UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 5
TO
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1) OR 13(e)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934
WHITEHALL JEWELLERS, INC.
(Name of Subject Company)
JWL ACQUISITION CORP.
NEWCASTLE PARTNERS, L.P.
(Names of Filing Persons--Offeror)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
-----------------------------
965063100
(CUSIP Number of Class of Securities)
MARK E. SCHWARZ
MANAGING MEMBER
NEWCASTLE PARTNERS, L.P.
300 Crescent Court, Suite 1110
Dallas, Texas 75201
(214) 661-7474
--------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons)
COPIES TO:
STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
- --------------------------------------------------------------------------------
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
- --------------------------------------------------------------------------------
$22,117,222 $2,367
- --------------------------------------------------------------------------------
* Estimated for purposes of calculating the amount of filing fee only.
Transaction value derived by multiplying 14,744,815 (the maximum number of
shares of common stock of subject company estimated to be acquired by
Offeror) by $1.50 (the purchase price per share offered by Offeror).
** The amount of the filing fee, calculated in accordance with Rule 0-11 of
the Securities and Exchange Act of 1934, as amended, and Fee Rate Advisory
No. 5 for fiscal year 2006, equals $107.00 per million dollars of
transaction value. The filing fee was previously paid.
|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: $1,533 Filing Party: Newcastle Partners, L.P.
Form or Registration No.: SC TO-T Date Filed: December 5, 2005
Amount Previously Paid: $834 Filing Party: Newcastle Partners, L.P.
Form or Registration No.: SC TO-T Date Filed: January 4, 2006
|_| 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. |_|
ITEMS 1 THROUGH 9, AND ITEM 11.
This Amendment No. 5 to Tender Offer Statement on Schedule TO amends
and supplements the statement originally filed on December 5, 2005, as amended,
by Newcastle Partners, L.P., a Texas limited partnership ("Parent"), and JWL
Acquisition Corp. (the "Purchaser"), a Delaware corporation and a wholly owned
subsidiary of Parent. This Schedule TO relates to the offer by the Purchaser to
purchase all outstanding shares of common stock, par value $0.001 per share, and
the associated preferred stock purchase rights (together, the "Shares"), of
Whitehall Jewellers, Inc., a Delaware corporation (the "Company"), at $1.50 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, dated December 5, 2005, as
amended (the "Offer to Purchase"), and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer"). The information set forth in the Offer to Purchase and
the related Letter of Transmittal is incorporated herein by reference with
respect to Items 1 through 9 and 11 of this Schedule TO.
ITEM 10. FINANCIAL STATEMENTS.
Not applicable.
ITEM 11. ADDITIONAL INFORMATION.
On January 5, 2006, Newcastle Partners, L.P. and JWL Acquisition Corp.
filed a complaint (the "Complaint") in the United States District Court for the
Southern District of New York against Whitehall Jewellers, Inc. ("Whitehall"),
Prentice Capital Management, L.P. ("Prentice") and Holtzman Opportunity Fund,
L.P. ("Holtzman"). The Complaint alleges that Whitehall, Prentice and Holtzman
have engaged in a series of violations of the federal securities laws, including
violations of tender offer rules and regulations. Among other things, the
Complaint alleges that Prentice and Holtzman have been secretly acquiring a
control block of shares, without disclosing their plans and purchases, in
violation of Section 13(d) and Section 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"). According to the Complaint, Prentice and
Holtzman have engaged in a de facto tender offer, under which a select group of
shareholders are being offered a substantial premium to market prices as a
coercive device to pressure them to tender their shares.
The Complaint further alleges that Whitehall has violated federal proxy
laws by failing to disclose the activities of Prentice and Holtzman in support
of the proposals submitted by Whitehall management for consideration at the
special meeting of shareholders scheduled for January 19, 2006 (the "Special
Meeting").
The Complaint also alleges that Whitehall has violated Delaware
corporate law by favoring Prentice and Holtzman in the auction now underway for
control of Whitehall. The Board of Whitehall has tilted the playing field the
Compliant asserts by invoking Whitehall's "poison pill" against Newcastle, while
waiving this protective device against Prentice. Whitehall's waiver of the
poison pill is effectively permitting Prentice to purchase control, with
selected shareholders receiving a controlled premium. The Complaint further
alleges that the proxy is false and misleading for asserting that a majority
vote at the Special Meeting will be sufficient to approve the reverse stock
split proposed by Whitehall management. Rather, the Complaint seeks a
declaration that, under Whitehall's charter, 75% of the outstanding shares is
required.
As relief for these alleged violations, the Complaint seeks declaratory
and injunctive relief, including, among other things:
(a) to enjoin defendants from violating Section 14(a) of the Exchange
Act and the rules and regulations promulgated thereunder;
(b) to enjoin defendants from proceeding with any proxy solicitation,
or attempting to exercise or utilize in any manner any written proxy delivered
to defendants, until such time as defendants have complied with all requirements
of the Exchange Act, including, without limitation the filing of a complete and
accurate Schedule 14A and compliant definitive proxy materials;
(c) to enjoin defendants from violating Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder;
(d) to enjoin defendants from proceeding with any proxy solicitation,
or attempting to exercise or utilize in any manner any written proxy delivered
to defendants, until such time as defendants have complied with all requirements
of the Exchange Act, including, without limitation the filing of a complete and
accurate Schedule 13D and compliant definitive proxy materials;
(e) to enjoin Whitehall from invoking the "poison pill" against
plaintiffs;
(f) to enjoin Whitehall from engaging in a violation of Section 14(d)
of the Exchange Act by purchasing shares without complying the tender offer
rules; and
(g) to declare that under Whitehall's charter any reverse stock split
requires approval by a vote of 75% of Whitehall's shareholders.
ITEM 12. EXHIBITS.
(a)(1)(i) Offer to Purchase dated December 5, 2005.*
(a)(1)(ii) Form of Letter of Transmittal.*
(a)(1)(iii) Form of Notice of Guaranteed Delivery.*
(a)(1)(iv) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(a)(1)(v) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(a)(1)(vi) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(1)(vii) Form of summary advertisement, dated December 5, 2005.*
(a)(5)(i) Text of press release issued by Parent, dated November 29, 2005.*
(a)(5)(ii) Text of press release issued by Parent, dated December 5, 2005.*
(a)(5)(iii) Letter sent by Parent to Chairman of the Special Committee of the
Board of Directors of the Company, dated December 20, 2005.*
(a)(5)(iv) Letter sent by Parent to Stockholders of the Company, dated
December 28, 2005.*
(a)(5)(v) Text of press release issued by Parent, dated January 4, 2006.*
(a)(5)(vi) Text of press release issued by Parent, dated January 5, 2006.
(b) Not applicable.
(c) Not applicable.
(d) Joint Filing Agreement by and among Newcastle Partners, L.P.,
Newcastle Capital Management, L.P., Newcastle Capital Group,
L.L.C., Mark E. Schwarz, Steven J. Pully and John P. Murray, dated
November 29, 2005.*
(e) Not applicable.
2
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
- ----------------
*Previously filed
3
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: January 5, 2006
NEWCASTLE PARTNERS, L.P.
By: Newcastle Capital Management, L.P.
its General Partner
By: Newcastle Capital Group, L.L.C.
its General Partner
By: /s/ Mark E. Schwarz
--------------------------------
Name: Mark E. Schwarz
Title: Managing Member
JWL ACQUISITION CORP.
By: /s/ John P. Murray
---------------------------------
Name: John P. Murray
Title: President and Secretary
4
EXHIBIT INDEX
(a)(1)(i) Offer to Purchase dated December 5, 2005.*
(a)(1)(ii) Form of Letter of Transmittal.*
(a)(1)(iii) Form of Notice of Guaranteed Delivery.*
(a)(1)(iv) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(a)(1)(v) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(a)(1)(vi) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(1)(vii) Form of summary advertisement, dated December 5, 2005.*
(a)(5)(i) Text of press release issued by Parent, dated November 29, 2005.*
(a)(5)(ii) Text of press release issued by Parent, dated December 5, 2005.*
(a)(5)(iii) Letter sent by Parent to Chairman of the Special Committee of the
Board of Directors of the Company, dated December 20, 2005.*
(a)(5)(iv) Letter sent by Parent to Stockholders of the Company, dated
December 28, 2005.*
(a)(5)(v) Text of press release issued by Parent, dated January 4, 2006.*
(a)(5)(vi) Text of press release issued by Parent, dated January 5, 2006.
(b) Not applicable.
(c) Not applicable.
(d) Joint Filing Agreement by and among Newcastle Partners, L.P.,
Newcastle Capital Management, L.P., Newcastle Capital Group,
L.L.C., Mark E. Schwarz, Steven J. Pully and John P. Murray, dated
November 29, 2005.*
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
- ----------------
*Previously filed
5
Newcastle Partners L P
Filed: 5 Jan 06, 12:00am