SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
NewPower Holdings, Inc.
(Name of Subject Company)
NewPower Holdings, Inc.
(Name of Person Filing Statement)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
652463101
(CUSIP Number of Class of Securities)
Marc E. Manly
Managing Director, Law and Governmental Affairs
NewPower Holdings, Inc.
One Manhattanville Road
Purchase, New York 10577
(914) 697-2100
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications
on Behalf of the Person Filing Statement)
Copy to:
Scott M. Freeman
Sidley Austin Brown & Wood LLP
875 Third Avenue
New York, New York 10022
(212) 906-2000
[_] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
This Amendment No. 3 to Schedule 14D-9 amends and supplements the
Schedule 14D-9 (as amended, the "Schedule 14D-9") initially filed with the
Securities and Exchange Commission on March 1, 2002 by NewPower Holdings, Inc.
(the "Company"), relating to a tender offer commenced on March 1, 2002 by
Windsor Acquisition Corporation, a Delaware corporation and a wholly owned
subsidiary of Centrica plc ("Parent"), a public limited company organized
under the laws of England and Wales, to purchase all the issued and
outstanding shares of common stock, par value $0.01 per share, of the Company.
The information previously set forth in the Schedule 14D-9 is hereby expressly
incorporated by reference, except as otherwise set forth below. Defined terms
used but not otherwise defined herein have the meanings specified in the
Schedule 14D-9.
Item 8. Additional Information.
(a) The subsection "Certain Information Concerning the Company--Information
Concerning Directors and Executive Officers of the Company" of the Information
Statement attached as Annex I to the Schedule 14D-9 is hereby amended to add
the following at the end of such subsection:
"Peter T. Grauer announced his resignation from DLJ Merchant Banking,
Inc. ("DLJ"), an affiliate of Credit Suisse First Boston, to assume a
full-time position with Bloomberg Inc., and effective March 12, 2002, Mr.
Grauer resigned as a member of the Board and as a member of the Compensation
Committee and the Business Review Committee. Pursuant to the Stockholders
Agreement dated January 6, 2000, among the Company, DLJ and certain related
investors (the "DLJ Investors"), the DLJ Investors have the right, as the
owner of more than 5% of the shares of the Company Common Stock on a
fully-diluted basis, to have one representative serve as a director on the
Board. Accordingly, Credit Suisse First Boston selected Ari Benacerraf as its
representative in place of Mr. Grauer. On March 15, 2002, by unanimous written
consent, the Board appointed Mr. Benacerraf as a director of the Company.
Ari Benacerraf, 38, has been a director since March 2002. He serves as
Managing Director of Credit Suisse First Boston in the Merchant Banking Group,
a position he has held since November 2000. Mr. Benacerraf joined Credit
Suisse First Boston in November 2000 upon the merger with Donaldson, Lufkin
and Jenrette, where he was a Principal in the merchant banking group since
1995. Mr. Benacerraf serves on the board of directors of Frontier Drilling
ASA, Localiza Rent-a-Car S.A. and Brand Services, Inc."
(b) The subsection "Certain Information Concerning the Company--Board and
Committee Meetings" of the Information Statement attached as Annex I to the
Schedule 14D-9 is hereby amended to add the following at the end of such
subsection:
"Effective March 12, 2002, Mr. Grauer resigned as a member of the Board
and as a member of the Compensation Committee and the Business Review
Committee. On March 15, 2002, by unanimous written consent, when the Board
appointed Mr. Benacerraf as a director of the Company, it also appointed him
as Chairman of the Compensation Committee and as a member of the Business
Review Committee and the Audit and Risk Management Committee."
2
Item 9. Material to be Filed as Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented to add
the following:
"(a)(7) Joint Press Release issued by the Company and Parent on March 27, 2002"
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.
NEWPOWER HOLDINGS, INC.
By: /s/ H. Eugene Lockhart
--------------------------------
Name: H. Eugene Lockhart
Title: Chairman, President and
Chief Executive Officer
Dated: March 28, 2002
4
Exhibit (a)(7)
CENTRICA AND NEWPOWER ANNOUNCE THAT THE UNITED STATES BANKRUPTCY COURT
OVERSEEING ENRON'S CHAPTER 11 BANKRUPTCY PROCEEDINGS WILL NOT
GRANT AN ORDER ENJOINING CLAIMS OF THIRD PARTIES WITH RESPECT
TO POTENTIAL ENRON-RELATED LIABILITIES
----------
CENTRICA AND NEWPOWER ANNOUNCE ESTIMATED CALCULCATION OF ADJUSTED OFFER
PRICE UNDER MERGER AGREEMENT - SUCH ESTIMATE IS FOR CONVENIENCE
ONLY AND IS NOT AN INDICATION OF WHETHER AND TO WHAT EXTENT THE
OFFER PRICE WILL BE ADJUSTED
WINDSOR, ENGLAND & PURCHASE, N.Y., March 27, 2002 -- Centrica plc (Centrica)
and NewPower Holdings, Inc. (NewPower) (NYSE:NPW) today announced that Enron
Corp. (Enron) was unsuccessful in its efforts to obtain an order in the form
agreed with NewPower and Centrica. The bankruptcy court declined to enjoin
claims against NewPower for any joint and several liability it potentially may
have as a result of its membership for a short time in the Enron consolidated
tax and benefits groups.
Obtaining the order in the agreed form is a condition to Centrica's obligation
to complete the tender offer for NewPower shares. Centrica is considering its
options.
The bankruptcy court stated it would issue the balance of the requested order
approving the tender agreement between Centrica and Enron and certain of its
affiliates and certain agreements between NewPower and Enron relating to the
settlement of certain liabilities between NewPower and Enron and the termination
of other contractual obligations between them.
In addition, Centrica and NewPower announced that on March 27, 2002, the Federal
Energy Regulatory Commission granted approval of the joint application under
Section 203 of the Federal Power Act in connection with the tender offer,
receipt of which is another condition to the offer.
Centrica and NewPower also announced that if the calculation of the adjusted
offer price were made based on the applicable commodity prices for March 26,
2002 only, they estimate that the adjusted offer price under the merger
agreement entered into by Centrica, NewPower and Windsor Acquisition Corporation
(Windsor), dated as of February 22, 2002, would have been approximately $0.76
per share. The calculation will be made only after all conditions are either
satisfied or waived. Under the merger agreement and the offer to purchase, the
adjusted offer price would be based on a three-day average of the applicable
commodity prices. Commodity prices may change significantly by the time the
actual purchase price adjustment, if any, is calculated and the estimated
adjusted price is based upon certain estimates of amounts that would be based
upon third party quotes for the actual calculation. Accordingly, the estimated
adjusted price is not an indication of what the offer price may be on the date,
if any, that all conditions to Windsor's obligation to purchase shares of
NewPower are satisfied or waived. If there is any change in the $1.05 offer
price, Centrica will announce the revised offer price together with NewPower at
least ten business days before the final expiration date of the offer. During
that time stockholders will be able to withdraw any shares previously tendered
or tender any shares not then tendered.
The offer price adjustment is based on changes in the price curves for
electricity and natural gas between the signing of the merger agreement and the
date that all conditions to Windsor's obligation to purchase shares are
satisfied or waived, as described in the merger agreement and the offer to
purchase. If the offer price as adjusted is less than $0.80, NewPower may
terminate the merger agreement unless Centrica and Windsor agree that the offer
price will be $0.80, notwithstanding the adjustment which would otherwise be
required. In addition, if the offer price as adjusted is less than $0.80, Enron
and certain of its affiliates who have entered into a tender agreement with
Centrica to tender the shares (including shares issuable upon the exercise of
Class A Warrants of NewPower) held by them, have a right to terminate the tender
agreement. The shares covered by such tender agreement represent approximately
44% of the outstanding shares of NewPower common stock on a fully diluted basis.
The offer price adjustment also provides that if the offer price as adjusted is
more than $1.30, Centrica may terminate the merger agreement unless NewPower
agrees that the offer price shall be $1.30, notwithstanding the adjustment which
would otherwise be required. There will be no adjustment of the offer price if
the adjustment under the merger agreement would result in a change (up or down)
of the $1.05 offer price of $0.065 or less.
The offer is also conditioned upon among other things, there being validly
tendered, and not withdrawn, a majority of the outstanding shares of NewPower
calculated on an adjusted fully diluted basis (assuming the exercise of all
options, warrants and other rights to purchase NewPower shares that have an
exercise price equal or less than the offer price). Centrica has more than 70%
of the fully diluted shares of NewPower committed to acceptance under
contractually binding tender agreements but, in the case of the Enron interests,
this is subject to entry of the bankruptcy court order discussed above and the
above-described termination right.
Centrica and NewPower do not intend to provide any additional estimated
calculations of the adjusted offer price until the actual calculation is made as
required under the terms of the merger agreement and the offer to purchase.
As previously announced, Centrica and NewPower have entered into a merger
agreement pursuant to which an indirect wholly owned subsidiary of Centrica,
Windsor, commenced on March 1, 2002 an all-cash tender offer for all of
NewPower's outstanding common stock at a price of $1.05 per share, subject to
possible adjustment in accordance with the merger agreement. The tender offer
and withdrawal rights are scheduled to expire at 12:00 midnight, New York City
time, on Thursday, March 28, 2002, unless extended. The tender offer may be
extended on the terms and conditions stated in the Offer to Purchase, dated
March 1, 2002, which is available from D.F. King & Co., Inc. at (Banks and
Brokers) (212) 269-5550 (call collect) or (all others call toll free) (800)
290-6429 or from the U.S. Securities and Exchange Commission's web site at
WWW.SEC.GOV. Any extension of the tender offer will be followed as promptly as
practicable by a public announcement, which will be issued no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled expiration date. Morgan Stanley & Co. Incorporated is dealer manager
for the tender offer.
About Centrica
Since its formation in 1997, Centrica has developed into a leading provider of
energy and other essential services. In the UK, Centrica offers energy supply
and related products under the British Gas brand, roadside and financial
services from the AA, telecoms products and services through One.Tel and British
Gas and financial services from Goldfish.
The group's strategy of international expansion took a significant step forward
in August 2000 with the acquisition of Toronto based Direct Energy, North
America's largest unregulated retailer of natural gas at that time. Centrica is
also active in six states in the U.S. through the Energy America brand, which it
acquired in January 2001.
Centrica currently supplies gas to 1.3 million customers across North America
under the Direct Energy and Energy America brands, making it the largest
unregulated energy supplier. In addition, 600,000 customers have already signed
up with Direct Energy in anticipation of the opening of the Ontario electricity
market scheduled in May 2002.
In June 2001, Centrica also assumed full ownership of GreenSource Limited, a
company providing access to a network of private gas servicing and installation
contracting firms in Ontario. This was followed in January 2002 by the
announcement that it had reached agreement to acquire Enbridge Services Inc.
which more than doubled the customer base of Centrica's Canadian business.
About NewPower Holdings, Inc.
NewPower Holdings, Inc. (NYSE: NPW), through its subsidiary, NewPower, is the
first national provider of electricity and natural gas to residential and small
commercial customers in the United States. The Company offers consumers in
restructured retail energy markets competitive energy prices, pricing choices,
improved customer service and other innovative products, services and
incentives.
This news release contains certain forward-looking statements, including,
without limitation, statements concerning Centrica's and NewPower's operations,
economic performance and financial condition. Actual results could differ
materially from the results referred to in the forward-looking statements. These
forward-looking statements are based largely on Centrica's and NewPower's
current expectations and are subject to a number of risks and uncertainties,
including, without limitation, changes in external market factors, changes in
business or growth strategy or an inability to execute strategy due to changes
in such company's industry or the economy generally, the emergence of new or
growing competitors, various other competitive factors and other risks and
uncertainties indicated from time to time in Centrica's and NewPower's filings
with the U.S. Securities and Exchange Commission. Stockholders of NewPower are
advised to read Centrica's Tender Offer Statement on Schedule TO and NewPower's
Solicitation/Recommendation Statement on Schedule 14D-9 and all subsequent
amendments because they contain important information. The Schedule TO, the
Schedule 14D-9 and other filed documents are available for free as described
above.
CONTACT:
Centrica:
Investor Relations: 011-44-(0)1753 494900
Media Relations: 011-44-(0)1753 494085
NewPower:
Gael Doar 914-697-2451
gdoar@newpower.com
Kathryn Corbally 914-697-2444
kathryn.corbally@newpower.com