE>
10. INTEREST OF DIRECTORS AND EXECUTIVE OFFICERS; TRANSACTIONS AND
ARRANGEMENTS CONCERNING THE SHARES
Except as set forth in Schedule A hereto, neither the Company, nor any
subsidiary of the Company, nor, to the Company's knowledge, any of the
Company's or any of its subsidiaries' executive officers or directors or
associates of any of the foregoing, has engaged in any transaction involving
Shares during the period of forty business days prior to the date hereof.
Except as set forth in this Offer to Purchase, neither the Company, nor any
subsidiary of the Company, nor, to the Company's knowledge, any of its
executive officers or directors, or any of the executive officers or directors
of its subsidiaries, is a party to any contract, arrangement, understanding or
relationship relating, directly or indirectly, to the Offer with any other
person with respect to Shares. See Section 14. None of the Company or, to the
Company's knowledge, its executive officers or directors has current plans or
proposals which relate to or would result in any extraordinary corporate
transaction involving the Company, such as a merger, a reorganization, the
sale or transfer of a material amount of its assets or the assets of any of
its subsidiaries (although the Company from time to time may consider various
acquisition or divestiture opportunities), any change in its current Board of
Directors or management, any material change in its current dividend policy or
indebtedness or capitalization, any other material change in its business or
corporate structure, any material change in its Articles of Incorporation or
Bylaws, or causing a class of its equity securities to become eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange Act,
or the suspension of the Company's obligation to file reports pursuant to
Section 15(d) of the Exchange Act, or any actions similar to any of the
foregoing.
11. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS
The Company is not aware of any license or regulatory permit that appears to
be material to the Company's business that might be adversely affected by the
Company's acquisition of Shares as contemplated herein or of any approval or
other action by any government or governmental, administrative or regulatory
authority or agency, domestic or foreign, that would be required for the
acquisition or ownership of Shares by the Company as contemplated herein.
Should any such approval or other action be required, the Company presently
contemplates that such approval or other action will be sought. The Company is
unable to predict whether it may determine that it is required to delay the
acceptance for payment of, or payment for, Shares tendered pursuant to the
Offer pending the outcome of any such matter. There can be no assurance that
any such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that the failure to obtain any such
approval or other action might not result in adverse consequences to the
Company's business. The Company's obligations under the Offer to accept for
payment and pay for Shares are subject to certain conditions. See Section 5.
12. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The discussion below provides certain Federal income tax consequences of a
sale of Shares pursuant to the Offer by a United States person (a United
States citizen or resident alien, a domestic corporation, a domestic
partnership or a domestic trust or estate). Certain shareholders (including
insurance companies, tax-exempt organizations, financial institutions or
insurance companies, financial institutions or broker dealers, foreign
shareholders and shareholders who have acquired their Shares upon the exercise
of options or otherwise as compensation) may be subject to special rules not
discussed below. This discussion does not reflect any tax laws of any
jurisdiction other than the Federal income tax laws of the United States. Each
shareholder should consult his own tax advisor as to the particular tax
consequences to him of a sale of Shares pursuant to the Offer, including the
applicability and effect of any state, local, foreign or other tax laws.
The sale of Shares pursuant to the Offer will be a taxable transaction for
Federal income tax purposes. Under Section 302 of the Internal Revenue Code of
1986, as amended (the "Code"), a sale of Shares pursuant to the Offer will, as
a general rule, be treated as a "sale or exchange" if the sale of Shares (a)
is "substantially
16
<PAGE>
disproportionate" with respect to the shareholder, (b) results in a "complete
redemption" of all of the stock of the Company owned by the shareholder or (c)
is "not essentially equivalent to a dividend" with respect to the shareholder.
The sale of Shares will be "substantially disproportionate" if the
percentage of the outstanding Shares actually and constructively owned by the
shareholders satisfies the following three requirements:
(i) after the sale, the shareholder owns less than 50% of the total
combined voting power of all classes of outstanding stock entitled to vote;
(ii) the shareholder's percentage of the total outstanding voting stock
immediately after the purchase is less than 80% of the shareholder's
percentage of the total outstanding voting stock immediately before the
purchase; and
(iii) the shareholder's percentage of outstanding common stock (whether
voting or non-voting) immediately after the purchase is less than 80% of
the shareholder's percentage of outstanding common stock (whether voting or
non-voting) immediately before the purchase.
The sale of Shares will be deemed to result in a "complete redemption" if
either (a) all the Shares actually and constructively owned by the shareholder
are sold pursuant to the Offer or (b) all the Shares actually owned by the
shareholder are sold pursuant to the Offer and the shareholder is eligible to
waive (and effectively waives) constructive ownership of any other Shares
under procedures described in Section 302 of the Code.
The sale of Shares may be "not essentially equivalent to a dividend" if the
sale results in a "meaningful reduction" of the shareholder's proportionate
interest in the Company. Whether the sale will be considered as "not
essentially equivalent to a dividend" depends on the particular shareholder's
facts and circumstances. Any shareholder intending to rely upon the "not
essentially equivalent to a dividend" test should consult such shareholder's
own tax advisor as to its application in the shareholder's particular
situation.
In determining whether any of the above tests are satisfied, a shareholder
must take into account not only Shares which are actually owned by the
shareholder, but also Shares which are constructively owned by the shareholder
within the meaning of Section 318 of the Code.
Under Section 318, a shareholder is deemed to own Shares actually owned, and
in some cases constructively owned, by certain related individuals and
entities. A shareholder is also deemed to own Shares which the shareholder has
the right to acquire by exercise of an option or conversion or exchange of a
security. An individual shareholder is considered to own Shares owned directly
or indirectly by or for his spouse and his children, grandchildren and
parents. In addition, a shareholder is considered to own a proportionate
number of Shares owned by trusts or estates in which the shareholder has a
beneficial interest, by partnerships in which the shareholder is a partner and
by corporations in which the shareholder owns directly or indirectly 50% or
more in value of the stock. Similarly, shares directly or indirectly owned by
beneficiaries of estates or trusts, by partners of partnerships and, under
certain circumstances, by shareholders of corporations may be considered owned
by these entities.
If any of the above tests under Section 302 of the Code is satisfied, the
shareholder will recognize a gain (or loss) in the amount by which the
purchase price received by the shareholder pursuant to the Offer is greater
(or less) than the shareholder's tax basis in the Shares sold. The recognized
gain or loss will be capital gain or loss if the Shares are held as a capital
asset, and will be long-term capital gain or loss if the Shares have been held
for longer than one (1) year.
If none of the above tests under Section 302 of the Code are satisfied, the
shareholder may be treated as having received a dividend in the amount of the
cash received for the Shares sold pursuant to the Offer. In the case of a
dividend, the shareholder's tax basis in the Shares sold will not reduce the
amount of the dividend.
17
<PAGE>
Proration of the Offer, pursuant to which fewer than all of the Shares
tendered may be purchased by the Company, could adversely affect a
shareholder's ability to satisfy the above tests under Section 302 of the
Code. An increase in the number of Shares purchased by the Company could also
adversely affect a shareholder's ability to satisfy these tests. As described
above, the Company may increase the total number of Shares accepted by up to
2% of the outstanding Shares without prior notice and without extending the
tender period. See Section 1 for information regarding proration and
conditional tenders and Section 3 for information concerning withdrawals.
Shareholders are urged to consult their tax advisors with respect to the
effects of proration or an increase in the number of Shares purchased by the
Company and with respect to the advisability of making a conditional tender or
a withdrawal of Shares.
A shareholder will be considered as having received a payment for Shares
tendered pursuant to the Offer at the time a payment is received by the
Depositary as agent for the shareholder.
In general, any income which is treated as a dividend received by a domestic
corporation pursuant to the rules described above will be eligible for certain
percentage dividends-received deductions under Section 243 of the Code,
subject to applicable limitations, including those relating to "debt-financed
portfolio stock" under Section 246A of the Code and the 46-day holding period
requirement of Section 246 of the Code. Any amount treated as a dividend to a
corporate shareholder may constitute an "extraordinary dividend" subject to
the provisions of Section 1059 of the Code. Under Section 1059 of the Code, a
corporate shareholder must reduce the tax basis of its stock (but not below
zero) by the portion of any "extraordinary dividend" which is deducted under
the dividends received deduction and, if such portion exceeds the
shareholder's tax basis for the stock, must treat any such excess as
additional gain on the subsequent sale or other disposition of such shares.
Except as may otherwise be provided in regulations in the case of any
redemption of stock which is not pro rata as to all shareholders, any amount
treated as a dividend under the rules of Section 302 is treated as an
extraordinary dividend regardless of the shareholder's holding period or the
amount of the dividend. Corporate shareholders should consult their own tax
advisors particularly as to the application of Section 1059 to the Offer.
The Depositary will be required to withhold 31% of the gross proceeds paid
to a shareholder or other payee pursuant to the Offer unless either (a) the
shareholder provides the shareholder's taxpayer identification number and
certifies under penalties of perjury that such number is correct; (b) the
shareholder certifies that he is awaiting a taxpayer identification number; or
(c) an exception applies under applicable law and regulations. Therefore,
unless such an exception exists and is proved in a manner satisfactory to the
Company and the Depositary, each tendering shareholder should complete and
sign the Substitute Form W-9 included in the Letter of Transmittal, so as to
provide the information and certification necessary to avoid backup
withholding.
13. EXTENSION OF THE OFFER; TERMINATION; AMENDMENTS
The Company expressly reserves the right, at any time or from time to time
before the Expiration Date, to extend the period of time during which the
Offer is open by giving oral or written notice of such extension to the
Depositary and making a public announcement thereof. There can be no
assurance, however, that the Company will exercise its right to extend the
Offer. During any such extension, all Shares previously tendered and not
accepted for payment or withdrawn will remain subject to the Offer and may be
accepted for payment by the Company.
The Company also expressly reserves the right, in its sole discretion, (i)
to delay payment for any Shares not theretofore paid for, or to terminate the
Offer and not to accept for payment or pay for any Shares not theretofore
accepted for payment upon the occurrence of any of the conditions specified in
Section 5, or (ii) at any time or from time to time to amend the Offer in any
respect, including increasing or decreasing the number of Shares the Company
may purchase pursuant to the Offer.
Any such extension, delay, termination or amendment will be followed as
promptly as practicable by a public announcement thereof. Without limiting the
manner in which the Company may choose to make any public announcement, except
as provided by applicable law (including Rule 13e-4(e)(2) of the Exchange
Act),
18
<PAGE>
the Company shall have no obligation to publish, advertise or otherwise
communicate any such public announcement other than by making a release to the
Dow Jones News Service.
If the Company makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, the Company will extend the Offer to the extent required by Rules 13e-
4(d)(2) and 13e-4(e)(2) under the Exchange Act, which require that the minimum
period during which an offer must remain open following material changes in
the terms of the offer or information concerning the offer (other than a
change in price or a change in percentage of securities sought) will depend
upon the facts and circumstances, including the relative materiality of such
terms or information. The Company confirms that its reservation of the right
to delay payment for Shares which it has accepted for payment is limited by
Rule 13e-4(f)(5) under the Exchange Act, which requires that an issuer pay the
consideration offered or return the tendered securities promptly after the
termination or withdrawal of a tender offer. If (i) the Company increases or
decreases the price to be paid for Shares, or the Company increases the number
of Shares being sought and such increase in the number of Shares being sought
exceeds 2% of the outstanding Shares or the Company decreases the number of
Shares being sought and (ii) the Offer is scheduled to expire at any time
earlier than the expiration of a period ending on the tenth business day from,
and including, the date that notice of such increase or decrease is first
published, sent or given, the Offer will be extended until the expiration of
such period of ten business days.
14. FEES AND EXPENSES
Wheat, First Securities, Inc. ("Wheat First") has been retained by the
Company to act as Dealer Manager in connection with the Offer. Wheat First
will receive a fee for its services as Dealer Manager of $0.06 for each Share
purchased pursuant to the Offer. The Company has also agreed to reimburse
Wheat First for certain reasonable out-of-pocket expenses incurred in
connection with the Offer, including reasonable fees and disbursements of
counsel, and to indemnify Wheat First against certain liabilities, including
certain liabilities under the Federal securities laws.
The Company has retained D. F. King & Co., Inc. to act as Information Agent
and Harris Trust Company of New York to act as Depositary in connection with
the Offer. The Information Agent may contact holders of Shares by mail,
telephone, telex, telegraph and personal interviews and may request brokers,
dealers and other nominee shareholders to forward materials relating to the
Offer to beneficial owners. Neither the Information Agent nor the Depositary
will make solicitations or recommendations in connection with the Offer. The
Information Agent and the Depositary will each receive reasonable and
customary compensation for their respective services, will be reimbursed for
certain reasonable out-of-pocket expenses and will be indemnified against
certain liabilities and expenses in connection with the Offer, including
certain liabilities under the Federal securities laws.
The Company will not pay any fees or commissions to any broker or dealer or
any other person (other than the Dealer Manager, the Information Agent and the
Depositary) for soliciting tenders of Shares pursuant to the Offer. Brokers,
dealers, commercial banks and trust companies will, upon request, be
reimbursed by the Company for reasonable and necessary costs and expenses
incurred by them in forwarding materials to their customers.
15. MISCELLANEOUS
The Company is subject to the information requirement of the Exchange Act
and in accordance therewith files periodic reports, proxy statements and other
information with the Commission relating to its business, financial condition
and other matters. The Company is required to disclose in such proxy
statements certain information, as of particular dates, concerning the
Company's directors and officers, their compensation, stock options granted to
them, the principal holders of the Company's securities and any material
interest of such persons in transactions with the Company. The Company has
also filed an Issuer Tender Offer Statement on Schedule 13E-4 with the
Commission. Such material and other information may be inspected at the public
19
<PAGE>
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549; and also should be available for
inspection and copying at the following regional offices of the Commission:
Northeast Regional Office, 7 Trade Center, Suite 1300, New York, New York 10048
and Midwest Regional Office, Citicorp Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material can also be obtained by mail, upon
payment of the Commission's customary charges, by writing to the principal
office at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Such
material also should be available for inspection at the NYSE, 20 Broad Street,
New York, New York 10005
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 the acceptance thereof would not be in compliance with the laws of
such jurisdiction. However, the Company may, in its discretion, take such
action as it may deem necessary to make the Offer in any such jurisdiction and
extend the Offer to holders of Shares in such jurisdiction.
RUBY TUESDAY, INC.
May 2, 1997
20
<PAGE>
SCHEDULE A
CERTAIN TRANSACTIONS INVOLVING SHARES
The Company and any individual director or executive officer of the Company
named below have engaged in the transactions set forth below since March 10,
1997:
<TABLE>
<CAPTION>
PRICE
NUMBER PER NATURE OF
NAME DATE OF SHARES SHARE TRANSACTION
- ---- -------------- --------- ------- ----------------
<S> <C> <C> <C> <C>
Ruby Tuesday, Inc. March 11, 1997 1,216 $17.708 (A)
Ruby Tuesday, Inc. March 13, 1997 8,700 17.375 Stock Repurchase
Ruby Tuesday, Inc. March 13, 1997 1,400 17.125 Stock Repurchase
Ruby Tuesday, Inc. March 17, 1997 7,000 17.250 Stock Repurchase
Ruby Tuesday, Inc. March 17, 1997 2,500 17.125 Stock Repurchase
Ruby Tuesday, Inc. March 19, 1997 1,700 17.250 Stock Repurchase
Ruby Tuesday, Inc. March 20, 1997 3,400 17.250 Stock Repurchase
Ruby Tuesday, Inc. March 24, 1997 1,500 17.375 Stock Repurchase
Ruby Tuesday, Inc. March 26, 1997 4,700 17.250 Stock Repurchase
Ruby Tuesday, Inc. March 27, 1997 4,600 17.250 Stock Repurchase
Ruby Tuesday, Inc. March 28, 1997 385 17.358 (A)
Ruby Tuesday, Inc. March 31, 1997 5,000 17.375 Stock Repurchase
Ruby Tuesday, Inc. April 1, 1997 2,251 12.080 (A)
S.E. Beall, III April 4, 1997 113,158 17.625 (B)
P.G. Hunt April 4, 1997 16,409 17.625 (B)
M.S. Ingram April 4, 1997 16,409 17.625 (B)
R.D. McClenagan April 4, 1997 47,149 17.625 (B)
J.R. Mothershed April 4, 1997 16,409 17.625 (B)
M.A. Naman April 4, 1997 3,500 17.625 (B)
Ruby Tuesday, Inc. April 11, 1997 25,000 18.500 Stock Repurchase
S.E. Beall, III May 1, 1997 1,449 17.250 (C)
S.E. Beall, III May 1, 1997 217 -- (D)
R.D. McClenagan May 1, 1997 869 17.250 (C)
R.D. McClenagan May 1, 1997 130 -- (D)
J.R. Mothershed May 1, 1997 695 17.250 (C)
J.R. Mothershed May 1, 1997 104 -- (D)
M.S. Ingram May 1, 1997 695 17.250 (C)
M.S. Ingram May 1, 1997 104 -- (D)
M.S. Ingram May 1, 1997 627 19.875 Sold Stock
Ruby Tuesday, Inc. May 1, 1997 4,264 17.250 (A)
</TABLE>
- --------
(A) Shares surrendered by optionees in payment of the exercise of options
previously granted pursuant to various Company stock option plans.
(B) Shares purchased from the Company pursuant to the Company's Executive
Stock Option program.
(C) Shares purchased from the Company pursuant to the Company's Management
Stock Option program. Upon meeting certain Company financial goals,
eligible individuals may purchase Company stock pursuant to such program.
(D) Upon the purchase of the Shares in (C) above, eligible individuals receive
additional Shares in an amount equal to 15% of the Shares so purchased in
accordance with the terms of the Company's Management Stock Option
program.
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted. The Letter of
Transmittal and certificates for Shares and any other required documents
should be sent or delivered by each tendering shareholder of the Company or
his broker, dealer, commercial bank, trust company or other nominee to the
Depositary at one of its addresses set forth below:
The Depositary is:
HARRIS TRUST COMPANY OF NEW YORK
By Hand: By Overnight Courier: By Mail:
Receive Window 77 Water Street, 4th Floor Wall Street Station
77 Water Street, 5th New York, New York 10005 P.O. Box 1023
Floor New York, New York
New York, New York 10268-1023
10005
Other Information
By Facsimile: For information call collect:
(212) 701-7636 (212) 701-7624
(212) 701-7640
Confirm by telephone
(212) 701-7624
Any questions or requests for assistance or additional copies of the Offer
to Purchase and the Letter of Transmittal may be directed to the Dealer
Manager or the Information Agent at their respective address and telephone
number set forth below. Shareholders may also contact their broker, dealer,
commercial bank or trust company for assistance concerning the Offer.
The Information Agent is:
D.F. KING & CO., INC.
77 Water Street
20th Floor
New York, NY 10005
(800) 578-5378
The Dealer Manager is:
WHEAT, FIRST SECURITIES, INC.
Corporate Equity Services, 3rd Floor
901 East Byrd Street
Richmond, VA 23219
1 (800) 999-4328
<PAGE>
EXHIBIT (A)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
RUBY TUESDAY, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MAY 2, 1997
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON MONDAY, JUNE 2, 1997, UNLESS THE OFFER IS EXTENDED.
The Depositary is:
HARRIS TRUST COMPANY OF NEW YORK
By Hand: By Overnight Courier: By Mail:
Receive Window 77 Water Street, 4th Floor Wall Street Station
77 Water Street, 5th New York, New York 10005 P.O. Box 1023
Floor New York, New York
New York, New York 10268-1023
10005
Other Information
By Facsimile: For information call collect:
(212) 701-7636 (212) 701-7624
(212) 701-7640
Confirm by telephone
(212) 701-7624
- -------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
(SEE INSTRUCTIONS 3 AND 4)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED NUMBER OF
OWNER(S) SHARES NUMBER OF
(PLEASE FILL IN EXACTLY AS NAME(S) CERTIFICATE REPRESENTED SHARES
APPEAR(S) ON CERTIFICATE(S)) NUMBER(S)* BY CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
</TABLE>
Total Shares
Tendered:_____________
* Need not be completed if Shares are delivered by book-entry transfer.
** If you desire to tender fewer than all Shares evidenced by any certificates
listed above, please indicate in this column the number of Shares you wish
to tender. Otherwise, all Shares evidenced by such certificates will be
deemed to have been tendered. See Instruction 4.
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN THOSE SHOWN ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE NUMBER OTHER THAN THAT LISTED ABOVE
DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THE LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE>
This Letter of Transmittal is to be used only (a) if certificates for Shares
(as defined below) are to be forwarded with it, or (b) if a tender of Shares
is to be made by book-entry transfer to the account maintained by the
Depositary at The Depository Trust Company ("DTC") or Philadelphia Depository
Trust Company ("PDTC") (collectively, the "Book-Entry Transfer Facilities")
pursuant to Section 2 of the Offer to Purchase.
Shareholders whose certificates are not immediately available or who cannot
deliver their certificates for Shares and all other documents which this
Letter of Transmittal requires to the Depositary by the Expiration Date (as
defined in the Offer to Purchase) (or who are unable to comply with the
procedure for book-entry transfer on a timely basis) must tender their Shares
according to the guaranteed delivery procedure set forth in Section 2 of the
Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO ONE OF THE
BOOK-ENTRY TRANSFER FACILITIES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
[_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH ONE OF THE BOOK-ENTRY
TRANSFER FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:_________________________________________________
Check Box of Applicable Book-Entry Transfer Facility:
DTC [_]PDTC [_]
Account Number: _______________________________________________________________
Transaction Code Number: ______________________________________________________
[_]CHECK HERE IF CERTIFICATES FOR TENDERED SHARES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):________________________________________________
Date of Execution of Notice of Guaranteed Delivery:____________________________
Name of Institution which Guaranteed Delivery:_________________________________
Check Box of Applicable Book-Entry Transfer Facility and give Account Number
if Delivered by Book-Entry Transfer:
DTC [_]PDTC [_]
Account Number:________________________________________________________________
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Ruby Tuesday, Inc. a Georgia corporation
(the "Company"), the above-described shares of the Company's Common Stock,
$0.01 par value per share (the "Common Stock"), including the associated
rights to purchase Series A Junior Participating Preferred Stock (the
"Rights") pursuant to the Rights Agreement between the Company and AmSouth
Bank of Alabama (together, the Common Stock and the Rights are referred to as
the "Shares") at the price per Share indicated in this Letter of Transmittal,
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Company's Offer to Purchase dated May 2, 1997, receipt of which
is hereby acknowledged and any supplements or amendments thereto (the "Offer
to Purchase"), and in this Letter of Transmittal (which, together with the
Offer to Purchase, constitute the "Offer").
Subject to and effective upon acceptance for payment of the Shares tendered
hereby in accordance with the terms of the Offer, the undersigned hereby
sells, assigns and transfers to or upon the order of the Company all rights,
title and interest in and to all Shares tendered hereby or orders the
registration of such Shares tendered by book-entry transfer that are purchased
pursuant to the Offer and hereby irrevocably constitutes and appoints the
Depositary as attorney-in-fact of the undersigned with respect to such Shares,
with full power of substitution (such power of attorney being an irrevocable
power coupled with an interest), to:
(a) deliver certificates for such Shares, or transfer ownership of such
Shares on the account books maintained by a Book-Entry Transfer Facility,
together, in either such case, with all accompanying evidences of transfer
and authenticity, to or upon the order of, the Company upon receipt by the
Depositary, as the undersigned's agent, of the Purchase Price (as
hereinafter defined);
(b) present certificates for such Shares for cancellation and transfer on
the Company's books; and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares, subject to the next paragraph, all in accordance
with the terms of the Offer.
The undersigned hereby represents and warrants that:
(a) the undersigned has a net long position in Shares at least equal to
the Shares being tendered and has full power and authority to validly
tender, sell, assign and transfer the Shares tendered hereby;
(b) when and to the extent the Company accepts the Shares for payment,
the Company will acquire good, marketable and unencumbered title thereto,
free and clear of all security interests, liens, charges, encumbrances,
conditional sales agreements, restrictions or other obligations relating to
the sale or transfer thereof, and the same will not be subject to any
adverse claim;
(c) on request, the undersigned will execute and deliver any additional
documents the Depositary or the Company deems necessary or desirable to
complete the assignment, transfer and purchase of the Shares tendered
hereby; and
(d) the undersigned has read and agrees to all of the terms of this
Offer.
The names and addresses of the registered owners should be printed, if they
are not already printed above, as they appear on the certificates representing
Shares tendered hereby. The certificates, the number of Shares that the
undersigned wishes to tender and the purchase price at which such Shares are
being tendered should be indicated in the appropriate boxes.
The undersigned understands that the Company will determine a single per
Share price (not in excess of $22.00 nor less than $20.00 per Share) that it
will pay for the Shares validly tendered and not withdrawn pursuant to the
Offer (the "Purchase Price"), taking into account the number of Shares so
tendered and the prices specified by tendering shareholders. The undersigned
understands that the Company will select the Purchase Price that will allow it
to buy up to 1,000,000 pursuant to the Offer, and that all Shares properly
3
<PAGE>
tendered at prices at or below the Purchase Price and not withdrawn will be
purchased at the Purchase Price, net to the seller in cash, upon the terms and
subject to the conditions of the Offer, including its proration provisions,
and that the Company will return all other Shares, including Shares tendered
and not withdrawn at prices greater than the Purchase Price, Shares not
purchased because of proration and Shares not purchased because they were
conditionally tendered.
The undersigned recognizes that under certain circumstances set forth in the
Offer to Purchase, the Company may terminate or amend the Offer or may not be
required to purchase any of the Shares tendered hereby or may accept for
payment pro rata with Shares tendered by other shareholders, fewer than all of
the Shares tendered hereby. The undersigned understands that certificate(s)
for any Shares not tendered or not purchased will be returned to the
undersigned at the address indicated above, unless otherwise indicated under
the Special Payment Instructions or Special Delivery Instructions below. The
undersigned recognizes that the Company has no obligation, pursuant to the
Special Payment Instructions, to transfer any certificate for Shares from the
name of their registered owner if the Company does not accept for payment any
of the Shares represented by such certificates or tendered by such book-entry
transfer.
The undersigned understands that he may condition his tender of Shares upon
the acceptance by the Company of a designated number of Shares tendered
hereby, as described in Section 1 of the Offer to Purchase. Such a conditional
tender may be made by completing the box under the heading "Conditional
Tender." If such box is not completed, the tender will be deemed to be
unconditional.
The undersigned understands that acceptance of Shares by the Company for
payment will constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Offer.
The check for the Purchase Price for such of the tendered Shares as are
purchased will be issued to the order of the undersigned and mailed to the
address indicated above unless otherwise indicated under the Special Payment
Instructions or the Special Delivery Instructions below.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned, and any
obligations of the undersigned under this Letter of Transmittal shall be
binding upon the heirs, personal representative, successors and assigns of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable.
4
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED.
CHECK ONLY ONE BOX
IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED, THERE IS NO PROPER
TENDER OF SHARES.
<TABLE>
<S> <C>
[_] $20.00 [_] $21.125
[_] $20.125 [_] $21.25
[_] $20.25 [_] $21.375
[_] $20.375 [_] $21.50
[_] $20.50 [_] $21.625
[_] $20.625 [_] $21.75
[_] $20.75 [_] $21.875
[_] $20.875 [_] $22.00
[_] $21.00
</TABLE>
IF PORTIONS OF SHARE HOLDINGS ARE BEING TENDERED AT DIFFERENT PRICES, USE A
SEPARATE LETTER OF TRANSMITTAL FOR EACH PRICE SPECIFIED (SEE INSTRUCTION 5).
ODD LOTS
(SEE INSTRUCTION 8)
To be completed ONLY if Shares are being tendered by or on behalf of a person
owning beneficially, on the date of tender, an aggregate of fewer than 100
Shares.
The undersigned either (check one box):
[_] is the beneficial owner, on the date of tender, of an aggregate of fewer
than 100 Shares, all of which are being tendered, or
[_] is a broker, dealer, commercial bank, trust company or other nominee which
(a) is tendering, for the beneficial owners thereof, Shares with respect to
which it is the record owner, and
(b) believes, based upon representations made to it by such beneficial
owners, that each such person was the beneficial owner, on the date of
tender, of an aggregate of fewer than 100 Shares and is tendering all of
such Shares.
5
<PAGE>
[_]CONDITIONAL TENDER
A tendering shareholder may condition his or her tender of Shares upon the
purchase by the Company of a specified minimum number of Shares tendered
hereby, all as described in the Offer to Purchase, particularly in Sections 1
and 2 thereof. Unless at least such minimum number of Shares is purchased by
the Company pursuant to the terms of the Offer, none of the Shares tendered
hereby will be purchased. It is the tendering shareholder's responsibility to
calculate such minimum number of Shares, and each shareholder is urged to
consult his own tax advisor. Unless this box has been completed and a minimum
specified, the tender will be deemed unconditional.
Minimum number of Shares that must be purchased, if any are purchased:
Shares
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 4, 6 AND 9) (SEE INSTRUCTIONS 1, 4, 6 AND 9)
To be completed ONLY if To be completed ONLY if
certificates for Shares not certificates for Shares are
tendered or not purchased and/or tendered or not purchased and/or
the check for the purchase price the check for the purchase price
of Shares purchased is to be of Shares purchased is to be
issued in the name of someone mailed to someone other than the
other than the undersigned. undersigned, or to the undersigned
at an address other than that
shown above.
Issue: [_] check; [_]
certificate(s) to:
Mail: [_] check; [_]
certificate(s) to:
Name_______________________________
(Please Print)
Name ______________________________
Address____________________________ (Please Print)
-----------------------------------
----------------------------------- Address ___________________________
(Include Zip Code -----------------------------------
----------------------------------- -----------------------------------
(Tax Identification or Social (Include Zip Code)
Security No.)
(Complete Substitute Form W-9
below)
6
<PAGE>
SHAREHOLDER(S) SIGN HERE
(SEE INSTRUCTIONS 1 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
Must be signed by registered owner(s) exactly as name(s) appear(s) on
certificate(s) or on a security position listing or by person(s) authorized to
become registered owner(s) by certificate(s) and documents transmitted with
this Letter of Transmittal. If signature is by attorney-in-fact, executor,
administrator, trustee, guardian, officer of a corporation or another acting in
a fiduciary or representative capacity, please set forth the full title. See
Instruction 6.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature(s) of Owner(s)
Dated ____________________________________________________________________, 1997
Name(s) ________________________________________________________________________
(Please Print)
Capacity________________________________________________________________________
Address_________________________________________________________________________
Area Code and Telephone Number__________________________________________________
----------------------------------------
(Tax Identification or Social Security Number(s))
7
<PAGE>
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 6)
Authorized Signature____________________________________________________________
Name____________________________________________________________________________
(Please Print)
Title___________________________________________________________________________
Name of Firm____________________________________________________________________
Address_________________________________________________________________________
(include Zip Code)
Area Code and Telephone Number__________________________________________________
Dated ____________________________, 1997
8
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS OF THE OFFER
1. Guarantee of Signature. No signature guarantee is required if either
(a) this Letter of Transmittal is signed by the registered holder 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 with this
Letter of Transmittal and payment and delivery are to be made directly to
such owner and such owner has not completed either the box entitled
"Special Payment Instructions" or "Special Delivery Instructions" above, or
(b) such Shares are tendered for the account of a financial institution
that is a member of the Securities Transfer Agents Medallion Program, the
Stock Exchange Medallion Program or the New York Stock Exchange, Inc.
Medallion Signature Program (each being referred to as an "Eligible
Institution").
In all other cases, an Eligible Institution must guarantee all signatures on
this Letter of Transmittal. See Instruction 6.
2. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be used only if certificates are
to be forwarded with it to the Depositary or if tenders are to be made
pursuant to the procedure for tender by book-entry transfer set forth in
Section 2 of the Offer to Purchase. Certificates for all physically tendered
Shares, or confirmation of a book-entry transfer into the Depositary's account
at a Book-Entry Transfer Facility of Shares tendered by a book-entry transfer,
together in each case with a properly completed and duly executed Letter of
Transmittal or facsimile thereof, and any other documents required by this
Letter of Transmittal, should be mailed or delivered to the Depositary at the
appropriate address set forth herein and must be received by the Depositary by
the Expiration Date (as defined in the Offer to Purchase).
Shareholders whose certificates are not immediately available or who cannot
deliver certificates for Shares and all other required documents to the
Depositary by the Expiration Date, or whose Shares cannot be delivered on a
timely basis pursuant to the procedure for book-entry transfer, may tender
their Shares by or through any Eligible Institution by properly completing
(including the price at which the Shares are being tendered) and duly
executing and delivering a Notice of Guaranteed Delivery (or facsimile of it)
and by otherwise complying with the guaranteed delivery procedure set forth in
Section 2 of the Offer to Purchase. Pursuant to such procedure, the
certificates for all physically tendered Shares, or book-entry confirmation,
as the case may be, as well as a properly completed and duly executed Letter
of Transmittal and all other documents required by this Letter of Transmittal,
must be received by the Depositary within three New York Stock Exchange
trading days after receipt by the Depositary of such Notice of Guaranteed
Delivery, all as provided in Section 2 of the Offer to Purchase.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice. For Shares to be validly tendered pursuant to the guaranteed delivery
procedure, the Depositary must receive the Notice of Guaranteed Delivery by
the Expiration Date.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED.
The Company will not purchase any fractional Shares, nor will it accept any
alternative, conditional or contingent tenders except as specifically
permitted by Sections 1 and 2 of the Offer to Purchase. All tendering
shareholders, by execution of this Letter of Transmittal (or a facsimile of
it), waive any right to receive any notice of the acceptance of their tender.
<PAGE>
3. Inadequate Space. If the space provided in the box captioned "Description
of Shares Tendered" is inadequate, the certificate numbers and/or the number
of Shares should be listed on a separate signed schedule and attached to this
Letter of Transmittal.
4. Partial Tenders and Unpurchased Shares. (Not applicable to shareholders
who tender by book-entry transfer.) If fewer than all of the Shares evidenced
by any certificate are to be tendered, fill in the number of Shares that are
to be tendered in the column entitled "Number of Shares Tendered." In such
case, if any tendered Shares are purchased, a new certificate for the
remainder of the Shares evidenced by the old certificate(s) will be issued and
sent to the registered holder, unless otherwise specified in the "Special
Payment Instructions" or "Special Delivery Instructions" boxes on this Letter
of Transmittal, as soon as practicable after the Expiration Date. All Shares
represented by the certificate(s) listed and delivered to the Depositary are
deemed to have been tendered unless otherwise indicated.
5. Indication of Price at Which Shares Are Being Tendered. For Shares to be
properly tendered, the shareholder must check the box indicating the price per
Share at which he is tendering Shares under "Price (In Dollars) Per Share at
Which Shares Are Being Tendered" on this Letter of Transmittal. ONLY ONE BOX
MAY BE CHECKED. IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED,
THERE IS NO PROPER TENDER OF SHARES. A shareholder wishing to tender portions
of his Share holdings at different prices must complete a separate Letter of
Transmittal for each price at which he wishes to tender each such portion of
his Shares. The same Shares cannot be tendered (unless previously properly
withdrawn as provided in Section 3 of the Offer to Purchase) at more than one
price.
6. Signatures On Letter of Transmittal, Stock Powers and Endorsements.
(a) If this Letter of Transmittal is signed by the registered owner(s) of
the Shares tendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the certificate without any change
whatsoever.
(b) If the Shares are registered in the names or two or more joint
owners, each such owner must sign this Letter of Transmittal.
(c) If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles of it) as there are
different registrations of certificates.
(d) When this Letter of Transmittal is signed by the registered owner(s)
of the Shares listed and transmitted hereby, no endorsements of
certificate(s) representing such Shares or separate stock powers are
required unless payment is to be made, or the certificates for Shares not
tendered or not purchased are to be issued, to a person other than the
registered owner(s). Signature(s) on 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 owner of the certificate(s)
listed, however, the certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of
the registered owner(s) appear(s) on the certificate, and signatures on
such certificate(s) or stock power(s) must be guaranteed by an Eligible
Institution. See Instruction 1.
(e) If this Letter of Transmittal or any certificates or stock powers are
signed by trustees, executors, administrators, guardians, attorneys-in-
fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and
must submit proper evidence satisfactory to the Company of their authority
so to act.
7. Stock Transfer Taxes. Except as provided in this Instruction, no stock
transfer tax stamps or funds to cover such stamps need accompany this Letter
of Transmittal. The Company will pay or cause to be paid any stock transfer
taxes payable on the transfer to it of Shares purchased pursuant to the Offer.
If, however:
(a) payment of the Purchase Price is to be made to any person(s) other
than the registered owner(s);
2
<PAGE>
(b) Shares not tendered or not accepted for purchase (in the
circumstances permitted in the Offer) are to be registered in the name of
any person(s) other than the registered owner(s); or
(c) tendered certificates are registered in the name(s) of any person(s)
other than the person(s) signing this Letter of Transmittal.
The Depositary will deduct from the Purchase Price the amount of any stock
transfer taxes (whether imposed on the registered owner or such other person)
payable on account of the transfer to such person unless satisfactory evidence
of the payment of such taxes, or an exemption from them, is submitted.
8. Odd Lots. As described in Section 1 of the Offer to Purchase, if the
Company is to purchase less than all Shares tendered by the Expiration Date
and not withdrawn, the Shares purchased first will consist of all Shares
tendered by any shareholder who owns beneficially, on the date of tender, an
aggregate of fewer than 100 Shares and who tenders all of his Shares at or
below the Purchase Price. This preference will not be available unless the box
captioned "Odd Lots" is completed.
9. Special Payment and Delivery Instructions. If certificates for Shares not
tendered or not purchased and/or checks are to be issued in the name of a
person other than the signer of the Letter of Transmittal or if such
certificates and/or checks are to be sent to someone other than the signer of
the Letter of Transmittal or to the signer at a different address, the
captioned boxes "Special Payment Instructions" and/or "Special Delivery
Instructions" on this Letter of Transmittal should be completed.
10. Irregularities. The Company will determine, in its sole discretion, all
questions as to the validity, form, eligibility (including time of receipt)
and acceptance for payment of any tender of Shares and its determination shall
be final and binding on all parties. The Company reserves the absolute right
to reject any or all tenders determined by it not to be in proper form or the
acceptance of or payment for which may, in the opinion of the Company's
counsel, be unlawful. The Company also reserves the absolute right to waive
any of the conditions of the Offer or any defect or irregularity in the tender
of any particular Shares, and the Company's interpretation of the terms of the
Offer (including these instructions) will be final and binding on all parties.
No tender of Shares will be deemed to be properly made until all defects and
irregularities have been cured or waived. Unless waived, any defects or
irregularities in connection with tenders must be cured within such time as
the Company shall determine. None of the Company, the Dealer Manager, the
Depositary, the Information Agent nor any other person is or will be obligated
to give notice of defects or irregularities in tenders, nor shall any of them
incur any liability for failure to give any such notice.
11. Questions and Requests for Assistance and Additional Copies. Questions
and requests for assistance may be directed to, or additional copies of the
Offer to Purchase, the Notice of Guaranteed Delivery and this Letter of
Transmittal may be obtained from, the Information Agent or the Dealer Manager
at their addresses and telephone numbers set forth at the end of the Letter of
Transmittal or from your local broker, dealer, commercial bank or trust
company.
12. Substitute Form W-9. Each tendering shareholder is required to provide
the Depositary with a correct taxpayer identification number ("TIN") on
Substitute Form W-9, which is provided under "Important Tax Information"
below. Failure to provide the information on the form may subject the
tendering shareholder to 31% federal income tax withholding on the payments
made to the shareholder or other payee with respect to Shares purchased
pursuant to the Offer. The box in Part 2 of the form may be checked if the
tendering shareholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 2 of the
form is checked and the Depositary is not provided with a TIN within sixty
(60) days, the Depositary will withhold 31% on all such payments thereafter
until a TIN is provided to the Depositary.
IMPORTANT: This Letter of Transmittal or a manually signed facsimile of it
(together with certificates for Shares or confirmation of book-entry transfer
and all other required documents) or the Notice of Guaranteed Delivery must be
received by the Depository on or before the Expiration Date.
3
<PAGE>
IMPORTANT TAX INFORMATION
Under federal income tax law, a shareholder whose tendered Shares are
accepted for payment is required by law to provide the Depositary with such
shareholder's correct TIN on Substitute Form W-9 below. If the Depositary is
not provided with the correct TIN, the Internal Revenue Service may subject
the shareholder or other payee to a $50 penalty. In addition, payments that
are made to such shareholder or other payee with respect to Shares purchased
pursuant to the Offer may be subject to backup withholding.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, the shareholder must submit a Form W-8, signed under penalties of
perjury, attesting to that individual's exempt status. A Form W-8 can be
obtained from the Depositary. See the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for more
instructions.
If backup withholding applies, the Depository is required to withhold 31% of
any such payments made to the shareholder or other payee. Backup withholding
is not an additional tax. Rather, the tax liability of persons 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.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on a payment made to a shareholder or other
payee with respect to Shares purchased pursuant to the Offer, the shareholder
is required to notify the Depositary of the shareholder's correct TIN by
completing the form below, certifying that the TIN provided on Substitute Form
W-9 is correct (or that such shareholder is awaiting a TIN).
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are in more than one name or are not in the name of the
actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
Payer's Name: Harris Trust Company of New York
- -------------------------------------------------------------------------------
4
<PAGE>
PART 1--PLEASE PROVIDE YOUR TIN AND CERTIFY BY
SIGNING AND DATING BELOW
Social Security Number
--------------------------
OR
Employer ID Number
SUBSTITUTE --------------------------
--------------------------------------------------------
FORM W-9 PART 2--CERTIFICATIONS--Under penalties of perjury, I
(See instruction 12) certify that:
(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), (2) I am not
subject to backup withholding 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 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) all other
information provided on this form is true,
correct and complete. [_]
--------------------------------------------------------
PART 3-- PART 4--
Awaiting TIN [_]
For Payee Exempt from
Backup
Withholding
Exempt[_]
--------------------------------------------------------
Please fill in your name and address
below.
-----------------------------------------
Name
-----------------------------------------
Address (number and street)
-----------------------------------------
City, State and Zip Code
Certificate Instructions -- You must cross out Item
(2) in Part 2 above if you have been notified by the
IRS that you are currently subject to backup
withholding because of under reporting interest or
dividends on your tax return. However, if after
being notified by the IRS that you were subject to
backup withholding, you received another
notification from the IRS stating that you are no
longer subject to backup withholding, do not cross
out Item (2). If you are exempt from backup
withholding, check the box in Part 4 above.
SIGNATURE______________________________________ DATE
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.
5
<PAGE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECK THE
BOX IN PART 2 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been 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.
SIGNATURE_________________________________________________________DATE , 1997
The Information Agent is:
D.F. KING & CO., INC.
77 Water Street
New York, NY 10005
(800) 578-5318
The Dealer Manager is:
WHEAT, FIRST SECURITIES, INC.
Corporate Equity Services
3rd Floor
901 East Byrd Street
Richmond, VA 23219
1 (800) 999-4328
6
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER OF SUBSTITUTE FOR W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer. 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 payer.
FOR THIS TYPE ACCOUNT:
GIVE THE SOCIAL SECURITY NUMBER OF:
1. An individual's account
The individual
2. Two or more individuals (joint
account)
The actual owner of the account or,
3. Husband and wife (Joint account) if combined funds, any one of the
individuals(A)
4. Custodian account of a minor
(Uniform Gift to Minors Act)
The actual owner of the account or,
if combined funds, anyone of the
individuals (A)
5. Adult and minor (joint account)
6. Account in the name of guardian
or committee for a designated
ward, minor, or incompetent
person.
The minor (B)
The adult or, if the minor is the
only contributor, the minor (A)
7. a. The usual revocable savings
trust account (grantor is also The ward, minor or incompetent
trustee) person (c)
The grantor-trustee (A)
The actual owner (A)
b. So-called trust account that is The owner (D)
not a legal or valid trust under
State law.
Legal entity (Do not furnish the
identifying number of the personal
representative or trustee unless the
legal entity itself is not
designated in the account title.)
(E)
8. Sole proprietorship account
9. A valid trust, estate, or
pension trust
10. Corporate account
11. Religious, charitable or
educational organization account The corporation
The organization
12. Partnership account held in the The partnership
name of the business
The organization
The broker or nominee
13. Association, club, or other tax- The public entity
exempt organization
14. A broker or registered nominee
15. 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
- --------
(A) List first and circle the name of the person whose number you furnish
(B) Circle the minor's name and furnish the minor's social security number
(C) Circle the ward, minor's or incompetent person's name and furnish such
person's social security number
(D) Show the name of the owner
(E) List first and circle the name of the legal trust, estate, or pension
trust.
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.
7
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9
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.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
1.Payees specifically exempted from backup withholding on Exempt ALL payments
include the following:
.A corporation.
.A financial institution.
.An organization exempt from tax under Section 501(a), or an individual
retirement plan.
.The United States or any agency or instrumentality thereof, a State, the
District of Columbia, a possession of the United States, or any subdivision
or instrumentality thereof. A foreign government, a political subdivision
of a foreign government, or any agency or instrumentality thereof.
.An international organization or any agency or instrumentality thereof.
.A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
.A real estate investment trust.
.A common trust fund operated by a bank under Section 584(a).
.An exempt charitable remainder trust, or a non-exempt trust described in
Section 4947(a)(1).
.An entity registered at all times under the Investment Company Act of
1940.
.A foreign central bank of issue.
2.Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
.Payments to nonresident aliens subject to withholding under Section 1141.
.Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
.Payments of patronage dividends where the amount received is not paid in
money.
.Payments made by certain foreign organizations.
.Payments made to a nominee.
3.Payments of interest not generally subject to backup withholding including
the following:
.Payments of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you
have not provided your correct taxpayer identification number to the
payer.
.Payments of tax-exempt interest (including exempt interest dividends under
Section 852).
.Payments described in Section 6049(b)(5) to nonresident aliens.
8
<PAGE>
.Payments on tax-free covenant bonds under Section 1451.
.Payments made by certain foreign organizations.
.Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE FORM W-9 TO AVOID POSSIBLE
ERRONEOUS BACKUP WITHHOLDING. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER, IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under Sections 6041, 6041A(a),
6045, and 6050A. Privacy Act Notice.--Section 6109 requires most recipients of
dividend, interest, or other payments to give taxpayer identification numbers
to payers who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Beginning January 1, 1993, payers
must generally withhold 31% of taxable interest, dividend and certain other
payments to a payee who does not furnish a taxpayer identification number to a
payer. 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 a payer, 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) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) 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.
(4) 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.
9
<PAGE>
EXHIBIT (A)(3)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
RUBY TUESDAY, INC.
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to tender Shares
pursuant to the Offer (as defined below) if certificates for shares of Common
Stock, $0.01 par value per share (the "Common Stock"), including the
associated rights to purchase Series A Junior Participating Preferred Stock
(the "Rights") issued pursuant to the Rights Agreement between Ruby Tuesday,
Inc., a Georgia corporation (the "Company") and AmSouth Bank of Alabama
(together, the Common Stock and the Rights are referred to as the "Shares") of
the Company, are not immediately available or if the procedure for book-entry
transfer cannot be completed on a timely basis or time will not permit all
documents required by the Letter of Transmittal to reach the Depositary by the
Expiration Date (as defined in Section 1 of the Offer to Purchase). Such form
may be delivered by hand or transmitted by telegraph, telex, facsimile
transmission or letter to the Depositary. See Section 2 of the Offer to
Purchase.
To:Harris Trust Company of New York
By Hand: By Overnight Courier: By Mail:
Receive Window 77 Water Street, 4th Floor Wall Street Station
77 Water Street, 5th Floor New York, New York 10005 P.O. Box 1023
New York, New York 10005 New York, New York
10268-1023
Other Information
By Facsimile: For information call collect:
(212) 701-7636 (212) 701-7624
(212) 701-7640
Confirm by telephone
(212) 701-7624
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Ruby Tuesday, Inc., a Georgia corporation,
at the price per Share indicated below, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
May 2, 1997, (the "Offer to Purchase") and the related Letter of Transmittal
(which together constitute the "Offer"), receipt of which is hereby
acknowledged, the number of Shares indicated below pursuant to the guaranteed
delivery procedure set forth in Section 2 of the Offer to Purchase.
Name(s) of Record Holder(s):___________________________________________________
----------------------------------------------------------
----------------------------------------------------------
(Please type or print)
Address:_______________________________________________________________________
----------------------------------------------------------
----------------------------------------------------------
Area Code and Tel. No.:________________________________________________________
SIGN HERE
Signature(s):__________________________________________________________________
Account Number:________________________________________________________________
Number of Shares:______________________________________________________________
Certificate Nos. (if available):_______________________________________________
If Shares will be tendered by book-entry transfer, check one box:
[_] The Depository Trust Company [_] Philadelphia Depositary Trust
Company
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
PRICE (IN DOLLARS) PER SHARE AT WHICH SHARES ARE BEING TENDERED.
CHECK ONLY ONE BOX
IF MORE THAN ONE BOX IS CHECKED, OR IF NO BOX IS CHECKED, THERE IS NO PROPER
TENDER OF SHARES.
<TABLE>
<S> <C>
[_] $20.00 [_] $21.125
[_] $20.125 [_] $21.25
[_] $20.25 [_] $21.375
[_] $20.375 [_] $21.50
[_] $20.50 [_] $21.625
[_] $20.625 [_] $21.75
[_] $20.75 [_] $21.875
[_] $20.875 [_] $22.00
[_] $21.00
</TABLE>
[_] CONDITIONAL TENDER UNLESS THIS BOX HAS BEEN COMPLETED AND A MINIMUM
SPECIFIED THE TENDER WILL BE DEEMED UNCONDITIONAL (SEE SECTIONS 1 AND 2 OF
THE OFFER TO PURCHASE).
Minimum number of shares that must be purchased if any are purchased:
Shares
ODD LOTS
To be completed ONLY if Shares are being tendered by or on behalf of a person
owning beneficially an aggregate of fewer than 100 Shares on the date of
tender.
The undersigned either (check one box):
[_] is the beneficial owner of an aggregate of fewer than 100 Shares on the date
of tender, all of which are being tendered, or
[_] is a broker, dealer, commercial bank, trust company or other nominee that
(i) is tendering, for the beneficial owners thereof, Shares with respect to
which it is the record owner, and (ii) believes, based upon representations
made to it by each such beneficial owner that such beneficial owner owns, on
the date of tender, an aggregate of fewer than 100 Shares and is tendering
all of such Shares.
3
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities exchange
or of 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) has a "net long position" in the
Shares tendered hereby within the meaning of Rule 14e-4 promulgated under the
Securities Exchange Act of 1934, as amended, and (b) the delivery to the
Depositary, at one of its addresses set forth above, of the certificate(s)
representing the Shares tendered hereby, in proper form for transfer, or to
deliver to the Depositary such Shares pursuant to the procedure for book-entry
transfer, in either case with delivery of a properly completed and duly
executed Letter of Transmittal (or manually-signed facsimile thereof) and any
other required documents, all within three (3) New York Stock Exchange trading
days after the date hereof.
- ------------------------------- ----------------------------------------------
Name of Firm Authorized Signature
- ------------------------------- ----------------------------------------------
Address Title
- ------------------------------- ----------------------------------------------
Zip Code
Name _________________________________________
Area Code and Tel. No. (Please type or print)
- ------------------------------- Date ___________________________________, 1997
DO NOT SEND STOCK CERTIFICATES WITH THIS FORM
The Institution which completes this form must communicate the guarantee to
the Depositary and must deliver the Letter of Transmittal and certificates for
Shares to the Depositary within the time period shown herein. Failure to do so
could result in a financial loss to such Institution.
4
<PAGE>
EXHIBIT (A)(4)
Wheat, First Securities, Inc.
Corporate Equity Services, 3rd Floor
901 East Byrd Street
Richmond, VA 23219
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We have been appointed by Ruby Tuesday, Inc., a Georgia corporation (the
"Company"), to act as Dealer Manager in connection with its offer to purchase
for cash up to 1,000,000 shares of its Common Stock, $0.01 par value per share
(the "Common Stock"), including the associated rights to purchase Series A
Junior Participating Preferred Stock (the "Rights") pursuant to the Rights
Agreement between the Company and AmSouth Bank of Alabama (together, the
Common Stock and the Rights are referred to as the "Shares") at a price (in
multiples of $0.125), not in excess of $22.00 nor less than $20.00 per Share,
specified by the tendering shareholders, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated May 2, 1997, and in the
related Letter of Transmittal (which together constitute the "Offer"), and we
are enclosing herewith the material listed below relating to the Offer. The
Offer is not conditioned upon any minimum number of Shares being tendered. The
Offer is, however, subject to certain conditions. See Section 5.
Shareholders are invited to tender Shares at prices (not in excess of $22.00
nor less than $20.00 per Share), specified by such shareholders, upon the
terms and subject to the conditions of the Offer. The Company will determine a
single per Share price (not in excess of $22.00 nor less than $20.00 per
Share) that it will pay for the Shares properly tendered pursuant to the Offer
(the "Purchase Price"), taking into account the number of Shares so tendered
and the prices specified by tendering shareholders. The Company will purchase
up to 1,000,000 Shares (or such lesser number of Shares as are properly
tendered at or below the Purchase Price) pursuant to the Offer. All Shares
properly tendered at prices at or below the Purchase Price and not withdrawn
will be purchased at the Purchase Price, net to the seller in cash, upon the
terms and subject to the conditions of the Offer, including the proration
terms thereof. The Company will return all other Shares, including Shares
tendered at prices greater than the Purchase Price and Shares not purchased
because of proration or conditional tenders. In the event of proration, the
Company will accept all Shares properly tendered at or below the Purchase
Price by any shareholder who, on the date of tender, beneficially holds fewer
than 100 Shares and tenders all Shares owned. See Section 1 of the Offer to
Purchase.
We are asking you to contact your clients for whom you hold Shares
registered in your name (or in the name of your nominee). Please bring the
Offer to their attention as promptly as possible. In connection with the
Offer, enclosed 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,
are copies of the following documents:
1. Offer to Purchase, dated May 2, 1997;
2. Letter of Transmittal for your use and for the information of your
clients (together with accompanying Substitute Form W-9 Guidelines);
3. Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares are not immediately available or if the
procedure for book-entry transfer cannot be completed on a timely
basis;
4. A form of 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. Letter dated May 2, 1997, from Samuel E. Beall, III, Chairman of the
Board and Chief Executive Officer of the Company, to the Company's
shareholders.
<PAGE>
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON MONDAY, JUNE 2, 1997, UNLESS THE OFFER IS EXTENDED.
No fees or commissions will be payable to brokers, dealers or any other
persons for soliciting tenders of Shares pursuant to the Offer. The Company
will, however, upon request, reimburse you for customary mailing and handling
expenses incurred by you in forwarding any of the enclosed materials to the
beneficial owners of Shares held by you as a nominee or in a fiduciary
capacity. The Company will pay or cause to be paid all stock transfer taxes,
if any, on its purchase of Shares, except as otherwise provided in Instruction
7 of the Letter of Transmittal.
Any questions or requests for assistance or additional copies of the Offer
to Purchase and the Letter of Transmittal may be directed to the Dealer
Manager, Wheat, First Securities, Inc., Corporate Equity Services, 3rd Floor,
901 East Byrd Street, Richmond, VA 23219, telephone (800) 999-4328 or to the
Information Agent, D. F. King & Co., Inc., 77 Water Street, New York, NY
10005, telephone (800)-578-5378.
Very truly yours,
Wheat, First Securities, Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
THE AGENT OF THE COMPANY, THE DEALER MANAGER, 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 HEREIN.
2
<PAGE>
EXHIBIT (A)(5)
RUBY TUESDAY, INC.
OFFER TO PURCHASE FOR CASH UP TO
1,000,000 SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT IN EXCESS OF
$22.00 NOR LESS THAN $20.00 PER SHARE
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated May 2,
1997, and the related Letter of Transmittal (which together constitute the
"Offer"), in connection with the Offer by Ruby Tuesday, Inc., a Georgia
corporation (the "Company"), to purchase for cash up to 1,000,000 Shares of
its Common Stock, $0.01 par value per share (the "Common Stock"), including
the associated rights to purchase Series A Junior Participating Preferred
Stock (the "Rights") pursuant to the Rights Agreement between the Company and
AmSouth Bank of Alabama (together, the Common Stock and the Rights are
referred to as the "Shares") at a price (in multiples of $.125), not in excess
of $22.00 nor less than $20.00 per Share, and on the terms and subject to the
conditions of the Offer.
The Company will determine a single per Share price (not in excess of $22.00
nor less than $20.00 per Share) that it will pay for the Shares properly
tendered pursuant to the Offer (the "Purchase Price") taking into account the
number of Shares so tendered and the prices specified by tendering
shareholders. The Company will purchase up to 1,000,000 Shares (or such lesser
number of Shares as are properly tendered at or below the Purchase Price)
pursuant to the Offer. All Shares properly tendered at prices at or below the
Purchase Price and not withdrawn will be purchased at the Purchase Price, net
to the seller in cash, upon the terms and subject to the conditions of the
Offer, including the proration terms thereof. The Company will return all
other Shares, including Shares tendered at prices greater than the Purchase
Price and Shares not purchased because of proration or conditional tenders.
See Section 1 of the Offer to Purchase.
We are the owner of record of Shares held for your account. As such, we are
the only ones who can tender your Shares, and then only pursuant to your
instructions. We are sending you the Letter of Transmittal for your
information only; you cannot use it to tender Shares we hold for your account.
Please instruct us as to whether you wish us to tender any or all of the
Shares we hold for your account on the terms and subject to the conditions of
the Offer.
We call your attention to the following:
1. You may tender Shares at prices (in multiples of $.125) not in excess
of $22.00 nor less than $20.00 per Share, as indicated in the attached
instruction form.
2. The Offer is not conditioned upon any minimum number of Shares being
tendered. The Offer is, however, subject to certain conditions. See Section
5 of the Offer to Purchase.
3. The Offer, proration period and withdrawal rights will expire at 5:00
p.m., New York City time, on June 2, 1997, unless the Company extends the
Offer.
4. The Offer is for up to 1,000,000 Shares, constituting approximately
5.7% of the Shares outstanding as of April 28, 1997.
5. Tendering shareholders will not be obligated to pay any brokerage
commissions, solicitation fees or, subject to Instruction 7 of the Letter
of Transmittal, stock transfer taxes on the Company's purchase of Shares
pursuant to the Offer.
6. If you own beneficially, on the date of tender, an aggregate of fewer
than 100 Shares and you instruct us to tender on your behalf all such
Shares at or below the Purchase Price before the expiration of the Offer
<PAGE>
and check the box captioned "Odd Lots" in the attached instruction form,
the Company will accept all such Shares for purchase before proration, if
any, of the purchase of other Shares tendered at or below the Purchase
Price.
7. If you are the beneficial owner of Shares that you do not want to be
subject to proration, if any, if purchased pursuant to the Offer, you may
direct us to tender such Shares on your behalf subject to the condition
that at least a designated minimum or none of such Shares be purchased, by
completing the box captioned "Conditional Tenders." It is the beneficial
owner's responsibility to determine the minimum number of Shares to be
tendered. BENEFICIAL OWNERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT
TO THE EFFECTS OF PRORATION OF THE OFFER AND THE ADVISABILITY OF DIRECTING
US TO MAKE A CONDITIONAL OFFER.
8. Please instruct us clearly if you wish to tender some Shares at one
price and other Shares at another price. We must submit separate Letters of
Transmittal on your behalf for each price you will accept.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the attached instruction form.
An envelope to return your instructions to us is enclosed. If you authorize us
to tender your Shares, we will tender all such Shares unless you specify
otherwise on the attached instruction form.
YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO
SUBMIT A TENDER ON YOUR BEHALF ON OR BEFORE THE EXPIRATION OF THE OFFER. THE
OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON MONDAY, JUNE 2, 1997, UNLESS THE COMPANY EXTENDS THE OFFER.
As described in Section 1 of the Offer to Purchase, if by the Expiration
Date a greater number of Shares are properly tendered at or below the Purchase
Price than the Company will accept for purchase, the Company will accept
Shares for purchase at the Purchase Price in the following order of priority:
(a) first, all Shares properly tendered at or below the Purchase Price by
the Expiration Date by any shareholder who, on the date of tender,
beneficially owns an aggregate of fewer than 100 Shares and who:
(1) tenders all Shares beneficially owned by such shareholder at or
below the Purchase Price (partial tenders will not qualify for this
preference); and
(2) instructs us to complete the box captioned "Odd Lots" on the
Letter of Transmittal and, if applicable, the Notice of Guaranteed
Delivery;
(b) second, after purchase of all of the above Shares, all other Shares
properly and unconditionally tendered at or below the Purchase Price by the
Expiration Date on a pro rata basis (with adjustments to avoid purchases of
fractional Shares); and
(c) third, after purchase of all of the above Shares, Shares
conditionally tendered at or below the Purchase Price by the Expiration
Date selected by lot as is more fully described in the Offer to Purchase.
THE COMPANY IS NOT MAKING THE OFFER TO, NOR WILL ACCEPT TENDERS FROM OR ON
BEHALF OF, OWNERS OF SHARES IN ANY JURISDICTION IN WHICH THE OFFER OR ITS
ACCEPTANCE WOULD VIOLATE THE SECURITIES, BLUE SKY OR OTHER LAWS OF SUCH
JURISDICTION. IN ANY JURISDICTION THE SECURITIES OR BLUE SKY LAWS OF WHICH
REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER IS
BEING MADE ON THE COMPANY'S BEHALF BY A REGISTERED BROKER OR DEALER LICENSED
UNDER THE LAWS OF SUCH JURISDICTION.
2
<PAGE>
INSTRUCTIONS
WITH RESPECT TO OFFER TO PURCHASE FOR CASH
UP TO 1,000,000 SHARES OF COMMON STOCK
OF
RUBY TUESDAY, INC.
AT A PURCHASE PRICE NOT IN EXCESS OF
$22.00 NOR LESS THAN $20.00 PER SHARE
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase, dated May 2, 1997, and the related Letter of Transmittal (which
together constitute the "Offer"), in connection with the offer by Ruby
Tuesday, Inc., a Georgia corporation (the "Company"), to purchase for cash up
to 1,000,000 Shares of its Common Stock, $0.01 par value per share (the
"Common Stock"), including the associated rights to purchase Series A Junior
Participating Preferred Stock (the "Rights") pursuant to the Rights Agreement
between the Company and AmSouth Bank of Alabama (together, the Common Stock
and the Rights are referred to as the "Shares") at a price (in multiples of
$.125), not in excess of $22.00 nor less than $20.00 per Share, on the terms
and subject to the conditions of the Offer.
The Company will determine a single per Share price (not in excess of $22.00
nor less than $20.00 per Share) that it will pay for the Shares properly
tendered pursuant to the Offer (the "Purchase Price"), taking into account the
number of Shares so tendered and the prices specified by tendering
shareholders. The Company will purchase up to 1,000,000 Shares (or such lesser
number of Shares as are properly tendered at or below the Purchase Price)
pursuant to the Offer.
The undersigned hereby instruct(s) you to tender to the Company the number
of Shares indicated below or, if no number is indicated, all Shares for the
account of the undersigned, at the price per Share indicated below, and
subject to the condition, if any, indicated in the box marked "Conditional
Tender," below, upon the terms of the Offer. The Company will return Shares
tendered at prices greater than the Purchase Price, Shares not purchased
because of proration and Shares not purchased because they were conditionally
tendered.
<PAGE>
Aggregate number of Shares to be tendered by you for us:***__________________
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
CHECK ONLY ONE BOX
<TABLE>
<S> <C>
[_] $20.00 [_] $21.125
[_] $20.125 [_] $21.25
[_] $20.25 [_] $21.375
[_] $20.375 [_] $21.50
[_] $20.50 [_] $21.625
[_] $20.625 [_] $21.75
[_] $20.75 [_] $21.875
[_] $20.875 [_] $22.00
[_] $21.00
</TABLE>
[_] CONDITIONAL TENDER [_] ODD LOTS
UNLESS THIS BOX HAS BEEN COMPLETED By checking this box, the
AND A MINIMUM SPECIFIED, THE TENDER undersigned represents that the
WILL BE DEEMED UNCONDITIONAL (SEE undersigned, as of the date of
SECTIONS 1 AND 2 OF THE OFFER TO tender, beneficially owns an
PURCHASE). aggregate of fewer than 100 Shares
and is instructing the holder to
tender all such shares.
Minimum number of Shares that must
be purchased if any are purchased:
Shares
SIGNATURE BOX
Signature(s)___________________________________________________________________
Dated__________________________________________________________________________
Name(s) and Address(es) (Please Print)_________________________________________
Area Code and Telephone Number_________________________________________________
Taxpayer Identification or Social Security Number_____________________________
- --------
*** Unless otherwise indicated, it will be assumed that all of the Shares held
for the account of the undersigned are to be tendered.
2
<PAGE>
EXHIBIT (A)(6)
RUBY TUESDAY, INC.
May 2, 1997
DEAR SHAREHOLDER:
Ruby Tuesday, Inc. is offering to purchase up to 1,000,000 shares of its
Common Stock $.01 par value per Share (the "Common Stock"), including the
associated rights to purchase Series A Junior Participating Preferred Stock
(the "Rights") pursuant to the Rights Agreement between the Company and
AmSouth Bank of Alabama (together, the Common Stock and the Rights are
referred to as the "Shares") from its shareholders at a price not in excess of
$22.00 nor less than $20.00 per Share (the "Offer"). The Offer represents
approximately 5.7% of the currently outstanding Shares. The Offer and
withdrawal rights will expire at 5:00 p.m., New York City time, on Monday,
June 2, 1997, unless the Offer is extended.
The Board of Directors has concluded that the purchase of Shares pursuant to
the Offer is a prudent use of the Company's financial resources. The Offer
provides shareholders who are considering the sale of all or a portion of
their Shares the opportunity to determine the price at which they are willing
to sell their Shares and, if any such Shares are purchased pursuant to the
Offer, to sell such Shares for cash at a price equal to or in excess of
current market prices at the date the Offer was announced without the usual
transaction costs associated with market sales.
The Company is conducting the Offer through a procedure commonly referred to
as a "dutch auction," which allows you to select the price, within the range
of $20.00 to $22.00 per Share, at which you are willing to sell your Shares to
the Company. The Company will determine a single purchase price that will
allow it to purchase up to 1,000,000 Shares and that same price will be paid
for all Shares purchased in the Offer.
All Shares properly tendered at or below the purchase price so selected will
be purchased at such purchase price in cash, subject to the terms and
conditions of the Offer, including proration in the event more Shares are
tendered at or below such purchase price than will be purchased by the
Company. In the event of proration, the Company will accept all Shares
properly tendered at or below the purchase price by any shareholder who, on
the date of tender, beneficially holds fewer than 100 Shares and tenders all
Shares owned. All Shares not purchased pursuant to the Offer, including Shares
tendered at prices in excess of the purchase price and Shares not purchased
because of proration or conditional tenders, will be returned at the Company's
expense.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY SHAREHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING SHARES. THE
COMPANY HAS BEEN ADVISED THAT NO DIRECTOR OR EXECUTIVE OFFICER OF THE COMPANY
INTENDS TO TENDER ANY SHARES PURSUANT TO THE OFFER. EACH SHAREHOLDER MUST MAKE
HIS OWN DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW MANY SHARES TO
TENDER AND AT WHAT PRICE.
The Offer is explained in greater detail in the enclosed Offer to Purchase
and Letter of Transmittal. I encourage you to read these documents carefully
before making any decision with respect to the Offer. If you have any
questions or requests for assistance or for additional copies of the Offer to
Purchase and the Letter of Transmittal, you may call the Information Agent for
the Offer, D. F. King & Co., Inc., at (800) 578-5318.
Very truly yours,
[SIGNATURE OF SAMUEL E. BEALL, III APPEARS HERE]
Samuel E. Beall, III
Chairman of the Board
and Chief Executive Officer
<PAGE>
EXHIBIT (A)(7)
RUBY TUESDAY, INC.
OFFER TO PURCHASE FOR CASH UP TO
1,000,000 SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT IN EXCESS OF $22.00
NOR LESS THAN $20.00 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON JUNE 2, 1997
UNLESS THE OFFER IS EXTENDED.
To the participants in the Ruby Tuesday, Inc. Salary Deferral Plan (the
"Plan"):
Enclosed for your consideration are the Offer to Purchase, dated May 2,
1997, and the related Letter of Transmittal (which together constitute the
"Offer") in connection with the Offer by Ruby Tuesday, Inc., a Georgia
corporation (the "Company"), to purchase up to 1,000,000 shares of its Common
Stock, $0.01 par value per share (the "Common Stock"), including the
associated rights to purchase Series A Junior Participating Preferred Stock
(the "Rights") pursuant to the Rights Agreement between the Company and
AmSouth Bank of Alabama (together, the Common Stock and the Rights are
referred to as the "Shares"), at a price (in multiples of $.125), not in
excess of $22.00 nor less than $20.00 per Share, as specified by tendering
shareholders, upon the terms and conditions set forth in the Offer.
PRICE PER SHARE. The Company will determine the single price per Share (not
in excess of $22.00 nor less than $20.00 per Share) that it will pay for
Shares properly tendered pursuant to the Offer (the "Purchase Price"), taking
into account the number of Shares so tendered and the prices specified by
tendering shareholders. The Company will purchase up to 1,000,000 Shares (or
such lesser number of Shares as are properly tendered at or below the Purchase
Price). All Shares properly tendered at prices at or below the Purchase Price
and not withdrawn will be purchased at the Purchase Price, net to the Seller
in cash, upon the terms and subject to the conditions of the Offer, including
the proration terms thereof. The Company will return all other Shares,
including Shares tendered at prices greater than the Purchase Price and Shares
not purchased because of proration or conditional tenders. See Section 1 of
the Offer to Purchase.
PRIORITY OF PURCHASE OF SHARES. As described in Section 1 of the Offer to
Purchase, if more than 1,000,000 Shares have been validly tendered at prices
at or below the Purchase Price and not withdrawn on or prior to the Expiration
Date (as defined in the Offer to Purchase), the Company will purchase properly
tendered Shares in the following order of priority:
(1) First, all Shares properly tendered at or below the Purchase Price by
the Expiration Date, by any shareholder who, on the date of tender,
beneficially owns an aggregate of fewer than 100 Shares and who:
(a) properly tenders all Shares beneficially owned by such shareholder
at or below the Purchase Price (partial tenders and conditional
tenders will not qualify for this preference); and
(b) instructs us to complete the box captioned "Odd Lots" on the Letter
of Transmittal;
(2) Second, after the purchase of all the foregoing Shares, all other
Shares properly and unconditionally tendered at or below the Purchase
Price by the Expiration Date on a pro rata basis (with adjustments to
avoid the purchase of fractional Shares); and
(3) Third, after the purchase of all the foregoing Shares, all Shares
conditionally tendered at or below the Purchase Price by the Expiration
Date selected by lot as is more fully described in the Offer to
Purchase.
<PAGE>
SHARES HELD IN THE PLAN. As Trustee of the Plan, we are the owner of record
of the Shares held for your account in the Plan. As such, we are the only ones
who can tender your Shares, and then only pursuant to your instructions. We
are sending you the Letter of Transmittal for your information; however, you
cannot use it to tender Shares we hold in your account under the Plan. As
discussed below, the Letter of Transmittal may be used for Shares you hold
separately from those Shares in your account under the Plan.
WE CALL YOUR ATTENTION TO THE FOLLOWING:
1. You may tender Shares at prices (in multiples of $.125) not in excess of
$22.00 nor less than $20.00 per Share as indicated in the attached
Instruction Form.
2. You may tender your Shares conditioned upon the Company's purchasing all
or a minimum number of your Shares.
3. The Offer is not conditioned on any minimum number of Shares being
tendered pursuant to the Offer. The Offer is, however, subject to
certain conditions. See Section 5 of the Offer to Purchase.
4. The Offer, proration period and withdrawal rights will expire at 5:00
p.m., New York City time, on June 2, 1997, unless the Company extends
the Offer.
5. The Offer is for up to 1,000,000 Shares, constituting approximately 5.7%
of the Shares outstanding as of April 28, 1997.
6. Tendering shareholders will not be obligated to pay any brokerage
commissions, solicitation fees or, subject to Instruction 7 of the
Letter of Transmittal, stock transfer taxes on the Company's purchase of
Shares pursuant to the Offer.
7. If you beneficially held, on the date of tender, an aggregate of fewer
than 100 Shares and you instruct us to tender on your behalf all such
Shares at or below the Purchase Price before the expiration of the Offer
and complete the box captioned "Odd Lots" in the attached Instruction
Form, the Company will accept all such Shares for purchase before
proration, if any, of the purchase of other Shares validly tendered at
or below the Purchase Price.
8. If you are the beneficial owner of Shares that you do not want to be
subject to proration, if any, if purchased pursuant to the Offer, you
may direct us to tender such Shares on your behalf subject to the
condition that at least a designated minimum or none of the Shares be
purchased, by completing the box captioned "Conditional Tenders." It is
the beneficial owner's responsibility to determine the minimum number of
Shares to be tendered.
9. If you wish to tender portions of your Shares at different prices, you
must complete a separate Instruction Form for each price at which you
wish to tender each such portion of your Shares. We must submit separate
Letters of Transmittal on your behalf for each price you will accept.
TENDERING YOUR SHARES IN THE PLAN. If you wish to have us tender any or all
of your Shares in the Plan, please so instruct us by completing, executing,
detaching, and returning to us the attached Instruction Form(s). An envelope
to return your Instruction Form(s) is enclosed. If you authorize us to tender
your Shares in the Plan, we will tender such Shares unless you specify
otherwise on the attached Instruction Form. We will aggregate all such tenders
and execute the requisite number of Letters of Transmittal on behalf of all
beneficiaries.
DELIVERY OF A LETTER OF TRANSMITTAL BY A SHAREHOLDER OF PLAN SHARES DOES NOT
CONSTITUTE PROPER TENDER OF PLAN SHARES. PROPER TENDER OF PLAN SHARES CAN ONLY
BE MADE BY THE TRUSTEE, WHO IS THE RECORD OWNER OF SUCH SHARES.
YOUR INSTRUCTION FORM SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US
TO SUBMIT A TENDER ON YOUR BEHALF ON OR BEFORE THE EXPIRATION DATE OF THE
OFFER. THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON JUNE 2, 1997, UNLESS EXTENDED.
<PAGE>
KEEPING YOUR SHARES IN THE PLAN. If you do not wish to tender your Shares
held in the Plan, you do not need to take any action.
TENDERING SHARES NOT HELD IN THE PLAN. If you desire to tender Shares, other
than Plan Shares, you must properly complete and duly execute a Letter of
Transmittal for such Shares and deliver such Letter of Transmittal to the
Depositary. THE TRUSTEE CANNOT INCLUDE NON-PLAN SHARES IN ITS LETTERS OF
TRANSMITTAL.
THE COMPANY IS NOT MAKING THE OFFER TO, NOR WILL ACCEPT TENDERS FROM OR ON
BEHALF OF, OWNERS OF SHARES IN ANY JURISDICTION IN WHICH THE OFFER OR ITS
ACCEPTANCE WOULD VIOLATE THE SECURITIES, BLUE SKY OR OTHER LAWS OF SUCH
JURISDICTION. IN ANY JURISDICTION THE SECURITIES OR BLUE SKY LAWS OF WHICH
REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER IS
BEING MADE ON THE COMPANY'S BEHALF BY A REGISTERED BROKER OR DEALER LICENSED
UNDER THE LAWS OF SUCH JURISDICTION.
AmSouth Bank of Alabama
Trustee, Ruby Tuesday, Inc. Salary
Deferral Plan
<PAGE>
RUBY TUESDAY, INC.
SALARY DEFERRAL PLAN
INSTRUCTION FORM
WITH RESPECT TO OFFER TO PURCHASE
FOR CASH UP TO 1,000,000 SHARES OF COMMON STOCK
OF RUBY TUESDAY, INC. AT A PURCHASE PRICE NOT IN
EXCESS OF $22.00 NOR LESS THAN $20.00 PER SHARE
BEFORE COMPLETING THIS FORM, PLEASE READ CAREFULLY THE ACCOMPANYING OFFER TO
PURCHASE AND THE RELATED LETTER OF TRANSMITTAL AND ALL OTHER ENCLOSED
MATERIALS.
To: AmSouth Bank of Alabama, Trustee
1901 Sixth Avenue North
Fourth Floor
Birmingham, Alabama 35203
From: _____________________ Social Security Number:_________________
Plan Participant
Participant's
Address: _____________________
_____________________
_____________________
The undersigned acknowledges receipt of your letter, and the enclosed Offer
to Purchase, dated May 2, 1997, and the related Letter of Transmittal (which
together constitute the "Offer"), in connection with the offer by Ruby
Tuesday, Inc., a Georgia corporation (the "Company"), to purchase for cash up
to 1,000,000 shares of its common stock, $0.01 par value per share (the
"Common Stock"), including the associated rights to purchase Series A Junior
Participating Preferred Stock (the "Rights") pursuant to the Rights Agreement
between the Company and AmSouth Bank of Alabama (together, the Common Stock
and the Rights are referred to as the "Shares") at a price (in multiples of
$.125), not in excess of $22.00 nor less than $20.00 per Share, on terms and
subject to conditions of the Offer.
The Company will determine a single per Share price (not in excess of $22.00
nor less than $20.00 per Share) that it will pay for the Shares properly
tendered pursuant to the Offer (the "Purchase Price"), taking into account the
number of Shares so tendered and the prices specified by tendering
shareholders. The Company will purchase up to 1,000,000 Shares (or such lesser
number of Shares as are properly tendered at or below the Purchase Price)
pursuant to the Offer.
I hereby instruct AmSouth Bank of Alabama, as Trustee of the Ruby Tuesday,
Inc. Salary Deferral Plan (the "Plan"), to tender to the Company, in
accordance with the terms and subject to the conditions set forth in the Offer
to Purchase, dated May 2, 1997, and the related Letter of Transmittal, a copy
of which I have received and read, the indicated number of Shares or, if no
number is indicated, all Shares for the account of the undersigned, of the
Company's Common Stock, par value $0.01 per share, allocated to my Plan
account at a price per Share indicated below, and subject to the condition, if
any, indicated in the box marked "Conditional Tender," below upon the terms of
the Offer. The Company will return Shares tendered at prices greater than the
Purchase Price, any Shares not purchased because of proration and any Shares
not purchased because they were conditionally tendered.
<PAGE>
Aggregate number of Shares to be tendered:/1//
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
CHECK ONLY ONE BOX
[_] $20.00 [_] $21.125
[_] $20.125 [_] $21.25
[_] $20.25 [_] $21.375
[_] $20.375 [_] $21.50
[_] $20.50 [_] $21.625
[_] $20.625 [_] $21.75
[_] $20.75 [_] $21.875
[_] $20.875 [_] $22.00
[_] $21.00
[_] CONDITIONAL TENDER [_] ODD LOTS
UNLESS THIS BOX HAS BEEN By checking this box, the
COMPLETED AND A MINIMUM undersigned represents
SPECIFIED, THE TENDER WILL that the undersigned, on
BE DEEMED UNCONDITIONAL (SEE the date of tender,
SECTIONS 1 AND 2 OF THE beneficially owns an
OFFER TO PURCHASE) Minimum aggregate of fewer than
number of Shares that must 100 Shares and is
be purchased if any are instructing the holder to
purchased:Shares tender all such Shares.
SIGNATURE BOX
Signature ______________________________________________________________________
- --------
/1/Unless/otherwise indicated, it will be assumed that all of the Shares held
for the account of the undersigned are to be tendered.
Dated __________________________________________________________________________
Name and Address (Please Print) ________________________________________________
Area Code and Telephone Number _________________________________________________
Social Security Number _________________________________________________________
<PAGE>
EXHIBIT (A)(8)
RUBY TUESDAY, INC.
RUBY TUESDAY INC. TO COMMENCE TENDER OFFER FOR UP TO 1,000,000 SHARES OF ITS
COMMON STOCK
Mobile, AL--May 1, 1997--Ruby Tuesday, Inc. (NYSE: RI) today announced that
it will commence a "dutch auction" tender offer for up to 1,000,000 shares of
its common stock, representing approximately 5.7% of its currently outstanding
shares. Under terms of the offer, the Company will invite shareholders to
tender their shares at prices specified by the tendering shareholders within a
range of $20.00 to $22.00 per share.
The tender offer will begin May 2, 1997, and will expire at 5:00 p.m., New
York City time, on Monday, June 2, 1997, unless extended by the Company.
Based upon the number of shares tendered and the prices specified by the
tendering shareholders, Ruby Tuesday, Inc. will select a single per-share
purchase price within the $20.00 to $22.00 price range to be paid for shares
which have been tendered at or below the selected price. If the offer is over-
subscribed, shares will be purchased first from shareholders owning fewer than
100 shares and tendering all of such shares at or before the purchase price
determined by the Company and then from all other shares tendered at or below
such purchase price on a pro rata basis. The Company reserves the right to
purchase more than 1,000,000 shares. The tender offer is not conditioned on
any minimum number of shares being tendered.
The Board of Directors of Ruby Tuesday, Inc. is not making any
recommendation to shareholders as to whether they should tender any shares
pursuant to the offer. Wheat, First Securities, Inc. is acting as dealer-
manager and D. F. King & Co., Inc. is acting as information agent in
connection with the tender offer.
Ruby Tuesday, Inc. is one of the leading casual-dining restaurant companies
in America. As of March 1, 1997, Ruby Tuesday, Inc. owned and operated 386
restaurants, including 319 Ruby Tuesdays, 48 Mozzarella's Cafes, and 19 Tia's
Tex-Mex restaurants, located in 33 states. Ruby Tuesday, Inc. is traded on the
New York Stock Exchange (Symbol: RI).
* * * * * *
For more information, contact: Phone: 334-344-3000
Samuel E. Beall, III J. Russell Mothershed Margie Naman
Chairman of the Board Sr. Vice President and Vice President,
and Chief Executive Chief Financial Officer Investor
Officer Relations
