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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 12)*
PS Group, Inc.
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(Name of Issuer)
Common Stock, par value $1.00 per share
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(Title of Class of Securities)
693624-108
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(CUSIP Number)
Janice V. Sharry, Haynes and Boone, L.L.P.
3100 Nations Bank Plaza, Dallas, TX 75202, (214) 651-5562
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 21, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G 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 / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the filing person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-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).
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SCHEDULE 13D
CUSIP No. 693624-108 Page 2 of 9 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ESL Partners, L.P., a Delaware limited partnership
22-2875193
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER
1,198,270
NUMBER OF ---------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 0
EACH ---------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 1,198,270
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,198,270
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.7%
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14 TYPE OF REPORTING PERSON*
PN
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The Schedule 13D dated December 2, 1993, as amended (the "Schedule
13D") of ESL Partners, L.P., a Delaware limited partnership (the
"Partnership"), relating to the Common Stock, par value $1.00 per share (the
"Shares"), of PS Group, Inc., a Delaware corporation (the "Company"), is
hereby amended as set forth below. Capitalized terms in this Amendment No. 12
shall have the meanings set forth in the Schedule 13D.
ITEM 4. PURPOSES OF THE TRANSACTION.
Item 4 is hereby amended by the addition of the following paragraphs:
"On May 21, 1996, the Partnership and the Company signed a
Confidentiality Agreement dated as of May 17, 1996 concerning the
Partnership's consideration of a possible negotiated transaction with the
Company involving some or all of its aircraft.
Based upon the Company's commitments, as stated in publicly
available filings, (i) to appoint Christopher Mills as an additional director
of the Company, (ii) to undertake a review of possibly proposing the
elimination of a staggered Board of Directors, and (iii) not to enter into
new businesses, the Partnership currently intends to vote in favor of the
Company's nominees for the Board of Directors and the Company's
reorganization plan at the 1996 Annual Meeting. The Partnership does not
have any relationship with, and is not affiliated or associated with,
Christopher Mills."
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5(c) is hereby amended and restated by the following paragraph:
"(c) The Partnership has not engaged in any transactions in the
Shares since May 2, 1996, the date of the most recent filing on Schedule 13D."
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is hereby amended by the addition of the following paragraph:
"7.4 Confidentiality Agreement dated as of May 17, 1996, between
ESL Partners, L.P. and PS Group, Inc."
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Amendment No. 12 to Schedule
13D is true, complete and correct.
Date: May 21, 1996.
ESL PARTNERS, L.P.
By: RBS Partners, L.P., its general partner
By: ESL Investments, Inc.
its general partner
By: /s/ E.J. Bird
--------------------------
Name: E.J. Bird
Title: Vice President
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE
------- ----------- ----
7.4 Confidentiality Agreement dated as 6
of May 17, 1996, between ESL
Partners, L.P. and PS Group, Inc.
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EXHIBIT 7.4
CONFIDENTIALITY AGREEMENT
AS OF MAY 17, 1996
ESL Partners, L.P.
1 Lafayette Place
Greenwich, Connecticut 06830
Attention: Mr. Edward S. Lampert
In connection with your consideration of a possible negotiated
transaction with PS Group, Inc. (the "Company") involving some or all of its
aircraft (a "Potential Transaction"), the Company is prepared to make
available to you certain non-public information. As a condition to such
information being furnished to you and your Representatives (as hereinafter
defined), you agree to treat any information concerning the Company (whether
prepared by the Company, its Representatives or otherwise, and irrespective
of the form of communication) which is furnished to you or to your
Representatives now or in the future by or on behalf of the Company (herein
collectively referred to as the "Evaluation Material") in accordance with the
provisions of this letter agreement, and to take or abstain from taking
certain other actions as hereinafter set forth. As used in this letter, a
party's "Representatives" shall include the directors, officers, employees,
agents, partners or advisors of such party (including, without limitation,
attorneys, accountants, consultants, bankers and financial advisors) and
those of such party's parent company, subsidiaries and affiliates.
Notwithstanding any other provision hereof, the Company reserves the right
not to make available hereunder any information, the provision of which is
determined by it, in its sole discretion, to be inadvisable or inappropriate.
The term "Evaluation Material" also shall be deemed to include all
notes, analyses, compilations, studies, interpretations or other documents
prepared by you or your Representatives which contain, reflect or are based
upon, in whole or in part, the information furnished to you or your
Representatives pursuant hereto. The term Evaluation Material does not
include information which (i) is or becomes generally available to the public
other than as a result of a disclosure by you or your Representatives, (ii)
was within your possession prior to its being furnished to you by or on
behalf of the Company pursuant hereto, provided that the source of such
information was not known by you to be bound by a confidentiality agreement
with or other contractual, legal or fiduciary obligation of confidentiality
to the Company or any other party with respect to such information or (iii)
becomes available to you on a non-confidential basis from a source other than
the Company or any of its Representatives, provided that such source is not
bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to the Company or any other party
with respect to such information.
Except as otherwise provided herein, you hereby agree that you and
your Representatives shall use the Evaluation Material solely for the purpose
of evaluating a Potential Transaction and for no other purpose, that the
Evaluation Material will be kept confidential and that you and your
Representatives will not disclose any of the Evaluation Material in any
manner whatsoever; PROVIDED, HOWEVER, that (i) you may make any disclosure of
Evaluation Material to which the Company gives its prior written consent and
(ii) any of the Evaluation Material may be disclosed to your Representatives
who need to have such Evaluation Material for the sole purpose of evaluating
a Potential Transaction, who are provided with a copy of this letter
agreement and who agree in writing to be bound by the terms hereof to the
same extent as you. In any event, you agree to undertake reasonable
precautions to safeguard and protect the confidentiality of the Evaluation
Material, to accept responsibility for any breach of this letter agreement by
any of your Representatives, and at
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your sole expense to take all reasonable measures (including but not limited
to court proceedings) to restrain your Representatives from prohibited or
unauthorized disclosure or uses of the Evaluation Material.
In addition, except as otherwise provided herein, you agree that,
without the prior written consent of the Company, you and your
Representatives will not disclose to any other person the fact that the
Evaluation Material has been made available to you, that discussions or
negotiations are taking place concerning a Potential Transaction or any of
the terms, conditions or other facts with respect thereto (including the
status thereof); PROVIDED, HOWEVER, that you may make such disclosure if the
Company has already done so or you have received advice of your outside
counsel that such disclosure must be made by you in order that you not commit
a violation of law; and FURTHER PROVIDED, that any such permitted disclosure
shall not affect or impair your obligations of confidentiality hereunder with
respect to the Evaluation Material. It is understood and agreed that nothing
contained herein shall be deemed to inhibit, impair or restrict your ability
or the ability of your Representatives to have discussions or negotiations
with other persons for the purposes of discussing or negotiating potential
financing and/or partnering with or investment in the Potential Transaction
as long as each of such persons agrees in writing to be bound by the terms of
this letter agreement. The term PERSON as used in this letter agreement
shall be broadly interpreted to include the media and any corporation,
partnership, group, individual or other entity.
In the event that you or any of your Representatives are requested
or required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, you shall
provide the Company with prompt written notice of any such request or
requirement so that the Company may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this letter
agreement. If, in the absence of a protective order or other remedy or the
receipt of a waiver by the Company, you or any of the Representatives are
nonetheless, upon the advice of counsel, legally compelled to disclose
Evaluation Material to any tribunal or else stand liable for contempt or
suffer other censure or penalty, you or your Representatives may, without
liability hereunder, disclose to such tribunal only that portion of the
Evaluation Material which such counsel advises you is legally required to be
disclosed, provided that you exercise your best efforts to preserve the
confidentiality of the Evaluation Material, including, without limitation, by
cooperating with the Company to obtain an appropriate protective order or
other reliable assurance that confidential treatment will be accorded the
Evaluation Material by such tribunal.
If you decide that you do not wish to proceed with a Potential
Transaction, you will promptly inform the Company of that decision. In that
case, or at any time upon the request of the Company for any reason, you will
promptly deliver to the Company all Evaluation Material (and all copies
thereof) furnished to you or your Representatives by or on behalf of the
Company pursuant hereto; PROVIDED, HOWEVER, that documentation prepared
solely by you or your Representatives in connection with the evaluation of
the Potential Transaction, including, without limitation, computer-generated
information, analyses, compilations, studies, word processing, visual or
auditory records or recordings, may be retained by you and your
Representatives subject to the confidentiality provisions hereof.
Notwithstanding the return of the Evaluation Material, you and your
Representatives will continue to be bound by your obligations of
confidentiality and other obligations hereunder.
You understand and acknowledge that neither the Company nor any of
its Representatives makes any representation or warranty, express or implied,
as to the accuracy or completeness of its Evaluation Material. You agree
that neither the Company nor any of its Representatives shall have any
liability to you or to any of your Representatives relating to or resulting
from the use of the Evaluation Material or any errors therein or omissions
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therefrom. Only those representations or warranties which are made in a
final definitive agreement regarding a Potential Transaction, when, as and if
executed, and subject to such limitations and restrictions as may be
specified therein, will have any legal effect.
You acknowledge and agree that you are aware (and that your
Representatives are aware or, upon receipt of any Evaluation Information,
will be advised by you) of the restrictions imposed by the United States
federal securities laws and other applicable foreign and domestic laws on a
person possessing material non-public information about a public company and
that you and your Representatives will comply with such laws in a manner
consistent with your confidentiality obligations hereunder.
You understand and agree that no contract or agreement providing for
a Potential Transaction or any other transaction involving the Company shall
be deemed to exist between you and the Company unless and until a final
definitive agreement has been executed and delivered. You also agree that
unless and until a final definitive agreement regarding a Potential
Transaction has been executed and delivered, neither the Company nor you will
be under any legal obligation of any kind whatsoever with respect to a
Potential Transaction by virtue of this letter agreement except for the
matters specifically agreed to herein. You further acknowledge and agree
that the Company reserves the right, in its sole discretion, to reject any
and all proposals made by you or any of your Representatives with regard to a
Potential Transaction, and to terminate discussions and negotiations with you
at any time. You further understand that (i) the Company and its
Representatives shall be free to conduct any process for a Potential
Transaction, if and as they in their sole discretion shall determine
(including, without limitation, negotiating with any other interested parties
and entering into a definitive agreement therewith without prior notice to
you or any other person), and (ii) any procedures relating to such process or
transaction may be changed at any time without notice to you or any other
person. Neither this paragraph nor any other provision in this agreement can
be waived or amended except by written consent of the Company, which consent
shall specifically refer to this paragraph (or such provision) and explicitly
make such waiver or amendment.
It is understood and agreed that no failure or delay by the Company
in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or future exercise thereof or the exercise of any other right, power or
privilege hereunder.
It is further understood and agreed that money damages would not be
a sufficient remedy for any breach of this letter agreement by you or any of
your Representatives and that the Company shall be entitled to equitable
relief, including injunction and specific performance, as a remedy for any
such breach. Such remedies shall not be deemed to be the exclusive remedies
for a breach by you of this letter agreement but shall be in addition to all
other remedies available at law or equity to the Company. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that you or any of your Representatives have breached
this letter agreement, then you shall be liable and pay to the Company the
reasonable legal fees incurred by the Company in connection with such
litigation, including any appeal therefrom.
This letter agreement is for the benefit of the Company, its
Representatives and their directors, officers, stockholders, owners,
affiliates, and agents, and shall be governed by and construed in accordance
with the laws of the State of Delaware (the "Subject State") applicable to
agreements made and to be performed entirely within the Subject State. You
also hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of California located within the County
of Los Angeles and of the United States of America located in the Central
District of California for any actions, suits or proceedings arising out of
or relating to this agreement and the transactions contemplated hereby (and
you agree not to commence any action, suit or proceeding relating thereto
except in such
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courts, and further agree that service of any process, summons, notice or
document by U.S. registered mail to your address set forth above shall be
effective service of process for any action, suit or proceeding brought
against you in any such court). You hereby irrevocably and unconditionally
waive any objection to the laying of venue of any action, suit or proceeding
arising out of this agreement or the transactions contemplated hereby, in the
courts of California or the United States of America located in California,
and hereby further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
It is understood and agreed that, unless and until you otherwise
direct the Company in writing, the Company shall send all Evaluation Material
directly to your legal counsel at the address noted below and that the
Company shall not send any Evaluation Material directly to you.
Janice V. Sharry, Esq.
Haynes and Boone, L.L.P.
901 Main Street, Suite 3100
Dallas, Texas 75202
Please confirm your agreement with the foregoing by having a duly
authorized representative of your organization sign and return one copy of
this letter to the undersigned. This letter agreement may be executed by
counterpart signatures, each of which shall constitute an original but all of
which shall together constitute a single instrument.
Very truly yours,
PS Group, Inc.
By: /s/ Johanna Unger
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Name: Johanna Unger
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Title: Vice President and Controller
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Accepted and agreed to as of
the date first written above:
ESL Partners, L.P.
By: RBS Partners, L.P., its
general partner
By: ESL Investments, Inc., its
general partner
By: /s/ Edward S. Lampert
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Name: Edward S. Lampert
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Title: President
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