SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
AMENDMENT NO. 3
TO
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934.
THE CHERRY CORPORATION
(Name of Subject Company (Issuer))
PETER B. CHERRY (OFFEROR)
CABO ACQUISITION CORP. (OFFEROR)
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)
164541401
(CUSIP Number of Class of Securities)
PETER B. CHERRY
CABO ACQUISITION CORP.
3600 SUNSET AVENUE
WAUKEGAN, ILLINOIS 60087
(847) 662-9200
(Name, address, and telephone number of person authorized to
receive notices and communications on behalf of filing person)
WITH A COPY TO:
WILLIAM J. QUINLAN, JR.
HELEN R. FRIEDLI, P.C.
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606
(312) 372-2000
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CALCULATION OF FILING FEE: Previously Paid
- --------------------------------------------------------------------------------
/ / 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: Not applicable.
Form or Registration No.: Not applicable.
Filing Party: Not applicable.
Date Filed: Not applicable.
/ / 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.
/X/ 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: / /
INTRODUCTION
This Amendment No. 3 amends and supplements the Tender Offer Statement
on Schedule TO (this "Statement") filed with the SEC on June 15, 2000 by CABO
Acquisition Corp. ("Purchaser") and Peter B. Cherry, as amended on July 6, 2000
and July 10, 2000. The Statement relates to the offer by Purchaser and Peter B.
Cherry to purchase any and all outstanding shares of common stock, par value
$1.00 per share, of The Cherry Corporation, a Delaware corporation (the
"Company"), at a purchase price of $26.40 per share, net to the seller in cash,
without interest thereon, upon the terms and subject to the conditions set forth
in the Offer to Purchase dated June 15, 2000 (the "Offer to Purchase"), and in
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)(i) and (a)(1)(ii) hereto, respectively, and which are
incorporated herein by reference. All information in the Offer to Purchase,
including all schedules thereto, and in the Letter of Transmittal is
incorporated by reference in answer to all of the items in this Statement.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Schedule TO and the Offer to Purchase. Except as
amended and supplemented hereby, the Schedule TO remains in effect.
ITEMS 1 THROUGH 9 AND 11 THROUGH 13
Iterms 1 through 9 and Items 11 through 13 of the Schedule TO, which incorporate
by reference the information contain in the Offer to Purchase, are hereby
amended and supplemented as follows:
o The section reference "SPECIAL FACTORS--Recommendation of the Special
Committee and the Board of Directors of the Company; Fairness of the Offer
and the Merger" of the Offer to Purchase is hereby amended and supplemented
in its entirety with the following "SPECIAL FACTORS--Recommendation of the
Company, the Special Committee and the Board of Directors of the Company;
Fairness of the Offer and the Merger"
o The Section "SPECIAL FACTORS--Recommendation of the Special Committee and
the Board of Directors of the Company; Fairness of the Offer and the
Merger" of the Offer to Purchase is hereby amended and supplemented in its
entirety adding the following to the beginning of such section:
The Company, pursuant to the unanimous vote of all of its Directors present
at a meeting on June 4, 2000, based on, among other things, the
recommendation of the Special Committee (i) determined that the Merger is
advisable and that the terms of the Offer and the Merger, the Merger
Agreement and the consummation of the transactions contemplated thereby are
fair to, and in the best interests of, the Company and its stockholders
(other than Purchaser and the Cherry Family Members), (ii) approved the
Offer and the Merger and approved the Merger Agreement, and (iii)
recommended that the stockholders of the Company accept the Offer and, if
required by law, approve the Merger and approve and adopt the Merger
Agreement. In reaching its decision that the transaction is fair to, and in
the best interests of, the Company's stockholders (other than Purchaser and
the Cherry Family Members) and in deciding to approve the Offer and the
Merger and approve and adopt the Merger Agreement and the transactions
contemplated thereby, the Company, acting through the Special Committee,
considered the factors discussed below.
o "THE TENDER OFFER--Terms of the Offer" of the Offer to Purchase is hereby
amended and supplemented by replacing the second paragraph of such section
in its entirety with the following:
The Offer is subject to certain conditions set forth below in "--Conditions
of the Offer." If the Offer Conditions are not satisfied or any of the
events specified in "--Conditions of the Offer" have occurred or are
determined by Purchaser to have occurred prior to the Expiration Date,
Purchaser, subject to the terms of the Merger Agreement, expressly reserves
the right (but is not obligated) to (i) terminate the Offer and not accept
for payment any Shares and return all tendered Shares to tendering
stockholders, (ii) waive on or prior to the Expiration Date all the
unsatisfied conditions, subject to Purchaser's receipt of the Company's
approval for a waiver of the conditions relating to government action, HSR
Act, termination of the Merger Agreement or the Offer and the failure to
receive the Minimum Condition, and, to the extent permitted by law, accept
for payment and pay for all Shares validly tendered prior to the Expiration
Date and not theretofore withdrawn, (iii) extend
the Offer and, subject to the right of stockholders to withdraw Shares
until the Expiration Date, retain the Shares that have been tendered during
the period or periods for which the Offer is extended or (iv) amend the
Offer.
o "THE TENDER OFFER--Terms of the Offer" of the Offer to Purchase is hereby
amended and supplemented by replacing the first sentence of the third
paragraph of that section (as such sentence was amended in Amendment No. 2
to the Schedule TO) in its entirety with the following sentence:
Subject to the above and the other terms of the Merger Agreement, the
applicable rules and regulations of the Commission and applicable law,
Purchaser expressly reserves the right, in its sole discretion, at any time
and from time to time to waive any Offer Condition on or prior to the
Expiration Date or otherwise amend the Offer in any respect by giving oral
or written notice of such waiver or amendment to the Depositary.
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.
CABO ACQUISITION CORP.
By: /s/ Peter B. Cherry
-------------------------
Name: Peter B. Cherry
Title: President
/s/ Peter B. Cherry
-------------------------
Peter B. Cherry
Dated: July 12, 2000