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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT
(AMENDMENT NO. 5)
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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SCHEDULE 13D/A
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934
(AMENDMENT NO. 12)
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DR PEPPER/SEVEN-UP COMPANIES, INC.
(Name of Subject Company)
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DP/SU ACQUISITION INC.
AND
CADBURY SCHWEPPES PLC
(Bidder)
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COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
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256131 30 1
(CUSIP Number of Class of Securities)
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HENRY A. UDOW, ESQ.
DP/SU ACQUISITION INC.
CADBURY SCHWEPPES PLC
C/O CADBURY BEVERAGES INC.
6 HIGH RIDGE PARK
P.O. BOX 3800
STAMFORD, CONNECTICUT 06905-0800
TELEPHONE: (203) 329-0911
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Bidder)
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COPY TO:
ALFRED J. ROSS, JR., ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 848-4000
FEBRUARY 21, 1995
Page 1 of 8 pages
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CUSIP NO. 256131 30 1
<TABLE>
<S> <C>
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of above Person
CADBURY BEVERAGES INC.
2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) / /
(b) / /
3 SEC Use Only
4 Source of Funds (See Instructions)
BK, AF, WC
5 Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
DELAWARE
7 Aggregate Amount Beneficially Owned by Each Reporting Person
15,620,746
8 Check if the Aggregate Amount in Row (7) Excludes Certain Shares (See Instructions) / /
9 Percent of Class Represented by Amount in Row (7)
25.3%
10 Type of Reporting Person (See Instructions)
CO
</TABLE>
Page 2 of 8 pages
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CUSIP NO. 256131 30 1
<TABLE>
<S> <C>
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of above Person
CADBURY SCHWEPPES plc
2 Check the Appropriate Box if a Member of a Group (See Instructions) (a) / /
(b) / /
3 SEC Use Only
4 Source of Funds (See Instructions)
BK, AF, WC
5 Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
ENGLAND
7 Aggregate Amount Beneficially Owned by Each Reporting Person
15,620,746
8 Check if the Aggregate Amount in Row (7) Excludes Certain Shares (See Instructions) / /
9 Percent of Class Represented by Amount in Row (7)
25.3%
10 Type of Reporting Person (See Instructions)
CO
</TABLE>
Page 3 of 8 pages
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This Amendment No. 5 to the Tender Offer Statement on Schedule 14D-1
(as amended prior to the date hereof, the "Schedule 14D-1") and Amendment No. 12
to Schedule 13D relates to the offer by DP/SU Acquisition Inc., a Delaware
corporation ("Purchaser") and an indirect wholly owned subsidiary of Cadbury
Schweppes plc, a company organized under the laws of England, to purchase all
outstanding shares of Common Stock, par value $.01 per share (the "Common
Stock"), of Dr Pepper/Seven-Up Companies, Inc., a Delaware corporation (the
"Company"), and the associated preferred stock purchase rights (the "Rights"
and, together with the Common Stock, the "Shares") issued pursuant to the Rights
Agreement, dated as of September 1, 1993 (as amended), between the Company and
Bank One, Texas, N.A., as Rights Agent, at a price of $33.00 per Share, net to
the seller in cash, upon the terms and subject to the conditions set forth in
Purchaser's Offer to Purchase dated February 1, 1995 (the "Offer to Purchase")
and in the related Letter of Transmittal, copies of which were attached to the
Schedule 14D-1 as Exhibits (a)(1) and (a)(2) thereto, respectively. The Schedule
14D-1 was initially filed with the Securities and Exchange Commission on
February 1, 1995.
Capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Offer to Purchase and the Schedule 14D-1.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(b) is hereby amended and supplemented by adding to the end thereof
the following:
As previously described in the Schedule 14D-1, the Company and certain of
its directors are defendants in certain purported stockholder class action
lawsuits in which the plaintiffs have alleged, among other things, violations by
the defendant directors of their fiduciary duties to the Company's stockholders.
The plaintiffs in In Re: Dr Pepper/Seven-Up Companies, Inc. Shareholders
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Litigation, Civil Action No. 13109 (the "Consolidated Action"), which represents
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the consolidation of eight purported class action lawsuits filed in the Court of
Chancery of the State of Delaware (the "Delaware Court"), as represented by
plaintiffs' counsel, have entered into a Memorandum of Understanding, dated
February 21, 1995 (the "Memorandum of Understanding"), with the defendants
(through their counsel) pursuant to which the Consolidated Action will be
settled. The settlement contemplated by the Memorandum of Understanding will not
be effective unless, among other things, the plaintiffs in Sarnoff v. Dr
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Pepper/Seven-Up Companies, Inc. et al, Civil Action No. 94-11313-B (the "Sarnoff
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Action"), a purported class action lawsuit filed in the District Court for the
44th Judicial District of Texas in Dallas County, Texas (the "Texas Court"),
execute the appropriate documentation necessary to have the action pending
before the Texas Court non-suited and refiled with the Delaware Court at which
time the refiled Sarnoff Action will be consolidated with and become part of
the Consolidated Action. The proposed settlement is subject to, among other
things, approval of the Delaware Court.
The Memorandum of Understanding provides for a settlement of the
Consolidated Action (which will include the refiled Sarnoff Action) on the
following general terms: (i) the certification of the Consolidated Action,
as class actions under the rules of the Delaware Court, which class would
consist of all holders of common stock of the Company (other than the
defendants) on and between September 1, 1993 and the effective date of the
Merger; (ii) the complete discharge, settlement and release of, and an
injunction barring, all claims, rights, causes of action, suits, matters and
issues, whether known or unknown, that have been, could have been, or in the
future might be asserted in the Consolidated Action or in any court or
proceeding (including, but not limited to, any claims arising under federal or
state law relating to alleged fraud, breach of any duty, negligence or
otherwise) by or on behalf of plaintiffs or any member of the class, whether
individual, class derivative, representative, legal, equitable or any other
type or in any other capacity against the defendants or any of their
associates, affiliates, subsidiaries, present or former officers, directors,
employees, attorneys, accountants, financial advisors or other advisors or
agents, heirs, executors, personal representatives, estates, administrators,
and successors and assigns (in each case, in each and every capacity) (the
"Defendants"), which have arisen, arise now or hereafter rise out of or relate
in any way to the Offer, the Merger, the Merger Agreement, the Rights Agreement,
the Stockholders Agreement or any of the transactions or events described in the
Page 4 of 8 pages
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complaints in the Consolidated Action or any disclosures related thereto
(collectively, the "Settled Claims") (subject to certain limited exceptions);
(iii) the Defendants in each such action have denied, and continue to deny, that
any of them have committed or have threatened to commit any violations of law or
breaches of duty to the plaintiffs or any members of the class; (iv) the
Defendants in the actions are entering into the Memorandum of Understanding, and
will be entering into proposed settlement documentation, solely because the
proposed settlement would eliminate the burden and expense of further litigation
and would facilitate the consummation of the Offer and the Merger, which they
believe to be in the best interests of the Company and all of its stockholders;
and (v) subject to the order of the Delaware Court, pending final determination
of whether the settlement provided for by the Memorandum of Understanding should
be approved, the plaintiffs and all members of the class, or any of them, are
barred and enjoined from commencing or prosecuting any action asserting any
Settled Claims, either directly, representatively, derivatively or in any other
capacity against any of the Defendants. An amendment to the Schedule 14D-9 is
being filed with the Securities and Exchange Commission and mailed by the
Company to stockholders of the Company pursuant to the terms of the settlement
provided for in the Memorandum of Understanding. In addition, the parties have
agreed in the Memorandum of Understanding that plaintiffs' counsel in the
Consolidated Action will apply to the Delaware Court for an aggregate award of
attorneys' fees and expenses in an amount not to exceed $690,000, which
Defendants have agreed not to oppose.
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After reasonable 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.
DP/SU ACQUISITION INC.
By: /s/ HENRY A. UDOW
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Name: Henry A. Udow
Title: Vice President
February 21, 1995
Page 6 of 8 pages
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After reasonable 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.
CADBURY BEVERAGES INC.
By: /s/ HENRY A. UDOW
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Name: Henry A. Udow
Title: Vice President
February 21, 1995
Page 7 of 8 pages
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After reasonable 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.
CADBURY SCHWEPPES PLC
By: /s/ HENRY A. UDOW
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Name: Henry A. Udow
Title: Legal Director of Beverages
Stream
February 21, 1995
Page 8 of 8 pages
