Tender-Offer Statement — Third-Party Tender Offer — Schedule 14D-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D1 Tender-Offer Statement -- Third-Party Tender Offer 8 44K
2: EX-99.(A)(1) Offer to Purchase 37 207K
3: EX-99.(A)(2) Letter of Transmittal 10 45K
4: EX-99.(A)(3) Letter From Donaldson, Lufkin & Jenrette 3 16K
5: EX-99.(A)(4) Letter From Brokers, Dealers, Et Al. 3 14K
6: EX-99.(A)(5) Notice of Guaranteed Delivery 2 12K
7: EX-99.(A)(6) Taxpayer I.D. Number Guidelines 5± 21K
8: EX-99.(A)(7) Summary Announcement, Dated 4/1/1997 4 22K
9: EX-99.(F) Miscellaneous Exhibit 1 8K
SC 14D1 — Tender-Offer Statement — Third-Party Tender Offer
Document Table of Contents
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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FOODBRANDS AMERICA, INC.
(NAME OF SUBJECT COMPANY)
IBP SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
IBP FOODSERVICE, L.L.C.
A WHOLLY OWNED SUBSIDIARY OF
IBP, INC.
(BIDDERS)
COMMON STOCK, $.01 PAR VALUE PER SHARE
(TITLE OF CLASS OF SECURITIES)
344822 10 1
(CUSIP NUMBER OF CLASS OF SECURITIES)
LONNIE O. GRIGSBY, ESQ. COPIES TO:
EXECUTIVE VICE PRESIDENT AND GENERAL JOSEPH H. NESLER, ESQ.
COUNSEL SIDLEY & AUSTIN
IBP, INC. ONE FIRST NATIONAL PLAZA
IBP AVENUE CHICAGO, ILLINOIS 60603
POST OFFICE BOX 515 (312) 853-7000
DAKOTA CITY, NEBRASKA 68731
(402) 494-2061
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
MARCH 25, 1997
(DATE OF EVENT WHICH REQUIRES FILING STATEMENT ON SCHEDULE 13D)
CALCULATION OF FILING FEE
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[Download Table]
TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$321,283,381 $64,257
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* For the purpose of calculating the fee only, this amount assumes the
purchase of 13,730,059 shares of Common Stock of Foodbrands America, Inc. at
$23.40 per share. Such number of shares includes all outstanding shares as
of March 25, 1997 (exclusive of shares owned by the Bidders as of that
date), and assumes the exercise of all outstanding stock options and
warrants issued by Foodbrands America, Inc. to purchase shares of its Common
Stock.
[_Check]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: FILING PARTY:
FORM OR REGISTRATION NO.: DATE FILED:
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CUSIP NO. 344822 10 1 14D-1 and 13D Page 2 of 8 Pages
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1.
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
IBP, INC. 42-0838666
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2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS)
(A) [X]
(B) [_]
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3.
SEC USE ONLY
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4.
SOURCES OF FUNDS (SEE INSTRUCTIONS) WC, BK
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5.
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(E) OR 2(F).
[_]
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6.
CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
6,220,089*
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8.
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 7 EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS)
[_]
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9.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
APPROXIMATELY 49.9% OF THE SHARES ISSUED AND OUTSTANDING AS OF MARCH 25,
1997*
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10.
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
GM, CO
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*SEE FOOTNOTE ON FOLLOWING PAGE.
2
CUSIP NO. 344822 10 1 14D-1 and 13D Page 3 of 8 Pages
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1.
NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
IBP FOODSERVICE, L.L.C. [APPLIED FOR]
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2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS)
(A) [X]
(B) [_]
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3.
SEC USE ONLY
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4.
SOURCES OF FUNDS (SEE INSTRUCTIONS) WC, BK
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5.
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(E) OR 2(F).
[_]
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6.
CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
6,220,089*
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8.
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 7 EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS)
[_]
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9.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
APPROXIMATELY 49.9% OF THE SHARES ISSUED AND OUTSTANDING AS OF MARCH 25,
1997*
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10.
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
GM, OTHER (LIMITED LIABILITY COMPANY)
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*SEE FOOTNOTE ON FOLLOWING PAGE.
3
CUSIP NO. 344822 10 1 14D-1 and 13D Page 4 of 8 Pages
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NAME OF REPORTING PERSON
1.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
IBP SUB, INC. 91-1788691
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(SEE INSTRUCTIONS)
2.
(A) [X]
(B) [_]
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SEC USE ONLY
3.
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SOURCES OF FUNDS (SEE INSTRUCTIONS) WC, BK
4.
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(E) OR 2(F).
5.
[_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6.
DELAWARE
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
7.
6,220,089*
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 7 EXCLUDES
CERTAIN SHARES (SEE INSTRUCTIONS)
8.
[_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 7
9.
APPROXIMATELY 49.9% OF THE SHARES ISSUED AND OUTSTANDING AS OF MARCH 25,
1997.*
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
10.
GM, CO
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* As of March 25, 1997, IBP, inc. (the "Parent") beneficially owned 497,800
shares of Common Stock, par value $.01 per share (the "Shares"), of
Foodbrands America, Inc., a Delaware corporation (the "Company"). The Parent
has sole voting and dispositive power with respect to such 497,800 shares.
Concurrently with the execution and delivery of the Merger Agreement (as
defined herein), on March 25, 1997, Joseph Littlejohn & Levy, L.P., a
Delaware limited partnership, and Joseph Littlejohn & Levy Fund II, L.P., a
Delaware limited partnership (together, "JLL"), entered into a Tender
Agreement dated as of March 25, 1997 (the "JLL Tender Agreement") among JLL,
the Parent and IBP Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of the Parent (the "Offeror"), whereby JLL has agreed to tender
all of their Shares to the Offeror in the Offer (as defined herein).
Concurrently with the execution and delivery of the Merger Agreement, The
Airlie Group, L.P., a Delaware limited partnership ("Airlie"), entered into a
Tender Agreement dated as of March 25, 1997 (the "Airlie Tender Agreement")
among Airlie, the Parent and the Offeror whereby Airlie has agreed to tender
to the Offeror in the Offer a number of Shares which, when taken together
with the number of Shares (i) beneficially owned by the Parent or its
subsidiaries and (ii) which the Parent or its affiliates have the right to
acquire from JLL pursuant to the JLL Tender Agreement, would cause the Parent
or its affiliates to beneficially own 49.9% of the aggregate voting power
represented by the issued and outstanding capital stock of the Company.
Pursuant to each Tender Agreement, each of JLL and Airlie (each, a "Tendering
Stockholder") has further irrevocably granted to the Offeror an option (the
"Option"), exercisable upon certain events and subject to the conditions set
forth in each Tender Agreement, to purchase a like number of Shares at a
price of $23.40 per Share. The Offeror's option to purchase the Shares
subject to each Tender Agreement and the Shares subject to the Option are
reflected in Rows 7 and 9 of each of the tables above. Each Tender Agreement
further provides that each Tendering Stockholder revokes any and all previous
proxies granted with respect to the Shares owned by such Tendering
Stockholder and further provides that each Tendering Stockholder consents to
the Merger Agreement and the transactions contemplated thereby, including the
Merger (as defined herein). In addition, the Tendering Stockholders agreed
pursuant to Tender Agreements (i) to vote a number of Shares which, when
combined with the Shares held by the Parent or the Offeror, equals 49.9% of
the issued and outstanding shares of capital stock of the Company, in favor
of the Merger Agreement, the Merger and the transactions contemplated thereby
and (ii) to oppose any Acquisition Proposal (as defined herein) and to vote
all such Shares now or in the future owned by such Tendering Stockholder
against any Acquisition Proposal. Each Tender Agreement is described more
fully in Section 13 ("The Merger Agreement and the Tender Agreements") of the
Offer to Purchase. Because the obligations of the Tendering Stockholders to
tender their Shares to the Offeror in the Offer and to sell their Shares to
the Offeror pursuant to the exercise of the Option are contingent upon the
satisfaction of certain terms and conditions, the filing of this Schedule 13D
by the Bidders should not be construed as an admission that the Bidders are,
for the purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended, the beneficial owners of the Shares that are subject to the Tender
Agreements.
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Page 5 of 8 Pages
This Statement relates to a tender offer by the Offeror to purchase all
outstanding Shares, at a purchase price of $23.40 per Share, net to the seller
in cash, without interest, upon the terms and subject to the conditions set
forth in the Offer to Purchase and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute
the "Offer"), copies of which are filed as Exhibits (a)(1) and (a)(2) hereof,
respectively, and which are incorporated herein by reference. This Tender
Offer Statement on Schedule 14D-1 also constitutes a statement on Schedule 13D
to the extent the Offeror and the Parent are deemed to have acquired
beneficial ownership of the Shares subject to the Tender Agreements. The item
numbers and responses thereto below are in accordance with the requirements of
Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Foodbrands America, Inc. The address
of the principal executive offices of the Company is set forth in Section 8
("Certain Information Concerning the Company") of the Offer to Purchase and is
incorporated herein by reference.
(b) The exact title of the class of equity securities being sought in the
Offer is the Common Stock, par value $.01 per share, of the Company. The
information set forth in the Introduction to the Offer to Purchase is
incorporated herein by reference.
(c) The information set forth in Section 6 ("Price Range of Shares;
Dividends") of the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) through (d), (g): The information set forth in the Introduction and
Section 9 ("Certain Information Concerning the Parent and the Offeror") of the
Offer to Purchase, and in Annex I thereto, is incorporated herein by
reference.
(e) and (f): During the last five years, neither the Offeror nor the Parent
nor, to the best of their knowledge, any of the persons listed in Annex I of
the Offer to Purchase, has (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) 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
activities subject to, federal or state securities laws or finding any
violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) and (b) The information set forth in the Introduction and Section 11
("Background of the Offer; Past Contacts, Transactions or Negotiations with
the Company") of the Offer to Purchase is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) and (b): The information set forth in Section 10 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
(c): Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a) through (e): The information set forth in the Introduction, Section 11
("Background of the Offer; Past Contacts, Transactions or Negotiations with
the Company"), Section 12 ("Purpose of the Offer and the Merger;
5
Page 6 of 8 Pages
Plans for the Company") and Section 13 ("The Merger Agreement and the Tender
Agreements") of the Offer to Purchase is incorporated herein by reference.
(f) and (g): The information set forth in Section 7 ("Effect of the Offer on
the Market for Shares, Stock Quotation and Registration under the Exchange
Act") of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b): The information set forth in the Introduction, Section 9
("Certain Information Concerning the Parent and the Offeror") and Section 13
("The Merger Agreement and the Tender Agreements") of the Offer to Purchase is
incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introduction, Section 11 ("Background of
the Offer; Past Contacts, Transactions or Negotiations with the Company"),
Section 13 ("The Merger Agreement and the Tender Agreements") and Section 15
("Certain Conditions to the Offeror's Obligations") of the Offer to Purchase
is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Introduction and in Section 17 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 9 ("Certain Information Concerning the
Parent and the Offeror") of the Offer to Purchase is incorporated herein by
reference.
The incorporation by reference herein of the above-mentioned financial
information does not constitute an admission that such information is material
to a decision by a security holder of the Company whether to sell, tender or
hold Shares being sought in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
(a) Not applicable.
(b) and (c): The information set forth in Section 16 ("Certain Legal
Matters") of the Offer to Purchase is incorporated herein by reference.
(d) The information set forth in Section 7 ("Effect of the Offer on the
Market for Shares, Stock Quotation and Registration under the Exchange Act")
of the Offer to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal is incorporated herein by reference in its entirety.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase, dated April 1, 1997.
(a)(2) Letter of Transmittal.
(a)(3) Letter from Donaldson, Lufkin & Jenrette Securities Corporation, as
Dealer Manager, to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
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Page 7 of 8 Pages
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees to Clients.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Summary Announcement, dated April 1, 1997.
(a)(8) Press Release issued by the Parent and the Company on March 26,
1997.*
(b) Amended and Restated Multi-Year Credit Agreement among IBP, inc., Bank
of America National Trust and Savings Association, as Co-Agent, and First Bank
National Association, as Administrative Agent, dated December 21, 1995.**
(c)(1) Agreement and Plan of Merger, dated as of March 25, 1997, among the
Parent, the Offeror and the Company.*
(c)(2) Tender Agreements, dated as of March 25, 1997, among the Parent, the
Offeror and certain stockholders of the Company.*
(c)(3) Confidentiality Agreement, dated January 25, 1997, between the Parent
and the Company.***
(d) None.
(e) Not applicable.
(f) Oral solicitation materials.
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* Exhibits (a)(8) and (c)(1) hereto are incorporated by reference to
Exhibits 99.1 and 2.1, respectively, to the Annual Report on Form 10-K of
IBP, inc. for the fiscal year ended December 28, 1996, File No. 1-6085
(the "1996 10-K"). Exhibit (c)(2) hereto is incorporated by reference to
Exhibits 2.2 and 2.3 of the 1996 10-K.
**Exhibit (b) hereto is incorporated by reference to Exhibit No. 10.21 to
the Annual Report on Form 10-K of IBP, inc. for the fiscal year ended
December 30, 1995, File No. 1-6085.
***Exhibit (c)(3) hereto is incorporated by reference to Exhibit 8 to the
Solicitation/Recommendation Statement on Schedule 14D-9 of the Company
dated April 1, 1997.
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Page 8 of 8 Pages
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.
Dated: April 1, 1997
IBP, inc.
/s/ Lonnie O. Grigsby
By: _________________________________
Name: Lonnie O. Grigsby
Title: Executive Vice President
& General Counsel
IBP Foodservice, L.L.C.
/s/ Larry Shipley
By: _________________________________
Name: Larry Shipley
Title: President
IBP SUB, INC.
/s/ Larry Shipley
By: _________________________________
Name: Larry Shipley
Title: President
8
Dates Referenced Herein and Documents Incorporated by Reference
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