UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Beringer Wine Estates Holdings, Inc.
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(Name of Issuer)
Class B Common Stock, Par Value $0.01 per share
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(Title of Class of Securities)
084102102
----------------------------------------------------
(CUSIP Number)
Richard A. Ekleberry, Esq.
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301 Commerce Street
Suite 3300
Fort Worth, Texas 76102
(817) 871-4000
Copy to:
David Leinwand, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
August 28, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. |_|
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 084102102
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Partners, L.P.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3
4 SOURCE OF FUNDS*
00 - Contributions from Partners; Distribution as Partner
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 SOLE VOTING POWER
NUMBER OF SHARES 0
BENEFICIALLY OWNED BY
EACH REPORTING 8 SHARED VOTING POWER
PERSON
WITH 8,603,888 (See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
8,603,888 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,603,888 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
43.7% (See Item 5)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 084102102
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG Parallel I, L.P.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3
4 SOURCE OF FUNDS*
00 - Contributions from Partners; Distribution as Partner
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 SOLE VOTING POWER
NUMBER OF SHARES 0
BENEFICIALLY OWNED BY
EACH REPORTING 8 SHARED VOTING POWER
PERSON
WITH 857,471 (See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
857,471 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
857,471 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 084102102
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wine Partners, L.P.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3
4 SOURCE OF FUNDS*
00 - Contributions from Partners
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 SOLE VOTING POWER
NUMBER OF SHARES 0
BENEFICIALLY OWNED BY
EACH REPORTING 8 SHARED VOTING POWER
PERSON
WITH 68,956 (See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
68,956 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
68,956 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.4% (See Item 5)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 084102102
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TPG GenPar, L.P.
2 =====================================================================
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3
4 SOURCE OF FUNDS*
Not Applicable.
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 SOLE VOTING POWER
NUMBER OF SHARES 0
BENEFICIALLY OWNED BY
EACH REPORTING 8 SHARED VOTING POWER
PERSON
WITH 11,692 (See Item 5)
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
11,692 (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,692 (See Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1% (See Item 5)
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Under the Securities Exchange Act of 1934, as amended (the "Act"), TPG
Partners, L.P. ("TPG"), TPG Parallel I, L.P. ("Parallel") and TPG GenPar, L.P.
("GenPar") hereby amend their statement on Schedule 13D, dated November 14, 1997
(the "Schedule 13D"), relating to the Class B Common Stock, par value $0.01 per
share (the "Class B Shares"), of Beringer Wine Estates Holdings, Inc.
("Beringer"). Wine Partners, L.P. ("Wine Partners") hereby joins TPG, Parallel
and GenPar in filing this Amendment No. 1 to the Schedule 13D. Wine World Equity
Partners, L.P. ("Wine World") previously filed the Schedule 13D with TPG,
Parallel and GenPar, but in September 1999, Wine World was dissolved as
described further in Item 2 below.
Reference is made to (1) the Agreement and Plan of Merger, dated as of
August 28, 2000 (the "Merger Agreement"), by and among Foster's Brewing Group
Limited (ABN:49 007 620 886), a corporation organized under the laws of South
Australia, Commonwealth of Australia ("Fosters"), Bordeaux Acquisition Corp., a
Delaware corporation and an indirect, wholly owned subsidiary of Foster's
("Purchaser"), and Beringer, and (2) the Tender, Voting and Option Agreement,
dated as of August 28, 2000 (the "Tender Agreement"), by and among Foster's,
Purchaser and the stockholders of Beringer (the "Selling Stockholders")
signatory thereto (including TPG, Parallel, Wine Partners and GenPar).
Pursuant to the terms of the Merger Agreement, on September 1, 2000,
Foster's and Purchaser filed a Schedule TO (the "Schedule TO") with the
Securities and Exchange Commission (the "SEC"), commencing a tender offer (the
"Offer") to purchase for $55.75 per share, net to the seller in cash (1) all
outstanding shares of Class A Common Stock, par value $0.01 per share (the
"Class A Shares," and together with the Class B Shares, the "Shares"), of
Beringer and (2) all outstanding Class B Shares. The obligations of Foster's and
Purchaser to purchase Shares pursuant to the Offer is subject to certain
conditions described in the Schedule TO, including there being validly tendered
and not withdrawn prior to the expiration date of the Offer a number of Shares
that, together with any Shares that Purchaser has the right to acquire pursuant
to the Tender Agreement (excluding Shares subject to the Tender Agreement that
have been validly tendered and not withdrawn prior to the expiration date of the
Offer) and any Shares then owned by Foster's or any of its subsidiaries,
constitutes at least a majority of the total voting power of the outstanding
securities of Beringer entitled to vote in the election of directors or in a
merger, calculated on a fully-diluted basis on the date of purchase (the
"Minimum Condition"). The Merger Agreement provides that, subject to certain
conditions, following the purchase of Shares by Foster's and Purchaser pursuant
to the Offer, Purchaser and Beringer will be merged (the "Merger"), and each
Share not purchased pursuant to the Offer will be converted in the Merger into
the right to receive $55.75 in cash or any higher price per Share paid in the
Offer. The Merger Agreement has been filed by Foster's and Purchaser with the
SEC as Exhibit (d)(1) to the Schedule TO. The Tender Agreement has been filed as
Exhibit 1 to this Amendment No. 1 to the Schedule 13D and is incorporated herein
by reference.
The Class B Shares are registered under Section 12 of the Act. The Class A
Shares are not registered under Section 12 of the Act.
Pursuant to the terms of Beringer's Restated Certificate of Incorporation,
as amended (the "Beringer Certificate"), holders of Class A Shares have the
right to convert their Class A Shares into the same number of Class B Shares at
any time upon notice to the Company of their intent to so convert their Class A
Shares into Class B Shares. In addition, pursuant to the Beringer Certificate,
Class A Shares automatically are converted into Class B Shares upon certain
transfers of Class A Shares. Beneficial ownership of Class B Shares of any
person reported herein includes all Class A Shares beneficially owned by such
person.
Unless otherwise defined herein, all defined terms used herein shall have
the meanings ascribed to them in the Schedule 13D.
Item 1. Security and Issuer.
-------------------
Item 1 is hereby amended and restated in its entirety to read as follows:
The name of the issuer is Beringer Wine Estates Holdings, Inc., a Delaware
corporation ("Beringer"). Beringer's principal executive offices are located at
610 Airpark Road, Napa, CA 94558. The title of the securities to which this
Statement relates is the Class B Common Stock, par value $0.01 per share, of
Beringer Wine Estates Holdings, Inc.
Item 2. Identity and Background.
Item 2 is hereby amended and restated in its entirety to read as follows:
(a) This Schedule 13D Statement is hereby filed by TPG, Parallel, Wine
World, Wine Partners and GenPar. The term "Reporting Persons" means (i) TPG,
Parallel, Wine World and GenPar when used in the Schedule 13D and (ii) TPG,
Parallel, Wine Partners and GenPar when used in Amendment No. 1 to the Schedule
13D. The Reporting Persons are making this single, joint filing because they are
controlled by the same controlling persons.
(b)-(c) TPG is a Delaware limited partnership formed in 1993 to invest in
securities of entities to be selected by its general partner. TPG also served as
sole general partner of Wine World. The principal business address of TPG, which
also serves as its principal office, is 301 Commerce Street, Suite 3300, Fort
Worth, Texas 76102. Pursuant to Instruction C to Schedule 13D of the Act,
information with respect to GenPar, the sole general partner of TPG, is set
forth below.
Parallel is a Delaware limited partnership formed in June 1994 to invest
along with TPG in securities of entities to be selected by its general partner.
The principal business address of Parallel, which also serves as its principal
office, is 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102. Pursuant to
Instruction C to Schedule 13D of the Act, information with respect to GenPar,
the sole general partner of Parallel, is set forth below.
Wine World was a Delaware limited partnership formed in December 1995 to
invest in securities of Beringer. The principal business address of Wine World,
which also served as its principal office, was 201 Main Street, Suite 2420, Fort
Worth, Texas 76102. Pursuant to Instruction C to Schedule 13D of the Act,
information with respect to TPG, which was the sole general partner of Wine
World, is set forth below. After the filing of the Schedule 13D, Wine World was
subsequently dissolved in September 1999, and distributed its Shares as follows:
Class A Shares Class B Shares
TPG 121,350 406,489
Parallel 12,096 40,516
Other Limited Partners 0 580,282
Total ---------------- --------------
133,446 1,127,287
Wine Partners is a Delaware limited partnership formed in March 1998 to
invest in securities of Beringer. The principal business address of Wine
Partners, which also serves as its principal office, is 301 Commerce Street,
Suite 3300, Fort Worth, Texas 76102. Pursuant to Instruction C to Schedule 13D
of the Act, information with respect to TPG Advisors, Inc. ("Advisors"), the
sole general partner of Wine Partners, is set forth below.
GenPar is a Delaware limited partnership, the principal business of which
is serving as the sole general partner of each of TPG and Parallel. The
principal business address of GenPar, which also serves as its principal office,
is 301 Commerce Street, Suite 3300, Fort Worth, Texas 76102. Pursuant to
Instruction C to Schedule 13D of the Act, information with respect to Advisors,
the sole general partner of GenPar, is set forth below.
Advisors is a Delaware corporation, the principal business of which is
serving as the sole general partner of GenPar and Wine Partners. The principal
business address of Advisors, which also serves as its principal office, is 301
Commerce Street, Suite 3300, Fort Worth, Texas 76102. Pursuant to Instruction C
to Schedule 13D of the Act, the name, residence or business address, and present
principal occupation or employment of each director, executive officer and
controlling person of Advisors are as follows:
<TABLE>
<S> <C> <C>
NAME RESIDENCE OR BUSINESS ADDRESS PRINCIPAL OCCUPATION OR EMPLOYMENT
---- ----------------------------- ----------------------------------
David Bonderman 301 Commerce Street, President and Director of Advisors
Suite 3300
Fort Worth, Texas 76102
James G. Coulter 345 California Street Vice President and Director of
Suite 3300 Advisors
San Francisco, California 94104
William S. Price III 345 California Street Vice President and Director of
Suite 3300 Advisors
San Francisco, California 94104
James J. O'Brien 301 Commerce Street, Vice President, Secretary and
Suite 3300 Treasurer of Advisors
Fort Worth, Texas 76102
</TABLE>
(d) None of the entities or persons identified in this Item 2 has, during
the last five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) None of the entities or persons identified in this Item 2 has, during
the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
(f) All of the natural persons identified in this Item 2 are citizens of
the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Item 3 is hereby amended by inserting the following at the end thereof:
In March 1998, Wine Partners acquired 68,956 Class A Shares from Beringer,
the funds used for which consisted of $2,892,015.00 in contributions made to
Wine Partners from its partners.
TPG received 121,350 Class A Shares and 406,489 Class B Shares and Parallel
received 12,096 Class A Shares and 40,516 Class B Shares from Wine World as a
result of the dissolution of Wine World and a distribution of Wine World's
Shares to each of them in their capacities as partners of Wine World.
GenPar was granted 11,692 Class B Shares in lieu of directors' fees earned
by Messrs. Bonderman, Coulter and Price as directors of Beringer.
Item 4. Purpose of Transaction.
----------------------
Item 4 is hereby amended and restated in its entirety to read as follows:
As described above, the Merger Agreement provides for the acquisition of
all the outstanding equity securities of Beringer by Foster's and Purchaser
pursuant to the Offer and Merger, subject to certain conditions including the
Minimum Condition. As a condition to their execution of the Merger Agreement,
Foster's and Purchaser required that the Selling Stockholders execute the Tender
Agreement. The purpose of the execution of the Tender Agreement by the Reporting
Persons was to induce Foster's and Purchaser to execute the Merger Agreement.
Pursuant to the terms of the Tender Agreement, each Selling Stockholder has
agreed to validly tender (and not withdraw), in accordance with the Offer, not
later than the tenth business day after commencement of the Offer, all of the
Shares beneficially owned as of August 28, 2000 or acquired after August 28,
2000 by the Selling Stockholders ("Subject Shares") (other than Shares for which
unexercised outstanding stock options (the "Options") granted under Beringer's
equity incentive plans are exercisable unless such Options have been exercised).
In the event that, notwithstanding the foregoing provision, any Subject Shares
are for any reason withdrawn from or not purchased under the Offer, those
Subject Shares will remain subject to the terms of the Tender Agreement. Nothing
in the Tender Agreement obligates any Selling Stockholder to exercise any
Options to purchase Shares.
Each Selling Stockholder also has agreed in the Tender Agreement that at
any meeting of the stockholders of Beringer called to consider and vote upon the
adoption of the Merger Agreement, and in connection with any action to be taken
in respect of the adoption of the Merger Agreement by written consent of
Beringer's stockholders, such Selling Stockholder will vote or cause to be voted
(including by written consent, if applicable) all of the Selling Stockholder's
Subject Shares which it has the right to vote in favor of the adoption of the
Merger Agreement and in favor of any other matter necessary or appropriate for
the consummation of the transactions contemplated by the Merger Agreement that
is considered and voted upon at any meeting or made the subject of any written
consent, as applicable. Each Selling Stockholder has further agreed that at any
meeting of the stockholders called to consider and vote upon any Adverse
Proposal (as defined below), and in connection with any action to be taken in
respect of any Adverse Proposal by written consent of stockholders, each Selling
Stockholder will vote or cause to be voted (including by written consent, if
applicable) all of the Selling Stockholder' Subject Shares which it has the
right to vote against the adoption of such Adverse Proposal. For purposes of the
Tender Agreement, the term "Adverse Proposal" includes, among other things:
o other than the transactions contemplated by the Merger Agreement, any
(i) merger, consolidation or other business combination,
recapitalization, liquidation, share exchange, sale of shares of
capital stock, tender offer or exchange offer or similar transaction
involving Beringer or any of its subsidiaries; (ii) acquisition in any
manner, directly or indirectly, of a 30% or greater interest in the
outstanding voting securities of, or a material equity interest in a
substantial portion of the assets of, Beringer or any of its
subsidiaries, including any single or multi-step transaction or series
of related transactions which is structured to permit a third party to
acquire beneficial ownership of 30% or greater equity interest in
Beringer; (iii) acquisition in any manner, directly or indirectly, of
any material portion of the business or assets (other than immaterial
or insubstantial assets or inventory in the ordinary course of
business or assets held for sale) of Beringer; or (iv) other
transaction that is intended or would be reasonably likely to
frustrate the completion of the transactions contemplated by the
Merger Agreement (an "Acquisition Transaction"); or
o any proposal or action that would reasonably be expected to result in
a breach of any covenant, representation or warranty of Beringer set
forth in the Merger Agreement.
Each Selling Stockholder appointed Foster's and any designee of Foster's as
such Selling Stockholder's proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent with respect
to all of the Selling Stockholder's Subject Shares which it has the right to
vote:
o in accordance with the agreement to vote Subject Shares as described
above; and
o to sign its name (as stockholder) to any consent, certificate or other
document relating to Beringer required or permitted under the Delaware
General Corporation Law in connection with any matter referred to in
such agreement to vote Subject Shares.
Under the Tender Agreement, each Selling Stockholder granted to Foster's an
irrevocable option (each, a "Subject Option" and, collectively, the "Subject
Options") to purchase the Selling Stockholder's Subject Shares on the terms and
subject to the conditions set forth in the Tender Agreement at a purchase price
per share equal to $55.75 per Share (or any greater amount paid for Shares
pursuant to the Offer) (the "Per Share Amount"). The Subject Options become
exercisable if the Offer is consummated but (whether due to improper tender or
withdrawal of tender) Purchaser has not accepted for payment and paid for all of
the Subject Shares. The Subject Options are exercisable in whole but not in
part.
Under the Tender Agreement, TPG, Parallel, GenPar and Wine Partners agreed
that if the Merger Agreement is terminated under certain circumstances in which
Foster's is entitled to receive a termination fee from Beringer and not later
than one year from the date the Merger Agreement is terminated (i) Beringer
consummates a merger, acquisition, consolidation, recapitalization, liquidation,
dissolution or similar transaction involving, or any sale of all or
substantially all of the assets or equity securities of, Beringer and its
subsidiaries (a "Business Combination"), (ii) Beringer enters into a letter of
intent, agreement in principle, acquisition agreement or other similar agreement
with respect to an Acquisition Transaction providing for a Business Combination,
which Business Combination is ultimately consummated, irrespective of when such
consummation occurs, (iii) a Reporting Person disposes of any or all of its
Subject Shares to any person not an affiliate or an associate of Foster's or
Purchaser or to Beringer or any affiliate thereof in connection with a Business
Combination, or (iv) a Reporting Person realizes proceeds in respect of its
Subject Shares as a result of a distribution to the Reporting Person by Beringer
following the sale of substantially all of Beringer's assets in connection with
a Business Combination, in each case at a per share price or with equivalent per
share proceeds having a value in excess of the Per Share Amount (the "Subsequent
Price"), then the Reporting Person will promptly pay to Foster's an amount equal
to one-half of the product of:
o the excess of the Subsequent Price over the Per Share Amount,
multiplied by
o the number of Subject Shares beneficially owned (other than
beneficially owned solely by reason of having a right to vote) by the
Reporting Person at the time the Business Combination is consummated
or at the time of disposal by the Reporting Person.
The Tender Agreement provides that, if Shares are purchased in the Offer in
accordance with the terms of the Merger Agreement, Foster's and Purchaser will
jointly and severally indemnify fully, hold harmless and defend the Reporting
Persons and their respective successors and assigns solely in such party's
capacity as a stockholder of Beringer (collectively, the "Indemnitees") from and
against any and all costs and expenses (including, but not limited to,
reasonable attorneys' fees and the costs and expenses of investigating,
defending and litigating any claims), judgments, fines, losses, claims, damages
and liabilities to the extent sustained or incurred by any Indemnitee in
connection with any action, suit or proceeding by or on behalf of any
stockholder, other than an Indemnitee (a "Claim") arising out of, relating to or
based upon the Tender Agreement or the Merger Agreement or the transactions
contemplated thereby so long as the Indemnitee acted in good faith in connection
with the matters that are the subject of such Claim. Notwithstanding anything
contained in the Indemnification provision of the Tender Agreement, no claim for
indemnity under this provision may be asserted by any Indemnitee arising or
resulting from:
o any breach by Beringer of any representation, warranty or covenant of
Beringer in the Merger Agreement; or
o any breach by any party to the Tender Agreement (other than by
Foster's or Purchaser) of any representation, warranty or covenant in
the Tender Agreement.
Each of the parties to the Tender Agreement has made customary
representations and warranties. In addition, each Selling Stockholder has agreed
that such Selling Stockholder will not directly or indirectly:
o except in accordance with the terms of the Tender Agreement and for
the conversion of Subject Shares at the effective time of the Merger
(the "Effective Time") in accordance with the terms of the Merger
Agreement and certain other limited circumstances, offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition
of, any or all of such Selling Stockholder's Subject Shares;
o acquire any Shares or other securities of Beringer (other than in the
event of any adjustment of Beringer's Shares or the grant of Shares to
members of the Beringer Board as director compensation in accordance
with past practice);
o except in accordance with the terms of the Tender Agreement, grant any
proxies or powers of attorney, deposit any Subject Shares into a
voting trust or enter into a voting agreement with respect to any
Subject Shares; or
o take any action that would reasonably be expected to make any of the
Selling Stockholder's representations and warranties contained in the
Tender Agreement untrue or incorrect or have the effect of impairing
the ability of the Selling Stockholder to perform its obligations
under the Tender Agreement or preventing or delaying the consummation
of any of the transactions contemplated by the Tender Agreement.
The Tender Agreement provides that no Selling Stockholder will take, or
authorize or permit any of its officers, directors, employees, agents or
representatives (including any investment banker, financial advisor, attorney or
accountant of the Selling Stockholder) to take, any action, directly or
indirectly, to (i) solicit, initiate, encourage submission of proposals or
offers from any person relating to, or that could reasonably be expected to lead
to, an Acquisition Transaction, (ii) participate in any negotiations or
discussions regarding an Acquisition Transaction, (iii) furnish to any person
any information with respect to an Acquisition Transaction, (iv) facilitate any
effort or attempt by any other person to do or seek an Acquisition Transaction,
or (v) enter into any Acquisition Agreement or any agreement in principle,
acquisition agreement or other similar agreement requiring it to abandon,
terminate or fail to consummate the Offer, the Merger or any other transaction
contemplated by the Merger Agreement or to consummate an Acquisition
Transaction. Each Selling Stockholder has agreed to immediately advise Foster's
in writing of the receipt of a request for information or any inquiries or
proposals relating to an Acquisition Transaction. Notwithstanding anything in
the Tender Agreement to the contrary:
o if any Selling Stockholder is a director of Beringer, that Selling
Stockholder may take actions in its capacity as a director to the
extent permitted by the "no shop" provision in the Merger Agreement;
and
o if any Selling Stockholder is an officer of Beringer, he or she may
take actions in his or her capacity as an officer to the extent
directed to do so by the Beringer Board in compliance with the "no
shop" provision in the Merger Agreement.
The Tender Agreement will terminate on the earliest to occur of:
o the purchase of all the Subject Shares in the Offer;
o the Effective Time; or
o the date the Merger Agreement is terminated in accordance with its
terms.
The Tender Agreement may be earlier terminated by the mutual consent of
Foster's and the Selling Stockholders representing a majority of the Subject
Shares subject to the Tender Agreement.
In the event of termination of the Tender Agreement, the agreement will
become null and void and of no effect with no liability on the part of any party
and all proxies granted thereby will be automatically revoked, except that
termination will not relieve any party from any liability for any breach of that
agreement occurring prior to such termination. Notwithstanding anything in the
Tender Agreement to the contrary, if the Tender Agreement is terminated for any
reason, the sharing of profits provision described above will survive such
termination indefinitely and if the Tender Agreement is terminated after Shares
are purchased in the Offer or the Effective Time, the Indemnification provision
described above will survive such termination for a period of six years.
The Tender Agreement provides that nothing therein shall limit or affect
any actions taken by any Selling Stockholder in his or her capacity as an
officer or director of Beringer and that none of such actions in any such
capacity shall be deemed to constitute a breach of the Tender Agreement.
The Tender Agreement is attached as Exhibit 1 to this Amendment No. 1 to
the Schedule 13D and the terms thereof are incorporated herein by reference.
The Selling Stockholders signatory to the Tender Agreement beneficially
own, in the aggregate, 10,738,882 Class B Shares (including 1,312,530 Class A
Shares), which constitutes 54.4% of the outstanding Class B Shares. As a result,
if the Selling Stockholders comply with the terms of the Tender Agreement, the
Minimum Condition will be satisfied. In calculating the percentage of the
outstanding Class B Shares beneficially owned by the Selling Stockholders, it
was assumed for purposes of this Amendment No. 1 to the Schedule 13D that all
Class A Shares beneficially owned by the Selling Stockholders had been converted
into Class B Shares.
Item 5. Interest in Securities of the Issuer.
------------------------------------
Item 5 is hereby amended and restated in its entirety to read as follows:
(a) - (d) The aggregate number of Class B Shares that TPG owns
beneficially, pursuant to Rule 13d-3 of the Act, is 8,603,888 (including
1,083,012 Class A Shares), which constitutes approximately 43.7% of the
outstanding Class B Shares. The aggregate number of Class B Shares that Parallel
owns beneficially, pursuant to Rule 13d-3 of the Act, is 857,471 (including
107,934 Class A Shares), which constitutes approximately 4.4% of the outstanding
Class B Shares. The aggregate number of Class B Shares that Wine Partners owns
beneficially, pursuant to Rule 13d-3 of the Act, is 68,956 (all of which are
Class A Shares), which constitutes approximately 0.4% of the outstanding Class B
Shares. The aggregate number of Class B Shares that GenPar owns beneficially,
pursuant to Rule 13d-3 of the Act, is 11,692, which constitutes less than 0.1%
of the outstanding Class B Shares. In addition, GenPar, as the general partner
of TPG and Parallel, may be deemed, pursuant to Rule 13d-3 under the Exchange
Act, to beneficially own those Shares held by TPG and Parallel described above.
In calculating the percentages of the outstanding Class B Shares beneficially
owned by the Reporting Persons, it was assumed for purposes of this Amendment
No. 1 to the Schedule 13D that all Class A Shares beneficially owned by the
Reporting Persons had been converted into Class B Shares.
Foster's, Purchaser, the Reporting Persons and the other Selling
Stockholders may be deemed to constitute a "group" within the meaning of Rule
13d-5(b) of the Act by virtue of the Tender Agreement. As a result, each member
of such "group" may be deemed to beneficially own an aggregate of 10,738,882
Class B Shares (including 1,312,530 Class A Shares) which are subject to the
Voting Agreement. However, each of the Reporting Persons does not believe such a
"group" exists and disclaims beneficial ownership of any Shares that would
result from the existence of such a group because (a) each of the Selling
Stockholders is severally and not jointly obligated to comply with the Tender
Agreement and (b) each Selling Stockholder has entered into the Tender Agreement
in order to dispose of their Shares and Foster's and Purchaser have entered into
the Tender Agreement in order to acquire such Shares.
To the best of the knowledge of each of the Reporting Persons, other than
as set forth above, none of the persons named in Item 2 herein is the beneficial
owner of any Shares.
(e) Wine World ceased to be the beneficial owner of more than five percent
of the Class B Shares in September 1999.
The information set forth in Items 3 and 4 above is incorporated by
reference into this Item 5.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
-------------------------------------------------------------
Item 6 is hereby amended by incorporating by reference into this Item 6 the
information set forth in Items 4 and 5 above.
Item 7. Materials to be Filed as Exhibits.
---------------------------------
1. Tender, Voting and Option Agreement, dated August 28, 2000, by and among
Foster's, Purchaser and the stockholders signatory thereto.
2. Joint Filing Agreement, dated September 26, 2000, by and among the Reporting
Persons.
<PAGE>
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.
Dated: September 26, 2000
TPG Partners, L.P.
a Delaware Limited Partnership
By: TPG GenPar, L.P.
a Delaware Limited Partnership,
General Partner
By: TPG Advisors, Inc.
a Delaware Corporation,
General Partner
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
TPG Parallel I, L.P.
a Delaware Limited Partnership
By: TPG GenPar, L.P.
a Delaware Limited Partnership,
General Partner
By: TPG Advisors, Inc.
a Delaware Corporation,
General Partner
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
<PAGE>
Wine Partners, L.P.
a Delaware Limited Partnership
By: TPG Advisors, Inc.
a Delaware Corporation,
General Partner
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
TPG GenPar, L.P.
a Delaware Limited Partnership
By: TPG Advisors, Inc.
a Delaware Corporation,
General Partner
By: /s/ Richard A. Ekleberry
------------------------
Name: Richard A. Ekleberry
Title: Vice President
<PAGE>
EXHIBIT INDEX
-------------
NO. DESCRIPTION
--- -----------
1. Tender, Voting and Option Agreement, dated August 28, 2000, by
and among Foster's, Purchaser and the stockholders signatory
thereto.
2. Joint Filing Agreement, dated September 26, 2000, by and among
the Reporting Persons.
