SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
SCHEDULE TO
(Rule 13e-4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
------------
BWAY CORPORATION
(Name of Subject Company (Issuer))
------------
BWAY CORPORATION
(Name of Filing Person (Offeror))
------------
Options under Bway Corporation's
1995 Long-Term Incentive Plan
to Purchase Common Stock, Par Value $.01 Per Share,
Held by Certain Option Holders
(Title of Class of Securities)
------------
056039100
(CUSIP Number of Underlying Class of Securities)
------------
copies to:
Kevin C. Kern Jeffrey L. Schulte, Esq.
Vice President, Administration and Heath D. Linsky, Esq.
Chief Financial Officer Morris, Manning & Martin, L.L.P.
Bway Corporation 1600 Atlanta Financial Center
8607 Roberts Drive, Suite 250 3343 Peachtree Road, N.E.
Atlanta, Georgia 30350 Atlanta, Georgia 30326
(770) 645-4800 (404) 233-7000
(Name, address and telephone number of person authorized to receive notices
and communications on behalf of filing person)
CALCULATION OF FILING FEE
--------------------------------------------------------------------------------
Transaction Valuation* Amount of Filing Fee
---------------------------- ----------------------------
$16,721,930 $3,345
--------------------------------------------------------------------------------
* Calculated solely for purposes of determining the filing fee. This amount
assumes that options to purchase 1,235,915 shares of common stock of Bway
Corporation having a weighted average exercise price of $13.53 will be
exchanged pursuant to this offer. The amount of the filing fee, calculated in
accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended,
equals 1/50th of one percent of the value of the transaction.
[X] 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: $3,345
Form or Registration No.: Schedule TO
Filing party: Bway Corporation
Date filed: June 11, 2001
[ ] 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:
[ ] third party tender offer subject to Rule 14d-1.
[X] 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: [ ]
--------------------------------------------------------------------------------
INTRODUCTORY STATEMENT
This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule TO (the "Schedule TO"), filed by Bway Corporation (the "Company") with
the Securities and Exchange Commission on June 11, 2001, relating to our offer
to exchange certain options to purchase shares of our common stock, no par value
per share, for new options to purchase shares of our common stock at a per share
exercise price equal to the fair market value of one share of our common stock
on the date of issuance upon the terms and subject to the conditions in the
Offer to Exchange dated June 11, 2000, (the "Offer to Exchange") and the related
Letter of Transmittal.
Item 1. Summary Term Sheet
The eighth question and answer of the Summary Term Sheet of the Offer to
Exchange is amended and restated to read as follows:
If I Tender Options In This Offer, When Will I Receive My New Options?
We will grant the new options on or about the first business day that is at
least six months and one day after the date we cancel the options accepted for
exchange. If we cancel tendered options on July 13, 2001, the business day
following the scheduled expiration date, the grant date of the new options will
be on or about January 14, 2002, but in no event later than January 18, 2002. If
we accept and cancel options properly tendered for exchange after July 13, 2001,
the period in which the new options will be granted will be similarly delayed.
Our Board of Directors will select the actual grant date for the new options
after the expiration of the offer. You must be an employee, director, or
otherwise be eligible to receive options pursuant to the Plan to receive the new
options. (Page 14)
The twelfth question and answer of the Summary Term Sheet of the Offer to
Exchange is amended and restated to read as follows:
What Will The Exercise Price Of The New Options Be?
The exercise price of the new options will equal the fair market value of
our common stock on the date we grant the new options (except where tax laws
relating to Incentive Stock Options granted to significant
stockholders requires a higher price). This will be determined based upon the
last reported sale price of our common stock on the New York Stock Exchange on
the date of grant for options granted under the Plan. Accordingly, we cannot
predict the exercise price of the new options. BECAUSE WE WILL NOT GRANT NEW
OPTIONS UNTIL AT LEAST SIX MONTHS AND ONE DAY AFTER THE DATE WE CANCEL THE
OPTIONS ACCEPTED FOR EXCHANGE, IT IS POSSIBLE THAT THE NEW OPTIONS MAY HAVE A
HIGHER EXERCISE PRICE THAN SOME OR ALL OF YOUR CURRENT OPTIONS, AND THEREFORE,
YOUR NEW OPTIONS COULD BE WORTH LESS THAN YOUR OLD OPTIONS. WE RECOMMEND THAT
YOU OBTAIN CURRENT MARKET QUOTATIONS FOR OUR COMMON STOCK BEFORE DECIDING
WHETHER TO TENDER YOUR OPTIONS. (Page 17)
Item 2. (c) Trading Market and Price.
The paragraph titled "Exercise Price" in Section 8 ("Source And Amount Of
Consideration; Terms Of New Options") of the Offer to Exchange is amended and
restated to read as follows:
Exercise Price. The exercise price of each option is determined by the
compensation committee of the board of directors. To the extent that the
exercise price of an option grant is less than the fair market value of our
common stock on the date of grant, we would incur compensation expense.
Consistent with our prior grants under the Plan, the exercise price of the new
non-qualified options to be granted pursuant to the offer will equal the fair
market value of our common stock on the date of the grant to avoid recognizing
compensation expense. For Incentive Stock Options, the exercise price will be
not less than the Fair Market Value of our common stock at the close of market
on the day next preceding the start of the option, unless the price must be
higher pursuant to tax regulations if the grant is to a significant stockholder.
This means that assuming our common stock is still listed on the New York Stock
Exchange at that time, the exercise price of the new options will equal the last
reported sale price of our common stock on the New York Stock Exchange on the
date of grant for options (other than Incentive Stock Option, the exercise price
of which will equal the last reported sale price on the date next preceding the
date of grant) granted under the Plan. BECAUSE WE WILL NOT GRANT NEW OPTIONS
UNTIL AT LEAST SIX MONTHS AND ONE DAY AFTER THE DATE WE CANCEL THE OPTIONS
ACCEPTED FOR EXCHANGE, IT IS POSSIBLE THAT THE NEW OPTIONS MAY HAVE A HIGHER
EXERCISE PRICE THAN SOME OR ALL OF YOUR CURRENT OPTIONS, AND THEREFORE, YOUR NEW
OPTIONS COULD BE WORTH LESS THAN YOUR OLD OPTIONS. WE RECOMMEND THAT YOU OBTAIN
CURRENT MARKET QUOTATIONS FOR OUR COMMON STOCK BEFORE DECIDING WHETHER TO TENDER
YOUR OPTIONS.
Item 4. Number of Options; Expiration Date.
The first paragraph of Section 5 ("Acceptance Of Options For Exchange And
Issuance Of New Options") of the Offer to Exchange is amended and restated to
read as follows:
Upon the terms and subject to the conditions of this offer and promptly
following the expiration date, we will accept for exchange and cancel options
properly tendered and not validly withdrawn before the expiration date. If your
properly tendered options are accepted for exchange on July 13, 2001, the
business day following the scheduled expiration date of the offer, you will be
granted new options on or about January 14, 2002 (but not later than January 18,
2002) which is the first business day that is at least six months and one day
following the date we anticipate accepting options for exchange. If we accept
and cancel options properly tendered for exchange after July 13, 2001, the
period in which the new options will be granted will be similarly delayed. Our
Board of Directors will select the actual grant date for the new options after
the expiration of the offer. The exercise price of the new options will equal
the fair market value of our common stock on the date of grant.
Item 5. Past Contracts, Transactions, Negotiations and Agreements
Section 10 ("Interests of Directors And Officers; Transactions And
Arrangements Concerning Their Options") of the Offer to Exchange is amended and
restated to read as follows:
A list of our directors and executive officers as of June 7, 2001 is
attached to this offer to exchange as Schedule A. As of June 7, 2001, our
executive officers and non-employee directors as a group beneficially owned
options outstanding under the Plan to purchase a total of 1,514,600 shares of
our common stock, which represented approximately 75.8% of the shares subject to
all options outstanding under the Plans as of that date. Of these options held
by executive officers and directors, only 982,300 options (724,567 of which are
held by non-employee directors), constituting 64.9% of their total options, are
eligible to be tendered in the offer. The following table sets forth the
beneficial ownership by each of our executive officers and directors of options
outstanding under the Plan as of June 7, 2001:
Number of Options to Percentage of Total Number of
Name of Beneficial Owners Purchase Common Stock Options Outstanding Eligible Options
---------------------------- ------------------------------- ------------------------- ------------------------
Jean-Pierre Ergas 476,700 23.9% 236,700
Warren J. Hayford 335,417 16.8 325,417
James W. Milton 52,633 2.6 45,333
Thomas Eagleson 80,000 4.0 --
Kenneth Roessler 55,000 2.8 --
Thomas A. Donahoe 82,500 4.1 52,500
Alexander P. Dyer 86,700 4.3 56,700
John E. Jones 82,500 4.1 52,500
John W. Puth 86,700 4.3 56,700
John T. Stirrup 135,417 6.8 135,417
Kevin C. Kern 41,033 2.1 21,033
We do not know to what extent the officers and directors will exchange
their eligible options in this offer. We anticipate that each officer and
director will exchange all eligible options in this offer.
During the 60 days prior to June 11, 2001, we have not granted any options
to purchase shares of our common stock. During the 60 days prior to June 11,
2001, no individuals have exercised options to acquire any shares of our common
stock.
During the past 60 days, Jean-Pierre Ergas purchased 10,000 shares of
common stock at prices between $2.95 and $2.99 per share, Alexander P. Dyer
purchased 10,600 shares of common stock at a price of $2.80 per share, John W.
Puth purchased 5,000 shares of common stock a price of $3.091 per share, and
John E. Jones purchased 17,000 shares of common stock at prices between $3.00
and $3.467 per share.
Except as otherwise described above, there have been no transactions in
options to purchase our common stock or in our common stock which were effected
during the 60 days prior to June 11, 2001 by us, or to our knowledge, by any
executive officer, director, affiliate or subsidiary of us. In addition, except
as otherwise described above, neither we nor, to our knowledge, any of our
executive officers or directors is a party to any agreement, arrangement or
understanding with respect to any of our securities (including, but not limited
to, any agreement, arrangement or understanding concerning the transfer or the
voting of any of our securities, joint ventures, loan or option arrangements,
puts or calls, guarantees of loans, guarantees against loss or the giving or
withholding of proxies, consents or authorizations).
Item 10. Financial Statements
Item 10 of Schedule TO is amended and restated to read as follows:
(a) Financial Information
The information set forth in the Offer to Exchange under Section 9
("Information About Bway"), Section 16 ("Additional Information") and on
Schedule B attached to the Offer to Exchange and on pages 8, 9, 15 and F-1
through F-25 of Bway's Annual Report on Form 10-K, for its fiscal year ended
October 1, 2000, and on pages 2 through 10 of Bway's Quarterly Report on Form
10-Q, for its fiscal quarter ended April 1, 2001, is incorporated herein by
reference.
Section 9 ("Information Concerning Bway") of the Offer to Exchange is
amended and restated to read as follows:
Bway Corporation and its significant subsidiaries are leading developers,
manufacturers, and marketers of steel containers for the general line category
of the North American container industry. The Company also provides external
customers related material center services (coating, lithography, and metal
shearing) which exceed internal needs. The Company's principal products include
a wide variety of steel cans and pails used for packaging paint and related
products, lubricants, cleaners, roof and driveway sealants, food (principally
coffee and vegetable oil) and household and personal care aerosol products. The
Company also manufactures steel ammunition boxes and provides material center
services.
We were incorporated on December 8, 1988, under the name BS Holdings
Corporation. Our principal executive offices are located at 8607 Roberts Drive,
Suite 250, Atlanta, Georgia 30350 and our telephone number is (770) 645-4800.
Our web site is located at www.bwaycorp.com. The information on our web site is
not a part of this offer to exchange.
Attached hereto as Schedule B to this offer to exchange is a Summary
Financial Statement of Bway. More complete financial information is included in
our Annual Report on Form 10-K for the fiscal year ended October 1, 2000 under
the caption "Consolidated Financial Statements of Bway Corporation," which is
incorporated herein by reference and in our Quarterly Report on Form 10-Q for
the fiscal quarter ended April 1, 2001 under the caption "Financial
Information," which is incorporated herein by reference and each may be
inspected at, and copies may be obtained from, the same places and in the same
manner as set forth under Section 16 of this offer to exchange ("The Offer -
Additional Information.")
Schedule B is added to the Offer to Exchange as follows:
SCHEDULE B
SUMMARY FINANCIAL INFORMATION
(In thousands, except per share data)
October 1, 2000 October 3, 1999 April 1, 2001
--------------- --------------- -------------
Current assets $109,709 $118,426 $113,828
Property and equipment, net 133,870 144,716 128,263
Other noncurrent assets 89,144 98,881 86,112
-------- -------- --------
Total assets $332,723 $362,023 $328,203
======== ======== ========
Current liabilities $ 95,126 $104,280 $ 79,764
Long-term debt 126,200 146,500 141,100
Other noncurrent liabilities 32,436 29,190 32,893
-------- -------- --------
Total liabilities 253,762 279,970 253,757
Equity 78,961 82,053 74,446
-------- -------- --------
Total liabilities and equity $332,723 $362,023 $328,203
======== ======== ========
Book value per share $ 8.17
========
For the year ended: For the six months ended:
------------------------------------ -----------------------------------
October 1, 2000 October 3, 1999 April 1, 2001 April 2, 2000
--------------- --------------- ------------- -------------
Net sales $460,568 $467,099 $213,680 $226,468
Cost of products sold (excluding depreciation and
amortization) 403,627 404,492 194,232 197,763
Restructuring and impairment charge 5,900 - - 5,900
Other expenses 54,293 51,690 26,041 27,835
-------- -------- -------- --------
Income (loss) from continuing operations (3,252) 10,917 (6,593) (5,030)
Provision (benefit) for income taxes (334) 5,290 (2,943) (2,741)
-------- -------- -------- --------
Net income (loss) $ (2,918) $ 5,627 $ (3,650) $ (2,289)
======== ======== ======== ========
Income (loss) per common share
Basic and diluted $ (0.31) $ 0.60 $ (0.40) $ (0.25)
======== ======== ======== ========
Ratio of earnings to fixed charges 0.83 1.67 0.27 0.46
======== ======== ======== ========
The transaction is not expected to have a material impact on the financial
information presented, therefore, pro forma data is not provided.
Schedule A ("Information Concerning the Directors and Executive Offficers
of Bway Corporation") of the Offer to Exchange is amended and restated as
follows:
SCHEDULE A
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF
BWAY CORPORATION
The directors and executive officers of Bway Corporation and their
positions and offices as of June 11, 2001, are set forth in the following table:
Name Age Position
---- --- --------
Jean-Pierre M. Ergas 61 Chairman of the Board and Chief Executive Officer
James W. Milton 61 Director
Thomas A. Donahoe(1)(2) 65 Director
Alexander P. Dyer(1)(2) 68 Director
Warren J. Hayford 71 Vice Chairman of the Board
John E. Jones(1)(2) 66 Director
John W. Puth(1)(2) 71 Director
John T. Stirrup 65 Director
Thomas Eagleson 59 Executive Vice President-Manufacturing/Engineering
Kenneth Roessler 38 Executive Vice President of Sales and Marketing
Kevin C. Kern 42 Vice President, Administration and Chief Financial Officer
------------------
(1) Member of the Audit Committee
(2) Member of the Compensation Committee
The address of each director and executive officer is: c/o Bway Corporation,
8607 Roberts Drive, Suite 250, Atlanta, Georgia 30350.
The Letter of Transmittal, attached to Schedule TO as Exhibit (a)(1)(B), is
amended and restated to delete any reference to a requirement that the option
holder affirmatively acknowledge reading, understanding and agreeing to all
terms and conditions of the Offer. With respect to Letters of Transmittal that
have been executed and returned by an option holder prior to the filing of this
Amendment No. 1, the Company agrees not to enforce its previous requirement that
the option holder affirmatively acknowledge reading, understanding and agreeing
to all terms and conditions of the Offer.
Item 12. Exhibits
(a)(1)(A) Offer to Exchange dated June 11, 2001, as amended herewith.
(a)(1)(B) Form of Letter of Transmittal, as amended herewith.
(a)(1)(C) Form of Letter to Eligible Option Holders Regarding Offer.*
(a)(1)(D) Form of Notice of Withdrawal by Option Holder.*
(a)(1)(E) Form of Letter to Tendering Option Holders Regarding Acceptance of
Tendered Options.*
(a)(1)(F) Bway Corporation Annual Report on Form 10-K for its fiscal year ended
October 1, 2000, filed with the Securities and Exchange Commission on
December 22, 2000, and incorporated herein by reference.
(a)(1)(G) Bway Corporation Quarterly Report on Form 10-Q for its fiscal quarter
ended April 1, 2001, filed with the Securities and Exchange Commission
on May 16, 2001, and incorporated herein by reference.
(a)(1)(H) Form of Letter to Eligible Option Holders Regarding Update to Offer to
Exchange.
(b) Not applicable.
(d)(1) Bway Corporation Fourth Amended and Restated 1995 Long-Term Incentive
Plan, filed as Exhibit 10.2 to the Company's Quarterly Report on Form
10-Q for its fiscal quarter ended April 2, 2000, filed with the
Securities and Exchange Commission on May 5, 2000, and incorporated
herein by reference.
(d)(2) Form of New Non-Qualified Option Agreement related to the Fourth
Amended and Restated 1995 Amended and Restated Long-Term Incentive
Plan.*
(d)(3) Form of New Incentive Stock Option Agreement related to the Fourth
Amended and Restated 1995 Long-Term Incentive Plan.*
(g) Not applicable.
(h) Not applicable.
---------------
* Previously filed as an exhibit to the Schedule TO filed by Bway Corporation
on June 11, 2001.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 1 to the Schedule TO is
true, complete and correct.
BWAY CORPORATION
/s/ Kevin C. Kern
-----------------
Kevin C. Kern
Vice President, Administration and
Chief Financial Officer
Date: June 28, 2001
INDEX TO EXHIBITS
(a)(1)(A) Offer to Exchange dated June 11, 2001, as amended herewith.
(a)(1)(B) Form of Letter of Transmittal, as amended herewith.
(a)(1)(C) Form of Letter to Eligible Option Holders Regarding Offer.*
(a)(1)(D) Form of Notice of Withdrawal by Option Holder.*
(a)(1)(E) Form of Letter to Tendering Option Holders Regarding Acceptance of
Tendered Options.*
(a)(1)(F) Bway Corporation Annual Report on Form 10-K for its fiscal year ended
October 1, 2000, filed with the Securities and Exchange Commission on
December 22, 2000, and incorporated herein by reference.
(a)(1)(G) Bway Corporation Quarterly Report on Form 10-Q for its fiscal quarter
ended April 1, 2001, filed with the Securities and Exchange Commission
on May 16, 2001, and incorporated herein by reference.
(a)(1)(H) Form of Letter to Eligible Option Holders Regarding Update to Offer to
Exchange.
(d)(1) Bway Corporation Fourth Amended and Restated 1995 Long-Term Incentive
Plan, filed as Exhibit 10.2 to the Company's Quarterly Report on Form
10-Q for its fiscal quarter ended April 2, 2000, filed with the
Securities and Exchange Commission on May 5, 2000, and incorporated
herein by reference.
(d)(2) Form of New Non-Qualified Option Agreement related to the Fourth
Amended and Restated 1995 Long-Term Incentive Plan.*
(d)(3) Form of New Incentive Stock Option Agreement related to the Fourth
Amended and Restated 1995 Long-Term Incentive Plan.*
------------
* Previously filed as an exhibit to the Schedule TO filed by Bway Corporation
on June 11, 2001.