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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
(AMENDMENT NO. 1)
TENDER OFFER STATEMENT
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D*
(AMENDMENT NO. 1)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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THE TURNER CORPORATION
(NAME OF SUBJECT COMPANY)
RWE AG
HOCHTIEF AG
BETA ACQUISITION CORP.
(BIDDERS)
COMMON STOCK, PAR VALUE $1.00 PER SHARE (INCLUDING THE ASSOCIATED RIGHTS)
SERIES C 8 1/2% CONVERTIBLE PREFERENCE STOCK, PAR VALUE $1.00 PER SHARE
SERIES D 8 1/2% CONVERTIBLE PREFERENCE STOCK, PAR VALUE $1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
COMMON STOCK: 900273103
SERIES C 8 1/2% CONVERTIBLE PREFERENCE STOCK: NONE
SERIES D 8 1/2% CONVERTIBLE PREFERENCE STOCK: NONE
(CUSIP NUMBER OF CLASS OF SECURITIES)
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DR.-ING. BERNHARD BURKLIN
HOCHTIEF AG
OPERNPLATZ 2
45128 ESSEN
GERMANY
(011) 49-201-824-0
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF BIDDERS)
WITH COPIES TO:
SPENCER D. KLEIN, ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
212-848-4000
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* This Statement also constitutes Amendment No. 1 to the Statement on Schedule
13D of the Bidders with respect to the Securities of The Turner Corporation
which may be deemed to be beneficially owned by the Bidders.
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This Amendment No. 1 to the Tender Offer Statement on Schedule 14D-1 and
Amendment No. 1 to the Statement on Schedule 13D (collectively, the "Schedule
14D-1/13D"), filed with the Securities and Exchange Commission on August 20,
1999 (the "Schedule 14D-1"), relates to an offer by Beta Acquisition Corp., a
Delaware corporation ("Purchaser") and an indirect wholly owned subsidiary of
HOCHTIEF AG, a corporation organized under the laws of Germany ("Parent"), to
purchase (i) all the issued and outstanding shares of common stock, par value
$1.00 per share ("Company Common Stock"), including the associated rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of September 21,
1998, between the Company (as defined below) and First Chicago Trust Company of
New York, as rights agent (the "Rights Agreement"), of The Turner Corporation, a
Delaware corporation (the "Company"), and (ii) all the issued and outstanding
shares of (A) Series C 8 1/2% Convertible Preference Stock, par value $1.00 per
share, of the Company ("Series C Preferred Stock") and (B) Series D 8 1/2%
Convertible Preference Stock, par value $1.00 per share, of the Company ("Series
D Preferred Stock" and, together with the Series C Preferred Stock being
hereinafter collectively referred to as the "Company Preferred Stock"), at a
price of $28.625 per share of Company Common Stock (such amount being the "Per
Share Amount"), $4,770.8333 per share of Series C Preferred Stock and $4,293.75
per share of Series D Preferred Stock, in each case, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated August 20, 1999, and in the related Letters of Transmittal (each, a
"Letter of Transmittal"; which, together with the Offer to Purchase and any
amendments or supplements thereto collectively constitute the "Offer"), copies
of which were attached as exhibits to the Schedule 14D-1/13D.
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
Item 11 is hereby amended and supplemented by the addition of the following
exhibits thereto:
Exhibit (a)(13) Notice to the Company ESOP Participants from State
Street Bank and Trust Company.
Exhibit (a)(14) Form of Direction Form to ESOP Participants for
Direction To Trustee of The Turner Corporation Employee Stock Ownership
Plan.
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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.
August 27, 1999
RWE AG
BY: /s/ GEORG LAMBERTZ
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NAME: Georg Lambertz
TITLE: Senior Vice President Finance
RWE AG
BY: /s/ HAROLD WILDE
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NAME: Dr. Harold Wilde
TITLE: Senior Vice President Legal
Department
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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.
August 27, 1999
HOCHTIEF AG
BY: /s/ HANS-GEORG VATER
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NAME: Hans-Georg Vater
TITLE: Member of the Executive Board
HOCHTIEF AG
BY: /s/ HARTMUT PAULSEN
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NAME: Hartmut Paulsen
TITLE: General Counsel and
Company Secretary
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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.
August 27, 1999
BETA ACQUISITION CORP.
BY: /s/ BERNHARD BURKLIN
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NAME: Bernhard Burklin
TITLE: Vice President, Treasurer and
Secretary
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Exhibit(a)(13)
STATE STREET BANK AND TRUST COMPANY
225 Franklin Street
Boston, Massachusetts 02110
Dear ESOP Participant:
As you may know, The Turner Corporation ("Turner") has entered into an
Agreement and Plan of Merger with HOCHTIEF AG ("HOCHTIEF"). As part of the
combination of the two companies, a subsidiary of HOCHTIEF, Beta Acquisition
Corp. ("Beta"), has offered (the "Offer") to purchase all of the issued and
outstanding shares of Turner common stock, par value $1.00 per share (the
"Common Stock"), for $28.625 per share in cash. The enclosed materials describe
the tender offer in greater detail, including the conditions that must be
satisfied before Beta will purchase shares in the tender offer. After Beta
purchases shares in the tender offer, Turner will merge with Beta. Thereafter,
Turner will be a wholly owned subsidiary of HOCHTIEF. In the merger, shares of
Turner common stock that have not been purchased by Beta will be canceled and
converted into the right to receive $28.625 in cash.
State Street Bank and Trust Company currently serves as trustee (the
"Trustee") of The Turner Corporation Employee Stock Ownership Plan (the
"ESOP"). The purpose of this letter is to inform you that, as an ESOP
participant and named fiduciary, you have the right to instruct the Trustee, on
a confidential basis, whether to tender to Beta the shares of Common Stock
allocated to your ESOP account in response to the Offer.
In connection with the Offer, we have enclosed the following material:
(a) Beta's Offer to Purchase dated August 20, 1999;
(b) A letter from The Turner Corporation to stockholders concerning
the Offer;
(c) Schedule 14D-9; and
(d) A Direction Form
YOU ARE URGED TO EXAMINE CAREFULLY THE ENCLOSED MATERIAL AND ANY OTHER
MATERIAL YOU RECEIVE CONCERNING THE OFFER. A RESPONSE IS REQUIRED ON OR BEFORE
SEPTEMBER 16, 1999.
After reading the enclosures and any other materials sent to you, you have
the right to instruct the Trustee whether to tender or not tender the shares of
Common Stock allocated to your individual account in the ESOP on the enclosed
Direction Form. The Trustee's obligation to follow your instructions is subject
to its fiduciary duties under applicable law. These duties are summarized below.
If the Offer is accepted, proceeds received by ESOP participants who
tender their shares will be allocated to their individual accounts under the
ESOP and will be distributed if the ESOP is terminated or in accordance with
the ESOP's distribution provisions.
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The ESOP's Tender Offer Provisions
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The ESOP provides that you are entitled to instruct the Trustee whether to
tender or not tender the Common Stock allocated to your ESOP account as to any
tender offers received with respect to the shares. If you instruct the Trustee
to tender the shares allocated to your ESOP account and Beta purchases shares
in the tender offer, Beta will purchase them for $28.625 per share in cash. If
you instruct the Trustee not to tender the shares, the shares will remain
allocated to your account until the merger is completed. If you do not return
or properly complete the Direction Form, the Trustee will deem you to have
decided not to tender the shares, and, in accordance with the provisions of
the ESOP, the Trustee will not tender the shares allocated to your account.
Review by Trustee and Trustee Duties
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The actions of the Trustee with respect to tendering or not tendering the
shares of Common Stock held in the ESOP in accordance with the terms of the ESOP
are governed by the fiduciary duties and requirements of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Based upon the standards set
by the United States Department of Labor and the advice of counsel, the Trustee
will tender or not tender shares of Common Stock in accordance with instructions
it receives from ESOP participants and the provisions of the ESOP unless the
Trustee concludes that following the participant directions or the ESOP
provisions is inconsistent with ERISA, or that following these provisions or
directions would produce an imprudent result for the ESOP participants and their
beneficiaries. If the Trustee determines that ERISA prohibits it from following
participants' directions in accordance with the terms of the ESOP it will
exercise its discretion in a manner consistent with its fiduciary duties under
ERISA, and will determine whether to tender or not tender the shares held by the
ESOP.
In determining whether to follow the participants' directions, the Trustee
will, among other things, consider whether participants have received
information which will allow them to make an informed decision and whether the
participants have acted independently and without being subject to coercion or
undue pressure. PLEASE NOTE THAT, OTHER THAN THE DIRECTION FORM, THE TRUSTEE
HAS NOT PREPARED THE ENCLOSED MATERIAL AND CANNOT VERIFY THE ACCURACY OF THE
MATERIAL OR ITS CONTENTS.
In accordance with its customary procedures, the Trustee makes no
recommendation on how ESOP participants should instruct the Trustee with regard
to the tender of their shares.
Tender Instructions
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Instructions concerning the Offer must be received by 4:00 p.m. Eastern
Time on Thursday, September 16, 1999 at the following address:
State Street Bank and Trust Company
P.O. Box 1997
New York, N.Y. 10117-0024
or faxed to (212) 645-8046.
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Enclosed is a self-addressed, postage-prepaid envelope. Due to the short
time frame we have to respond to this Offer, you are encouraged to fax the
Direction Form to the tabulator. If the enclosed Direction Form is received by
the tabulator after the 4:00 p.m. deadline on Thursday, September 16, 1999
there is no assurance that the instruction on such form will be followed by the
Trustee.
To make your election, YOU MUST FILL OUT AND SIGN THE ENCLOSED Direction
Form, and mail the Direction Form in the enclosed, postage-paid envelope or
send your form via facsimile to the CORRECT fax number.
Please note that in order to provide the Trustee with sufficient time to
tabulate your instructions, the date by which you must provide instructions to
the Trustee has been set (1) day earlier than the date by which shareholders
who hold their shares directly must respond to the Offer.
CHANGING OR REVOKING YOUR DIRECTION FORM
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After you have instructed the Trustee, you may change your decision
regarding whether to tender the shares held in your ESOP account, provided that
the Trustee receives your revised instructions prior to 4:00 p.m. Eastern Time
on Thursday, September 16, 1999.
CONFIDENTIALITY
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Your instructions to the Trustee will be kept strictly confidential. The
Direction Forms will be tabulated by the Trustee and each participant's
direction and any other communication you have with the Trustee will be kept
confidential by the Trustee and will not be divulged to anyone, except as
required by law. Neither Turner nor HOCHTIEF will have access to individual
Direction Forms even after the Offer has been accepted.
Sincerely,
State Street Bank and Trust Company, Trustee of
The Turner Corporation Employee Stock Ownership Plan
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EXHIBIT (a)(14)
DIRECTION FORM
DIRECTION TO TRUSTEE OF THE TURNER CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN IN
RESPONSE TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING COMMON SHARES OF THE
TURNER CORPORATION AT $28.625 NET PER SHARE BY BETA ACQUISITION CORP.
(the Offer)
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Your shares:
THE TRUSTEE MAKES NO RECOMMENDATION AS TO YOUR DECISION TO TENDER OR NOT TO
TENDER SHARES OF COMMON STOCK ALLOCATED TO YOUR ACCOUNT.
Please check ONE box below:
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/ / YES, TENDER all of the shares of Common Stock allocated to my account.
/ / YES, TENDER only the whole percentage of the shares of Common Stock
allocated to my account, as indicated below:
Percentage of shares to be tendered (in whole numbers):------%
/ / NO, DO NOT TENDER any shares of Common Stock allocated to my account.
As a participant and named fiduciary in The Turner Corporation Employee Stock
Ownership Plan, I acknowledge receipt of the Offer to Purchase For Cash All
Outstanding Common Stock of The Turner Corporation at $28.625 Net Per Common
Share by Beta Acquisition Corp. I hereby direct the Trustee of the Plan to
tender or not to tender the shares of common stock allocated to my account
under the Plan as indicated above.
I understand that if I sign, date and return this direction form but do not
provide the Trustee with direction, the Trustee will treat this action as an
instruction by me not to tender the shares allocated to my account.
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Signature Date
Your direction may be changed or revoked at any time up until the deadline
by delivering a new Direction Form to the tabulator.
FAX THIS SIDE
