Page 2 of
11
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NAMES
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
[ ]
(b)
[x]
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SEC
USE ONLY
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SOURCE
OF FUNDS (SEE INSTRUCTIONS):
PF
and OO (Funds of Managed Accounts)
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CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR
2(E)
Not
Applicable
|
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CITIZEN
OR PLACE OF ORGANIZATION
United
States
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
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7
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SOLE
VOTING POWER
755,900
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8
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SHARED
VOTING POWER
1,694,415
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9
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SOLE
DISPOSITIVE POWER
755,900
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10
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SHARED
DISPOSITIVE POWER
1,694,415
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,450,315
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CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
Not
Applicable
|
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.1%
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TYPE
OF REPORTING PERSON
IN
|
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NAMES
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
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|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
[ ]
(b) [x]
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SEC
USE ONLY
|
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SOURCE
OF FUNDS (SEE INSTRUCTIONS):
PF
and OO (Funds of Managed Accounts)
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|
|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR
2(E)
Not
Applicable
|
|
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CITIZEN
OR PLACE OF ORGANIZATION
United
States
|
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
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7
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SOLE
VOTING POWER
9,000
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8
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SHARED
VOTING POWER
1,609,415
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9
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SOLE
DISPOSITIVE POWER
9,000
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10
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SHARED
DISPOSITIVE POWER
1,620,515
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,629,515
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CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
Not
Applicable
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.7%
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TYPE
OF REPORTING PERSON\
IN
|
|
|
|
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NAMES
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
|
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|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
[ ]
(b) [x]
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SEC
USE ONLY
|
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SOURCE
OF FUNDS (SEE INSTRUCTIONS):
OO
(Funds of Managed Accounts)
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|
CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR
2(E)
Not
Applicable
|
|
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CITIZEN
OR PLACE OF ORGANIZATION
United
States
|
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
|
7
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SOLE
VOTING POWER
0
|
|
8
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SHARED
VOTING POWER
1,544,415
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9
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SOLE
DISPOSITIVE POWER
0
|
|
10
|
SHARED
DISPOSITIVE POWER
1,544,415
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,544,415
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|
|
CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
Not
Applicable
|
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.8%
|
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TYPE
OF REPORTING PERSON
IN
|
|
|
|
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NAMES
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
|
|
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
[ ]
(b) [x]
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SEC
USE ONLY
|
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SOURCE
OF FUNDS (SEE INSTRUCTIONS):
WC
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CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR
2(E)
Not
Applicable
|
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CITIZEN
OR PLACE OF ORGANIZATION
New
York Limited Partnership
|
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
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7
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SOLE
VOTING POWER
0
|
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8
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SHARED
VOTING POWER
488,434
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9
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SOLE
DISPOSITIVE POWER
0
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10
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SHARED
DISPOSITIVE POWER
488,434
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
488,434
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CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
Not
Applicable
|
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.0%
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TYPE
OF REPORTING PERSON
PN
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|
|
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NAMES
OF REPORTING PERSONS
I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
|
|
|
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
[ ]
(b) [x]
|
|
|
SEC
USE ONLY
|
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|
SOURCE
OF FUNDS (SEE INSTRUCTIONS):
WC
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CHECK
IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR
2(E)
Not
Applicable
|
|
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CITIZEN
OR PLACE OF ORGANIZATION
New
York Limited Partnership
|
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NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY EACH
REPORTING
PERSON
WITH
|
7
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SOLE
VOTING POWER
0
|
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8
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SHARED
VOTING POWER
1,014,675
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9
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SOLE
DISPOSITIVE POWER
0
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10
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SHARED
DISPOSITIVE POWER
1,014,675
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,014,675
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|
CHECK
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
Not
Applicable
|
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.4%
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TYPE
OF REPORTING PERSON
PN
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The
following constitutes Amendment No. 9 ("Amendment") to the
joint filing on Schedule 13D by Thomas W. Smith, Scott J. Vassalluzzo, Steven M.
Fischer, Idoya Partners and Prescott Associates originally filed with the
Securities Exchange Commission on March 20, 2002, as amended by Amendment No. 1
filed on November 12, 2002, Amendment No. 2 filed on October 21, 2004, Amendment
No. 3 filed on February 3, 2005, Amendment No. 4 filed on July 11, 2008,
Amendment No. 5 filed on December 12, 2008, Amendment No. 6 filed on March 3,
2010, Amendment No. 7 filed on June 25, 2010 and Amendment No. 8 filed on
November 1, 2010 (as amended, the “Amended Schedule
13D").
The
Amended Schedule 13D is hereby amended as follows:
Item
4. Purpose
of Transaction
Item 4 of
the Amended Schedule 13D is hereby amended and restated in its entirety as
follows:
As
described more fully in Item 5 below, Messrs. Smith, Vassalluzzo and Fischer
beneficially own 1,794,415, 1,620,515 and 1,544,415 shares of Common Stock,
respectively, in their capacity as investment managers for Idoya Partners,
Prescott Associates and other managed accounts (the "Managed
Accounts"). The Managed Accounts consist of investment
accounts for: (i) three private investment limited partnerships (including Idoya
Partners and Prescott Associates) for which Messrs. Smith, Vassalluzzo and
Fischer are each a general partner, (ii) an employee profit-sharing plan of a
corporation wholly-owned by Mr. Smith and for which Messrs. Smith and
Vassalluzzo are each a trustee, (iii) certain family members of
Mr. Vassalluzzo and certain individual accounts managed by Mr. Smith and (iv) a
private charitable foundation established by Mr. Smith and for which Mr. Smith
acts as trustee. In addition, Messrs. Smith and Vassalluzzo own
655,900 and 9,000 shares of Common Stock, respectively, for their own accounts
(collectively, the "Personal
Shares"). The 1,805,515 shares of Common Stock owned by the
Managed Accounts (the "Managed Account
Shares") were acquired by the Reporting Persons on behalf of the Managed
Accounts for the purpose of achieving the investment goals of the Managed
Accounts. Messrs. Smith and Vassalluzzo acquired the Personal Shares
for investment purposes.
The
Reporting Persons have engaged in discussions with Cerberus Capital Management,
L.P. (“CCM”)
regarding participation in a potential acquisition (a “Transaction”) of
Pre-Paid Legal Services, Inc. (the “Company”) by one or
more affiliates of CCM (such affiliates, together with CCM, “Cerberus”). To
that end and to induce Cerberus to expend the time, effort and expense to pursue
a Transaction, Mr. Smith, Mr. Vassalluzzo, Idoya Partners and Prescott
Associates entered into an Exclusivity Agreement, dated January 18, 2011 (the
“Exclusivity
Agreement”), with CCM, pursuant to which each of Mr. Smith, Mr.
Vassalluzzo, Idoya Partners and Prescott Associates agreed that during the term
of the Exclusivity Agreement such parties would not, directly or indirectly, (i)
knowingly solicit or seek offers, inquiries or proposals for, or encourage, or
induce any offer, inquiry or proposal to enter into, any transaction with any
party other than Cerberus relating to a business combination or merger involving
the Company, the issuance or sale of a substantial portion of the Company’s
equity, a sale of all or substantially all of the Company’s assets, a sale of a
material portion of the Company’s securities owned by the Reporting Persons, or
a change in control of the Company or its business; (ii) conduct any discussion
or negotiations with, or provide any confidential information about the Company
to, any third party in connection with any such alternative transactions; or
(iii) take, directly or indirectly, any actions with the purpose or effect of
avoiding or circumventing any of the foregoing. The Exclusivity
Agreement will terminate upon the first to occur of the execution by the Company
and one or more affiliates of CCM of a definitive merger agreement for a
Transaction, notice to the Reporting Persons from CCM that it no longer wishes
to pursue a Transaction, the close of business on the 180th day following the
execution of the Exclusivity Agreement or as otherwise agreed by the
parties. A copy of the Exclusivity Agreement is attached hereto as
Exhibit 2
and is incorporated herein by reference. The foregoing description of the
Exclusivity Agreement is qualified in its entirety by reference to the full text
of the Exclusivity Agreement.
A
Transaction may include the formation of a newly-formed investment vehicle
(“Newco”),
which would acquire the Company and into which the Reporting Persons would
contribute a significant portion of the Common Stock owned by them in exchange
for equity interests in Newco. The Reporting Persons also may enter
into an agreement with Cerberus to vote their shares of Common Stock in favor of
such a Transaction and against any alternative transaction. The terms
and conditions of any contribution and voting agreements would be determined at
a later date in connection with the execution of a definitive acquisition
agreement between the Company and Cerberus and would be subject to the approval
of the Company’s Board of Directors.
Item
5. Interest in Securities of the Issuer
Items 5 of the Amended Schedule 13D is
hereby amended and restated in its entirety as follows:
(a) Based
on the 9,764,441 shares of Common Stock reported as outstanding as of October
21, 2010 in the Company’s Form 10-Q filed with the Securities and Exchange
Commission on October 27, 2010, the aggregate number and percentage of shares of
Common Stock beneficially owned by each of the Reporting Persons is as follows:
Mr. Smith – 2,450,315 shares (25.1%); Mr. Vassalluzzo – 1,629,515 shares
(16.7%); Mr. Fischer – 1,544,415 shares (15.8%); Idoya Partners – 488,434 shares
(5.0%); and Prescott Associates – 1,014,675 shares (10.4%).
(b) Messrs.
Smith and Vassalluzzo have the sole power to vote or to direct the vote
of and the sole power to dispose or to direct the disposition of 755,900
and 9,000 shares of Common Stock, respectively. Mr. Fischer has the
sole power to vote or to direct the vote and to dispose or direct the
disposition of no shares. Idoya Partners and Prescott Associates
share the power to vote or to direct the vote and to dispose or to direct the
disposition of 488,434 and 1,014,675 shares of Common Stock,
respectively. Of the 1,805,515 shares of Common Stock owned by the
Managed Accounts, Messrs. Smith, Vassalluzzo and Fischer share the power to vote
or to direct the vote of 1,694,415, 1,609,415 and 1,544,415 shares of Common
Stock, respectively and share the power to dispose or direct the disposition of
1,694,415, 1,620,515 and 1,544,415 shares of Common Stock,
respectively.
(c) During
the sixty (60) days prior to the date of this filing, the Reporting Persons
effected no transactions involving shares of Common Stock other than a
charitable contribution on December 29, 2010 of 100,000 of Mr. Smith’s Personal
Shares to a private charitable foundation established by Mr. Smith and for which
he acts as trustee.
Item
6. Contracts,
Arrangements, Understandings or Relationships with respect to Securities of the
Issuer
Item 6
of the Amended Schedule 13D is hereby amended and restated in its entirety
as follows:
With
respect to any Managed Account established for the benefit of family members and
other personal accounts, the voting and investment authority accorded the
Reporting Person is subject to each account holder's ability, if so provided, to
terminate or otherwise direct the disposition of the Managed
Account. Except as otherwise set forth above, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among any of
the Reporting Persons and any other person with respect to any securities of the
Company, including any contract, arrangement, understanding or relationship
concerning the transfer or the voting of any securities of the Issuer, or any
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Item
7. Material
to Be Filed as Exhibits
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1.
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Agreement
relating to the joint filing of this statement on Schedule 13D/A dated
January 19, 2011.
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2.
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Exclusivity
Agreement, dated January 18, 2011, among Thomas W. Smith, Scott J.
Vassalluzzo, Idoya Partners, L.P. and Prescott Associates, L.P. and
Cerberus Capital Management, L.P.
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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.
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Thomas
W. Smith
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Scott
J. Vassalluzzo
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Steven
M. Fischer
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IDOYA
PARTNERS L.P. |
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By:
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Thomas
W. Smith
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Its:
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General
Partner
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PRESCOTT
ASSOCIATES L.P. |
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By:
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Thomas
W. Smith
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Its:
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General
Partner
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Exhibit
1
Joint Filing
Agreement
The
undersigned agree that the foregoing statement on Schedule 13D/A, dated January
19, 2011, is being filed with the Securities and Exchange Commission on behalf
of each of the undersigned pursuant to Rule 13d-1(k).
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Thomas
W. Smith
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Scott
J. Vassalluzzo
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Steven
M. Fischer
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IDOYA
PARTNERS L.P. |
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By:
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Thomas
W. Smith
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Its:
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General
Partner
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PRESCOTT
ASSOCIATES L.P. |
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By:
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Thomas
W. Smith
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Its:
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General
Partner
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Exhibit 2
Cerberus
Capital Management, L.P.
299 Park
Avenue
Re: Exclusivity
Gentlemen:
In order
to induce one or more affiliates of Cerberus Capital Management, L.P. (“CCM”; and together
with such affiliates, “Cerberus”) to expend
significant time, effort and expense (i) to pursue a potential acquisition of
Pre-Paid Legal Services, Inc. (the “Company”) through an
Agreement and Plan of Merger (the “Merger Agreement”) at
a cash price per share previously disclosed by you to us (as such price may be
adjusted from time to time after the date hereof) and to negotiate agreements
relating to our participation in and/or support of such potential acquisition
(the “Transaction”), Thomas
W. Smith (“Smith”), Scott J.
Vassalluzzo (“Vassalluzzo”),
Prescott Associates, L.P. (“Prescott”), and Idoya
Partners, L.P. (“Idoya,” and together
with Smith, Vassalluzzo and Prescott, the “Prescott Investors”) hereby
agree as follows:
1. Subject
to Sections 2 and 4 below, until the execution and delivery (following, but not
before approval by the Company’s board of directors), of the Merger Agreement and any
agreements between Cerberus
and the Prescott Investors
entered into in connection with the Transaction (collectively with the Merger Agreement,
the “Definitive
Agreements”), the
Prescott Investors will not (and will cause their representatives, investment
bankers and any other person acting on their behalf, not to), directly or
indirectly:
(i) knowingly
solicit or seek offers, inquiries or proposals for, or encourage, or induce any
offer, inquiry or proposal to enter into, any transaction, other than the
Transaction with Cerberus, in respect of, or that could reasonably be expected
to lead to, (a) a business combination or merger involving the Company, (b) an
issuance or sale of all or a substantial portion of the equity of the Company,
(c) a sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of a material portion of any voting or other securities of the
Company beneficially owned (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) by the Prescott Investors (the “Prescott
Securities”), (d) a sale of all or a substantial portion of the assets of
the Company, or (e) a change in control of the Company or its business (any of
the foregoing transactions, a “Competing
Transaction”);
(ii) provide
non-public or confidential information to any other person regarding the
Company, in connection with a Competing Transaction;
(iii) conduct
any discussions or negotiations regarding a Competing Transaction (other than,
in response to an unsolicited inquiry or proposal, to inform the party making
such inquiry or proposal of the existence of this letter agreement (the “Exclusivity
Agreement”));
(iv) take,
directly or indirectly, any actions with the purpose or effect of avoiding or
circumventing any of the foregoing;
and the parties hereto have no contrary understanding with respect to the
foregoing.
2. None
of the provisions of Section 1 of this Exclusivity Agreement shall restrict any
Prescott Investor from taking, or refraining from taking, any action as a
trustee, settlor or other fiduciary under any foundation, trust or similar
arrangement, in each case which such Prescott Investor reasonably determines in
good faith is necessary to discharge its fiduciary duties under applicable law
or contractual obligations. Each Prescott Investor hereby represents and
warrants that he or it is not bound under any agreement with the Company that
would limit his or its ability to comply with his or its obligations under
Section 1 of this Exclusivity Agreement.
3. The
proposed terms of the Transaction and the terms of the Definitive Agreements
that the Prescott Investors and Cerberus have discussed to date are intended to
serve only as an expression of the parties’ intent to proceed in good faith to
negotiate, prepare, reach agreement on and execute one or more definitive
agreements with respect to the Transaction and the Definitive Agreements, and
not as creating any binding or legally enforceable obligations on either the
Prescott Investors or Cerberus with respect to the Transaction or the Definitive
Agreements.
4. This
Exclusivity Agreement shall terminate upon the first to occur of (i) the
execution by the Company of a Merger Agreement with Cerberus, whether or not the
Prescott Investors enter into agreements with Cerberus in connection with such
Merger Agreement, (ii) receipt by the Prescott Investors of written notification
from CCM to the Prescott Investors on or after the Effective Date that it no
longer wishes, acting in good faith, to proceed with the Transaction (and CCM
hereby agrees to provide the Prescott Investors with prompt written notice
thereof), (iii) the close of business on the one-hundred-eightieth (180th) day
following your acceptance of this letter, and (iv) written agreement of CCM and
the Prescott Investors to terminate this Exclusivity Agreement; provided, that,
notwithstanding the foregoing, each party shall retain such party’s rights and
remedies with respect to pre-termination breaches by the other party of such
other party’s obligations under this Exclusivity Agreement.
5. The
parties hereto acknowledge that money damages may not be a sufficient remedy for
any breach of this Exclusivity Agreement by any party. It is accordingly agreed
that prior to the termination of this Exclusivity Agreement in accordance with
Section 4, the parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Exclusivity Agreement and to enforce specifically the
terms and provisions of this Exclusivity Agreement in the Delaware Court of
Chancery (this being in addition to any other remedies at law or in equity that
they may have).
6. This
Exclusivity Agreement shall not be assigned by any party by operation of law or
otherwise without the prior written consent of the other parties.
7. The
terms of this Exclusivity Agreement may be modified or waived only by a separate
writing that expressly modifies or waives any such term and that is signed by
each party against whom such modification or waiver is to be made.
8. Nothing
in this Exclusivity Agreement shall be interpreted as (i) creating or forming a
“group” with any other person for purposes of Rule 13d-5(b)(1) of the Securities
Exchange Act of 1934, as amended, or any other similar provision of applicable
law, (ii) causing Cerberus to be an “acquiring person” as defined in Section
1148A of the Oklahoma General Corporation Act, as amended (the “OGCA”) or to have
voting power or control over any “control shares” for purposes of Sections 1145
through 1155 of the OGCA, (iii) constituting a “control share acquisition”, as
defined in Section 1146 of the OGCA, by Cerberus of any shares of the Company,
or (iv) causing Cerberus to be an “interested shareholder” as defined in Section
1090.3 of the OGCA.
9. Except
to the extent that the laws of the State of Oklahoma are mandatorily applicable
to this Exclusivity Agreement or the internal affairs of any of the parties
hereto, this Exclusivity Agreement shall be deemed to be made in and in all
respects shall be interpreted, construed and governed by and in accordance with
the laws of the State of Delaware (without giving effect to the conflict of laws
principles thereof).
10. In
addition, each of the parties hereto (a) consents to submit itself or himself to
the personal jurisdiction of the Delaware Court of Chancery in the event any
dispute arises out of this Exclusivity Agreement or any transaction contemplated
by this Exclusivity Agreement, (b) agrees that it or he will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court, (c) agrees that it or he will not bring any action relating to
this Exclusivity Agreement or any transaction contemplated by this Exclusivity
Agreement in any court other than any such court and (d) waives any right to
trial by jury with respect to any action related to or arising out of this
Exclusivity Agreement or any transaction contemplated by this Exclusivity
Agreement. The parties irrevocably and unconditionally waive any objection to
the laying of venue of any action, suit or proceeding arising out of this
Exclusivity Agreement or the transactions contemplated hereby in the Delaware
Court of Chancery, and hereby further irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
11. This
Exclusivity Agreement may be executed in counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
agreement.
If the
foregoing accurately represents your understanding with respect to the matters
addressed herein, please so indicate by executing this Exclusivity Agreement in
the applicable space below.
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Sincerely, |
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THOMAS
W. SMITH |
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By:
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/s/ Thomas W.
Smith
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SCOTT
J. VASSALLUZZO |
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By:
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/s/ Scott J.
Vassalluzzo
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IDOYA
PARTNERS L.P. |
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By:
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/s/ Scott J.
Vassalluzzo
Title:
General Partner
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PRESCOTT
ASSOCIATES L.P. |
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By:
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/s/ Scott J.
Vassalluzzo
Title:
General Partner
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Agreed to
and accepted:
CERBERUS
CAPITAL MANAGEMENT, L.P.
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By:
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/s/ Mark A.
Neporent
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Name: Mark
A. Neporent
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Title:
Senior Managing Director
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