UNITED STATES
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. 2)
Protection One, Inc.
(Name of Subject Company)
Protection Acquisition Sub, Inc.
(Offeror)
a wholly-owned indirect subsidiary of
Protection Holdings, LLC
(Parent of Offeror)
GTCR Fund IX/A, L.P.
GTCR Fund IX/B, L.P.
GTCR Golder Rauner II, L.L.C.
(Other Persons)
(Name of Person(s) Filing Statement)
COMMON STOCK, $0.01 PAR VALUE PER SHARE
(Title of Class of Securities)
743663403
(CUSIP Number of Class of Securities)
Christian B. McGrath
GTCR Golder Rauner II, L.L.C.
300 N. LaSalle Street
Suite 5600
Chicago, IL 60654
(312) 382-2200
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications
on Behalf of Filing Persons)
Copy to:
Thomas H. Kennedy, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 (212) 735-3000 | Edward Sonnenschein, Esq. M. Adel Aslani-Far. Esq. Latham & Watkins LLP 885 Third Avenue New York, NY 10022 (212) 906-1200 | |
Peter C. Krupp, Esq. Skadden, Arps, Slate, Meagher & Flom LLP 155 N. Wacker Drive Chicago, IL 60606 (312) 407-0700 | Bradley C. Faris, Esq. Latham & Watkins LLP 233 S. Wacker Drive, Suite 5800 Chicago, IL 60606 (312) 876-7700 | |
CALCULATION OF FILING FEE
Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $474,782,205 | $33,851.98 |
| (1) | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by multiplying the offer price of $15.50 per share of common stock of Protection One, Inc., par value $0.01 per share, (“Shares”) by 30,631,110 Shares, which is the sum of (i) 25,435,221 Shares outstanding (including 100,000 restricted shares), (ii) 2,760,546 Shares authorized and reserved for issuance (including applicable options and non-plan options to purchase Shares, outstanding restricted share units, payable on a one-for-one basis, with respect to Shares, and outstanding warrants to purchase Shares) and (iii) 2,435,343 outstanding stock appreciation rights with respect to Shares. |
| (2) | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934 by multiplying the transaction value by 0.00007130. |
| þ | 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: | $33,851.98 | Filing Party: | Protection Acquisition Sub, Inc. | |||||
Form or Registration No. | Schedule TO | Date Filed | May 3, 2010 | |||||
| ¨ | 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:
| þ | Third-party offer subject to Rule 14d-1. |
| ¨ | Issuer tender offer subject to Rule 13e-4. |
| ¨ | Going-private transactions 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: ¨
This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on May 3, 2010 (which, together with this Amendment, Amendment No. 1, filed May 11, 2010, and any subsequent amendments and supplements thereto, collectively constitute this “Schedule TO”). This Schedule TO is filed by (i) Protection Acquisition Sub, Inc., a Delaware corporation (“Purchaser”), and a wholly-owned indirect subsidiary of Protection Holdings, LLC, a Delaware limited liability company (“Parent”), and (ii) Parent, which is controlled by (i) GTCR Fund IX/A, L.P., a Delaware limited partnership (“Fund IX/A”); (ii) GTCR Fund IX/B, L.P., a Delaware limited partnership (“Fund IX/B”); (iii) GTCR Partners IX, L.P., a Delaware limited partnership (“Partners IX”), by virtue of it being the general partner of Fund IX/A and Fund IX/B; and (iv) GTCR Golder Rauner II, L.L.C., a Delaware limited liability company (“GTCR”), by virtue of it being the general partner of Partners IX. This Schedule TO relates to the offer (the “Offer”) by Purchaser to purchase all of the outstanding shares of common stock, par value $0.01 per share, of Protection One, Inc., a Delaware corporation (“Protection One”), at a purchase price of $15.50 per Share (the “Offer Price”) net to the seller in cash, without interest thereon and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 3, 2010 (which, together with any amendments and supplements thereto, collectively constitute the “Offer to Purchase”), and in the Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Item 11.Additional Information.
(a)(2) and (a)(3) Item 11 of this Schedule TO is hereby amended and supplemented as follows:
The information set forth in “Section 16. Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented by replacing the second paragraph under the heading “Antitrust Compliance” with the following paragraph:
“Under the HSR Act, our purchase of Shares in the Offer may not be completed until the expiration of a 15 calendar day waiting period following the filing by GTCR, as the ultimate parent entity of Purchaser, of a Premerger Notification and Report Form concerning the Offer with the FTC and the Antitrust Division, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. GTCR and Protection One filed Premerger Notification and Report Forms with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger on April 28, 2010. On May 13, 2010, the waiting period under the HSR Act expired with respect to the Offer. The Merger will not require an additional filing under the HSR Act if Purchaser owns more than 50% of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer expired.”
(a)(5) Item 11 of this Schedule TO is hereby amended and supplemented as follows:
The information set forth in “Section 16. Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented by replacing the first two paragraphs under the heading “General” with the following paragraphs:
“On May 6, 2010, Donald Rensch, a purported stockholder of Protection One, filed a complaint (the “Rensch Complaint”) on behalf of himself and as a putative class action on behalf of Protection One’s public stockholders against Purchaser, Parent, GTCR, Protection One, each member of the Protection One board of directors, Quadrangle Group LLC, Quadrangle, and Monarch Alternative Capital LP in the Court of Chancery of the State of Delaware. The complaint alleges, among other things, that the defendants breached fiduciary duties or aided and abetted the alleged breach of fiduciary duties in connection with the Offer and the Merger contemplated by the Merger Agreement and alleges that the disclosures contained in Protection One’s Schedule 14D-9 and the Offer to Purchase are materially misleading and omit material facts. The complaint does not state how many Shares are purportedly held by Donald Rensch. The complaint seeks, among other things, a declaration that the action brought by the complaint is properly maintainable as a class action, an order enjoining the transactions contemplated by the Merger Agreement, a declaration that the defendants have breached fiduciary duties, including in connection with the approval of certain incentive awards, award of damages to the
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plaintiff and other members of the class, and award of the plaintiff’s costs, including attorneys’ and experts’ fees. Purchaser, Parent and GTCR believe that the Rensch Complaint is wholly without merit and intend to defend the case vigorously. The foregoing summary of the Rensch Complaint does not purport to be complete and is qualified in its entirety by reference to the Rensch Complaint, which is filed as an Exhibit to the Schedule TO.
On May 10, 2010, Trading Strategies Fund, a purported stockholder of Protection One, filed a complaint (the “TSF Complaint”) on behalf of itself and as a putative class action on behalf of Protection One’s public stockholders, against GTCR Golder Rauner, LLC, Protection One, and each member of the Protection One board of directors in the district court of Douglas County, Kansas. The complaint alleges, among other things, that the defendants breached fiduciary duties or aided and abetted the alleged breach of fiduciary duties in connection with the Offer and the Merger contemplated by the Merger Agreement and alleges that the disclosures contained in Protection One’s Schedule 14D-9 are materially misleading and omit material facts. The complaint does not state how many Shares are purportedly held by Trading Strategies Fund. The complaint seeks, among other things, a judgment determining that the action brought by the complaint is properly maintainable as a class action, a declaration that the defendants have breached fiduciary duties or aided and abetted in the breach of fiduciary duties, award of damages to the plaintiff and other members of the class, and award of the plaintiff’s costs, including attorneys’ and experts’ fees. On May 14, 2010, the district court of Douglas County, Kansas granted a motion to enter a temporary restraining order preventing the parties from completing the Offer and the Merger prior to June 2, 2010, and a hearing in such court in respect of a preliminary injunction against the completion of the Offer and the Merger has been scheduled for May 27, 2010. GTCR Golder Rauner, LLC, an affiliate of GTCR, believes that the TSF Complaint is wholly without merit and intends to defend the case vigorously. The foregoing summary of the TSF Complaint does not purport to be complete and is qualified in its entirety by reference to the TSF Complaint, which is filed as an Exhibit to the Schedule TO.
On May 12, 2010, The Law Offices of Mark Kotlarsky Pension Plan, a purported stockholder of Protection One, filed a complaint (the “Kotlarsky Complaint”) on behalf of itself and as a putative class action on behalf of Protection One’s public stockholders against Purchaser, Parent, GTCR, Protection One, each member of the Protection One board of directors, Quadrangle Group LLC, Quadrangle, and Monarch Alternative Capital LP in the Court of Chancery of the State of Delaware. The complaint alleges, among other things, that the defendants breached their fiduciary duties or aided and abetted the alleged breach of fiduciary duties in connection with the Offer and the Merger contemplated by the Merger Agreement and alleges that the disclosures contained in Protection One’s Schedule 14D-9 are materially misleading and omit material facts. The complaint does not state how many Shares are purportedly held by The Law Offices of Mark Kotlarsky Pension Plan. The complaint seeks, among other things, an order enjoining the transactions contemplated by the Merger Agreement, a declaration that the defendants have breached fiduciary duties, and award of the plaintiff’s costs, including attorneys’ and experts’ fees. Purchaser, Parent and GTCR believe that the Kotlarsky Complaint is wholly without merit and intend to defend the case vigorously. The foregoing summary of the Kotlarsky Complaint does not purport to be complete and is qualified in its entirety by reference to the Kotlarsky Complaint, which is filed as an Exhibit to the Schedule TO.”
Item 12.Exhibits
Item 12 of this Schedule TO is hereby amended and supplemented by adding the following exhibits thereto:
(a)(7) Complaint filed in the Court of Chancery of the State of Delaware, captioned The Law Offices of Mark Kotlarsky Pension Plan v. Richard Ginsburg, et al., C.A. No. 5490 (incorporated by reference to Exhibit (a)(12) to Amendment No. 2 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Protection One, Inc. with the Securities and Exchange Commission on May 17, 2010)
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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.
Dated: May 14, 2010
| Protection Acquisition Sub, Inc. | ||
| By: | /S/ CHRISTIAN B. MCGRATH | |
| Name: | Christian B. McGrath | |
| Title: | Treasurer and Secretary | |
| Protection Holdings, LLC | ||
| By: | /S/ CHRISTIAN B. MCGRATH | |
| Name: | Christian B. McGrath | |
| Title: | Treasurer and Secretary | |
| GTCR Fund IX/A, L.P. | ||
| By: | GTCR PARTNERS IX, L.P. | |
| Its: | General Partner | |
| By: | GTCR GOLDER RAUNER II, L.L.C | |
| Its: | General Partner | |
| By: | /S/ CHRISTIAN B. MCGRATH | |
| Name: | Christian B. McGrath | |
| Title: | General Counsel | |
| GTCR Fund IX/B, L.P. | ||
| By: | GTCR PARTNERS IX, L.P. | |
| Its: | General Partner | |
| By: | GTCR GOLDER RAUNER II, L.L.C | |
| Its: | General Partner | |
| By: | /S/ CHRISTIAN B. MCGRATH | |
| Name: | Christian B. McGrath | |
| Title: | General Counsel | |
| GTCR Golder Rauner II, L.L.C. | ||
| By: | /S/ CHRISTIAN B. MCGRATH | |
| Name: | Christian B. McGrath | |
| Title: | General Counsel | |
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Exhibit Index
Exhibit No. | Description | |
| (a)(1)(A) | Offer to Purchase, dated May 3, 2010* | |
| (a)(1)(B) | Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9)* | |
| (a)(1)(C) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
| (a)(1)(D) | Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
| (a)(1)(E) | Form of Summary Advertisement as published inThe Wall Street Journalon May 3, 2010 | |
| (a)(1)(F) | Press Release issued by GTCR Golder Rauner II, L.L.C. on April 26, 2010 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Protection Acquisition Sub, Inc. with the Securities and Exchange Commission on April 26, 2010) | |
| (a)(1)(G) | Press Release issued by Protection One, Inc. on April 26, 2010 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Protection One, Inc. with the Securities and Exchange Commission on April 26, 2010) | |
| (a)(5) | Complaint filed in the Court of Chancery of the State of Delaware, captioned Donald Rensch v. Protection One, Inc., C.A. No. 5468-VCS (incorporated by reference to Exhibit (a)(10) to Amendment No. 1 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Protection One, Inc. with the Securities and Exchange Commission on May 11, 2010) | |
| (a)(6) | Complaint filed in the District Court of Douglas County, Kansas, captioned Trading Strategies Fund v. Peter R. Ezersky, et al., Case No. 10CV3333 (incorporated by reference to Exhibit (a)(11) to Amendment No. 1 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Protection One, Inc. with the Securities and Exchange Commission on May 11, 2010) | |
| (a)(7) | Complaint filed in the Court of Chancery of the State of Delaware, captioned The Law Offices of Mark Kotlarsky Pension Plan v. Richard Ginsburg, et al., C.A. No. 5490 (incorporated by reference to Exhibit (a)(12) to Amendment No. 2 to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Protection One, Inc. with the Securities and Exchange Commission on May 17, 2010) | |
| (b)(1) | Senior Secured Facilities Commitment Letter, dated April 26, 2010, among Protection Acquisition Sub, Inc., J.P Morgan Securities Inc., JPMorgan Chase Bank, N.A. and Barclays Bank PLC | |
| (b)(2) | Senior Secured Notes Commitment Letter, dated April 26, 2010 between Protection Acquisition Sub, Inc. and TCW/Crescent Mezzanine Management V, LLC | |
| (b)(3) | Equity Commitment Letter, dated April 26, 2010 between Protection Holdings, LLC and GTCR Fund IX/A, L.P. | |
| (b)(4) | Guaranty dated as of April 26, 2010, by GTCR Fund IX/A, L.P. in favor of Protection One, Inc. (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Protection One, Inc. with the Securities and Exchange Commission on April 26, 2010) | |
| (d)(1) | Agreement and Plan of Merger, dated as of April 26, 2010, by and among Protection Holdings, LLC, Protection Acquisition Sub, Inc. and Protection One, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Protection One, Inc. with the Securities and Exchange Commission on April 26, 2010) | |
| (d)(2) | Tender and Support Agreement, dated as of April 26, 2010, by and among POI Acquisition, L.L.C., Protection Holdings, LLC and Protection Acquisition Sub, Inc. (incorporated by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by Protection One, Inc. with the Securities and Exchange Commission on April 26, 2010) | |
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Exhibit No. | Description | |
| (d)(3) | Tender and Support Agreement, dated as of April 26, 2010, by and among Monarch Alternative Capital LP, Protection Holdings, LLC and Protection Acquisition Sub, Inc. (incorporated by reference to Exhibit 2.3 to the Current Report on Form 8-K filed by Protection One, Inc. with the Securities and Exchange Commission on April 26, 2010) | |
| (d)(4) | Confidentiality Agreement, dated as of January 25, 2010, between GTCR Golder Rauner II, L.L.C. and Company | |
| (d)(5) | Exclusivity Agreement, dated April 22, 2010, between GTCR Golder Rauner LLC and Protection One, Inc. | |
| (g) | Not applicable | |
| (h) | Not applicable | |
| * | Included in mailing to stockholders. |
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