SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 7)
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BERTUCCI'S, INC.
(Name of Subject Company [Issuer])
NERC ACQUISITION CORP.
A WHOLLY-OWNED SUBSIDIARY OF
NE RESTAURANT COMPANY, INC.
(Bidder)
COMMON STOCK, PAR VALUE $0.005 PER SHARE
(Title of Class of Securities)
086063 10 4
(CUSIP Number of Class of Securities)
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DENNIS PEDRA
PRESIDENT
NE RESTAURANT COMPANY, INC.
80A TURNPIKE ROAD
WESTBOROUGH, MASSACHUSETTS 01581
(508) 870-9200
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidder)
WITH A COPY TO:
DAVID L. FINKELMAN, ESQ.
STROOCK & STROOCK & LAVAN LLP
180 MAIDEN LANE
NEW YORK, NEW YORK 10038-4982
(212) 806-5400
<PAGE>
NERC Acquisition Corp., a Massachusetts corporation ("Purchaser"), and
NE Restaurant Company, Inc., a Delaware corporation ("Parent"), hereby further
amend and supplement their Tender Offer Statement on Schedule 14D-1 (the
"Schedule 14D-1"), filed with the Securities and Exchange Commission on May 20,
1998, with respect to Purchaser's offer to purchase all of the outstanding
shares of Common Stock, par value $0.005 per share (the "Shares"), of
Bertucci's, Inc., a Massachusetts corporation (the "Company"), not presently
owned by Parent, at a purchase price of $10.50 per Share, net to the seller in
cash, without interest thereon. All capitalized terms used herein shall have the
meaning set forth in the Schedule 14D-1 or the Offer to Purchase dated May 20,
1998, except as may otherwise be provided herein.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a)-(b) The information set forth in Paragraphs (a)-(b) of Item 4 is
hereby amended and supplemented by the following:
On July 13, 1998, Parent entered into an agreement (the "Purchase
Agreement") for the sale to Chase Securities Inc. and BancBoston Securities
Inc., as initial purchasers, of $100 million principal amount of Senior Notes.
The sale of the Senior Notes, which is being made in reliance on Rule 144A and
other registration exemptions under the Securities Act of 1933, as amended (the
"Securities Act"), to institutional investors, is scheduled to close on Monday,
July 20, 1998.
The Senior Notes will be senior unsecured obligations of Parent and
will rank PARI PASSU in right of payment with all present and future senior
indebtedness of Parent and senior in right of payment to any subordinated
indebtedness of Parent. The Senior Notes will bear interest at a rate of 10.75%
per annum and will mature on July 15, 2008. The Senior Notes are redeemable at
the option of Parent after five years at redemption prices equal to 105.375% of
the principal amount, if redeemed during the 12-month period commencing on July
15, 2003, and declining annually thereafter to 100% of the principal amount on
July 15, 2006 and thereafter, plus accrued and unpaid interest. In addition,
subject to certain requirements, prior to July 15, 2001, 35% of the original
aggregate principal amount of the Senior Notes may be redeemed by Parent with
the net cash proceeds of one or more equity offerings at a redemption price
equal to 110.75% of the principal amount thereof, plus accrued and unpaid
interest thereon. The Senior Notes will be fully and unconditionally guaranteed
by certain of Parent's subsidiaries. The Senior Notes will not be subject to any
sinking fund requirements. Upon the occurrence of a "Change of Control" of
Parent, Parent will be required to offer to purchase the Senior Notes at a price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest
to the purchase date.
The Indenture governing the Senior Notes will contain covenants
customary for securities of this nature that will limit the ability of Parent
and its subsidiaries to, among other things, (i) incur additional indebtedness,
(ii) pay dividends and other restricted payments, (iii) make investments, (iv)
create liens, (v) sell assets, (vi) enter into transactions with affiliates and
(vii) enter into mergers or consolidations involving Parent.
The closing of the sale of the Senior Notes, which as noted above is
scheduled to occur on Monday, July 20, 1998, is subject to satisfaction of
certain conditions customary for transactions of this nature. If the purchase of
the Shares in the Offer and the Merger are not thereafter consummated by July
31, 1998, Parent is required to redeem the Senior Notes, using the net proceeds
of the sale thereof which are to be deposited in escrow plus additional funds
provided by Parent, at a redemption price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest.
The Senior Notes have not been registered under the Securities Act or
any securities laws of any state or other jurisdiction and may not be offered or
sold in the United States or any state or other jurisdiction absent registration
or an applicable exemption from registration requirements.
A press release relating to the foregoing is filed as Exhibit (a)(13)
to the Schedule 14D-1 and is incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
(f) (i) The information set forth in Paragraph (f) of Item 10 is
hereby amended and supplemented by the following:
Purchaser hereby amends the Offer to extend the date on which the
Offer expires so that the Offer and withdrawal rights will expire at 12:00
midnight, New York City time, on Monday, July 20, 1998, unless the Offer is
further extended. A press release relating to the foregoing is filed as Exhibit
(a)(13) to the Schedule 14D-1 and is incorporated herein by reference.
(ii) The information set forth in Paragraph (f) of Item 10 is hereby
amended and supplemented by adding to the information set forth in Section 5
("Certain United States Federal Income Tax Consequences") of the Offer to
Purchase the following:
Congress recently passed the Internal Revenue Service Restructuring
and Reform Act of 1998 (the "1998 Act"), which is awaiting signature by the
President. If enacted in its current form, the 1998 Act would eliminate the
requirement that an individual stockholder hold its stock for more than 18
months in order to benefit from the 20% preferential maximum capital gains rate.
The 20% preferential maximum capital gains rate would be available to an
individual stockholder so long as the stock surrendered for cash pursuant to the
Offer or the Merger was held for more than one year.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 is hereby amended by adding thereto the following exhibit:
(a)(13) Text of Press Release issued by Parent on July 13, 1998.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: July 13, 1998
NE RESTAURANT COMPANY, INC.
By: /S/ PAUL V. HOAGLAND
Paul V. Hoagland
Executive Vice President
NERC ACQUISITION CORP.
By: /S/ PAUL V. HOAGLAND
Paul V. Hoagland
Executive Vice President
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(a)(13) Text of Press Release issued by Parent on July 13, 1998.
FOR IMMEDIATE RELEASE
CONTACT: NE RESTAURANT COMPANY, INC.
CONTACT: PAUL HOAGLAND,
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PHONE: (508) 870-9200
FAX: (508) 870-9201
NE RESTAURANT COMPANY OBTAINS COMMITMENT FOR
PLACEMENT OF $100 MILLION OF SENIOR NOTES;
EXTENDS CASH TENDER OFFER FOR BERTUCCI'S COMMON STOCK
Westborough, MA, July 13, 1998 --- NE Restaurant Company, Inc.
("NERC") announced today that it entered into an agreement for the sale to Chase
Securities Inc. and BancBoston Securities Inc., as initial purchasers, of $100
million principal amount of Senior Notes. The sale of the Senior Notes, which is
being made in reliance on Rule 144A and other registration exemptions under the
Securities Act of 1933, as amended, to institutional investors, is scheduled to
close on Monday, July 20, 1998.
The net proceeds from the sale of the Senior Notes are to be used to
finance a portion of the purchase price payable in the tender offer for all
outstanding shares of Common Stock of Bertucci's, Inc. (NASDAQ: BERT) at $10.50
per share commenced on May 20, 1998 through NERC's wholly-owned subsidiary, NERC
Acquisition Corp. As previously announced, the tender offer is being made
pursuant to the terms of a Merger Agreement among NERC, NERC Acquisition Corp.
and Bertucci's. In the merger to occur following consummation of the tender
offer, each share of Bertucci's Common Stock which is outstanding and not
purchased pursuant to the tender offer will be converted into the right to
receive $10.50 in cash.
NERC noted that the principal amount of the Senior Notes being sold
had been increased to $100 million from the $90 million principal amount stated
in the Offer to Purchase, dated May 20, 1998. As a result, it is now expected
that the private placement of shares of NERC Common Stock to finance the balance
of the funds required to purchase Shares tendered in the tender offer,
consummate the merger, refinance certain existing indebtedness of Bertucci's and
NERC and to pay all related fees and expenses of the transaction, will be
reduced to $28.8 million from the $38.8 million stated in the Offer to Purchase.
NERC also announced today that it has extended the expiration date of
the tender offer. As extended, the offer and withdrawal rights will now expire
at 12:00 midnight, New York City time, on Monday, July 20, 1998, unless the
offer is further extended. As of the close of business on July 10, 1998,
7,196,714 shares of Bertucci's Common Stock (constituting approximately 77.7% of
the Common Stock outstanding on a fully diluted basis) had been tendered
pursuant to the offer. The consummation of the offer is conditioned upon, among
other things, the tender of Bertucci's shares which, together with the 430,000
shares already owned by NERC (constituting approximately 4.56% of the shares
outstanding on a fully-diluted basis), represent at least 90% of such shares.
NERC said that the extension of the offer was required pursuant to the
rules and regulations of the Securities and Exchange Commission in order to
provide holders of shares of Bertucci's Common Stock with sufficient time to
consider the commitment for the sale of the Senior Notes and the material terms
of the Senior Notes prior to tendering their shares.
The Senior Notes will be senior unsecured obligations of NERC and will
rank PARI PASSU in right of payment with all present and future senior
indebtedness of NERC and senior in right of payment to any subordinated
indebtedness of NERC. The Senior Notes will bear interest at a rate of 10.75%
per annum and will mature on July 15, 2008. The Senior Notes are redeemable at
the option of NERC after five years at redemption prices equal to 105.375% of
the principal amount, if redeemed during the 12-month period commencing on July
15, 2003, and declining annually thereafter to 100% of the principal amount on
July 15, 2006 and thereafter, plus accrued and unpaid interest. In addition,
subject to certain requirements, prior to July 15, 2001, 35% of the original
aggregate principal amount of the Senior Notes may be redeemed by NERC with the
net cash proceeds of one or more equity offerings at a redemption price equal to
110.75% of the principal amount thereof, plus accrued and unpaid interest
thereon. The Senior Notes will be fully and unconditionally guaranteed by
certain of NERC's subsidiaries. The Senior Notes will not be subject to any
sinking fund requirements. Upon the occurrence of a "Change of Control" of NERC,
NERC will be required to offer to purchase the Senior Notes at a price equal to
101% of the principal amount thereof, plus accrued and unpaid interest to the
purchase date.
The Indenture governing the Senior Notes will contain covenants
customary for securities of this nature that will limit the ability of NERC and
its subsidiaries to, among other things, (i) incur additional indebtedness, (ii)
pay dividends and other restricted payments, (iii) make investments, (iv) create
liens, (v) sell assets, (vi) enter into transactions with affiliates and (vii)
enter into mergers or consolidations involving NERC.
The closing of the sale of the Senior Notes, which as noted above is
scheduled to occur on Monday, July 20, 1998, is subject to satisfaction of
certain conditions customary for transactions of this nature. If the purchase of
Bertucci's shares in the tender offer and the subsequent merger are not
thereafter consummated by July 31, 1998, NERC is required to redeem the Senior
Notes, using the net proceeds of the sale thereof which are to be deposited in
escrow plus additional funds provided by NERC, at a redemption price equal to
100% of the principal amount thereof, plus accrued and unpaid interest.
The Senior Notes have not been registered under the Securities Act of
1933, as amended, or any securities laws of any state or other jurisdiction and
may not be offered or sold in the United States or any state or other
jurisdiction absent registration or an applicable exemption from registration
requirements.
This announcement is neither an offer to sell nor a solicitation of an
offer to buy the Senior Notes. This announcement contains information about
pending transactions and there can be no assurance that these transactions will
be completed.
NERC, headquartered in Westborough, Massachusetts, operates two
distinct restaurant concepts: Chili's Grill & Bar(R) ("Chili's") and On The
Border Mexican Cafe(R) ("OTB") restaurants. NERC operates 33 restaurants,
including 31 Chili's and two OTB's in five New England states. NERC develops and
operates its restaurants under franchise agreements with Brinker International,
Inc.
