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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3/A
RULE 13E-3 TRANSACTION STATEMENT
(PURSUANT TO SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934)
FINAL AMENDMENT NO. 2
NIHON AMWAY KABUSHIKI KAISHA
(Exact name of Issuer as Specified in Charter)
AMWAY JAPAN LIMITED
(Translation of Issuer's Name in English)
N.A.J. CO., LTD.
ALAP HOLD CO., LTD.
AMWAY JAPAN LIMITED
RICHARD M. DEVOS, JR.
STEPHEN A. VAN ANDEL
(Names of Persons Filing Statement)
COMMON STOCK, NO PAR VALUE
AMERICAN DEPOSITARY SHARES, EACH REPRESENTING ONE-HALF
OF ONE SHARE OF COMMON STOCK, EVIDENCED BY AMERICAN
DEPOSITARY RECEIPTS
(Title of Class of Securities)
03 234 J 10 0
(CUSIP Number of ADSs)
CRAIG N. MEURLIN, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
AMWAY CORPORATION
7575 FULTON STREET EAST
ADA, MICHIGAN 49355
(616) 787-6000
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Person(s) Filing Statement)
COPY TO:
THOMAS C. DANIELS, ESQ.
JONES, DAY, REAVIS & POGUE
NORTH POINT
901 LAKESIDE AVENUE
CLEVELAND, OHIO 44114
(216) 586-3939
_____________
This statement is filed in connection with (check the appropriate box):
a. |_| The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c)
[sec. 240.13e-3(c)] under the Securities Exchange Act of 1934.
b. |_| The filing of a registration statement under the Securities Act of
1933.
c. |X| A tender offer.
d. |_| None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies:[ ]
Page 1 of 6 Pages
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INTRODUCTION
This Final Amendment No. 2 to the Rule 13e-3 Transaction Statement on
Schedule 13E-3 (this "Final Amendment") relates to a tender offer conducted by
N.A.J. Co., Ltd., a joint stock corporation organized under the laws of Japan
("NAJ"), to purchase all outstanding shares of the Common Stock, no par value
(the "Common Stock"), and American Depositary Shares, each representing one-half
of one share of Common Stock (the "ADSs"), that are beneficially owned by
shareholders of Amway Japan Limited, a joint stock corporation organized under
the laws of Japan (the "Company"). The Offer (as defined herein) commenced on
November 18, 1999. The purchase price for each share of Common Stock was
(Yen)1,490, in cash (the "Common Stock Purchase Price"), less any U.S. backup
withholding and Japanese taxes that were required to be withheld. The purchase
price for each ADS was (Yen)745, in cash (the "ADS Purchase Price"), less any
U.S. backup withholding and Japanese taxes that were required to be withheld.
The ADS Purchase Price was equal to one-half of the Common Stock Purchase Price
(because each ADS represents one-half of one share of Common Stock). The ADS
Purchase Price was payable in and converted into U.S. dollars using the noon
buying rate in New York City for cable transfers of yen announced for customs
purposes by the Federal Reserve Bank of New York on the date of settlement of
the Offer in Japan, December 22, 1999. The ADSs are evidenced by American
Depositary Receipts. The Offer was made to each holder of Common Stock and ADSs
and subject to the conditions set forth in the Offer to Purchase, dated November
18, 1999 (the "Offer to Purchase"), of NAJ, and in the related Letter of
Transmittal (the "Letter of Transmittal," which, together with the Offer to
Purchase, constitutes the "Offer"). Copies of the Offer to Purchase and the
related Letter of Transmittal were filed on November 18, 1999 as Exhibits (d)(1)
and (d)(2), respectively, to the initial filing of the Schedule 13E-3. This
Final Amendment is being filed pursuant to Section 13(e) of the Securities
Exchange Act of 1934 and Rule 13e-3(d)(3) thereunder. Capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Offer to
Purchase.
ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION.
The information set forth in Item 1 of Schedule 13E-3 is hereby
supplemented and amended as follows:
In connection with the Offer, Guard Hill Capital LDC ("Guard Hill"), a
holder of ADSs, attempted to tender its ADSs to NAJ. As a result of
administrative and clerical errors relating to the Offer, Guard Hill's tender of
its ADSs was rejected. Pursuant to Guard Hill's request and following a review
of this matter, ALAP Hold Co., Ltd., a Nevada limited partnership and the parent
of NAJ ("ALAP"), agreed to purchase the ADSs owned by Guard Hill. Pursuant to a
letter, dated May 11, 2000, ALAP agreed to purchase 108,500 ADSs for (Yen) 745
per ADS in cash, the ADS Purchase Price, and Guard Hill agreed to tender its
ADSs and to release ALAP, its affiliates and subsidiaries from any claims that
exist or may arise in the future concerning the ADSs purchased by ALAP.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS.
The information set forth in Item 17 of the Schedule 13E-3 is hereby
supplemented and amended as follows:
Exhibit
No. Description
--- -----------
(c)(4) Form of Letter Agreement, dated May 11, 2000, between ALAP
and Guard Hill.
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SIGNATURES
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: May 18, 2000 N.A.J. CO., LTD.
By: /s/ Lawrence M. Call
-------------------------------------
Name: Lawrence M. Call
Title: Attorney-in-Fact
ALAP HOLD CO., LTD.
By: AP NEW CO., LLC., its general partner
By: AMWAY CORPORATION, its Manager
By: /s/ Craig N. Meurlin
-------------------------------------
Name: Craig N. Meurlin
Title: Manager
AMWAY JAPAN LIMITED
By: /s/ James B. Payne
-------------------------------------
Name: James B. Payne
Title: President and Representative
Director
RICHARD M. DEVOS, JR.
/s/ Richard M. DeVos, Jr.
-------------------------------------------
STEPHEN A. VAN ANDEL
/s/ Stephen A. Van Andel
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
--- -----------
(a) (1) Form of Senior Bank Financing Commitment Letter among NAJ,
ALAP Apple Hold Co., L.P., New AAP Limited, Amway Corporation
and Morgan Guaranty Trust Company of New York, Tokyo Branch,
dated November 15, 1999 (incorporated herein y reference to
Exhibit (b)(1) of the Schedule 14D-1 of N.A.J. Co., Ltd. and
ALAP Hold Co., Ltd. filed with the Commission on November 18,
1999 and amended on November 26, 1999, November 30, 1999,
December 7, 1999, December 13, 1999 and December 17, 1999 (the
"Schedule 14D-1")).**
(2) Form of Term Sheet Regarding Credit Facility (incorporated
herein by reference to Exhibit (b)(2) of the Schedule
14D-1).**
(3) Credit Agreement, among ALAP, NAJ, Apple Hold Co., New AAP
Limited, the banks party thereto and Morgan Guaranty Trust
Company of New York, Toyko Branch, dated as of December 10,
1999.**
(b) (1) Fairness Opinion of Goldman, Sachs & Co., dated November 15,
1999.**
(2) Presentation Materials of Goldman Sachs & Co., dated November
15, 1999.**
(3) Presentation Materials of Morgan Stanley & Co. Incorporated,
dated September 21, 1999.**
(c) (1) Form of Tender Offer Agreement, dated November 15, 1999 by and
among AJL, NAJ and ALAP (incorporated herein by reference to
Exhibit (c)(1) of the Schedule 14D-1).**
(2) Form of Shareholder and Voting Agreement, by and among ALAP,
NAJ and Certain Shareholders of AJL, dated as of November 15,
1999 (incorporated herein by reference to Exhibit (c)(2) of
the Schedule 14D-1).**
(3) Form of English translation of Memorandum Regarding Merger
between NAJ and AJL, dated November 15, 1999 (incorporated
herein by reference to Exhibit (c)(3) of the Schedule
14D-1).**
(4) Form of Letter Agreement, dated May 11, 2000, between ALAP and
Guard Hill.
(d) (1) Form of Offer to Purchase, dated November 18, 1999
(incorporated herein by reference to Exhibit (a)(1) of the
Schedule 14D-1).**
(2) Form of Letter of Transmittal (incorporated herein by
reference to Exhibit (a)(2) of the Schedule 14D-1).**
(3) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated herein by reference
to Exhibit (a)(3) of the Schedule 14D-1).**
(4) Form of Letter to Clients for Use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees
(incorporated herein by reference to Exhibit (a)(4) of the
Schedule 14D-1).**
(5) Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 (incorporated
herein by reference to Exhibit (a)(5) of the Schedule
14D-1).**
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(6) Form of Letter to AJL's Holders of Common Stock and ADSs
(incorporated herein by reference to Exhibit (a)(6) of the
Schedule 14D-1).**
(7) Form of Press Release "Amway Japan's Principal Shareholders to
Commence Tender Offer for Outstanding Public Shares" issued by
AJL and the Principal Shareholders on November 15, 1999
(incorporated herein by reference to Exhibit (a)(7) of the
Schedule 14D-1).**
(8) Form of English translation of Additional Information to the
Press Release on November 15, 1999 (incorporated herein by
reference to Exhibit (a)(8) of the Schedule 14D-1).**
(9) Form of English translation of Notice of Approval of Tender
Offer, dated November 15, 1999 (incorporated herein by
reference to Exhibit (a)(9) of the Schedule 14D-1).**
(10) Form of English translation of Announcement of Approval of
Tender Offer, dated November 15, 1999 (incorporated herein by
reference to Exhibit (a)(10) of the Schedule 14D-1).**
(11) Form of English translation of Announcement of Merger, dated
November 15, 1999 (incorporated herein by reference to Exhibit
(a)(11) of the Schedule 14D-1).**
(12) Form of Statement for AJL Distributors, dated November 15,
1999 (incorporated herein by reference to Exhibit (a)(12) of
the Schedule 14D-1).**
(13) Form of Statement for AJL Employees on Electronic Bulletin
Board, dated November 15, 1999 (incorporated herein by
reference to Exhibit (a)(13) of the Schedule 14D-1).**
(14) Form of Communications to Amway Distributors, dated November
15, 1999 (incorporated herein by reference to Exhibit (a)(14)
of the Schedule 14D-1).**
(15) Form of Tender Offer Announcement to Amway Management and
Employees, dated November 15, 1999 (incorporated herein by
reference to Exhibit (a)(15) of the Schedule 14D-1).**
(16) Form of Memorandum to Diamonds Direct Distributors, dated
November 16, 1999 (incorporated herein by reference to Exhibit
(a)(16) of the Schedule 14D-1).**
(17) Form of Press Release "Amway Japan's Principal Shareholders
Commence Tender Offer For Outstanding Public Shares" issued by
AJL and the Public Shareholders on November 18, 1999
(incorporated herein by reference to Exhibit (a)(17) of the
Schedule 14D-1).**
(18) Form of English translation of Report of Announcement of
Opinion, dated November 18, 1999 (incorporated herein by
reference to Exhibit (a)(18) of the Schedule 14D-1).**
(19) Form of English translation of the Public Notice, dated
November 18, 1999 (incorporated herein by reference to Exhibit
(a)(19) of the Schedule 14D-1).**
(20) Form of Summary Advertisement published on November 18, 1999
(incorporated herein by reference to Exhibit (a)(20) of the
Schedule 14D-1).**
(21) Form of English translations of Japanese Tender Offer
Explanatory Statement and Tender Offer Application Form, dated
November 18, 1999 (incorporated herein by reference to Exhibit
(a)(21) of the Schedule 14D-1).**
(22) Form of Trustee Direction Form from the 401(k) Trustee
(incorporated herein by reference to Exhibit (a)(22) of the
Schedule 14D-1).**
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(23) Form of Letter to Participants of the 401(k) Plan
(incorporated herein by reference to Exhibit (a)(23) of the
Schedule 14D-1).**
(24) Form of Letter to AJL Shareholders from AJL, dated November
1999 (incorporated by reference to Exhibit (a)(24) of the
Schedule 14D-1).**
(25) Form of Letter to AJL Shareholders from NAJ, dated November
1999 (incorporated herein by reference to Exhibit (a)(25) of
the Schedule 14D-1).**
(26) Form of Question and Answer Memorandum to Distributors, dated
December 2, 1999 (incorporated herein by reference to Exhibit
(a)(26) of the Schedule 14D-1).**
(27) Form of English translation of the Public Notice, dated
December 7, 1999 (incorporated herein by reference to Exhibit
(a)(27) of the Schedule 14D-1).**
(28) Form of English translation of Japanese Tender Offer
Registration Statement, amended on December 7, 1999
(incorporated herein by reference to Exhibit (a)(28) of the
Schedule 14D-1).**
(29) Form of English translation of Japanese Tender Offer Report of
NAJ, dated December 20, 1999.**
(30) Form of English translation of Press Release, dated December
18, 1999.**
(31) Form of English translation of Press Release, dated December
20, 1999.**
(32) Form of English translation of Press Release, dated December
21, 1999.**
(33) Form of Press Release, dated December 20, 1999.**
(34) Form of English translation of Press Release, dated December
22, 1999.**
(35) Form of English translation of Japanese Tender Offer Report of
NAJ, as amended on December 22, 1999.**
(e) Not applicable.
(f) Not applicable.
(g) Consent of Deloitte Touche Tohmatsu (incorporated herein by
reference to Exhibit (g) of the Schedule 14D-1).**
(h) Power of Attorney for NAJ (incorporated herein by reference to
Exhibit (h) of the Schedule 14D-1).**
** Previously filed as exhibits to the Transaction Statement on Schedule 13E-3
filed by NAJ, ALAP, the Company, Richard M. DeVos, Jr. and Stephen A. Van Andel
on November 18, 1999 and amended on November 26, 1999, November 30, 1999,
December 7, 1999, December 13, 1999, December 17, 1999 and December 27, 1999.
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Exhibit (c)(4)
May 11, 2000
ALAP Hold Co., Ltd.
c/o AP New Co., LLC
Attention: Craig N. Meurlin
Amway Corporation
7575 Fulton Street East
Ada, Michigan 49355
Re: Sale of American Depositary Shares of Amway Japan Limited
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Dear Mr. Meurlin:
We hereby agree to sell, assign and transfer to ALAP Hold Co.,
Ltd., a Nevada limited partnership ("ALAP"), and ALAP hereby agrees to purchase
from us, American Depositary Shares ("ADSs") representing shares of common
stock, no par value, of Amway Japan Limited ("AJL"), on the terms and subject to
the conditions set forth in this letter agreement.
We hereby agree to sell, assign and transfer to ALAP all
right, title and interest in and to 108,500 ADSs (the "Shares") for (Yen)745 per
ADS in cash, and ALAP hereby agrees to pay us in the aggregate (Yen)80,832,500
for the Shares (the "Purchase Price"). We agree that the Purchase Price will be
payable in and converted into U.S. dollars at (Yen)101.53 to $1.00, the noon
buying rate in New York City for cable transfers of yen announced for customs
purposes by the Federal Reserve Bank of New York on December 22, 1999, the date
of settlement of the tender offer by N.A.J. Co., Ltd. ("NAJ"). Promptly (and in
any event within one business day) after receipt of a signed copy of this letter
agreement, evidence of transfer of the Shares held through The Depository Trust
Company from our broker's account to ALAP's broker's account at:
Michigan National Bank
Participant No.: 986
Agent and Institutional No.: 26293
Account No.: 2402111306
and the Substitute Form W-9, ALAP hereby agrees to wire transfer $796,143.99 to:
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Mr. Craig Meurlin
May 11, 2000
Page 2
Citibank
ABA No.: 021-000-089
In Favor of: Bear Stearns Securities Corp.
Acct. No.: 09253186
For Credit: Guard Hill Capital LDC
Sub. Acct. No.: 101-401-95
We hereby represent and warrant that we have full power and
authority to surrender the Shares and that ALAP will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges,
and encumbrances and the same will not be subject to any adverse claim. We
further represent that payment of the Purchase Price is not subject to any stock
transfer taxes, U.S. backup or other withholding tax.
We agree that all agreements in this letter agreement shall be
binding upon any of our trustees in bankruptcy, successors and assigns. We
further agree, on behalf of ourselves, our heirs, executors, administrators,
successors and assigns, to hereby release and forever discharge AJL, NAJ, ALAP,
and all of their predecessors and successors, their present and former parents,
subsidiaries, affiliates, partners, principals, officers, directors, employees,
assigns, beneficiaries, attorneys, representatives, heirs or executors, none of
whom admit any liability but all of whom expressly deny liability, from any and
all liability, actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
executions, and demands whatsoever, in law, admiralty, or equity relating in any
way to the Shares (collectively, the "Claims"), that we or our heirs, executors,
administrators, successors, or assigns ever had, now have, or hereafter can,
shall, or may have for, upon, or by reason of any matter, cause, or thing
whatsoever from the beginning of time to the date of this letter agreement.
Without limitation, this release and discharge applies to any Claims that we, or
our heirs, executors, administrators, successors, and assigns ever had, now
have, or hereafter can, shall, or may have in the two purported class action
lawsuits that were brought in connection with the tender offer by NAJ referred
to above -- Sydney Desmond Hatchette, et al., v. Amway Japan Limited, et al.
(pending in the Superior Court of the State of California, Case No. 818124), and
Blynn Chideler, et al. v. Amway Japan Limited, et al., (pending in the Superior
Court of the State of California, County of Monterrey, Case No. M 47077) -- and
we agree to opt out of and not participate in any of those (or any subsequently
filed similar) class actions.
We agree that any legal action or proceeding brought against
either party to this letter agreement with respect to the matters set forth in
this letter agreement may be brought in such of the courts of competent
jurisdiction of the State of New York in New York County, the City of New York
or in the United States District Court for the Southern District of New York as
either party, its successors or assigns may elect, and by executing and
delivering this letter agreement, we irrevocably submit to the nonexclusive
jurisdiction of such courts. We further agree that all costs and expenses,
including attorneys' fees, incurred in any legal action or
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Mr. Craig Meurlin
May 11, 2000
Page 3
proceeding to enforce this letter agreement or arising from a breach of this
letter agreement shall be paid to the prevailing party by the non-prevailing
party.
We agree to keep this letter agreement confidential and shall
not disclose the terms hereof absent a court order directing us to do so.
This letter agreement constitutes the entire agreement and
supersedes any and all other prior agreements and undertakings, both written and
oral, among the parties, with respect to the subject matter hereof and is not
intended to confer upon any person other than ALAP and us, any rights or
remedies hereunder.
Sincerely,
GUARD HILL CAPITAL LDC
By: /s/ Scott W. Keller
-----------------------
Name: Scott W. Keller
Title: President
Agreed and accepted as of May 11, 2000
ALAP HOLD CO., LTD.
By: AP NEW CO., LLC, its general partner
By: AMWAY CORPORATION, its manager
By: /s/ Craig N. Meurlin
----------------------------------------------
Name: Craig N. Meurlin
Title: Senior Vice President, General Counsel and Secretary
