SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D/A
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
J.C. NICHOLS COMPANY
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
653777102
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(CUSIP Number)
with a copy to:
Stephen Feinberg Robert G. Minion, Esq.
450 Park Avenue Lowenstein, Sandler, Kohl,
28th Floor Fisher & Boylan, P.A.
New York, New York 10022 65 Livingston Avenue
(212) 421-2600 Roseland, New Jersey 07068
(201) 992-8700
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(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
August 8, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule l3d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
Item 4. Purpose of Transaction.
By letter dated August 8, 1997, Cerberus amended and restated its Offer to
purchase all shares of common stock of the Company owned by the ESOT. The Offer,
as amended and restated, includes the approximate 640,000 additional shares
believed by Cerberus to be issued to the ESOT by the Company. In addition, as a
result of certain actions by the board of directors and management of the
Company since the filing of the Schedule 13D by Mr. Feinberg as of July 2, 1997
(including but not limited to the purported issuance by the Company of the
Common Stock Purchase Rights), the Offer, as amended and restated, is expressly
subject to the determination by Cerberus, in its sole discretion, that there has
not occurred any action or inaction by the Company's board of directors or
management, or any other occurrence since April 1, 1997, that has had or
reasonably could have a material adverse effect on the value of the Company or
the shares of its common stock. Except as described herein, all other terms of
the Offer remain unchanged.
Item 7. Material to Be Filed as Exhibits.
1. Letter, dated August 8, 1997, of Cerberus Partners, L.P. to Intrust
Bank, NA, as Trustee of the Employee Stock Ownership Trust of J.C. Nichols
Company.
Signature
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned hereby certifies that the information set forth in this
statement is true, complete and correct.
August 12, 1997
/s/ Stephen Feinberg
____________________________________
Stephen Feinberg, in his capacity as
the managing member of Cerberus
Associates, LLC, the general partner
of Cerberus Partners, L.P., and as
the investment manager for each of
Cerberus International, Ltd., Ultra
Cerberus Fund, Ltd. and the Funds
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
<PAGE>
Exhibit 1.
August 8, 1997
Employee Stock Ownership Trust
of J.C. Nichols Company
c/o Intrust Bank
P.O. Box 8338
Prairie Village, Kansas 66208
Attn: Scott W. Rankin, Trustee
Phillip J. Owings, Senior Vice President
Gentlemen:
This letter serves to amend and restate our original offer dated July
28, 1997, as amended August 5, 1997.
Cerberus Partners, L.P. and certain of its affiliates (collectively,
"CP") hereby offer to purchase all shares of common stock of J.C. Nichols
Company ("JCN") held by the Employee Stock Ownership Trust ("ESOT") (the
"Shares") for a cash purchase price of $42.00 per share to the ESOT. Our offer
is expressly not subject to due diligence.
Upon your acceptance of this offer, CP will pay the purchase price by
wire transfer of immediately available funds in the amount of $36,936,564
against delivery of certificates for the Shares, based on 879,442 Shares assumed
to be owned by the ESOT and subject to adjustment for the actual number of
Shares owned and sold. Further, CP will pay the purchase price by wire transfer
of immediately available funds in the amount of $26,880,000 against delivery of
certificates for the Shares, based on 640,000 Shares assumed to be issued by JCN
to the ESOT and subject to adjustment for the actual number of Shares owned and
sold. It is our understanding that the two month time period required to obtain
final approval to sell the Shares may be waived and the purchase and sale, if
acceptable to the ESOT, may move forward in a shorter time frame. Of course,
this revised offer is subject, in our sole discretion, to the redemption,
revocation, or declaration of invalidity of the poison pill. In addition, since
the abrupt action of the Board of Directors in approving the poison pill on July
28, 1997 by less than a unanimous vote has greatly concerned us, our offer is
also subject to our determination, in our sole discretion, that there has not
occurred any action or inaction by the JCN Board of Directors or management, or
any other occurrence since April 1, 1997, that has had or reasonably could have
a material adverse effect on the value of JCN or the Shares.
Because CP is aware that the ESOT trustees are fiduciaries for the ESOT
beneficiaries, CP is willing to afford purchase price protection to the ESOT. In
the event that prior to August 5, 1998 CP were to purchase shares of common
stock at $45.00 per share or greater, CP will make a payment to the ESOT equal
to the product of (x) the number of shares purchased by CP prior to August 5,
1998 at $45.00 per share or greater and (y) 50% of the difference between the
purchase price paid by CP for such shares and $45.00.
If you would like to accept the foregoing offer, please signify your
agreement below and return a copy (counterparts being acceptable) to the
undersigned. This offer shall expire and be of no force and effect unless
accepted by the ESOT on or prior to 5:00 p.m., Kansas City time, on August 26,
1997. We reserve the right to extend our offer further.
Very truly yours,
CERBERUS PARTNERS, L.P.
BY: /s/Ronald Kravit
_______________________________
Name: Ronald Kravit
AGREED TO AND ACCEPTED this
________ day of August, 1997
EMPLOYEE STOCK OWNERSHIP TRUST
of J.C. Nichols Company
By: ________________________________
Name: Scott W. Rankin
Title: Trustee
