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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO/A
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities
Exchange Act of 1934
(Amendment No. 2)
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BI Incorporated (Issuer)
(Name of Subject Company)
KBII Acquisition Company, Inc. (Offeror)
KBII Holdings, Inc. (Offeror)
Kohlberg & Co., L.L.C. (Offeror)
(Names of Filing Persons)
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Common Stock, No Par Value Per Share
(Title of Class of Securities)
055467203
(CUSIP Number of Class of Securities)
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Christopher Lacovara
111 Radio Circle
Mount Kisco, New York 10549
Telephone (914) 241-7430
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
WITH COPIES TO:
Gregory K. Gale, Esq.
Hunton & Williams
600 Peachtree Street, N.E., Suite 4100
Atlanta, GA 30308-2216
Telephone (404) 888-4000
Calculation of Filing Fee
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Transaction Valuation: * Amount of filing fee:
$79,281,147 $15,857
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* For purposes of calculating fee only. This amount is based on a per
share offering price of $8.25 for 7,968,818 shares of common stock and for
options to purchase 1,641,018 shares of common stock. Pursuant to the
Agreement and Plan of Merger, dated as of August 10, 2000, by and among BI
Incorporated (the "Company"), KBII Holdings, Inc. ("Parent") and KBII
Acquisition Company, Inc. ("Offeror"), the Company represented to Parent and
Offeror that, as of such date, it had 7,968,818 shares of common stock and
options to purchase 1,641,018 shares of common stock issued and outstanding.
The amount of the filing fee, calculated in accordance with Rule 0-11 under
the Securities Exchange Act of 1934, as amended, equals 1/50 of one percent
of the aggregate of the cash offered by Offeror.
[X] Check box if any part of the fee is offset as provided by Rule 0-11 (a) (2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: $14,650
Form or Registration No.: Schedule TO
Filing Party: KBII Acquisition Company, Inc. (Offeror) and KBII
Holdings, Inc. (Offeror)
Date Filed: August 18, 2000
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party offer subject to rule 14d-1
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transactions subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [_]
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This Amendment No. 2 amends and supplements the Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission on August 18,
2000, and amended on August 23, 2000 (as amended, the "Schedule TO") by KBII
Holdings, Inc., a Delaware corporation ("Parent"), and KBII Acquisition Company,
Inc., a Colorado corporation and a direct wholly owned subsidiary of Parent
("Offeror"). The Schedule TO relates to the offer by Offeror to purchase all
outstanding shares of Common Stock, no par value per share (the "Shares"), of
the Company, a Colorado corporation, including the associated common stock
purchase rights at a purchase price of $8.25 per Share, net to the seller in
cash and without interest thereon, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated August 18, 2000 (the "Offer to
Purchase") and in the related Letter of Transmittal, copies of which are
attached to and filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B)
respectively (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). By virtue of its direct or indirect
relationship with Offeror and Parent and involvement in negotiating the terms of
the Offer, Kohlberg & Co., L.L.C., may be deemed to be a bidder within the
meaning of Rule 14d-1(g)(2) under the Securities Exchange Act of 1934, as
amended, and as such is joining with Offeror and Parent as filing persons with
respect to the Schedule TO.
The information set forth in the Offer to Purchase and the related Letter
of Transmittal is incorporated in the Schedule TO by reference with respect to
Items 1-9 and 11 of the Schedule TO. The Agreement and Plan of Merger, dated as
of August 10, 2000, among Offeror, Parent and the Company, a copy of which is
attached to and filed with the Schedule TO as Exhibit (d)(1), is incorporated in
the Schedule TO by reference with respect to Items 5 and 11 of the Schedule TO.
This Amendment No. 2 is being filed on behalf of Offeror and Parent. Any
capitalized term used and not otherwise defined herein shall have the meaning
ascribed to such term in the Offer to Purchase and the Schedule TO.
ITEMS 1 THROUGH 9, 11 AND 13.
Items 1 through 9, 11 and 13 of the Schedule TO, which are incorporated by
reference to the information contained in the Offer to Purchase, are hereby
amended as follows:
1. SUMMARY TERM SHEET. The section entitled "SUMMARY TERM SHEET" in the
Offer to Purchase is hereby amended by amending and restating the paragraph
under the caption "How Will I be Notified if the Offer is Extended or if There
is a Subsequent Offering Period?" on page 2 of the Offer to Purchase in its
entirety as follows:
"If we extend the offer, we will inform Computershare Investor Services LLC
(the Depositary for the offer) and Innisfree M&A Incorporated (the Information
Agent for the offer) of that fact and will make a public announcement of the
extension not later than 9:00 a.m., New York City time, on the next business day
after the day on which the offer was scheduled to expire. If we elect to
provide for a subsequent offering period, we will file an amendment to the
Schedule TO and Offer to Purchase and will make a public announcement to
disseminate the information to you at least five business days before expiration
of the offer. See Section 1, "Terms of the Offer; Expiration Date."
2. INTRODUCTION. The section entitled "INTRODUCTION" in the Offer to
Purchase is hereby amended by amending and restating the tenth paragraph
thereunder on page 6 of the Offer to Purchase in its entirety as follows:
"In connection with the Merger Agreement, it is expected that the following
members of the Company's senior management will become beneficial owners of
approximately 0.41% of the outstanding equity capital of Parent by investing
their current equity interests and/or cash in exchange for shares of common
stock of Parent as part of the Merger: David J. Hunter, Mckinley C. Edwards Jr.,
Jacqueline A. Chamberlin, Steven P. Merrefield and Jonathan M. Hinebauch (the
"Management Shareholders"). In addition, it is anticipated that the Management
Shareholders will rollover existing stock options to acquire capital stock of
the Company into options to acquire, in the aggregate,
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approximately 1.4% of the outstanding capital stock of Parent on a fully diluted
basis. Also, it is anticipated that Parent will grant the Management
Shareholders additional compensatory options to purchase capital stock of the
Parent, which options will vest over three years based on the Company attaining
certain performance goals. In any event, the Management Shareholders ownership
interest in Parent, including shares issuable pursuant to options, will be less
than 10%, in the aggregate, of the outstanding capital stock of Parent on a
fully diluted basis."
3. Certain Information Concerning the Company. The section entitled
"Certain Information Concerning the Company" is hereby amended by amending and
restating the sixth paragraph thereunder on page 18 of the Offer to Purchase in
its entirety as follows:
"The inclusion of the foregoing projections should not be regarded as an
indication that the Company, Offeror, Parent or any other person who received
such information considers it a reliable prediction of future events, and
neither Offeror nor Parent has relied (nor should any other person rely) on them
as such. None of Offeror or Parent or any of their advisors assumes any
responsibility for the reasonableness, completeness, accuracy or validity of any
of the projections. None of the Company, Parent or Offeror or any of their
representatives has made, or makes, any representation to any person regarding
the information contained in the projections, and none of them intends to update
or otherwise revise the projections to reflect circumstances existing after the
date when made or to reflect the occurrence of future events even in the event
that any or all of the assumptions underlying the projections are shown to be in
error."
4. Certain Information Concerning Offeror and Parent. The section
entitled "Certain Information Concerning Offeror and Parent" is hereby amended
by amending and restating the seventh, eighth and ninth paragraphs thereunder on
pages 19 and 20 of the Offer to Purchase in their entirety as follows:
"Information Concerning Kohlberg & Co., L.L.C. Kohlberg & Co., L.L.C., a
Delaware limited liability company ("Kohlberg"), is a well known U.S. private
equity firm specializing in middle market investing whose objective has been to
realize gains through control investments in a diversified portfolio of
companies. Parent and Offeror were formed at the direction of Kohlberg, and
representatives of Kohlberg conducted the initial negotiations with management
of the Company in connection with the Offer and the Merger Agreement. See
Section 11. "Background of the Offer." Kohlberg is not subject to the
informational filing requirements of the Exchange Act.
The principal executive offices of Kohlberg are located at 111 Radio
Circle, Mount Kisco, New York 10549, telephone number (914) 241-7430. The name,
business address, past and present principal occupations and citizenship of each
of the principals of Kohlberg are set forth in Annex I to this Offer to
Purchase.
Ownership Interest in the Company. Pursuant to the Voting Agreement,
Parent, Offeror, KBII, LLC, KBII, L.P. and James A. Kohlberg may be deemed to
beneficially own 749,849 Shares constituting approximately 8.86% of the issued
and outstanding Common Stock of the Company. All of such 749,849 Shares are
directly beneficially owned by the Management Shareholders. See "INTRODUCTION"
and Section 13, "The Transaction Documents--Stock Voting and Tender Agreement."
Each of Parent, Offeror, KBII, LLC, KBII, L.P. and James A. Kohlberg disclaims
beneficial ownership of such Shares.
Except as set forth in this Offer to Purchase:
. none of KBII, LLC, KBII, L.P., Kohlberg, Parent nor Offeror nor, to the best
knowledge of KBII, LLC, KBII, L.P., Kohlberg, Parent and Offeror, any of the
persons listed in Annex I to this Offer to Purchase, or any associate or
majority owned subsidiary of any of the foregoing, beneficially owns or has a
right to acquire any Shares or any other equity securities of the Company
except for 749,849 Shares which may be deemed beneficially owned by Parent,
Offeror, KBII, LLC, KBII, L.P. and James A. Kohlberg by virtue of the Voting
Agreement;
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. none of KBII, LLC, KBII, L.P., Kohlberg, Parent nor Offeror nor, to the best
knowledge of KBII, LLC, KBII, L.P., Kholberg, Parent and Offeror, any of the
persons listed in Annex I to this Offer to Purchase, or any associate or
majority owned subsidiary of any of the foregoing, has effected any
transaction in the Shares or any other equity securities of the Company
during the past 60 days;
. there have never been any transactions which would be required to be
disclosed under the rules and regulations of the Commission between any of
KBII, LLC, KBII, L.P., Kohlberg, Parent, Offeror or any of their respective
subsidiaries, or, to the best knowledge of KBII, LLC, KBII, L.P., Kohlberg,
Parent and Offeror, any of the persons listed in Annex I to this Offer to
Purchase, on the one hand, and the Company or any of its executive officers,
directors or affiliates, on the other hand; and
. there have never been any negotiations, transactions or material contacts
between any of KBII, LLC, KBII, L.P., Kohlberg, Parent, Offeror or any of
their respective subsidiaries or, to the best knowledge of KBII, LLC, KBII,
L.P., Kohlberg, Parent and Offeror, any of the persons listed in Annex I to
this Offer to Purchase, on the one hand, and the Company or its affiliates,
on the other hand, concerning any merger, consolidation, acquisition, tender
offer or other acquisition of securities of the Company, any election of
directors of the Company, or any sale or other transfer of a material amount
of assets of the Company.
Neither KBII, LLC, KBII, L.P., Kohlberg, Parent nor Offeror had any
relationship with the Company prior to the commencement of the discussions which
led to the execution of the Merger Agreement. See Section 11, "Background of
Offer." Each of KBII, LLC, KBII, L.P., Kohlberg, Parent and Offeror disclaims
that it is an "affiliate" of the Company within the meaning of Rule 13e-3 under
the Exchange Act.
Available Information. Parent, Offeror, Kohlberg, KBII, LLC and KBII, L.P. are
privately-held companies and are generally not subject to the information filing
requirements of the Exchange Act, and are generally not required to file
reports, proxy statements and other information with the Commission relating to
their respective businesses, financial condition and other matters. However,
pursuant to Rule 14d-3 under the Exchange Act, Parent, Offeror and Kohlberg,
filed with the Commission a Schedule TO, together with exhibits, including this
Offer to Purchase and the Merger Agreement, which provides certain additional
information with respect to the Offer. The Schedule TO and any amendments
thereto, including exhibits, should be available for inspection and copies
should be obtainable at the public reference facilities of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. Copies of such information should
also be obtainable (i) by mail, upon payment of the Commission's customary
charges, by writing to the Commission's principal office at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the Commission
located at Seven World Trade Center, Suite 1300, New York, NY 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661 and (ii) by
accessing the Commission's website on the Internet at http://www.sec.gov."
5. Certain Conditions to Offeror's Obligations. The section entitled
"Certain Conditions to Offeror's Obligations" is hereby amended by inserting at
the end of the last paragraph thereunder on page 36 of the Offer to Purchase the
following sentence:
"All of the conditions to the Offer, other than necessary governmental
approvals, must be satisfied or waived prior to the expiration of the Offer."
6. Certain Regulatory and Legal Matters. The section entitled "Certain
Regulatory and Legal Matters" is hereby amended and supplemented by adding the
following thereto:
"On September 1, 2000, the Company filed with the Court a Motion for
Extension of Time in which to Answer or Otherwise Move (the "Motion for
Extension") in response to the Complaint. The Motion for Extension seeks to
extend the date to answer the Complaint from September 11, 2000 until October 2,
2000. The Court has not ruled on this motion, but it is unopposed by the
plaintiff. The foregoing description is qualified in its entirety by the Motion
for Extension, a copy of which is attached hereto as Exhibit (a)(5)(B) and is
incorporated herein by reference."
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7. ANNEX I. Annex I of the Offer to Purchase is hereby amended by amending
and restating ANNEX I in its entirety as follows:
"ANNEX I
DIRECTORS AND EXECUTIVE OFFICERS
OF PARENT, OFFEROR AND KOHLBERG
The names and ages of the directors, executive officers and principals of
Parent, Offeror, Kohlberg, KBII, L.P. and KBII, LLC, and their present principal
occupations or employment and five-year employment history, are set forth below.
Unless otherwise indicated, each individual is a citizen of the United States,
his business address is 111 Radio Circle, Mount Kisco, New York 10549, and his
business telephone number is 914-241-7430.
PARENT, OFFEROR AND KOHLBERG
Present Principal Occupation or
Employment with
KBII Holdings, Inc., KBII Acquisition
Company, Inc., Kohlberg & Co., L.L.C.
KBII Acquisition Company, L.P.
and KBII Management, LLC
Material Positions Held During the
Name and Age Past Five Years
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James A. Kohlberg (42) ............... President of KBII Acquisition Company,
Inc. and KBII Holdings, Inc., Managing
Member of KBII Management, L.L.C.
(General Partner of KBII Acquisition
Company, L.P., the controlling
shareholder of KBII Holdings, Inc.).
Mr. Kohlberg has been a principal of
Kohlberg & Co., L.L.C. for more than
the past five years.
Christopher Lacovara (35) ............ Secretary of KBII Acquisition Company,
Inc. and KBII Holdings, Inc., and
Secretary of KBII Management, L.L.C.
Mr. Lacovara has been an associate
with and/or principal of Kohlberg &
Co., L.L.C. for more than the past
five years.
Samuel P. Frieder (35) ............... Mr. Frieder has been a principal of
Kohlberg & Co., L.L.C. for more than
the past five years.
Evan Wildstein (29) .................. Mr. Wildstein has been an associate with
and/or principal of Kohlberg & Co.,
L.L.C. for more than the past five years.
Ranjit S. Bhonsle (31) ............... Mr. Bhonsle has been an associate with
and/or principal of Kohlberg & Co.,
L.L.C. for more than the past five
years."
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8. Item 3. Item 3 of the Schedule TO is hereby amended by amending and
restating Items 3(c)(3) and 3(c)(4) in their entirety as follows:
"3(c)(3) -- To the best knowledge of Offeror, Kohlberg and Parent, no person
listed in Annex I of the Offer to Purchase has, during the past five
years, been convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors).
3(c)(4) -- To the best knowledge of Offeror, Kohlberg and Parent, no person
listed in Annex I of the Offer to Purchase has, during the past five
years, been a party to any judicial or administrative proceeding
(except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree or final order
enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a
finding of any violation of federal or state securities laws."
Item 12. Exhibits
(a)(5)(B) Motion for Extension of Time in Which to Answer or Otherwise Move of
BI Incorporated, dated September 1, 2000, in response to Complaint
(filed herewith).
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: September 8, 2000
KBII ACQUISITION COMPANY, INC.
By: /s/ James A. Kohlberg
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Name: James A. Kohlberg
Title: President
KBII HOLDINGS, INC.
By: /s/ James A. Kohlberg
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Name: James A. Kohlberg
Title: President
KOHLBERG & CO., L.L.C.
By: /s/ James A. Kohlberg
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Name: James A. Kohlberg
Title: Principal
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EXHIBIT INDEX
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Exhibit No. Description
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(a)(5)(B) Motion for Extension of Time in Which to Answer or Otherwise
Move of BI Incorporated, dated September 1, 2000, in response
to Complaint (filed herewith)
