SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
[Amendment No. __]
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e)
of the
Securities Exchange Act of 1934)
PETROLEUM HEAT AND POWER CO., INC.
(Name of Issuer)
PETROLEUM HEAT AND POWER CO., INC.
(Name of Persons Filing Statement)
Class B Common Stock, par value $.10 per share
(Title of Class of Securities)
716 600 200
(CUSIP Number of Class of Securities)
Irik P. Sevin, President
Petroleum Heat and Power Co., Inc.
Clearwater House
2187 Atlantic Street
Stamford, Connecticut 06902
(203) 325-5400
(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications on Behalf
of Person Filing Statement)
Copies to:
Alan Shapiro, Esq.
Phillips, Nizer, Benjamin, Krim & Ballon
31 West 52nd Street
New York, New York 10019
(212) 977-9700
This statement is filed in connection with (check the appropriate
box):
a. [ ] The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C or
Rule 13-3(c) under the Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the
Securities Act of 1933.
c. [X] A tender offer. under the Securities Exchange Act of
1934.
d. [ ] None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: [ ]
Calculation of Filing Fee
- --------------------------------------------------------------------------------
Transaction Valuation: Amount of Filing Fee:
$3,795,767.50 (1) $759.15
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- --------------------------------------------------------------------------------
(1) The transaction valuation was determined by multiplying
216,901 (the number of outstanding shares of Class B Common
Stock for which the reporting person is making an offer) by
$17.50 (the reporting person's valuation for each share of
Class B Common Stock).
[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: $759.15
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Form or Registration No.: Schedule 13E-4
------------------------------------------------------
Filing Party: Petroleum Heat and Power Co., Inc.
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Dated Filed: July 20, 1994
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This Rule 13e-3 Issuer Transaction Statement (the "Transaction Statement")
is being filed by Petroleum Heat and Power Co., Inc., a Minnesota corporation
(the "Company" or "Petro"). In accordance with an Offer to Purchase dated
July 20, 1994 (the "Offer to Purchase"), included as Exhibit (d) to this
Transaction Statement, and the accompanying Letter of Transmittal, the
Company commenced an offer to purchase for cash all of the outstanding shares
of its Class B Common Stock, par value $.10 per share (the "Class B Common
Stock") at $17.50 per share net plus all accrued and unpaid Special Dividends
(as defined) through the Expiration Date. The Offer to Purchase and the
accompanying Letter of Transmittal together constitute the "Offer."
The Board of Directors of Petro has determined to exercise Petro's right to
terminate the Special Dividends (as defined in the Offer to Purchase) on the
Class B Common Stock, effective the Expiration Date (as defined in the Offer
to Purchase). As a result of the termination of the Special Dividends, the
Company's restated and amended articles of incorporation provides that
holders of Class B Common Stock have the right to require that Petro purchase
(the "Purchase Obligation") all of the issued and outstanding shares of Class
B Common Stock at a purchase price of $17.50 per share plus all accrued and
unpaid Special Dividends through the Expiration Date (which dividends would
amount to $0.2763 per share assuming that the Expiration Date is August 31,
1994). The Offer is being made by Petro in order to satisfy the Purchase
Obligation. The Purchase Obligation and the Offer terminate on the
Expiration Date.
The cross reference sheet below is being supplied pursuant to Instruction F
to the Transaction Statement and shows the location in the Offer to Purchase
(which is attached hereto as Exhibit (d)) of the information required to be
included in response to the items of this Transaction Statement. The
information in the Offer to Purchase of the Company is hereby expressly
incorporated herein by reference. All references and the responses to
individual items correspond to the parts of the Offer to Purchase so titled.
CROSS REFERENCE SHEET
---------------------
Item in
Rule 13e-3 Where located in
Transaction the Offer to
Statement Purchase
----------- ----------------
Item 1(a-b) . . . INTRODUCTION; SPECIAL FACTORS - Certain Effects of the
Offer; THE OFFER - Certain Information Concerning the
Company
Item 1(c-d) . . . INTRODUCTION; THE OFFER - Market Data; Dividends
Item 1(e) . . . . NOT APPLICABLE
Item 1(f) . . . . SPECIAL FACTORS - Prior Exchange Offer
Item 2(a-d) . . . SCHEDULE I
Item 2(e-g) . . . **
Item 3(a) . . . . NOT APPLICABLE
Item 3(b) . . . . NOT APPLICABLE
3
Item in
Rule 13e-3 Where located in
Transaction the Offer to
Statement Purchase
----------- ----------------
Item 4(a) . . . . INTRODUCTION; SPECIAL FACTORS -- Background
and Purpose of the Offer; Fairness of the
Transaction; THE OFFER -Term of the Offer
Item 4(b) . . . . NOT APPLICABLE
Item 5(a) . . . . **
Item 5(b) . . . . **
Item 5(c) . . . . **
Item 5(d) . . . . INTRODUCTION; SPECIAL FACTORS - The
Relative Rights, Designations and
Preferences of the Class B Common Stock;
Background and Purpose of the Offer;
Fairness of the Transaction
Item 5(e) . . . . **
Item 5(f) and (g) SPECIAL FACTORS - Certain Effects of the
Offer
Item 6(a) . . . . INTRODUCTION; SPECIAL FACTORS - Financing
of the Transaction
Item 6(b) . . . . THE OFFER - Fees and Expenses of the Offer
Item 6(c) . . . . NOT APPLICABLE
Item 6(d) . . . . NOT APPLICABLE
Item 7(a-d) . . . INTRODUCTION; SPECIAL FACTORS - Background
and Purpose of the Offer; Fairness of the
Transaction; and Certain Federal Income Tax
Consequences.
Item 8(a-e) . . . SPECIAL FACTORS - Background and Purpose of
the Offer; Fairness of the Transaction
Item 8(f) . . . . **
Item 9(a) . . . . **
Item 9(b) . . . NOT APPLICABLE
Item 9(c) . . . . NOT APPLICABLE
Item 10(a) . . . **
Item 10(b) . . . **
Item 11 . . . . . NOT APPLICABLE
Item 12(a) . . . **
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Item in
Rule 13e-3 Where located in
Transaction the Offer to
Statement Purchase
----------- ----------------
Item 12(b) . . . SPECIAL FACTORS - Background and Purpose of
the Offer; Fairness of the Transaction
Item 13(a) . . . THE OFFER - Withdrawal Rights; Absence of
Appraisal Rights
Item 13(b) . . . NOT APPLICABLE
Item 13(c) . . . NOT APPLICABLE
Item 14(a-b) . . THE OFFER - Certain Information Concerning
the Company; SCHEDULE II - Selected
Historical Financial Information of Petro
Item 15(a) . . . NOT APPLICABLE
Item 15(b) . . . THE OFFER - The Depositary; The Information
Agent; Fees and Expenses of the Offer
Item 16 . . . . . OFFER TO PURCHASE
Item 17 . . . . . **
___________________
** Such information is being provided in the remaining portion of this
Rule 13e-3 Transaction Statement.
Item 1. Issuer and Class of Security Subject to the Transaction
-------------------------------------------------------
(a) Information required by this paragraph of Item 1 is set forth in
"INTRODUCTION;" "THE OFFER - Certain Information Concerning the Company"
which sections are hereby incorporated herein by reference.
(b) Information required by this paragraph of Item 1 is set forth in
"INTRODUCTION;" and "SPECIAL FACTORS - Certain Effects of the Offer," which
sections are hereby incorporated herein by reference.
(c) Information required by this paragraph of Item 1 is set forth in
"INTRODUCTION" and "THE OFFER - Market Data; Dividends," which sections are
hereby incorporated herein by reference.
(d) Information as to dividends and restrictions on the Company's
present or future ability to pay same is set forth in "INTRODUCTION" and "THE
OFFER - Market Data; Dividends," which sections are hereby incorporated
herein by reference.
(e) The Company has not made an underwritten public offering of the
Class B Common Stock during the past three years.
5
(f) Information required by this paragraph of Item 1 is set forth in
"SPECIAL FACTORS - Prior Exchange Offer", which is hereby incorporated herein
by this reference.
Item 2. Identity and Background.
-----------------------
(a)-(d) This Statement is being filed by the Company, which is
the issuer of the class of equity securities which is the subject of the Rule
13e-3 transaction. Information concerning each executive officer, director
and controlling person of the Company is set forth in SCHEDULE I of the Offer
to Purchase, which Schedule is hereby incorporated herein by reference.
(e) and (f) None of the persons with respect to whom information is
provided in response to this Item was during the last five years (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgement, decree or final order enjoining
further violations of, or prohibiting activities subject to, federal or state
securities laws or finding any violation of such laws.
(g) Information with respect to the state of incorporation of the
Company is set forth in "THE OFFER - Certain Information Concerning the
Company," which section is hereby incorporated herein by reference. Each of
the officers, directors and principal stockholders of the Company is a
citizen of the United States, except for Wolfgang Traber and Max M. Warburg
who are citizens of Germany and Mr. Richard O'Connell who is a citizen of
Spain.
Item 3. Past Contacts, Transactions or Negotiations.
-------------------------------------------
(a) NOT APPLICABLE.
(b) NOT APPLICABLE.
Item 4. Terms of the Transaction.
------------------------
(a) The material terms of the Offer are set forth under
"INTRODUCTION," "SPECIAL FACTORS -- Background and Purpose of the Offer;
Fairness of the Transaction" and "THE OFFER -Term of the Offer," which
sections are hereby incorporated herein by reference.
(b) NOT APPLICABLE.
Item 5. Plans or Proposals of the Issuer or Affiliate.
---------------------------------------------
(a)-(c) and (e) The Company does not have any plans or proposals which
relate to or would result in the occurrence of any of the matters set forth
in these subparagraphs following the completion of the Offer.
(d) Information required by this paragraph of Item 5 is found in
"INTRODUCTION," "SPECIAL FACTORS - The Relative Rights, Designations and
Preferences of the Class B Common Stock" and "SPECIAL FACTORS - Background
and Purpose of the Offer; Fairness of the Transaction" which sections are
hereby incorporated herein by reference.
6
(f) and (g) Information required by these paragraphs of Item 5 is
found in "SPECIAL FACTORS - Certain Effects of the Offer," which section is
hereby incorporated herein by reference.
Item 6. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
(a) The information required by this paragraph of Item 6 is set forth
in "INTRODUCTION" and "SPECIAL FACTORS -- Financing of the Transaction,"
which sections are hereby incorporated herein by reference.
(b) The information required by this paragraph of Item 6 is set forth
in "THE OFFER - Fees and Expenses of the Offer," which section is hereby
incorporated herein by reference.
(c) NOT APPLICABLE.
(d) NOT APPLICABLE.
Item 7. Purpose(s), Alternatives, Reasons and Effects.
---------------------------------------------
(a) The information required by this paragraph of Item 7 is set forth
in "SPECIAL FACTORS - Background and Purpose of the Offer; Fairness of the
Transaction," which section is hereby incorporated herein by reference.
(b) The information required by this paragraph of Item 7 is set forth
in "SPECIAL FACTORS - Background and Purpose of the Offer; Fairness of the
Transaction," which section is hereby incorporated herein by reference.
(c) The reasons for the structure of the Offer and for undertaking
such transaction at this time are described in "INTRODUCTION" and "SPECIAL
FACTORS - Background and Purpose of the Offer; Fairness of the Transaction,"
which sections are hereby incorporated herein by reference.
(d) The effects of the Offer on the Company, its affiliates and
unaffiliated stockholders, including the federal tax consequences, are
described in "SPECIAL FACTORS - Background and Purpose of the Offer; Fairness
of the Transaction" and "SPECIAL FACTORS - Certain Federal Income Tax
Consequences," which sections are hereby incorporated herein by reference.
Item 8. Fairness of the Transaction.
---------------------------
(a) The Company reasonably believes that the Offer is fair to
unaffiliated stockholders of the Company. No director of the Company
dissented to or abstained from voting on the Rule 13e-3 transaction when such
transaction was considered by the Board of Directors thereof.
In reaching its determination, the Board gave primary
consideration to the fact that the termination of the Special Dividends and
the Offer are being effected pursuant to the terms and conditions of the
Class B Common Stock, established at the time of the issuance of such Stock.
Such terms, including the Company's $17.50 repurchase obligation following a
termination of Special Dividends were established at the time that such
Stock was originally issued, in the Company's restated and amended articles
of incorporation. As a result, the Board believes that it is reasonable for
the Company to exercise its right to terminate the Special Dividends and
the exercise of such right coupled with the Company's compliance with its
resulting Purchase Obligation (pursuant to the Offer) is fair to the holders
of the Class B Common Stock.
7
See "SPECIAL FACTORS - Background and Purpose of the Offer; Fairness of the
Transaction," which section is hereby incorporated herein by reference.
(b) The bases of the beliefs stated in 8(a) above are described in
"SPECIAL FACTORS - Background and Purpose of the Offer; Fairness of the
Transaction," which section is hereby incorporated herein by reference.
(c) - (e) The information required by these paragraphs on Item 8 is
set forth in "SPECIAL FACTORS - Background and Purpose of the Purchase Offer;
Fairness of the Transaction," which section is hereby incorporated herein by
reference.
(f) During the preceding 18 months, the Company has not received any
offer of the type described in Instruction (viii) to Item 8(b).
Item 9. Reports, Opinions, Appraisals and Certain Negotiations.
------------------------------------------------------
(a) The Company has not received any report, opinion (other than an
opinion of counsel) or appraisal from an outside party which is materially
related to the Rule 13e-3 Transaction.
(b) NOT APPLICABLE.
(c) NOT APPLICABLE.
Item 10. Interest in Securities of the Issuer.
------------------------------------
(a) To the best of the Company's knowledge, after reasonable inquiry,
there are no shares of Class B Common Stock beneficially owned by any of
those persons enumerated in Item 10(a) of Schedule 13E-3.
(b) There has been no transaction in the Class B Common Stock by the
Company and, to the extent known by the Company, after reasonable inquiry,
there has been no transaction in the Class B Common Stock effected by any
officer or director of the Company, or by any affiliate or subsidiary of any
such person, during the past 60 days.
Item 11. Contracts, Arrangements or Understandings with Respect to the
-------------------------------------------------------------
Issuer's Securities.
-------- -----------
NOT APPLICABLE
8
Item 12. Present Intention and Recommendation of Certain Persons with
------------------------------------------------------------
Regard to the Transaction.
-------------------------
(a) To the best of the Company's knowledge, after reasonable inquiry,
there are no shares of Class B Common Stock beneficially owned by any of
those persons enumerated in Item 12(a) of Schedule 13E-3.
(b) The Board of Directors of the Company has unanimously recommended
approval of the Offer for the reasons set forth in "SPECIAL FACTORS -
Background and Purpose of the Purchase Offer; Fairness of the Transaction,"
which section is hereby incorporated herein by reference.
Item 13. Other Provisions of the Transaction.
------------------------------------
(a) The information required by this paragraph of Item 13 is set
forth in "THE OFFER - Withdrawal Rights; Absence of Appraisal Rights," which
section is hereby incorporated herein by this reference.
(b) No provision has been made by the Company to allow unaffiliated
stockholders to obtain access to the corporate files of the issuer or any
affiliate or to obtain counsel or appraisal services at the expense of the
Company.
(c) No exchange of debt securities is involved.
Item 14. Financial Information.
----------------------
(a) The information required by this paragraph of Item 14 is set
forth in "THE OFFER - Certain Information Concerning the Company," and
SCHEDULE II - Selected Historical Financial Information of Petro, which
sections are hereby incorporated herein by reference.
(b) The information required by this paragraph of Item 14 is set
forth in "THE OFFER - Certain Information Concerning the Company," and
SCHEDULE II - Selected Historical Financial Information of Petro, which
sections are hereby incorporated herein by reference.
Item 15. Persons and Assets Employed, Retained or Utilized.
--------------------------------------------------
(a) NOT APPLICABLE.
(b) The information required by this paragraph of Item 15 is set
forth in "THE OFFER - The Depositary; The Information Agent; Fees and
Expenses of the Offer," which sections are hereby incorporated herein by
reference.
Item 16. Additional Information.
----------------------
Additional information concerning the proposed Offer is set forth in
the OFFER PURCHASE, which is hereby incorporated herein in its entirety.
9
Item 17. Material to be Filed as Exhibits.
--------------------------------
(a) Not applicable.
(b) Not applicable.
(c) Not applicable
(d)(1) Offer to Purchase.
(d)(2) Letter of Transmittal
(e) Not applicable.
(f) Not applicable.
10
SIGNATURE
---------
After due inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
PETROLEUM HEAT AND POWER CO., INC.
By /s/ Irik P. Sevin
-------------------------------
Irik P. Sevin, President
Dated: July 20, 1994
EXHIBIT INDEX
(a) Not applicable.
(b) Not applicable.
(c) Not applicable
(d)(1) Offer to Purchase.
(d)(2) Letter of Transmittal
(e) Not applicable.
(f) Not applicable.