SCHEDULE 13E-3/A-2 FINAL
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 2O549
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e) of the
Securities Exchange Act of 1934)
BIG O TIRES, INC.
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(Name of the Issuer)
BOTI Holdings, Inc.
BOTI Acquisition Corp.
Big O Tires, Inc.
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(Name of Person(s) Filing Statement)
Common Stock, par value $.10 per share
(Title of Class of Securities)
089324206
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(CUSIP Number of Class of Securities)
Annita M. Menogan, Esq.
HOPPER AND KANOUFF, P.C.
1610 Wynkoop Street, Suite 200
Denver, Colorado 80202
(303) 892-6000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of
Person(s) Filing Statement)
This statement is filed in connection with (check the appropriate
box):
a. [x] The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities
Act of 1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: [X].
Calculation of Filing Fee
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Transaction valuation Amount of Filing Fee*
$56,699,686.00 $11,339.94
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* The filing fee is calculated as 1/50 of 1% of the transaction value
of $56,699,686.00 (based on the purchase of 3,317,840 shares of common stock for
a total price of $54,744,360 and the cancellation of 216,308 options at a total
price of $1,955,326).
[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 . . . . . . . . . . . . . $11,339.94
Form or Registration No.: . . . . . . . . . . . . Schedule 14A
Filing Party: . . . . . . . . . . . . . . . . . . Big O Tires, Inc.
Date Filed: . . . . . . . . . . . . . . . . . . . May 7, 1996
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INTRODUCTION
This Amended Rule 13e-3 Transaction Statement (the "Statement") relates to
a Proxy Statement (the "Proxy Statement") of Big O Tires, Inc., a Nevada
corporation (the "Company") and the issuer of the class of equity securities to
which this Statement relates, concerning a proposed merger (the "Merger") of
BOTI Acquisition Corp., a Nevada corporation (the "Purchaser") and a wholly
owned subsidiary of BOTI Holdings, Inc., a Nevada corporation (the "Parent"),
with and into the Company, upon the terms and subject to the conditions which
were proposed in an Agreement and Plan of Merger, dated as of July 24, 1995, as
amended, among the Parent, the Purchaser and the Company (the "Merger
Agreement") (a copy of which is filed as Appendix A to the Proxy Statement which
is attached hereto as Exhibit (d)(1)).
This Amended Statement is being filed to report that the transaction has
been terminated by agreement of all parties, without completing the proposed
merger, as of March 13, 1996.
The information contained or incorporated herein with respect to the
Parent, the Purchaser and plans for the Company after the consummation of the
Merger has been provided by the Parent. All other information contained or
incorporated herein has been provided by the Company.
The following cross reference sheet is being supplied pursuant to General
Instruction F to Schedule 13E-3 and shows the location, in the Proxy Statement
filed by the Company with the Securities and Exchange Commission on the date
hereof, of the information required to be included in response to the items of
this Statement. With respect to the information required to be included in
response to Item 14 of this Statement, the cross-reference sheet indicates the
location of such information in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 (the "Annual Report") or the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1995 (the
"Quarterly Report"). Copies of the Annual Report and the Quarterly Report will
be furnished to stockholders with the Proxy Statement. The information in the
Proxy Statement, the Annual Report, and the Quarterly Report which are attached
hereto as Exhibits (d)(1), (d)(2) and (d)(3), respectively, including all
exhibits thereto, is hereby expressly incorporated herein by reference and the
responses to each item of this Statement are qualified in their entirety by the
provisions of the Proxy Statement, the Annual Report and the Quarterly Report.
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CROSS REFERENCE SHEET
Item in
Schedule 13E-3
Location in Proxy Statement
Item 1(a) Cover Page, "Summary -- the Parties"
Item 1(b) "Introduction," "Summary -- The Date and Place of the
Special Meeting" and "The Special Meeting -- Record
Date and Voting"
Item 1(c)-(d) "Summary -- Price Range of Common Stock and Dividend
History" and "Price Range of Company Common Stock and
Dividend History"
Item 1(e)-(f) "Recent Transactions by the Company in the Common
Stock" and "Information Pertaining to the Parent, the
Purchaser and Related Persons"
Item 2(a)-(d) and (g) "Summary -- The Parties," "The Merger Agreement --
Parties to the Merger Agreement," "Directors and
Executive Officers of the Company" and "Information
Pertaining to the Parent, the Purchaser and Related
Persons"
Item 2(e)-(f) Inapplicable
Item 3(a)-(b) "Information Pertaining to the Parent, The Purchaser
and Related Persons -- Certain Past Contacts,
Transactions or Negotiations with Company" and
"Special Factors -- Background and Negotiations
Regarding the Merger"
Item 4(a) "Summary -- The Merger," "The Merger Agreement" and
"Special Factors -- Background and Negotiations
Regarding the Merger"
Item 4(b) "Information Pertaining to the Parent, the Purchaser
and Related Persons -- General"
Item 5(a)-(e) "Summary -- Plans for the Company After the Merger"
and "Special Factors -- Plans for the Company After
the Merger"
Item 5(f)-(g) "Special Factors -- Plans for the Company After the
Merger"
Item 6(a)-(c) "Special Factors -- Financing of the Merger,"
"Special Factors -- Expenses of the Merger" and
"Information Pertaining to the Parent, the Purchaser
and Related Persons -- General"
Item 6(d) Inapplicable
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Item 7(a)-(d) "Special Factors -- The Parent's Purposes and Reasons
for the Merger," "Special Factors -- Recommendation
of the Board of Directors; the Company's Purpose and
Reasons for and Belief as to the Fairness of the
Merger," "Special Factors -- Plans for the Company
After the Merger" and "Special Factors -- Federal
Income Tax Consequences"
Item 8(a)-(f) "The Special Meeting -- Vote Required to Approve the
Merger," "Summary -- Recommendations for the Merger,"
"Special Factors -- Recommendation of the Board of
Directors; the Company's Purpose and Reasons for and
Belief as to the Fairness of the Merger" and "Special
Factors -- Opinion of Financial Advisor" and "Special
Factors -- The Parent's Purposes and Reasons for the
Merger"
Item 9(a)-(c) "Summary -- Opinion of Financial Advisor," "Special
Factors -- Opinion of Financial Advisor"
Item 10(a) "Principal Stockholders of the Company," "Security
Ownership of the Company's Management" and
"Information Pertaining to the Parent, the Purchaser
and Related Persons -- General; -- Security Ownership
of Management of BOTDA in Company"
Item 10(b) "Information Pertaining to the Parent, the Purchaser
and Related Persons -- General"
Item 11 "Information Pertaining to the Parent, the Purchaser
and Related Persons -- General"
Item 12(a)-(b) "Introduction," "Summary -- Recommendations for the
Merger; -- Interests of Certain Persons in the
Merger" and "Special Factors -- Recommendation of the
Board of Directors; the Company's Purpose and Reasons
for Belief as to the Fairness of the Merger"Item
13(a)
Item 13(a) "Summary -- No Appraisal or Dissenter's Rights" and
"The Special Meeting -- Absence of Appraisal Rights
and Right to Dissent"
Item 13(b)-(c) Inapplicable
Item 14(a)(1) "Part I, Item 1 - Financial Statements" of The
Quarterly Report
Item 14(a)(2) "Item 8 - Financial Statements and Supplementary
Data" of The Annual Report
Item 14(a)(3) "Selected Consolidated Financial Data of the Company"
Item 14(a)(4) "Selected Consolidated Financial Data of the Company"
Item 14(b) Inapplicable
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Item 15(a)-(b) "The Special Meeting -- Proxy Solicitation"
Item 16 Proxy Statement, Annual Report on Form 10-K and
Quarterly Report on Form 10-Q
Item 17 Included herewith
Item 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION.
(a) The name and principal executive office of the issuer are: Big O
Tires, Inc., 11755 East Peakview Avenue, Suite A, Englewood, Colorado 80111.
(b) The information set forth under the headings "Introduction,"
"Summary -- The Date and Place of the Special Meeting" and "The Special Meeting
- -- Record Date and Voting" in Exhibit (d)(1) hereto is incorporated herein by
reference.
(c)-(d) The information set forth under the headings "Summary -- Price
Range of Company Common Stock and Dividend History" and "Price Range of Company
Common Stock and Dividend History" in Exhibit (d)(1) hereto is incorporated
herein by reference.
(e)-(f) The information set forth under the headings "Recent
Transactions by the Company in the Common Stock" and "Information Pertaining to
the Parent, the Purchaser and Related Persons" in Exhibit (d)(1) hereto is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is being filed by (i) Big O Tires, Inc., the issuer of
the Common Stock, (ii) BOTI Holdings, Inc., a Nevada corporation, and (iii) BOTI
Acquisition Corp., a Nevada corporation (collectively, the "Filing Persons").
(a)-(d) The information set forth under the headings "Summary -- The
Parties," "The Merger Agreement -- Parties to the Merger Agreement," "Directors
and Executive Officers of the Company" and "Information Pertaining to the
Parent, the Purchaser and Related Persons" in Exhibit (d)(1) hereto is
incorporated herein by reference.
(e)-(f) None of the Filing Persons and no executive officer or
director of any of the Filing Persons was, during the past 5 years, convicted in
a criminal proceeding (excluding traffic violations or similar misdemeanors) or
been the subject of a judgment, decree or final order enjoining further
violations of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
(g) All of the directors and officers of each of the Filing Persons
are citizens of the United States except for Horst K. Mehlfeldt who is a citizen
of the Federal Republic of Germany.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
(a)-(b) The information set forth under the headings "Information
Pertaining to the Parent, the Purchaser and Related Persons -- Certain Past
Contacts, Transactions or Negotiations with Company" and "Special Factors --
Background and Negotiations Regarding the Merger" in Exhibit (d)(1) hereto is
incorporated herein by reference.
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ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth under the headings "Summary -- The
Merger," "The Merger Agreement" and "Special Factors -- Background and
Negotiations Regarding the Merger" in Exhibit (d)(1) hereto is incorporated
herein by reference.
(b) The information set forth under the heading "Information
Pertaining to the Parent, the Purchaser and Related Persons -- General" in
Exhibit (d)(1) hereto is incorporated by reference.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE.
(a)-(e) The information set forth under the headings "Summary - -
Plans for the Company after the Merger" and "Special Factors -- Plans for the
Company After the Merger" in Exhibit (d)(1) hereto is incorporated herein by
reference.
(f)-(g) The information set forth under the heading "Special Factors
- -- Plans for the Company after the Merger" in Exhibit (d)(1) hereto is
incorporated by reference.
ITEM 6. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
(a)-(d) The information set forth under the headings "Special Factors
- -- Financing of the Merger," "Special Factors -- Expenses of the Merger" and
"Information Pertaining to the Parent, the Purchaser and Related Persons --
General" in Exhibit (d)(1) hereto is incorporated herein by reference.
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
(a)-(d) The information set forth under the headings "Special Factors
- -- The Parent's Purposes and Reasons for the Merger," "Special Factors - -
Recommendation of the Board of Directors; the Company's Purpose and Reasons for
and Belief as to the Fairness of the Merger," "Special Factors -- Plans for the
Company After the Merger" and "Special Factors -- Federal Income Tax
Consequences" in Exhibit (d)(1) hereto is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
(a)-(f) The information set forth under the headings "The Special
Meeting -- Vote Required to Approve the Merger," "Summary -- Recommendations for
the Merger," "Special Factors -- Recommendation of the Board of Directors; the
Company's Purpose and Reasons for and Belief as to the Fairness of the Merger,"
"Special Factors -- Opinion of Financial Advisor" and "Special Factors -- The
Parent's Purposes and Reasons for the Merger" in Exhibit (d)(1) hereto is
incorporated herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS.
(a)-(c) The information set forth under the headings "Summary --
Opinion of Financial Advisor," "Special Factors -- Opinion of Financial Advisor"
in Exhibit (d)(1) hereto is incorporated herein by reference.
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ITEM 10. INTEREST IN SECURITIES OF THE ISSUER.
(a) The information set forth under the headings "Principal
Stockholders of the Company," "Security Ownership of the Company's Management"
and "Information Pertaining to the Parent, the Purchaser and Related Persons --
General; -- Security Ownership of Management of BOTDA in Company" in Exhibit
(d)(1) hereto is incorporated herein by reference.
(b) The information set forth under the heading "Information
Pertaining to the Parent, the Purchaser and Related Persons -- General" in
Exhibit (d)(1) is incorporated by this reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE
ISSUER'S SECURITIES.
The information set forth under the heading "Information Pertaining to
the Parent, the Purchaser and Related Persons -- General" in Exhibit (d)(1) is
incorporated by this reference.
ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD
TO THE TRANSACTION.
(a)-(b) The information set forth under the headings "Introduction,"
"Summary -- Recommendations for the Merger; -- Interests of Certain Persons in
the Merger" and "Special Factors -- Recommendation of the Board of Directors;
the Company's Purpose and Reasons for Belief as to the Fairness of the Merger"
in Exhibit (d)(1) hereto is incorporated herein by reference.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION.
(a) Appraisal rights are not provided. The information set forth under
the headings "Summary -- No Appraisal or Dissenter's Rights" and "The Special
Meeting -- Absence of Appraisal Rights and Right to Dissent" in Exhibit (d)(1)
hereto is incorporated herein by reference.
(b) Not applicable.
(c) Not applicable.
ITEM 14. FINANCIAL INFORMATION.
(a)(l) The information set forth in "Part I, Item 1 - Financial
Statements" of Exhibit (d)(3) hereto is incorporated herein by reference.
(2) The information set forth in "Item 8 - Financial Statements and
Supplemental Data" of Exhibit (d)(2) hereto is incorporated herein by reference.
(3) The information set forth under the heading "Selected Consolidated
Financial Data of the Company" in Exhibit (d)(1) hereto is incorporated herein
by reference.
(4) The information set forth under the heading "Selected Consolidated
Financial Data of the Company" in Exhibit (d)(1) hereto is incorporated herein
by reference.
(b) Inapplicable.
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ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED.
(a)-(b) The information set forth under the heading "The Special
Meeting -- Proxy Solicitation" in Exhibit (d)(1) hereto is incorporated herein
by reference.
ITEM 16. ADDITIONAL INFORMATION.
The information set forth in Exhibits (d)(1), (d)(2), and (d)(3) is
incorporated herein by reference.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Commitment Letter from First National Bank of Chicago
dated July 24, 1995, and accepted and agreed to on
July 27, 1995, by John B. Adams, Treasurer of BOTI
Acquisition Corp.*
(a)(2) Commitment Letter from BancBoston Capital Inc. dated
August 31, 1995, and accepted and agreed to on
September 1, 1995, by Steven P. Cloward as President
of BOTI Holdings, Inc. and accepted and agreed to on
September 8, 1995, by Wesley E. Stephenson as
President of Big O Tire Dealers of America.*
(b)(1) Report of PaineWebber Incorporated regarding the
fairness of the Merger Consideration dated
November 14, 1995, entitled Presentation to the Board
of Directors.*
(b)(2) Report of PaineWebber Incorporated dated April 14,
1994, entitled Big O Tires, Inc. Rights Agreement
Background Information.*
(b)(3) Report of PaineWebber Incorporated dated August 14,
1994, entitled Big O Tires, Inc. Shareholders' Rights
Plan Supplemental Information.*
(b)(4) Report of PaineWebber Incorporated dated September
12, 1994, entitled Project Snow Review of Strategic
Alternatives.*
(b)(5) Report of PaineWebber Incorporated dated
September 12, 1994, entitled Project Snow
Supplemental Information.*
(b)(6) PaineWebber Incorporated Fairness Opinion, attached
as Appendix B to Exhibit (d)(1).*
(c)(1) Draft of Stock Purchase Agreement between Big O
Dealers, L.P. and Balboa Investments.*
(c)(2) Draft Form of Stock Purchase Agreement prepared by
Big O Dealers, L.P.*
(c)(3) Draft of Stock Subscription Agreement between Big O
Dealers, L.P. and BOTI Holdings, Inc.*
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(c)(4) Draft Form of Stock Subscription Agreement of BOTI
Holdings, Inc. for Members of Management.*
(c)(5) Letter dated March 13, 1996 from Big O Tires, Inc.
to BOTI Acquisition Corp. and BOTI Holdings, Inc.
terminating the Merger Agreement.
(d)(1) Letter to Stockholders, Notice of Special Meeting of
Stockholders, Proxy Statement and proxy card
(including exhibits).*
(d)(2) Annual Report on Form 10-K for the fiscal year ended
December 31, 1994 of Big O Tires, Inc.*
(d)(3) Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995 of Big O Tires, Inc.*
(e) Not applicable.
(f) Not applicable.
- ---------------
* Previously filed.
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.
BIG O TIRES, INC.
May 6, 1996 /s/ Horst K. Mehlfeldt
- ------------------------ --------------------------
(Date) Horst K. Mehlfeldt
Member, Office of the Chief
Executive
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.
BOTI HOLDINGS, INC.
May 6, 1996 /s/ Steven P. Cloward
- ------------------------- -----------------------------
(Date) Steven P. Cloward
President
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.
BOTI ACQUISITION CORP.
May 6, 1996 /s/ Steven P. Cloward
- ------------------------- -----------------------------
(Date) Steven P. Cloward
President
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HOLME ROBERTS & OWEN LLC
Attorneys at Law
1700 Lincoln, Suite 4700
Denver, Colorado 80203
303 861-7000
Fax 303 866-0200
W. Dean Salter
303 866-0245
March 13, 1996
VIA FAX - (303) 790-6064
CONFIRM - (303) 790-2800
BOTI Acquisition Corp.
BOTI Holdings, Inc.
11755 East Peakview Avenue
Englewood, CO 80111
Attn: Steven P. Cloward
Re: Big O Tires, Inc./BOTI
Dear Gentlemen:
At the direction of the Investment Committee of the Board of Directors and
the Board of Big O Tires, Inc., you are hereby notified, pursuant to Section
7.1(b) of the Merger Agreement between you and Big O Tires, Inc. dated July 24,
1995, that the merger agreement is terminated, effective immediately.
Yours very truly,
/s/ W. Dean Salter
W. Dean Salter
Special Counsel for Big O Tires, Inc.
WDS;ljs
cc: Gibson, Dunn & Crutcher Wendel, Rosen, Black & Dean
1801 California Street, #4100 1111 Broadway, 24th Floor
Denver, CO 80202 Oakland, CA 94607
Attn: Richard M. Russo, Esq. Attn: Richard P. Waxman, Esq.
Via Fax - (303) 296-5310 Via Fax - (501) 834-1928
Confirm (303) 298-5700 Confirm (510) 834-6600
BOTI Acquisition Corp.
March 13, 1996
Page 2
bcc: Frank Carney
John Siipola
Thomas M. Smith, Esq.
Stanley A. Freedman, Esq.
