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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER
SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
R.H. Phillips, Inc.
(Name of Subject Company (Issuer))
Vincor International Inc.
Vincor Holdings, Inc.
Toast Acquisition Company, Inc.
(Name of Filing Persons)
Common Stock, No Par Value
(Title of Class of Securities)
749573 101
(CUSIP Number of Class of Securities)
Donald L. Triggs
President, Vincor International Inc.
441 Courtneypark East Drive
Mississauga, Ontario, Canada L5T 2V3
(905) 564-6900
(Name, address, and telephone numbers of person
authorized to receive notices and communications on
behalf of filing persons)
COPIES TO:
Jay Middleton Tannon David J. Matlow
Alan K. MacDonald Goodman Phillips & Vineberg
Brown, Todd & Heyburn PLLC 250 Yonge Street, Suite 2400
400 West Market Street, 32nd Floor Toronto, Ontario, Canada M5B 2M6
Louisville, Kentucky 40202-3363 (416) 979-2211
(502) 589-5400
CALCULATION OF FILING FEE
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TRANSACTION VALUE* AMOUNT OF FILING FEE
$62,128,423 $12,426
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* Estimated for the purpose of calculating the filing fee only. This amount
assumes the purchase of all outstanding shares of Common Stock, no par value, of
R.H. Phillips, Inc. at $7.00 per share. The number of shares used in this
calculation consists of 8,875,489 shares (which includes 6,695,331 shares issued
and outstanding, options to purchase 664,844 shares and warrants to purchase
1,515,314 shares, in each case as of August 25, 2000), less shares owned by
Issuer, Offeror and their affiliates which will not be purchased in the offer.
The amount of the filing fee, calculated in accordance with Rule 0-11 under the
Securities Exchange Act of 1934, equals 1/50th of 1% of the value of the shares
to be purchased.
** Previously paid in connection with the filing of Schedule TO on September 7,
2000.
/ / Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: Not applicable
Form or Registration Number: Not applicable
Filing Party: Not applicable
Date Filed: Not applicable
/ / 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:
/X/ third-party tender offer subject to Rule 14d-1.
/ / issuer tender offer subject to Rule 13e-4.
/ / going-private transaction subject to Rule 13e-3.
/ / amendment to Schedule 13D under Rule 13d-2.
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. 3 amends and supplements the Tender Offer Statement on
Schedule TO (the "Schedule TO") filed with the Securities and Exchange
Commission on September 7, 2000, by Vincor International Inc. ("Parent"), a
corporation organized under the laws of Canada, Vincor Holdings, Inc. ("Hold
Co."), a Delaware corporation and subsidiary of Parent, and Toast Acquisition
Company, Inc. ("Purchaser"), a California corporation and wholly owned
subsidiary of Hold Co. Parent, Hold Co. and Purchaser are sometimes referred to
together as the "Purchaser Group." The Schedule TO refers to the offer by the
Purchaser (the "Offer") to purchase all of the outstanding shares of the common
stock ("Shares") of R.H. Phillips, Inc., a California corporation (the
"Company"), at a purchase price of $7.00 per Share, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated September 7, 2000
(the "Offer to Purchase") and the related Letter of Transmittal included in the
Schedule TO.
The following items in the Schedule TO are hereby amended in order to amend
in the manner described below the disclosure in the Offer to Purchase:
Item 1. Summary Term Sheet
The following Question and Answer is added on page 4 of the Offer to Purchase:
Q: WHAT WILL HAPPEN IF THE MERGER AGREEMENT IS TERMINATED?
A: If the merger agreement is terminated for any reason, we must terminate
this offer as soon as practicable and promptly return any tendered shares to the
tendering shareholders.
If the merger agreement is terminated for any of the following reasons,
R.H. Phillips must pay us a termination fee of $1 million plus the amount of our
reasonable documented expenses in connection with these transactions:
- The R.H. Phillips board of directors withdraws its recommendation that
shareholders accept the offer and tender their shares
- The R.H. Phillips board of directors enters into a reorganization,
merger, or other business combination transaction involving R.H.
Phillips and another party
- A material breach of the representations, warranties or covenants of
R.H. Phillips in the merger agreement
If the merger agreement is terminated because any of the shareholders who
signed an agreement to tender their shares breaches his or her obligation to do
so, R.H. Phillips must pay us a termination fee of $1.5 million plus the amount
of our reasonable documented expenses.
If the merger agreement is terminated because of a material breach of our
representations, warranties or covenants in the merger agreement, we must pay
R.H. Phillips a termination fee of $1 million plus the amount of its reasonable
documented expenses.
If the merger agreement is terminated because the financing commitment from
our lender terminates before October 9, 2000, we must pay R.H. Phillips a
termination fee of $1.5 million plus the amount of its reasonable documented
expenses.
If the merger agreement terminates for any reason, and within one year R.H.
Phillips either announces a letter of intent or other agreement related to a
business combination with another
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party, or consummates a business combination transaction with another party,
then R.H. Phillips must pay Vincor, our parent, $9 million in cash upon the
consummation of that business combination transaction.
Item 7. Certain Information Concerning the Company
The third sentence of the first paragraph on page 16 of the Offer to
Purchase is hereby amended to read as follows:
Accordingly, the inclusion of the Growth Targets in this Offer should not
be regarded as an indication that the Purchaser Group, the Company or their
respective financial advisors or their respective officers and directors
consider such information to be accurate or reliable, and the Purchaser
Group and the respective financial advisors of the Purchaser Group and the
Company assume no responsibility for the accuracy therefor.
Item 10. Purpose of the Offer; The Merger Agreement
The first sentence of the paragraph under the heading "Grape Purchase
Agreement" on page 32 of the Offer to Purchase is amended to read as follows:
As a condition to the Merger Agreement and the Offer, the Company has
entered into a Grape Purchase Agreement with JK Vineyards LLC, a limited
liability company owned by the Giguiere family (the "Grower"), pursuant to
which the Grower will sell grapes to the Company.
Item 13. Certain Conditions of the Offer
The following sentence has been added at the end of the last paragraph of
this section on page 35 of the Offer to Purchase:
Notwithstanding the preceding two sentences, all conditions to the Offer,
other than those dependent on the receipt of necessary governments
approvals, must be satisfied of waived before the expiration of the Offer.
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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.
TOAST ACQUISITION COMPANY, INC.
By: /s/ Richard G. Jones
Name: Richard G. Jones
Title: Executive Vice-President
Date: September 28, 2000
VINCOR HOLDINGS, INC.
By: /s/ Richard G. Jones
Name: Richard G. Jones
Title: Executive Vice-President
Date: September 28, 2000
VINCOR INTERNATIONAL INC.
By: /s/ Richard G. Jones
Name: Richard G. Jones
Title: Executive Vice-President
Date: September 28, 2000
