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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO
TENDER OFFER STATEMENT
(UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 2)
SHAW INDUSTRIES, INC.
(Name of Subject Company (issuer) and Filing Person (offeror))
COMMON STOCK
SERIES A PARTICIPATING PREFERRED STOCK RIGHTS
(Title of Class of Securities)
8202-86-102
(CUSIP Number of Class of Securities)
Bennie M. Laughter, Esq.
Vice President, Secretary and General Counsel
Shaw Industries, Inc.
616 East Walnut Avenue
P.O. Drawer 2128
Dalton, Georgia 30720
Telephone (706) 278-3812
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of the filing person)
Copy to:
Gabriel Dumitrescu, Esq.
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street NE
Sixteenth Floor
Atlanta, Georgia 30303
(404) 572-6600
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
<TABLE>
<S> <C>
[ ] third-party tender offer subject to Rule 14d-1. [X] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3. [ ] amendment to Schedule 13D under Rule 13d-2.
</TABLE>
Check the following box if the filing is a final amendment reporting the results
of the tender offer: [ ]
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This Amendment No. 2 to the Tender Offer Statement on Schedule
TO relates to the tender offer by Shaw Industries, Inc., a Georgia corporation,
to purchase 12,000,000 shares, or such lesser number of shares as are properly
tendered, of its common stock, including the associated rights to purchase
Series A Participating Preferred Stock issued pursuant to the Amended and
Restated Rights Agreement dated April 10, 1999, between Shaw Industries, Inc.
and EquiServe Trust Company, N.A., as amended, at prices not in excess
<PAGE> 2
of $13.50 nor less than $11.50 per share, net to the seller in cash, without
interest, as specified by shareholders tendering their shares upon the terms and
subject to the conditions set forth in the offer to purchase, dated March 13,
2000, and in the related letter of transmittal, which, as amended and
supplemented from time to time, together constitute the tender offer. Unless the
context otherwise requires, all references to shares shall include the
associated preference stock purchase rights.
The Letter to Participants for use by the Trustee of the Retirement
Savings Plan, which was previously filed with Amendment No. 1 to the Schedule TO
as Exhibit (a)(1)(G), has been amended, and a copy of the amended Letter is
attached hereto as Exhibit (a)(1)(G).
ITEM 12. EXHIBITS.
(a)(1)(G) Revised Letter to Participants for use by the Trustee of the
Retirement Savings Plan
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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.
SHAW INDUSTRIES, INC.
By: /s/ B.M. Laughter
------------------------------
Name: B.M. Laughter
Title: Vice President
Dated: March 15, 2000
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
(a)(1)(G) Revised Letter to Participants for use by the Trustee of the
Retirement Savings Plan
</TABLE>
<PAGE> 1
EXHIBIT (A)(1)(G)
SHAW INDUSTRIES, INC.
OFFER TO PURCHASE FOR CASH UP TO 12,000,000 SHARES OF ITS COMMON STOCK
(INCLUDING THE ASSOCIATED SERIES A PARTICIPATING PREFERRED STOCK PURCHASE
RIGHTS)
AT A PURCHASE PRICE NOT IN EXCESS OF $13.50
NOR LESS THAN $11.50 PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, APRIL 7, 2000, UNLESS THE OFFER IS EXTENDED.
To the Participants in the Shaw Industries, Inc.
Retirement Savings Plan (the "Retirement Savings Plan"):
Enclosed for your consideration are the Offer to Purchase, dated March 13,
2000, and the related Letter of Transmittal in connection with the offer by Shaw
Industries, Inc., a Georgia corporation, to purchase up to 12,000,000 shares of
its common stock, including the associated rights to purchase preferred stock,
at a price not in excess of $13.50 nor less than $11.50 per share, net to seller
in cash, without interest, as specified by tendering shareholders, upon the
terms and conditions set forth in the offer.
Price Per Share. Shaw will determine a single per share price that it will
pay for shares properly tendered taking into account the number of shares
tendered and the prices specified by tendering shareholders. Shaw will select
the lowest purchase price that will allow it to buy 12,000,000 shares or, if a
lesser number of shares are properly tendered, all shares properly tendered. All
shares properly tendered at prices at or below the purchase price and not
properly withdrawn will be purchased at the purchase price, subject to the
conditions of the offer, including the proration, odd lot priority and
conditional tender provisions. Shares tendered at prices greater than the
purchase price and not properly withdrawn and shares not purchased because of
proration or conditional tenders will be returned at Shaw's expense promptly
after the expiration of the offer. All shares acquired in the offer will be
acquired at the purchase price. See Section 1 and 15 of the Offer to Purchase.
Priority of Purchase of Shares. As described in Section 1 of the Offer to
Purchase, if more than 12,000,000 shares have been validly tendered at prices at
or below the purchase price selected by Shaw and not withdrawn on or prior to
the expiration of the offer, Shaw will purchase properly tendered shares in the
following order of priority:
(a) First, Shaw will purchase all shares properly tendered and not
withdrawn prior to the expiration of the offer by any "odd lot holder"* (as
described in the Offer to Purchase) who:
(1) tenders all shares beneficially owned by the odd lot holder at
a price at or below the selected purchase price (tenders of less than
all shares owned by such shareholder will not qualify for this
preference); and
(2) completes the box captioned "Odd Lots" on the Letter of
Transmittal and, if applicable, on the Notice of Guaranteed Delivery;
and
(b) Second, after the purchase of all of the shares properly tendered
by odd lot holders, subject to the conditional tender provisions described
in Section 6 of the Offer to Purchase, Shaw will purchase all other shares
tendered properly at prices at or below the selected purchase price on a
pro rata basis.
Consequently, all of the shares that a shareholder tenders in the
offer may not be purchased even if they are tendered at prices at or below
the purchase price.
Shares Held in the Retirement Savings Plan. The Trustee of the Retirement
Savings Plan, State Street Bank and Trust Company, is the owner of record of the
shares held for your account in the Retirement Savings Plan. As such, it is the
only one who can tender your shares, and then only pursuant to your
instructions. We are sending you the Letter of Transmittal for your information;
however, you cannot use it to tender shares the Trustee holds in your account
under the Retirement Savings Plan. As discussed below, the
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* The odd lot holder preference is not available for shares held in the
Retirement Savings Plan.
<PAGE> 2
Letter of Transmittal may be used for shares you hold separately from those
shares in your account under the Retirement Savings Plan.
WE CALL YOUR ATTENTION TO THE FOLLOWING:
1. You may tender shares at prices not in excess of $13.50 nor less
than $11.50 per share as indicated in the attached Instruction Form or you
may agree to accept the purchase price as determined in the offer.
2. You may tender your shares conditioned upon Shaw's purchasing all
or a minimum number of your shares.
3. The offer is not conditioned on any minimum number of shares being
tendered pursuant to the offer. The offer is, however, subject to other
conditions described in the Offer to Purchase. See Section 5 of the Offer
to Purchase.
4. The offer, proration period and withdrawal rights will expire at
midnight, New York City time, on Friday, April 7, 2000, unless Shaw extends
the offer. Participants in the Retirement Savings Plan must forward the
attached Instruction Form to the independent fiduciary appointed by Shaw.
This Instruction Form must be forwarded to the independent fiduciary at the
address listed on the Instruction Form by Tuesday, April 4, 2000 in order
to provide ample time to permit the independent fiduciary to instruct the
Trustee to submit a tender on your behalf. The independent fiduciary will
not accept facsimile copies of the Instruction Form.
5. The offer is for up to 12,000,000 shares, constituting
approximately 9.0% of the shares outstanding as of February 29, 2000.
6. Tendering shareholders will not be obligated to pay any brokerage
fees or commissions, solicitation fees or, subject to Instruction 9 of the
Letter of Transmittal, stock transfer taxes on Shaw's purchase of shares
pursuant to the offer.
7. If you are the beneficial owner of shares that you do not want to
be subject to proration, if any, if purchased pursuant to the offer, you
may direct the independent fiduciary to instruct the Trustee to tender such
shares on your behalf subject to the condition that at least a designated
minimum or none of the shares be purchased, by completing the box captioned
"Conditional Tenders." It is the beneficial owner's responsibility to
determine the minimum number of shares to be tendered.
8. If you wish to tender portions of your shares at different prices,
you must complete a separate Instruction Form for each price at which you
wish to tender each such portion of your shares.
9. If you wish to withdraw a tender of shares held in the Retirement
Savings Plan, you may direct the independent fiduciary in writing to
withdraw your tendered shares at any time before 5:00 p.m., New York City
time on Tuesday, April 4, 2000. In addition, unless Shaw accepts your
tendered shares for payment before 12:00 midnight, New York City time on
Friday, May 5, 2000, you may withdraw your shares by giving written
instructions to the independent fiduciary of your desire to do so.
Tendering Your Shares in the Retirement Savings Plan. If you wish to have
the Trustee tender any or all of your shares in the Retirement Savings Plan,
please so instruct the independent fiduciary accordingly by completing,
executing and returning to the independent fiduciary the attached Instruction
Form. The independent fiduciary will then instruct the Trustee to tender your
shares in accordance with your instructions. An envelope addressed to the
independent fiduciary to return your Instruction Form is enclosed. Do not return
the Instruction Form to Shaw. The Instruction Form must be returned to the
independent fiduciary who has been appointed as an independent fiduciary to keep
your instructions confidential. If you authorize the independent fiduciary to
instruct the Trustee to tender your shares in the Retirement Savings Plan, the
Trustee will tender all such shares unless you specify otherwise on the attached
Instruction Form. The independent fiduciary will aggregate all such tenders and
accordingly instruct the Trustee to execute the Letters of Transmittal on behalf
of all participants. If you tender any or all of your shares in the Retirement
Savings Plan, you will not receive cash in exchange for the shares. The proceeds
from your tendered shares
2
<PAGE> 3
will be reinvested in the Retirement Savings Plan according to your election.
You will be required to make a separate election regarding the proceeds of your
tendered shares.
Delivery of a Letter of Transmittal by a Retirement Savings Plan
participant of Retirement Savings Plan shares does not constitute proper tender
of Retirement Savings Plan shares. Proper tender of Retirement Savings Plan
shares can only be made by the Trustee, who is the record owner of such shares.
Your Instruction Form should be forwarded to the independent fiduciary by
Tuesday, April 4, 2000, in order to provide ample time to permit the independent
fiduciary to instruct the Trustee to submit a tender on your behalf on or before
the expiration date of the offer. The offer, proration period and withdrawal
rights expire at 12:00 midnight, New York City time, on Friday, April 7, 2000,
unless the offer is extended.
Keeping Your Shares in the Retirement Savings Plan. If you do not wish to
tender your shares held in the Retirement Savings Plan, you do not need to take
any action.
Tendering Shares NOT Held in the Retirement Savings Plan. If you desire to
tender shares, other than Retirement Savings Plan shares, you must properly
complete and duly execute a Letter of Transmittal for such shares and deliver
such Letter of Transmittal to the Depositary. THE TRUSTEE CANNOT INCLUDE
NON-RETIREMENT SAVINGS PLAN SHARES IN ITS LETTERS OF TRANSMITTAL.
The offer is being made solely pursuant to the Offer to Purchase and the
related Letter of Transmittal and is being made to all record holders of shares
of common stock of Shaw. Shaw is not aware of any state where the making to the
offer is prohibited by administrative or judicial action pursuant to a valid
state statute. If Shaw becomes aware of any valid state statute prohibiting the
making of the offer, Shaw will make a good faith effort to comply with such
statute. If, after such good faith effort, Shaw cannot comply with such statute,
the offer will not be made to, nor will tenders be accepted from or on behalf
of, holders of shares in such state. In those jurisdictions whose securities,
blue sky or other laws require the offer to be made by a licensed broker or
dealer, the offer shall be deemed to be made on behalf of Shaw by the Dealer
Manager for the offer or one or more registered brokers or dealers licensed
under the laws of such jurisdictions.
SHAW INDUSTRIES, INC.
Plan Administrator, Shaw Industries,
Inc. Retirement Savings Plan
3
<PAGE> 4
INSTRUCTION FORM
SHAW INDUSTRIES, INC.
RETIREMENT SAVINGS PLAN
WITH RESPECT TO THE OFFER TO PURCHASE
FOR CASH UP TO 12,000,000 SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED SERIES A PARTICIPATING
PREFERRED STOCK PURCHASE RIGHTS)
OF SHAW INDUSTRIES, INC. AT A PURCHASE PRICE NOT IN
EXCESS OF $13.50 NOR LESS THAN $11.50 PER SHARE
BEFORE COMPLETING THIS FORM, PLEASE READ CAREFULLY THE ACCOMPANYING OFFER
TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL AND ALL OTHER ENCLOSED
MATERIALS.
<TABLE>
<S> <C> <C>
To: INDEPENDENT FIDUCIARY
RETIREMENT SAVINGS PLAN
STATE STREET GLOBAL ADVISORS
ATTN: DAVID SWALLOW
200 NEWPORT AVENUE
NORTH QUINCY, MASSACHUSETTS 02171
From: -------------------------------------, Social Security
Retirement Savings Plan Number:
Participant
Participant's
Address:
-------------------------------------
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</TABLE>
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The undersigned acknowledges receipt of your letter, and the enclosed Offer
to Purchase, dated March 13, 2000, and the related Letter of Transmittal, in
connection with the offer by Shaw Industries, Inc., a Georgia corporation, to
purchase 12,000,000 shares of its common stock, including the associated rights
to purchase preferred stock, at a price not in excess of $13.50 nor less than
$11.50 per share, net to seller in cash without interest, on terms and subject
to conditions of the offer.
Shaw will determine a single per share price (not in excess of $13.50 nor
less than $11.50 per share) that it will pay for the shares properly tendered
pursuant to the offer, taking into account the number of shares tendered and the
prices specified by tendering shareholders. Shaw will purchase up to 12,000,000
shares or, if a lesser number of shares are properly tendered, all shares
properly tendered.
I hereby instruct the independent fiduciary appointed by Shaw to instruct
State Street Bank and Trust Company, as Trustee (the "Trustee") of the Shaw
Industries, Inc. Retirement Savings Plan, to tender to Shaw, in accordance with
the terms and subject to the conditions set forth in the Offer to Purchase,
dated March 13, 2000, and the related Letter of Transmittal, a copy of which I
have received and read, the indicated number of shares or, if no number is
indicated, all shares for the account of the undersigned, of Shaw's common stock
allocated to my Retirement Savings Plan account at a price per share indicated
below, and subject to the condition, if any, indicated in the box marked
"Conditional Tender," below upon the terms of the offer. I understand that my
instructions will be kept confidential from Shaw. Shaw will return shares
tendered at prices greater than the purchase price, any shares not purchased
because of proration and any shares not purchased because they were
conditionally tendered.
<PAGE> 5
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SIGNATURE BOX
Signature:
------------------------------------
Dated:
---------------------------------------
Name and Address
(Please Print):
-------------------------------
---------------------------------------
---------------------------------------
Area Code and
Telephone Number:
-------------------------
Social Security Number:
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</TABLE>
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AGGREGATE NUMBER OF SHARES
TO BE TENDERED:(*)
PRICE (IN DOLLARS) PER SHARE AT
WHICH SHARES ARE BEING TENDERED
<TABLE>
<S> <C> <C> <C> <C> <C>
CHECK ONLY ONE BOX
[ ] [ ]
$11.50 $12.75
[ ] [ ]
$11.75 $13.00
[ ] [ ]
$12.00 $13.25
[ ] [ ]
$12.25 $13.50
[ ]
$12.50
</TABLE>
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<TABLE>
<S> <C> <C>
[ ] CONDITIONAL TENDER
UNLESS THIS BOX HAS BEEN COMPLETED AND
A MINIMUM SPECIFIED, THE TENDER WILL BE
DEEMED UNCONDITIONAL (SEE SECTIONS 1
AND 2 OF THE OFFER TO PURCHASE)
Minimum number of shares that must be
purchased if any are purchased:
------------------ shares
</TABLE>
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<TABLE>
<S> <C> <C>
SHARES TENDERED AT PRICE
DETERMINED UNDER THE
TENDER OFFER.
---------------------------------------
[ ] The undersigned wants to maximize
the chance of having Shaw purchase all
of the shares the undersigned is
tendering (subject to the possibility
of proration). Accordingly, by checking
THIS BOX INSTEAD OF ONE OF THE PRICE
BOXES ABOVE, the undersigned hereby
tenders shares and is willing to accept
the purchase price determined by Shaw
in accordance with the terms of the
tender offer. This action could result
in receiving a price per share as low
as $11.50.
</TABLE>
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(*) Unless otherwise indicated, it will be assumed that all of the shares held
for the account of the undersigned in the Retirement Savings Plan as of
February 29, 2000 are to be tendered.
