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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A-1
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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NU-WEST INDUSTRIES, INC.
(NAME OF SUBJECT COMPANY)
NU-WEST INDUSTRIES, INC.
(NAME OF PERSON(S) FILING STATEMENT)
VOTING COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
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67019H308
(CUSIP NUMBER OF CLASS OF SECURITIES)
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STEVEN W. GAMPP
VICE PRESIDENT, SECRETARY AND TREASURER
NU-WEST INDUSTRIES, INC.
8400 EAST PRENTICE AVENUE
SUITE 1320
ENGLEWOOD, COLORADO 80111
(303) 721-1396
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS
ON BEHALF OF THE PERSON(S) FILING STATEMENT)
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WITH A COPY TO:
PAUL HILTON, ESQ. THOMAS A. RICHARDSON, ESQ.
JOHN L. MCCABE, ESQ. HOLME ROBERTS & OWEN LLC
DAVIS, GRAHAM & STUBBS, L.L.C. 1700 LINCOLN, SUITE 4100
370 SEVENTEENTH STREET, SUITE 4700 DENVER, COLORADO 80203
DENVER, COLORADO 80202 (303) 861-7000
(303) 892-9400
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Nu-West Industries, Inc. (the "Company") hereby amends its Schedule 14D-9
relating to a cash tender offer by Agrium Acquisition Corporation, a Delaware
corporation (the "Purchaser"), a wholly-owned subsidiary of Agrium U.S. Inc.,
a Colorado corporation, a wholly owned subsidiary of Agrium Inc., a Canadian
corporation (the "Parent"), described in a Tender Offer Statement filed
pursuant to Section 14(d)(1) of the Securities and Exchange Act of 1934, as
amended, on Schedule 14D-1, dated August 16, 1995, as follows:
ITEM 3. IDENTITY AND BACKGROUND; AND
ITEM 5. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
Items 3 and 5 are hereby amended by the addition of the following:
In June 1995, Wesley W. Lang, a director of the Company and a principal in
Weiss, Peck & Greer, L.L.C. ("WPG"), discussed with Craig D. Harlen, Chairman
of the Board of the Company, his personal desire that senior management
receive some form of monetary award from certain major stockholders of the
Company in the event of a sale of the Company in recognition of senior
management's contributions to the Company through its many difficult years.
Mr. Lang also discussed the matter with Peter B. Pfister, who is also a
director of the Company and a principal in WPG. In July, Mr. Lang and Mr.
Harlen further discussed the proposal, including Mr. Harlen's response to Mr.
Lang's request for suggestions regarding which members of management might
participate and the amounts such individuals might receive if Mr. Lang were
successful in implementing his views. In the first week of August 1995, Mr.
Lang advised Mr. Harlen of the proposed amount and allocation of the payments
that might be made by the stockholders affiliated with WPG and perhaps by one
or more other stockholders of the Company, assuming that all tax and other
legal considerations could be satisfactorily addressed. Mr. Harlen at that
time mentioned to Mark R. Sanders, a director of the Company, the possibility
of such payments, but not the proposed amounts or intended recipients of the
proposed payments. On August 8, 1995, following the Board meeting at which the
Merger Agreement with the Parent and the Purchaser was approved, Mr. Lang
informed Cecil D. Andrus, a director of the Company, of the desire of certain
affiliates of WPG and perhaps other stockholders to make certain payments to
various executives of the Company, subject to the identification and
resolution of tax and other legal issues. Thereafter, all of the intended
recipients of the proposed payments were notified of the desire of certain
affiliates of WPG to make the proposed payments. At no time during these
discussions did these proposals become a commitment to make these payments and
the WPG Affiliates have indicated that, although they intend to make the
payments if tax and other legal issues are resolved, they are not committed to
do so.
The Company was initially advised that certain affiliates of WPG proposed to
make payments in the aggregate amount of $1,500,000 to certain executives of
the Company. The Company was subsequently informed that the aggregate payments
had been reduced to $1,300,000, to be paid following consummation of the Offer
(or any other transaction that provides value to all holders of the Shares in
excess of the consideration being paid by the Purchaser in the tender offer)
as follows: $780,000 to Mr. Harlen, Chairman of the Board of the Company; and
$173,333 to each of Mr. Sanders, Senior Vice President, Chief Financial
Officer and a director of the Company, H. Alan Dahlbach, Executive Vice
President of the Company, and Steven W. Gampp, Vice President, Treasurer and
Secretary of the Company. In addition, the Company has been informed that the
WPG Affiliates (as defined below) will make a $200,000 contribution to the
Company to be used in connection with the settlement of the pending litigation
described in Item 8 on behalf of all holders of Shares. The $200,000
contribution will be paid upon the later of court approval of the settlement
agreement or consummation of the Offer. The Company has been informed that the
following stockholders affiliated with WPG (the "WPG Affiliates") would
contribute to these payments, pro rata in accordance with their Share
ownership of the Company: WPG Corporate Development Associates III (Overseas),
Ltd., Weiss, Peck & Greer Venture Associates, L.P. Liquidating Trust, U/T/A
dated December 30, 1994, WPG Corporate Development Associates III, L.P. and
WPG Corporate Development Associates II, L.P. Liquidating Trust, U/T/A dated
December 31, 1993. The Company has also been informed that one or more other
stockholders might participate in making the payments.
On September 11, 1995, the Board of Directors held a meeting, at which
representatives of PaineWebber Incorporated ("PaineWebber") were present, to
review the status of the transaction, to receive a report from
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counsel on the litigation that had been filed relating to the transaction and
to review the facts discussed above. At such meeting, representatives of
PaineWebber and the Company's management indicated they had received no
inquiries from prospective acquirors of the Company since the commencement of
the tender offer by the Purchaser. PaineWebber also stated that the proposed
payments to management discussed above and the filing of the litigation
reported upon at the meeting did not alter the conclusion reached in the
fairness opinion rendered by it to the Company on August 8, 1995. At the
September 11, 1995 meeting the Board unanimously confirmed approval and
adoption of the Merger Agreement.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
Item 8 is hereby amended and restated in its entirety as follows:
Certain Litigation Relating to the Offer. Since the commencement of the Offer,
four class action complaints have been filed in the Delaware Chancery Court on
behalf of all persons who own Shares against the Company, certain of its
directors and, in one instance, the Parent. In the suits, filed as Civil
Action Nos. 11468, 11469, 14477 and 14484, respectively, the plaintiffs have
alleged, among other things, that the Company and certain of its directors
have breached their fiduciary duties to holders of the Shares by, among other
things, entering into an agreement with the Purchaser and failing to attempt
to maximize stockholder value. In the suit in which the Parent is named as a
defendant, the plaintiffs have also alleged that the Parent aided and abetted
such alleged breach of fiduciary duty. Each suit seeks various remedies,
including an injunction to prevent consummation of the transaction, and
damages, costs and disbursements of the action. The plaintiffs and the
defendants have entered into a Memorandum of Understanding dated as of
September 19, 1995 that provides for the settlement of the above-referenced
actions. A Stipulation of Settlement is expected to be entered into by the
parties on or about October 2, 1995. The Memorandum of Understanding also
provides, among other things, that this Schedule 14D-9 be amended to reflect
the disclosure included herein, that the Parent and Purchaser extend the Offer
to October 2, 1995 and that the minimum percentage of Shares to be tendered as
a condition to Parent's obligation to consummate the Offer be increased from
60% to 65%.
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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 statement is true, complete and correct.
Nu-West Industries, Inc.
/s/ Steven W. Gampp
By __________________________________
Name: Steven W. Gampp
Title: Vice President, Secretary
and Treasurer
Dated: September 19, 1995.
