SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting
Material Pursuant to Section 240.14a-ll(c) or
Section 240.14a-12
Family Steak Houses of Florida, Inc.
(Name of Registrant as Specified In Its Charter)
Bisco Industries, Inc.
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
[ ] $125 per Exchange Act Rules 0-1 I(c)(l)(ii), 14a-6(i)(1),
or 14a-6(i)(2).
[ ] $500 per each party to the controversy pursuant to Exchange
Act Rule 14a-6(i)(3)
[ ] Fee computed on table below per Exchange Act Rules 14a-
6(i)(4) and 0-11
1) Title of each class of securities to which transaction
applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11:
4) Proposed maximum aggregate value of transaction:
[ ] Check box if any part of the fee is offset as
provided by Exchange Act Rule 0-1 I(a)(2) and identify the
filing for which the offering fee was paid previously.
Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
PRELIMINARY MATERIALS DATED APRIL 15, 1997
Certain information included herein is presented as it is
expected to exist when the definitive solicitation statement is
mailed to shareholders and will be revised to reflect actual
facts at that time.
CONSENT SOLICITATION STATEMENT
OF
BISCO INDUSTRIES, INC.
This Consent Solicitation Statement (the "Consent
Statement") and the accompanying form of written consent are
furnished by Bisco Industries, Inc., an Illinois corporation
("Bisco"), in connection with the solicitation by Bisco from the
holders of shares of common stock, par value $.01 per share (the
"Shares"), of Family Steak Houses of Florida, Inc., a Florida
corporation (the "Company"), of written consents ("Consents") to
take the following actions (collectively, the "Proposals")
without a shareholders' meeting, as permitted by Florida law:
1.To repeal the Amended and Restated Bylaws recently
adopted by the Board of Directors (the "Board") and any
other bylaws or amendments to bylaws adopted without
shareholder approval subsequent to November 27, 1985 and
prior to the effectiveness of the actions taken by the
Consents (the "Bylaws Repeal Proposal"). The bylaws
adopted by the Board on November 27, 1985 shall become
the Company's bylaws, subject to the amendments proposed
herein;
2.To amend the Company's bylaws to provide that Section
607.0902 of the Florida Business Corporation Act (the
"Control Share Act") shall not apply to control share
acquisitions of shares of the Company (the "Control Share
Proposal");
3.To amend the Company's bylaws to require the Company to
redeem the "poison pill" recently adopted by the Board
and require prior shareholder approval for adoption of
any "poison pill" or similar anti-takeover measure in the
future (the "Proposal to Revoke Poison Pill"); and
4.To amend the Company's bylaws to provide that the bylaws
shall not be subject to amendment or repeal by the Board
(the "Further Bylaws Proposal").
On March 6, 1997, Bisco commenced a tender offer to purchase
(the "Offer") up to 2,600,000 Shares for $0.90 net per Share in
cash, upon the terms and subject to the conditions set forth in
an Offer to Purchase dated March 6, 1997, as amended from time to
time (the "Offer to Purchase"), and the related Letter of
Transmittal (the "Letter of Transmittal"). As more fully
described below in this Consent Statement, adoption of the
Proposals is necessary, among other things, to ensure that
shareholders who desire to tender their Shares to Bisco pursuant
to the Offer will have the opportunity to do so. See "Background
and Reason for the Solicitation." Bisco currently does not
intend to accept shares for payment pursuant to the Offer unless
the proposals are adopted.
YOUR FUTURE SHAREHOLDER VALUE IS AT STAKE. BISCO URGES YOU TO
SIGN, DATE AND RETURN THE ACCOMPANYING GOLD CONSENT FORM TODAY,
WHETHER OR NOT YOU INTEND TO TENDER YOUR SHARES PURSUANT TO THE
OFFER.
The record date for the Consent solicitation is April ___,
1997 (the "Record Date"). Each Proposal will be adopted if the
holders of a majority of the outstanding Shares at the close of
business on the Record Date submit Consents to such Proposal.
See "General Information About Solicitation of Consents-Record
Date" and "-Consents Required; Effectiveness." This Consent
Statement and the accompanying GOLD Consent form are first being
furnished to shareholders on or about April ___, 1997.
If your Shares are held in the name of a brokerage firm,
bank, nominee or other institution, only that entity can execute
a Consent. Accordingly, please contact the person responsible
for your account and give instructions for a Consent to be signed
representing your Shares. Bisco urges you to confirm in writing
your instructions to the person responsible for your account and
to provide a copy of those instructions to Garland Associates,
Inc., so that Bisco will be aware of all instructions given and
can attempt to ensure that such instructions are followed.
QUESTIONS CONCERNING THIS CONSENT STATEMENT OR THE ACCOM-PANYING
CONSENT SHOULD BE DIRECTED TO GARLAND ASSOCIATES, INC., (800) 455
6034 (TOLL FREE) OR (212) 866-0095 (COLLECT).
BACKGROUND AND REASON FOR THE SOLICITATION
BISCO'S TENDER OFFER
On March 6, 1997, Bisco commenced the Offer for up to
2,600,000 Shares for $0.90 net per Share in cash. The purpose of
the Offer is to acquire a significant equity interest in the
Company and to influence the management and direction of the
Company. Bisco has no present intention to seek to acquire the
entire equity interest in the Company or to consummate a merger
or other business combination transaction between the Company and
Bisco or any of its affiliates. The Offer is subject to certain
terms and conditions described in the Offer to Purchase,
including that (i) Bisco shall be satisfied, in its reasonable
discretion, that the Control Share Act is inapplicable to the
Offer, or that the Control Share Act will not deny voting rights
to the Shares acquired by Bisco in the Offer (the "Control Share
Condition"), (ii) the Company shall not have issued, distributed
or sold, or authorized or proposed the issuance, distribution or
sale of, additional Shares (subject to certain exceptions),
shares of any other class of capital stock or other equity
interests, other voting securities, debt securities or any
securities convertible into, or rights, warrants or options,
conditional or otherwise, to acquire, any of the foregoing, and
(iii) the Company's Articles of Incorporation and Bylaws shall
not have been amended.
Under the guise of protecting the shareholder's interests,
the Board has refused to "opt out" of the Control Share Act to
allow Bisco to vote any Shares it may acquire in the Offer and
has adopted several anti-takeover measures in response to the
Offer, including a "poison pill." See "-The Board's Response to
the Offer." As a result of the Board's actions, Bisco's
acquisition of Shares pursuant to the Offer, in the absence of
the shareholders consenting to the actions described herein or
the Board agreeing to the Offer, would be impracticable. Bisco
currently contemplates that Shares will not be accepted for
payment pursuant to the Offer until all of the conditions of the
Offer, including those described above, have been satisfied.
Complete information about the Offer is contained in the
Offer to Purchase, which is available upon request from the
Information Agent for the Offer, Garland Associates, Inc., and in
the Tender Offer Statement on Schedule 14D-1, which was filed by
Bisco with the Securities and Exchange Commission (the
"Commission") on March 6, 1997, as amended (the "Schedule 14D
1"). The Schedule 14D-1 may be obtained from the Commission,
upon payment of the Commission's customary charges, by writing to
its principal office at 450 Fifth Street, N.W., Judiciary Plaza,
Room 1024, Washington, D.C. 20549. The Schedule 14D-1 is also
available for inspection and copying at the Commission's
principal office at the above address and at its regional offices
at Seven World Trade Center, 13th Floor, New York, New York 10048
and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and may be accessed electronically on
the World Wide Web at http://www.sec.gov.
THIS CONSENT STATEMENT IS NEITHER A REQUEST FOR THE TENDER OF
SHARES, NOR AN OFFER WITH RESPECT THERETO. THE OFFER IS BEING
MADE ONLY BY MEANS OF THE OFFER TO PURCHASE AND THE RELATED
LETTER OF TRANSMITTAL.
THE BOARD'S RESPONSE TO THE OFFER
On March 19, 1997, the Board responded to the Offer. The
Company filed a Solicitation/Recommendation Statement on Schedule
14D-9 (such statement, as subsequently amended on March 20, 1997,
is referred to herein as the "Schedule 14D-9") and a Registration
Statement on Form 8-A (such registration statement, as
subsequently amended on March 20, 1997, is referred to herein as
the "Form 8-A") on that date.
According to the Schedule 14D-9, the Board decided at a
March 18, 1997 meeting not to "opt out" of the Control Share Act
with respect to any Shares acquired by Bisco pursuant to the
Offer. The Schedule 14D-9 also disclosed that the Board had
adopted an anti-takeover plan commonly referred to as a "poison
pill" (the "Poison Pill"). The Poison Pill purportedly was
adopted on February 11, 1997, although no disclosure of such
adoption was made until March 19, 1997, almost two weeks after
Bisco commenced the Offer. The Schedule 14D-9 also disclosed
that the Board had adopted Amended and Restated Bylaws to
implement certain anti-takeover measures.
The Board recommended that shareholders reject the Offer on
the basis that it had unanimously determined that the Offer was
"inadequate" and "not in the best interests of [the Company] and
its shareholders." The Board purportedly considered a variety of
factors in deciding to reject the Offer, including, among other
things, the range of values for the Company revealed in a
valuation study prepared by a nationally-recognized investment
banking firm (which concluded, after employing five different
valuation methodologies, that the $0.90 per Share offered by
Bisco was "within the range of value of the Company"). The Board
determined that it should explore negotiations with Bisco to
better determine Bisco's plans for the Company. The Board also
determined that, given additional time, it could negotiate a
better deal than the Offer and that the Company should attempt to
increase the price per Share in the Offer. However, management
has never attempted to do so during the several discussions
management has held with Bisco's representatives. See "-Bisco's
Negotiations With Management."
MANAGEMENT HAS DONE NOTHING TO INCREASE YOUR SHAREHOLDER VALUE,
DESPITE THE LIP SERVICE GIVEN BY THE BOARD TO DEPLOYING THE
"POISON PILL" AND OTHER ANTI-TAKEOVER MEASURES AS A MEANS OF
PROTECTING YOU.
The Poison Pill
The following summary of the Poison Pill has been derived
from the descriptions of the Poison Pill contained in the
Schedule 14D-9 and the Form 8-A, and reference is made to the
Schedule 14D-9 and the Form 8-A for a more complete description
of the Poison Pill.
Under the Rights Agreement dated March 18, 1997 between the
corporation and ChaseMellon Shareholder Services, Inc., a copy of
which has been filed by the Company as an exhibit to the Form 8-A
(the "Poison Pill Agreement"), the Company will issue one right
for each Share outstanding or newly issued prior the Distribution
Date (as defined below). The rights trade with and are not
separable from the Shares until the Distribution Date. The
rights become exercisable and trade separately from the Shares
upon the earlier to occur of (a "Distribution Date"): (i) the
tenth business day after the date of public announcement that a
person or group of affiliated or associated persons have become
the beneficial owners of 15% or more of the outstanding Shares or
voting securities representing 15% or more of the total voting
power (an "Acquiring Person"), (ii) the tenth business day or
such later date determined by the Board of Directors after the
first public announcement of a tender or exchange offer, which,
upon consummation, would result in a person or a group being the
beneficial owner of 15% or more of the outstanding Shares (or 15%
or more of the total voting power) or (iii) the tenth business
day after a majority of the Board who are not officers of the
Company have determined that a person is an Adverse Person. The
Poison Pill Agreement defines an "Adverse Person" as a person who
alone or together with its associates and affiliates has become
the beneficial owner of 10% of the outstanding Shares or voting
securities representing 10% of the total voting power and the
Board has determined, after reasonable inquiry and investigation,
that (i) such beneficial ownership is intended to cause the
Company to repurchase the Shares or voting securities
beneficially owned by such person or to cause pressure on the
Company to take action or enter into a transaction or series of
transactions intended to provide the person with short-term
financial gain not serving the interests of the shareholders or
(ii) the beneficial ownership is causing or reasonably likely to
cause a material adverse impact on the business or prospects of
the Company to the detriment of the Company's shareholders. The
Board has announced that the Distribution Date will be April 15,
1997.
After the Distribution Date, the rights begin trading
separately from the Shares, and each right becomes exercisable
for one-hundredth of one share of Junior Participating Preferred
Stock of the Company at a price of $5.00 per one-hundredth of a
share, subject to adjustment. If (i) a person becomes the
beneficial owner of 15% or more of the then outstanding Shares or
voting power (except pursuant to certain business combinations
discussed below or an offer for all outstanding Shares and all
other voting securities which the independent and disinterested
directors of the Company determine to be fair to and otherwise in
the best interests of the Company and its shareholders) or (ii)
any person is determined to be an Adverse Person (either (i) or
(ii) being a "Flip-in Event"), each holder of a right (with the
exception of an Adverse or Acquiring Person) will thereafter have
the right to receive, upon exercise, Shares having a value equal
to no less than two times the exercise price of the right.
Rights are not exercisable following the occurrence of a Flip-in
Event until such time as the rights are no longer redeemable by
the Company. In the event of certain business combinations
involving the Company, each holder of a right may receive, upon
exercise, common stock of the acquiring company having a value
equal to two times the exercise price of the right.
The Company may redeem each right for $0.001 at any time
before the earliest of (i) the tenth day after a person or group
becomes an Acquiring Person, (ii) the tenth day following the
Board's determination that a person is an Adverse Person or (iii)
March 17, 2007.
The Amended and Restated Bylaws
According to the Schedule 14D-9, the Amended and Restated
Bylaws were adopted "in response to the Offer." The material
bylaw revisions effected by the Amended and Restated Bylaws are:
(i) the establishment of a classified board of directors which
divides the Board into three classes, each of which serves for a
three-year term after an initial transition period (the
"Classified Board Bylaw"); (ii) a provision that no business may
be brought before an annual meeting of shareholders by a
shareholder unless, among other conditions, such shareholder
provides certain advance notice to the Company and complies with
certain other procedures (the "Shareholder Notice Bylaw"); (ii) a
provision that requires a shareholder who desires to nominate
persons for election to the Board to provide advance notice to
the Company and comply with certain other procedures (the
"Director Nomination Bylaw"); and (iv) a provision that requires
a supermajority (80%) vote of directors to fill any vacancy on
the Board (the "Supermajority Bylaw"). The Amended and Restated
Bylaws also authorize the Company to appoint an inspector of
elections and an inspector of written consents, for the purpose
of determining the validity and effect of proxies, consents and
revocations and counting and tabulating all votes, consents,
waivers and releases. Reference is made to the Form 8-A for a
more complete description of the Amended and Restated Bylaws, a
copy of which has been filed by the Company as an exhibit to the
Form 8-A.
BISCO'S NEGOTIATIONS WITH MANAGEMENT
After the Board finally responded to the Offer on March 19,
1997, Glen F. Ceiley, Bisco's President and sole shareholder,
held several discussions with Lewis E. Christman, Jr. and Edward
B. Alexander, the Company's President and Chief Executive Officer
and its Chief Financial Officer, respectively, and the Company's
counsel. Bisco's purpose in engaging in these discussions was to
attempt to negotiate a "standstill" or similar agreement that
would permit Bisco to acquire Shares pursuant to the Offer free
from the restrictions of the Control Share Act and the defensive
anti-takeover measures adopted by the Board.
In a March 25, 1997 telephone conference, the Company's
counsel informed Mr. Ceiley that although the Board believed it
had put in place sufficient measures to "thwart" the Offer,
management was willing to engage in discussions with Bisco
because it was concerned about the cost and uncertainties should
Bisco proceed with the Offer despite these measures. Messrs.
Christman and Alexander and the Company's counsel then asked Mr.
Ceiley numerous questions concerning his intentions in acquiring
Shares. As he had previously responded when asked the same
questions at the Board's February 11, 1997 meeting, and as
disclosed in the Offer, Mr. Ceiley responded that he had been
acquiring Shares because he felt that the Shares were a good
investment, and that he was interested in acquiring additional
Shares and playing a more active role in the management of the
Company. Mr. Ceiley assured management that he had formulated no
plans or proposals for the Company, including for any merger,
sale of assets or other business combination transaction
involving the Company, or any change in the Company's management.
Mr. Ceiley affirmed, however, that he did intend, as indicated in
the Offer, to review various possible business strategies for the
Company, which might include, assets sales or other changes in
the Company's business, corporate structure, capitalization,
operation or management. Mr. Ceiley also confirmed his
disclosures in the Offer that Bisco has no present intention to
seek to acquire the entire equity interest in the Company or to
consummate a merger or other business combination transaction
between the Company and Bisco or any of its affiliates.
During the same telephone conference, the Company's counsel
asked Mr. Ceiley, in effect, "what it would take to convince him
to go away." Mr. Ceiley did not directly respond to this
inquiry, as he took the question to suggest that Bisco might be
willing to accept "greenmail" or other consideration to withdraw
the Offer. Mr. Ceiley and Bisco's counsel instead reiterated
that it was Bisco's desire to acquire a more significant equity
interest in the Company, obtain Board representation commensurate
with its increased equity interest and explore strategies to
maximize shareholder value. Mr. Ceiley and management agreed to
explore possible terms of an agreement that might allow Bisco to
increase its stake in the Company and obtain Board representation
in a manner that would be acceptable to the Board. The Company's
counsel suggested that one element of such an agreement that
might be attractive to the Board would be for Bisco to agree to
"vote with the Board" on matters submitted to the shareholders.
The next telephone conference between Bisco and management
took place on March 26, 1997. The Company's counsel presented a
preliminary management proposal whereby the Company would issue
to Bisco warrants to purchase a number of Shares that, together
with its current ownership, would result in Bisco owning 20% of
the outstanding Shares, and the Board would appoint a Bisco
representative as a director. In exchange, Bisco would withdraw
the Offer, enter into a three-year "standstill" agreement with
the Company and agree to vote with the majority of the Board on
any business combination transaction. The Company's counsel
indicated that the proposal had not yet been considered by the
Board and, therefore, the precise terms and conditions of the
warrants and the "standstill" agreement would have to be the
subject of further discussion and agreement. Since Bisco had not
previously considered purchasing Shares directly from the
Company, neither Mr. Ceiley nor Bisco's counsel responded
directly to management's preliminary proposal. However, Mr.
Ceiley indicated a willingness to entertain the proposal, subject
to a significantly shorter "standstill" agreement. Bisco's
counsel suggested that Bisco would agree to any reasonable
restrictions on its ability to vote its Shares or influence
control over the Board or the Company, but would insist that any
"standstill agreement include the Board "opting out" of the
Control Share Act for purposes of the Offer and rescinding the
Poison Pill.
Management indicated that the Board continued to be
concerned about Bisco's intentions and plans for the Company,
particularly in light of a rumor Mr. Alexander had heard, to the
effect that Mr. Ceiley had a new management team lined up to
replace current management. Mr. Ceiley assured Messrs. Christman
and Alexander that he had no desire to run the Company himself
and that he had taken no actions, including identifying
replacements for management, with respect to the Company other
than those that had been disclosed in the Offer.
On April 2, 1997, Bisco and management held another
telephone conference. The Company's counsel stated that the
Board was comfortable with Bisco owning up to 20% of the
outstanding Shares, but would prefer that Bisco acquire such
shares by investing in the Company through the issuance of a
warrant at current Share price levels, rather than through the
Offer. The parties discussed the possible terms of "standstill"
agreement, including the length of the period Bisco would be
restricted from taking certain types of actions, the types of
restrictions that Bisco would agree to abide by during the
restriction period. Mr. Ceiley understood from these
conversations that management had agreed in principal that Bisco
would be free following the end of any restriction period to
acquire additional Shares with full voting and other rights. As
such, Mr. Ceiley perceived that he and management were in
agreement on all significant terms of a "standstill" agreement.
The Company's counsel invited Bisco to send a written document
incorporating the terms discussed during the telephone
conference.
Bisco delivered to the Company that same afternoon a written
summary of a proposed standstill agreement, the material terms of
which were as follows:
The Company would issue to Bisco five-year warrants (the
"Warrants") to purchase 20% of the Shares (on a fully
diluted basis), at an exercise price equal to the average
of the closing prices for the Shares during the ten
trading days prior to issuance. The Warrants would not be
exercisable for 15 months (the "Restriction Period"),
unless the Board or a shareholder not affiliated with
Bisco (an "Independent Shareholder") submitted a proposal
for consideration by the shareholders.
Bisco would withdraw the Offer, limit its further purchase
of Shares during the Restriction Period to open market or
privately negotiated purchases and limit its Share
ownership during the Restriction Period to no more than
25% (including the Warrants) of the Shares (on a fully
diluted basis).
Designees of Bisco would be appointed to constitute at
least 20% of the entire Board.
The Board would "opt out" of the Control Share Act with
respect to Shares acquired by Bisco or its affiliates,
whether pursuant to the Warrants or otherwise.
Bisco would withdraw its shareholder proposal to adopt a
bylaws amendment making the Control Share Act inapplicable
to the Shares generally, and would agree that, during the
Restriction Period, it would not (A) commence a tender
offer for Shares, (ii) engage in any "affiliated
transactions" with the Company, (iii) commence any proxy
or consent solicitation, except if in response to a
proposal by the Board or an Independent Shareholder, or
(iv) introduce proposals for inclusion in the Company's
proxy materials for the 1997 and 1998 annual meetings.
The Board would take immediate action to remove or rescind
the recently adopted anti-takeover measures (including, if
necessary, to redeem any rights issued pursuant to the
Poison Pill Agreement), and would agree not to adopt or
propose for adoption by the shareholders other anti-
takeover measures (including articles or bylaws
amendments, change in control agreements with officers,
directors or third parties). The Company would also agree
not to adopt new management compensation plans or benefits
(including change in control agreements) during the
Restriction Period.
On April 4, 1997, the Company's counsel notified Bisco's
counsel that the Board had unanimously rejected Bisco's proposal.
In particular, the Company's counsel indicated that the Board was
unwilling to allow Bisco to acquire more than 20% of the
outstanding Shares and would not agree to "opt out" of the
Control Share Act with respect to Bisco's acquisitions of Shares
or rescind the various anti-takeover measure it had recently
adopted. The Company's counsel also indicated that the Board did
not believe that a significant number of shareholders would
tender their Shares in the Offer or support Bisco in its proposed
consent solicitation.
MANAGEMENT NOT ONLY WANTS TO RESTRICT BISCO'S SHARE OWNERSHIP
TODAY BUT ALSO WANTS BISCO TO NEGOTIATE WITH THE BOARD AGAIN IN
SEVERAL YEARS IF IT WANTS TO ACQUIRE ADDITIONAL SHARES.
At 5:00 p.m., New York City time, on April 4, 1997, the
original expiration date of the Offer, 1,048,466 Shares had been
tendered pursuant to the Offer. On April 7, 1997, Bisco issued a
press release announcing that it had extended the expiration date
of the Offer until 5:00 p.m., New York City time, on April 11,
1997. Following that announcement, Mr. Ceiley called Mr.
Christman to inform him that Bisco intended to proceed with the
Offer, and to solicit consents from the shareholders to amend the
Company's bylaws to "opt out" of the Control Share Act. Messrs.
Ceiley and Alexander agreed to maintain an open dialogue between
them and to continue to seek common grounds for a settlement
agreement.
On April 8, 1997, Mr. Ceiley informed Mr. Christman that
Bisco would be willing to address the Board's concern by limiting
Bisco's Share ownership over the next fifteen months to 20% and
its ability to vote its Shares during that period. Mr. Ceiley
also suggested that he continued to be willing to have other
reasonable restrictions imposed on Bisco's Share ownership during
that period, but that he felt that Bisco should be free of all
restrictions, including the Control Share Act and the Poison
Pill, at the end of any restriction period. Mr. Christman
informed Mr. Ceiley on April 9, 1997 that the Board was not
prepared to exempt Bisco from the operation of the Poison Pill
and had unanimously rejected Bisco's settlement offer.
BISCO BELIEVES THAT MANAGEMENT AND THE BOARD HAVE FAILED TO
NEGOTIATE IN GOOD FAITH. DESPITE BISCO'S WILLINGNESS TO MEET
MANAGEMENT'S CONCERNS OVER THE LEVEL OF BISCO'S SHARE OWNERSHIP
AND DESPITE BISCO'S WILLINGNESS TO ENTER INTO REASONABLE
RESTRICTIONS ON ITS SHARE OWNERSHIP, THE BOARD REFUSES TO ALLOW
BISCO TO ACQUIRE SHARES OR EXERCISE ITS SHAREHOLDER RIGHTS.
As of the close of business on April 11, 1997, 2,048,310
Shares had been tendered pursuant to the Offer. On April 14,
1997, Bisco issued a press release announcing that it had
extended the expiration date of the Offer until 5:00 p.m., New
York City time, on May 9, 1997.
REASON FOR THE SOLICITATION
Bisco is soliciting consents to adopt the Proposals so that
it may consummate the Offer, but also so that if any other
substantial offer is made to acquire Shares, the shareholders
will have the ultimate decision on whether to accept the offer,
not the Board. The Board's recent actions have limited your
options as a shareholder and have done nothing to enhance
shareholder value.
BISCO URGES ALL SHAREHOLDERS TO AFFIRM THEIR RIGHT TO DECIDE THE
COMPANY'S FATE BY CONSENTING TO EACH OF BISCO'S PROPOSALS.
Bisco believes that the Board's recent actions are a "knee
jerk" response to the Offer, do not consider or further the
interests of the shareholders and have been adopted solely to
create impediments to the Offer. The Poison Pill was
unilaterally adopted by the Board and effectively prevents the
acquisition of more than 10% of the outstanding Shares without
the approval of the Board. According to the Company's March 19,
1997 press release, the Poison Pill was designed "to deter
coercive and unfair takeover tactics (emphasis added)."
Similarly, the Schedule 14D-9 describes the Board's purpose for
adopting the Amended and Restated Bylaws as being "to help
protect the Company and its shareholders from coercive tactics
proposed by [Bisco] or other persons seeking to exert control
over the Company (emphasis added)."
BISCO HAS NOT ENGAGED IN ANY "COERCIVE" OR "UNFAIR" TACTICS. YOU
ARE NOT BEING FORCED TO DO ANYTHING BY BISCO. BISCO'S OFFER IS
OPEN TO ANY SHAREHOLDER WHO VOLUNTARILY DESIRES TO SELL THEIR
SHARES.
Bisco believes anti-takeover defenses like "poison pills,"
the Control Share Act and classified boards reduce shareholder
value over the long run by entrenching management and by reducing
the probability that someone, like Bisco, will make a bid for
Shares at a price above market value. Bisco further believes
that when an offer is made to acquire Shares, the shareholders
should have the final word on whether the offer is accepted, not
the Board. Absent a "poison pill," a bidder such as Bisco could
make an offer to all shareholders to buy their Shares at a fixed
price above the market value without prior approval of the Board.
Shareholders have the option to accept the offer and tender their
Shares or reject the offer if they believe the premium offered is
insufficient. With a "poison pill" in place, a bidder must de
facto receive Board approval prior to making an offer to
shareholders. Absent that approval, the Board can declare the
bidder unfriendly and trigger the "poison pill."
Bisco believes that it is the shareholders (who are the true
owners of the Company) who should have the right to decide what
is or is not a fair price for their Shares and whether to accept
or reject an offer for their Shares, not the directors (who
merely act as agents for the owners). The Board's recently
adopted anti-takeover measures and its actions in response to the
Offer have taken these decisions away from the shareholders.
Moreover, the Board's recent actions, including adoption of a
"poison pill" and its refusal to "opt out" of the Control Share
Act, enable the Board to block a shareholder such as Bisco from
offering to acquire additional Shares even if a substantial
number of shareholders desire to accept such an offer. Bisco
believes that the Board's recent actions are clear evidence of
the Board's desire to entrench itself to the detriment of all
shareholders. Bisco urges all shareholders to consent to the
Proposals, which will allow the shareholders to decide for
themselves whether the Offer is in their best interests.
Bisco also believes that all public company shareholders,
including the Company's shareholders, should have equal voting
rights, regardless of the number of shares owned. The Control
Share Act decreases the attractiveness of the Shares in the
public market and may limit the ability of a shareholder to
receive a premium for his Shares. Although the Board and the
Company's disinterested shareholders could grant voting rights
for Shares otherwise subject to voting restrictions under the
Control Share Act, no significant investor is likely to offer to
purchase Shares or offer a premium for the Shares unless it is
certain to be able to exercise full voting rights. The Control
Share Act therefore makes it likely that the shareholders will
never have the opportunity to sell their Shares to an investor,
such as Bisco, who is willing to purchase a significant number of
Shares at a premium over the recent historical market prices for
the Shares, unless management decides they don't want the
investor as a significant shareholder.
DON'T LET MANAGEMENT LIMIT YOUR OPTIONS AS A SHAREHOLDER.
EXECUTE A GOLD CONSENT FORM TODAY AND CONSENT TO EACH OF THE
PROPOSALS.
WHAT IS MANAGEMENT'S TELLING THE SHAREHOLDERS?
Bisco believes that your Company's management is sending you
a message that management is more concerned with maintaining the
status quo than exploring alternatives to maximize the value of
your Shares. Through innuendo and scare tactics, management is
trying to paint Bisco as a corporate raider that will destroy
your company to make a quick profit. In fact, quite the opposite
is true.
BISCO IS A SIGNIFICANT SHAREHOLDER WHOSE INTERESTS ARE THE
SAME AS YOURS. Management says that Bisco's increased
ownership could hurt the Company because it might lose its
franchise or be required to prepay debts. Why would Bisco
do that? Bisco wants to work with, not against,
management to maximize shareholder value. Bisco intends
to remain a shareholder and only wants to help management
explore strategies to increase shareholder value.
BISCO'S FINANCES ARE NOT AN ISSUE. Management suggests
that Bisco "would not be in a position to provide
substantial financial resources to the Company or to
purchase substantially more Shares upon completion of the
Offer." Who said Bisco was planning to do that? Bisco is
not proposing to lend money to the Company or to acquire
the remaining Shares.
CAN BISCO RUN YOUR COMPANY? Management is concerned
because Bisco's executives have no restaurant experience.
They're right, but what's the point? Bisco has never said
that it intends to run your company or replace management
with its own personnel. What it has said is that it wants
to work with existing management to increase shareholder
value.
IS BISCO REALLY GOING TO FIRE 1,400 EMPLOYEES? Management
has stooped to employing "scare tactics" by suggesting
that the Company's 1,400 restaurant employees will lose
their jobs if Bisco "proceeds with plans to dispose of
restaurant operations." Who said Bisco was going to do
that? Selling restaurants is one of several possible
strategies to maximize shareholder value, but Bisco hasn't
decided yet that its the right one. Even if the Company's
restaurants are sold, wouldn't the buyer be likely to hire
the Company's restaurant employees?
DOES MANAGEMENT REALLY CARE ABOUT YOU? Management
suggests that there may be a more favorable transactions
available to the shareholders or that management can
negotiate a higher price. How come management hasn't
presented you any alternatives? It's simple: they don't
have any nor do they intend to seek any. If management
was really concerned about getting the best deal for you,
wouldn't they have at least attempted to negotiate a
higher price from Bisco?
IS MANAGEMENT WILLING TO DESTROY EARNINGS TO RESIST THE
OFFER? Management already has spent over $50,000 of your
money for an investment banker and proxy solicitor to
defend against the Offer, and must be spending at least
that much in legal fees and other costs. The Company's
earnings before income taxes and extraordinary item were
only $267,000 last year. How long is it going to take for
management to waste last year's profits? Shouldn't
management let you keep your money and welcome the
opportunity to explore ways to make more for all of us?
BISCO URGES YOU TO EXECUTE A GOLD CONSENT FORM AND CONSENT TO
EACH OF THE PROPOSALS, WHETHER OR NOT YOU INTEND TO TENDER YOUR
SHARES.
THE BYLAWS REPEAL PROPOSAL
EFFECT OF THE BYLAWS REPEAL PROPOSAL
The Bylaws Repeal Proposal repeals the recently adopted
Amended and Restated Bylaws. In addition, the Bylaws Repeal
Proposal addresses the possibility that the Board may have
adopted and not publicly disclosed other bylaws, or might attempt
to adopt other bylaws, or amend the bylaws, during the pendency
of this solicitation. The Bylaws Repeal Proposal prevents the
Board from further amending the bylaws, whether to nullify or
delay the actions taken by the shareholders pursuant to the
Proposals or to create new obstacles to the Offer. Upon repeal
of the Amended and Restated Bylaws, the bylaws which were adopted
by the Board on November 27, 1985 (the "Prior Bylaws"), will be
reinstated as the Company's bylaws, subject to the other bylaw
amendments proposed in this Consent Statement and any other
bylaws adopted by a majority of the shareholders.
THE AMENDED AND RESTATED BYLAWS. The Bylaws Repeal Proposal
will eliminate all of the revisions to the bylaws that were
effected by the Board's adoption of the Amended and Restated
Bylaws, including the Classified Board Bylaw, the Shareholder
Notice Bylaw, the Director Nomination Bylaw and the Supermajority
Bylaw. None of these provisions were a part of the Company's
bylaws prior to adoption of the Amended and Restated Bylaws in
response to the Offer.
OTHER BYLAW AMENDMENTS. The Bylaws Repeal Proposal also
repeals any other bylaw or amendment to the bylaws adopted by the
Board subsequent to November 27, 1985 and prior to the
effectiveness of the Proposals. Prior to the Company's March 19,
1997 disclosure that the Board had adopted Amended and Restated
Bylaws, the only publicly disclosed bylaws of the Company were
the Prior Bylaws. The Prior Bylaws were filed with the Company's
1985 Form S-1 Registration Statement and have been incorporated
by reference into Company filings since that time, including the
Annual Report on Form 10-K for the fiscal year ended January 3,
1996, which was filed on March 28, 1996. Bisco assumes,
therefore, that the Prior Bylaws were the only bylaws in effect
immediately prior to the adoption of the Amended and Restated
Bylaws. Bisco is not aware of the Board's adoption or amendment
after November 27, 1985 of any bylaws other than the Amended and
Restated Bylaws. If Bisco becomes aware that the Board has
adopted new bylaws or amended the Company's bylaws following the
date of this Consent Statement, Bisco will distribute to the
extent necessary under applicable law additional materials
describing any material bylaw provisions or amendments that would
be affected by the Bylaw Repeal Proposal.
HELP GET RID OF BYLAWS THAT COULD PREVENT YOU FROM EXERCISING
YOUR SHAREHOLDER RIGHTS BY CONSENTING TO THE BYLAWS REPEAL
PROPOSAL.
TEXT OF THE BYLAWS REPEAL RESOLUTION
Shareholders who consent to the Bylaws Repeal Proposal will
be consenting to the adoption of the following resolution:
"RESOLVED, that the Amended and Restated Bylaws
recently adopted by the Board of Directors, and each
other provision of the bylaws or amendments to bylaws
adopted by the Board of Directors without shareholder
approval subsequent to November 27, 1985 and prior to the
effectiveness of the actions proposed in the Consent
Solicitation Statement of Bisco Industries, Inc. dated
April ___, 1997, be, and they hereby are, repealed,
effective at the time this resolution is approved by
the holders of a majority of the outstanding Common
Stock. It is the intention of this resolution that the
bylaws adopted by the Board of Directors on November 27,
1985 shall become the bylaws of this corporation, subject
to any amendments approved by the shareholders."
CONSENTS REQUIRED TO ADOPT THE BYLAWS REPEAL PROPOSAL
To be adopted, the Bylaws Repeal Proposal requires the
approval of the holders on the Record Date of a majority of the
outstanding Shares. See "General Information About Solicitation
Of Consents-Required Consents." BISCO URGES YOU TO CONSENT TO
THE BYLAWS REPEAL PROPOSAL BY SIGNING, DATING AND RETURNING THE
ACCOMPANYING GOLD CONSENT FORM TODAY.
THE CONTROL SHARE PROPOSAL
THE CONTROL SHARE ACT
Pursuant to the Control Share Act, an "acquiring person" who
makes a "control share acquisition" of shares of an "issuing
public corporation" may not exercise voting rights for any
"control shares" unless such voting rights are conferred by the
issuing public corporation's board of directors or by the
affirmative vote of a majority of the issuing public
corporation's disinterested shareholders at a meeting of such
shareholders. If control shares are accorded full voting rights
and the acquiring person has acquired control shares with a
majority or more of all voting power, shareholders (other than
the acquiring person) who do not vote in favor of authorizing
voting rights for the control shares are entitled to exercise
dissenters' rights and demand payment of the fair value of their
shares.
A "control share acquisition" is the acquisition, directly
or indirectly, by any person of ownership of, or the power to
direct the exercise of voting power with respect to, issued and
outstanding control shares. "Control shares" are shares that,
except for the Control Share Act, would have voting power with
respect to shares of an issuing public corporation that, when
added to all other shares of the issuing public corporation owned
by a person or in respect to which that person may exercise or
direct the exercise of voting power, would entitle that person,
immediately after acquisition of the shares, directly or
indirectly, to exercise or direct the exercise of the voting
power of the issuing public corporation in the election of
directors within any of the following ranges of voting power: (i)
one-fifth or more but less than one-third of all voting power,
(ii) one-third or more but less than a majority of all voting
power, and (iii) a majority or more of all voting power. All
shares, the beneficial ownership of which is acquired within 90
days before or after the date of the acquisition of beneficial
ownership of shares which result in a control share acquisition,
and all shares the beneficial ownership of which is acquired
pursuant to a plan to make a control share acquisition, are
deemed to have been acquired in the same acquisition. An
"issuing public corporation" means a corporation that has (i) 100
or more shareholders, (ii) its principal place of business,
principal office or substantial assets in Florida and (iii)
either (a) more than 10% of its shareholders resident in Florida,
(b) more than 10% of its shares owned by residents of Florida or
(c) 1,000 shareholders resident in Florida.
The above provisions do not apply to a control share
acquisition of shares of a corporation whose articles of
incorporation or bylaws in effect before such control share
acquisition provide that the Control Share Act does not apply to
control share acquisitions of its shares. Neither the Company's
Articles of Incorporation nor its bylaws exclude the Company from
the restrictions imposed by the Control Share Act. If the
Control Share Proposal is adopted, the Control Share Act will no
longer apply to control share acquisitions of the Shares.
EFFECT OF THE CONTROL SHARE PROPOSAL
The Control Share Proposal adopts a bylaw to "opt out" of
the Control Share Act, so that all shareholders have the right to
vote their Shares, regardless of the number of Shares they own or
how such Shares were acquired. To the extent that an investor,
such as Bisco, is willing to purchase a significant number of
Shares at a premium over market prices, the Control Share
Proposal will enable those shareholders who desire to do so to
take advantage of the opportunity to sell their Shares without
requiring Board approval of the offer.
DEMAND THAT THE BOARD ALLOW EVERY SHAREHOLDER EQUAL RIGHTS TO
VOTE THEIR SHARES BY CONSENTING TO THE CONTROL SHARE PROPOSAL.
Text of the Control Share Proposal
The Control Share Proposal will amend the Company's bylaws
by adding the following bylaw provision:
"CONTROL SHARE ACT. The provisions of Section
607.0902 of the Florida Business Corporation Act
shall not apply to control share acquisitions of
shares of this corporation."
CONSENTS REQUIRED TO ADOPT THE CONTROL SHARE PROPOSAL
To be adopted, the Control Share Proposal requires the
approval of the holders on the Record Date of a majority of the
outstanding Shares. See "General Information About Solicitation
Of Consents-Required Consents." BISCO URGES YOU TO CONSENT TO
THE CONTROL SHARE PROPOSAL BY SIGNING, DATING AND RETURNING THE
ACCOMPANYING GOLD CONSENT FORM TODAY.
THE PROPOSAL TO REVOKE POISON PILL
EFFECT OF THE PROPOSAL
The Proposal to Revoke Poison Pill adopts a new bylaw that
requires the Board to redeem the rights distributed pursuant to
the recently adopted Poison Pill, and any other similar rights
(if any) granted by the Company prior to the date of adoption of
the proposal. Bisco believes that the shareholders should have
the ultimate decision on whether to accept the Offer or any
future offer to acquire Shares. The Board should not have the
power to take this decision away from the shareholders.
DEMAND THAT THE BOARD ALLOW YOU TO DECIDE WHAT TO DO WITH YOUR
SHARES BY CONSENTING TO THE PROPOSAL TO REVOKE POISON PILL.
The new bylaw also requires the Board to obtain shareholder
approval to adopt or maintain future "poison pills," shareholder
rights plans, rights agreements or other plans, agreements,
bylaws or provisions that are designed to or have the effect of
making acquisitions of Shares more difficult or expensive. If
the Board proposes to adopt or continue any "poison pill" or
similar defensive measure and a majority of the shareholders
consider the measure to be appropriate and in their best
interests, the Board will be able to win shareholder approval to
adopt or continue the plan or other defensive measure. If, on
the other hand, the Board fails to obtain shareholder approval
for a "poison pill" or similar defensive measure, the
shareholders' failure to grant such approval would be evidence of
their belief that such defensive measure was inappropriate or
disadvantageous to them and therefore not in the shareholders'
best interests. The new bylaw would not affect the ability of
the Board or the shareholders to approve or disapprove of a
proposed merger, sale of assets or other business combination
transaction involving the Company.
Bisco believes that Section 607.0206 of the FBCA authorizes
the enactment of the Proposal to Revoke Poison Pill. Section
607.0206 states that "[t]he bylaws of a corporation may contain
any provision for managing the business or regulating the affairs
of the corporation that is not inconsistent with law or the
articles of incorporation." Bisco is not aware of any provision
of law or the Company's Articles of Incorporation that bar the
shareholders from adopting the Proposal to Revoke Poison Pill.
Bisco believes that Section 607.0206 is a broad grant of
authority for shareholders to adopt bylaws relating to the powers
of directors and officers, and that it is inherent in the Florida
scheme of corporate law that the shareholders can exercise
ultimate authority over the actions of the board of directors and
management. Bisco further believes that while the Board is
entitled to exercise its judgment in responding to a tender offer
or other takeover bid, its judgment must be exercised within the
framework of statutes, charter provisions and bylaws which in
certain instances can limit the actions that directors may take
even when the directors believe that their chosen course of
action is in the best interests of stockholders.
SEND THE BOARD A CLEAR MESSAGE THAT YOU DON'T WANT MANAGEMENT TO
"PROTECT" YOU FROM INVESTORS INTERESTED IN ACQUIRING YOUR SHARES
BY CONSENTING TO THE PROPOSAL TO REVOKE POISON PILL.
TEXT OF THE PROPOSAL TO REVOKE POISON PILL
Shareholders who consent to the Proposal to Revoke Poison
Pill will be consenting to the adoption of the following
resolutions:
WHEREAS, the shareholders believe that the
Shareholder Rights Plan unilaterally adopted by the
Board of Directors is not in the best interests of
the Company and, accordingly, want the Board of
Directors to immediately redeem the rights issued
pursuant to such plan and to restrict the Company
from adopting or maintaining in the future a
"poison pill," shareholder rights plan, rights
agreement or any other plan, agreement, bylaw or
other provision that is designed to or has the
effect of making acquisition of the Company's shares
more difficult or expensive unless such plan,
agreement, bylaw or provision has first been approved
by the holders of a majority of the outstanding
common stock; now, therefore, be it
"RESOLVED, that the shareholders want the Board
of Directors to redeem the recently adopted
"poison pill" and also want to prevent the Board of
Directors from adopting new "poison pills" in
the future, and, in furtherance of the foregoing,
hereby amend the Company's bylaws to add
thefollowing provision:
'POISON PILLS. This corporation shall not adopt or
maintain a "poison pill," shareholder rights plan,
rights agreement or any other plan, agreement, bylaw
or other provision that is designed to or has the
effect of making acquisition of large holdings
of the corporation's common stock more difficult
or expensive (including, without limitation the
"poison pill" evidenced by the March 18, 1997 Rights
Agreement (the "Rights Agreement") between the
corporation and ChaseMellon Shareholder Services,
Inc.), unless such plan, agreement, bylaw or other
provision is first approved by the holders of a
majority of the corporation's outstanding common
stock. The corporation shall redeem any such
rights (including, without limitation, rights issued
under the Rights Agreement) in effect as of the
date of adoption of this bylaw. This section
shall be effective immediately and automatically as
of the date it is approved by the shareholders.'"
CONSENTS REQUIRED TO ADOPT THE PROPOSAL TO REVOKE POISON PILL
To be adopted, the Proposal to Revoke Poison Pill requires
the approval of the holders on the Record Date of a majority of
the outstanding Shares. See "General Information About
Solicitation Of Consents-Required Consents." BISCO URGES YOU TO
CONSENT TO THE PROPOSAL TO REVOKE POISON PILL BY SIGNING, DATING
AND RETURNING THE ACCOMPANYING GOLD CONSENT FORM TODAY.
THE FURTHER BYLAWS PROPOSAL
EFFECT OF THE FURTHER BYLAWS PROPOSAL
The purpose of the Further Bylaws Proposal is to prevent the
Board from subsequently adopting new bylaws, or amending any of
the Company's bylaws (including the bylaw amendments adopted
pursuant to this Consent Statement), unless the new bylaws or
amendment has received the approval of the holders of a majority
of the Shares. The Further Bylaws Proposal would ensure that the
Board cannot circumvent the will of the shareholders by
subsequently adopting new bylaws or amending any of the bylaw
amendments adopted by the shareholders pursuant to the Consents.
SHOW THE BOARD THAT YOU WANT THE RIGHT TO DECIDE HOW TO RUN YOUR
COMPANY BY CONSENTING TO THE FURTHER BYLAWS PROPOSAL.
TEXT OF THE FURTHER BYLAWS PROPOSAL
The Further Bylaws Proposal will amend the Company's bylaws
by adding the following bylaw provision:
"AMENDMENT OF BYLAWS. The bylaws of this
corporation may only be amended or repealed by the
shareholders and shall not be subject to amendment
or repeal by the Board of Directors."
CONSENTS REQUIRED TO ADOPT THE FURTHER BYLAWS PROPOSAL
To be adopted, the Further Bylaws Proposal requires the
approval of the holders on the Record Date of a majority of the
outstanding Shares. See "General Information About Solicitation
Of Consents-Required Consents." BISCO URGES YOU TO CONSENT TO
THE FURTHER BYLAWS PROPOSAL BY SIGNING, DATING AND RETURNING THE
ACCOMPANYING GOLD CONSENT FORM TODAY.
VOTING SECURITIES OUTSTANDING
GENERAL
According to the Company's Annual Report on Form 10-K for
the Fiscal Year Ended January 1, 1997, (the "1997 10-K"), as of
March 7, 1997 there were 10,954,960 Shares outstanding. Each
Share entitles its record holder to one vote. The consent of the
holders of a majority of the outstanding Shares is necessary to
adopt each of the Proposals. See "General Information About
Solicitation Of Consents-Required Consents."
PRINCIPAL SHAREHOLDERS OF THE COMPANY AND SHAREHOLDINGS OF THE
COMPANY'S MANAGEMENT
Set forth below is information regarding Shares owned by (i)
those persons owning more than 5% of the outstanding Shares and
(ii) directors and executive officers of the Company as a group.
Such information has been derived from preliminary proxy material
filed by the Company in response to this Consent Statement and
other filings, as described in the footnotes below.
[CAPTION]
<TABLE>
<S> <C> <C>
Name and Address of Number of Percentage of
Beneficial Owner Shares Owned Common Stock(1)
Heartland Advisors, Inc.(2) 900,000 8.2%
709 North Milwaukee Street
Milwaukee, WI 53202
Glen F. Ceiley (3) 739,790 6.9%
c/o Bisco Industries, Inc.
704 W. Southern Avenue
Orange, California 92665
Cerberus Partners, L.P. 700,000 6.0%
950 Third Ave., 20th Floor
New York, New York 10022
All directors and executive
officers as a group
(6 persons) (4) 458,891 4.1%
</TABLE>
_______________
(1) Assumes that 10,954,960 Shares are outstanding. See
"-General," above.
(2) Heartland Advisors, Inc., a registered investment adviser,
has reported in a Schedule 13G dated February 12, 1997 and
filed with the Commission that it has sole voting and
dispositive power with respect to all such Shares.
(3) As of April 10, 1997. See "-Voting Securities Beneficially
Owned By Bisco and its Affiliates," below. Does not include
15,000 Shares owned by Stephen Catanzaro, an executive
officer of Bisco.
(4) As of March 15, 1997. According to the Company's
preliminary proxy materials, the Company's directors and
executive officers collectively own only 196,641 of the
Shares reported as being beneficially owned by them
(representing 1.8% of the outstanding Shares). The balance
of the Shares reported as being beneficially owned by the
directors and executive officers are Shares subject to
options exercisable within 60 days after March 15, 1997..
VOTING SECURITIES BENEFICIALLY OWNED BY BISCO AND ITS AFFILIATES
As of April 10, 1997, Bisco owned 126,300 Shares. In
addition, as of April 10, 1997, (i) Glen F. Ceiley, the President
and sole stockholder of Bisco, owned 95,300 Shares, (ii) the
Bisco Industries, Inc. Profit Sharing and Savings Plan (the
"Bisco Plan") owned 518,190 Shares, and (iii) Stephen Catanzaro,
an executive officer of Bisco, owned 15,000 Shares. Mr. Ceiley,
as the sole stockholder of Bisco and as sole trustee of the Bisco
Plan, may be deemed to be the beneficial owner of the Shares held
by Bisco and the Bisco Plan. In the aggregate, the 754,790
Shares owned by Bisco, Messrs. Ceiley and Catanzaro and the Bisco
Plan represent approximately 6.9% of the 10,954,960 Shares
outstanding as of March 7, 1997, as reported in the 1997 10-K.
GENERAL INFORMATION ABOUT SOLICITATION OF CONSENTS
GENERAL
This Consent Statement is not a solicitation of proxies to
vote with respect to any matter. By executing and delivering a
Consent, a shareholder is exercising such shareholder's own
voting power and is not authorizing any other person to vote, or
to exercise the power to vote, with respect to any matter.
CONSENT PROCEDURE
Section 607.0704 of the FBCA states that, unless otherwise
provided in the articles of incorporation, action required or
permitted by the FBCA to be taken at an annual or special meeting
of shareholders, may be taken without a meeting, without prior
notice and without a vote if the action is taken by the holders
of outstanding stock of each voting group entitled to vote
thereon having not less than the minimum number of votes with
respect to each voting group that would be necessary to
authorized or take such action at a meeting at which all voting
groups and shares entitled to vote thereon were present and
voted. In order to be effective the action must be evidenced by
one or more written consents describing the action taken, dated
and signed by approving shareholders have the requisite number of
votes of each voting group entitled to vote thereon, and
delivered to the corporation by delivery to its principal office
in Florida, its principal place of business, the corporate
secretary, or another officer or agent of the corporation having
custody of the book in which proceedings of meetings of
shareholders are recorded.
Neither the Company's Articles of Incorporation nor the
Amended and Restated Bylaws prohibits the use of written consents
by the holders of the Shares.
RECORD DATE
Pursuant to Section 607.0707 of the FBCA, if not otherwise
provided by or pursuant to the bylaws and no prior action is
required by the board of directors pursuant to the FBCA, the
record date for determining shareholders entitled to take action
without a meeting is the date the first signed written consent is
delivered to the corporation as set forth under "Consent
Procedure," above.
Article I, Section 1.2(b) of the Amended and Restated Bylaws
provides that the Board may fix in advance a date as the record
date for any determination of shareholders, and that "if no
record date is fixed for the determination of shareholders
entitled to deliver written consent to a corporate action without
a meeting, when no prior action by the board of Directors is
necessary, the record date shall be the day on which the first
signed written consent is delivered to the Corporation."
The Company has not, as of the date of this Consent
Statement, publicly disclosed that the Board has fixed a record
date for the Consents. Therefore, the Record Date for the
Consents will be April ___, 1997, which is the date on which a
Consent of Bisco will first be delivered to the Company.
REPEAL OF BYLAWS; AMENDMENTS TO BYLAWS
Section 607.1020 of the FCBA provides that a corporation's
shareholders may amend or repeal the corporation's bylaws even
though the bylaws may also be amended or repealed by its board of
directors. The FBCA also permits a corporation's shareholders,
in amending or repealing the bylaws generally or a particular
bylaw provision, to provide expressly that the board of directors
may not amend or repeal the bylaws or that bylaw provision.
CONSENTS REQUIRED; EFFECTIVENESS
The unrevoked signed Consents representing the holders of
record on the Record Date of at least a majority of the
outstanding Shares are necessary to adopt each of the Proposals.
As of the Record Date, Bisco and its affiliates owned 754,790
Shares, representing approximately 6.9% of the outstanding
Shares. See "Voting Securities Outstanding-Voting Securities
Owned by Bisco and its Affiliates." Bisco and its affiliates
have consented to (and in the case of Shares held on their behalf
in brokerage accounts, directed the record holders of such Shares
to consent to) all of the Proposals for which Consents are being
solicited with respect to all such Shares. Accordingly, the
unrevoked Consents of other shareholders holding approximately
43% of the outstanding Shares on the Record Date are required to
adopt the Proposals.
Each of the Proposals will be adopted and become effective
when properly completed, unrevoked Consents are signed by the
holders of record on the Record Date of a majority of the
outstanding Shares and those Consents are presented to the
Company. However, all Consents will expire, unless so presented,
on the date 60 days after the first Consent was delivered to the
Company, which was done on the Record Date. Bisco plans to
present to the Company the results of a successful solicitation
with respect to the Proposals as soon as possible after the
receipt of the requisite number of Consents.
Each Proposal is independently being submitted to the
shareholders for their consent. Accordingly, the adoption of
each of the Proposals is not conditioned upon the adoption of any
other Proposal The invalidity, illegality or unenforceability of
any particular Proposal shall be construed in all respects as if
such invalid, illegal or unenforceable Proposal were omitted from
the Consent without affecting the validity, legality or
enforceability of the remaining Proposals.
If any or all of the Proposals is adopted pursuant to the
above consent procedure, Bisco will request the Company, pursuant
to Section 607.0704(3) of the FBCA to give prompt notice of the
adoption of such Proposal(s) to those shareholders who have not
executed Consents.
SOLICITATIONS OF CONSENTS
Consents will be solicited by mail, telephone or telecopier
and in person. No such persons will receive any additional
compensation for such solicitation. Solicitations may be made by
the directors, officers and other employees of Bisco, none of
whom will receive additional compensation for such solicitations.
Bisco has requested banks, brokerage houses and other custodians,
nominees and fiduciaries to forward all of its solicitation
materials to the beneficial owners of the Shares they hold of
record. Bisco will reimburse these record holders for customary
clerical and mailing expenses incurred by them in forwarding
these materials to their customers.
Bisco has retained Garland Associates, Inc. for solicitation
services in connection with this solicitation of Consents.
Garland Associates, Inc. will solicit Consents from individuals,
brokers, banks, bank nominees and other institutional holders.
Garland Associates, Inc. is also acting as Information Agent in
connection with the Offer. The fees payable by Bisco to Garland
Associates, Inc. for its services in connection with this
solicitation of Consents and for acting as Information Agent in
connection with the Offer will be approximately $15,000. Bisco
has also agreed to reimburse Garland Associates, Inc. for certain
out-of-pocket expenses and to indemnify Garland Associates, Inc.
against certain liabilities and expenses, including liabilities
and expenses under the federal securities laws.
Bisco will bear the entire expense of soliciting Consents.
Costs incidental to the solicitation of Consents will include
printing, postage, legal and related expenses and are expected to
be approximately $20,000.
REVOCATION OF CONSENTS
Pursuant to Section 607.0704 of the FBCA, any written
consent may be revoked at any time prior to the date the
corporation receives the required number of consents to authorize
the proposed action. No revocation is effective unless in
writing and until received by the corporation at its principal
office, or received by the corporate secretary or other officer
or agent of the corporation having custody of the book in which
proceedings of meetings of shareholders are recorded. A
revocation may be in any written form validly signed by the
record holder as long as it clearly states that the consent
previously given is being revoked and no longer effective.
The delivery by a shareholder who has executed a Consent of
a subsequently dated Consent form which is properly completed
will constitute a revocation of any earlier Consent. The
revocation may be delivered either to Bisco c/o Garland
Associates, Inc. at P.O. Box 3355, Grand Central Station, New
York, New York, telephone number (800) 455-6034 (toll free) or
(212) 866-0095 (collect), or to the Company at its principal
executive offices, 2113 Florida Boulevard, Suite A, Neptune
Beach, Florida 32266, telephone number (904) 249-4197. Although
a revocation delivered only to the Company will be effective,
Bisco requests that if a revocation is delivered to the Company,
a photostatic copy of the revocation also be delivered to Bisco
c/o Garland Associates, Inc., so that Bisco will be aware of all
revocations and can more accurately determine if and when the
Proposals have received the approval of a majority of the Shares
outstanding on the Record Date.
SPECIAL INSTRUCTIONS
If you wish to consent the Proposals and were a record
holder of Shares on the Record Date, please mark the "CONSENT"
box next to each Proposal on the accompanying Consent form and
sign, date and mail it promptly to Bisco c/o Garland Associates,
Inc. in the enclosed envelope. If you do not wish to consent to
a particular Proposal you may mark "Consent Withheld" or
"Abstain" box on the accompanying Consent form, and sign, date
and mail the form in the enclosed envelope. The failure to
return a Consent form will have the same effect as a vote against
all of the Proposals.
When a shareholder whose Consent is solicited specifies a
choice with respect to any Proposal, the Consent shall be given
in accordance with the specifications so made. If a shareholder
fails to check a box marked "Consent", "Consent Withheld" or
"Abstain" for any Proposal, such shareholder shall be deemed to
have consented to the actions described in that Proposal.
BISCO URGES YOU TO VOTE FOR ALL OF THE PROPOSALS. YOUR CONSENT
IS IMPORTANT. PLEASE SIGN, DATE AND RETURN YOUR GOLD CONSENT
CARD TODAY.
IMPORTANT
If your Shares are held in the name of a brokerage firm,
bank, nominee or other institution, only it can sign a Consent
with respect to your shares. Accordingly, please contact the
person responsible for your account and give instructions for a
Consent to be signed representing your shares.
IF YOU HAVE ANY QUESTIONS REGARDING THIS CONSENT STATEMENT
OR THE EXECUTION OF YOUR CONSENT, PLEASE CONTACT:
Garland Associates, Inc.
P.O. Box 3355 Grand Central Station
New York, New York 10163
Toll-Free (800) 455-6034 or
Collect (212)866-0095
CONSENT OF SHAREHOLDER OF FAMILY STEAK HOUSES
OF FLORIDA, INC.
TO ACTION WITHOUT A MEETING
THIS CONSENT IS SOLICITED BY BISCO INDUSTRIES, INC.
The undersigned shareholder of Family Steak Houses of
Florida, Inc., a Florida corporation (the "Company"), hereby
acknowledges receipt of Bisco Industries, Inc.'s Consent
Solicitation Statement dated April ___, 1997 (the "Consent
Statement") and, unless otherwise indicated below, consents,
pursuant to Section 607.0704 of the Florida Business Corporation
Act, with respect to all shares of Common Stock, par value $.01
per share, of the Company, held by the undersigned of record on
April ___, 1997, to the following actions (as such actions are
further described in the Consent Statement, which is incorporated
herein by reference), without a meeting, without prior notice and
without a vote:
1.Bylaws Repeal Proposal. To repeal the Company's Amended
and Restated Bylaws and any other amendment to the
Company bylaws adopted without shareholder approval
subsequent to November 27, 1985 and prior to the
effectiveness of the actions proposed to be taken by this
written consent.
/__/ CONSENT /__/ CONSENT WITHHELD /__/ ABSTAIN
2.Control Share Proposal. To amend the Company's bylaws to
provide that Florida's Control Share Act will no longer
apply to control share acquisitions of the Company's
common stock.
/__/ CONSENT /__/ CONSENT WITHHELD /__/ ABSTAIN
3.Proposal to Revoke Poison Pill. To amend the Company's
bylaws to require the Company to redeem the recently
adopted "poison pill" and to require prior shareholder
approval for adoption of any "poison pill" or similar plan,
agreement, bylaw or other provision in the future.
/__/ CONSENT /__/ CONSENT WITHHELD /__/ ABSTAIN
4.Further Bylaws Proposal. To amend the Company's
bylaws to provide that the bylaws shall not be
subject to amendment or repeal by the Board of Directors.
/__/ CONSENT /__/ CONSENT WITHHELD /__/ ABSTAIN
INSTRUCTIONS: To consent, withhold consent or abstain from
consenting to a Proposal, check the appropriate box above. IF
THIS CARD IS RETURNED EXECUTED AND DATED BUT NOT MARKED WITH
RESPECT TO ANY PROPOSAL, THE UNDERSIGNED WILL BE DEEMED TO HAVE
CONSENTED TO SUCH PROPOSAL.
The invalidity, illegality or unenforceability of any
particular provision of this Consent shall be construed in all
respects as if such invalid, illegal or unenforceable provision
were omitted from the Consent without affecting the validity,
legality or enforceability of the remaining provisions hereof.
THE PROPOSALS ARE IN YOUR BEST INTEREST. BISCO INDUSTRIES,
INC. STRONGLY RECOMMENDS THAT YOU CONSENT TO THE FOFOREGOING
PROPOSALS. PLEASE DATE, SIGN AND MAIL THIS CONSENT PROMPTLY,
USING THE ENCLOSED ENVELOPE.
Dated: _________________________, 1997
(Signature)
(Title or authority, if
applicable)
(Signature if held
jointly)
Please sign exactly as name
appears on this Consent. If
shares are registered in more
than one name, the signatures
of all such persons are
required. A corporation
should sign in its full
corporate name by a duly
authorized officer, stating
his/her title. Trustees,
guardians, executors and
administrators should sign in
their official capacity,
giving their full title as
such. If a partnership,
please sign in the partnership
name by authorized person.
This Consent shall vote all
shares to which the signatory
is entitled.
