- --------------------------------------------------------------------------------
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
MAXWELL SHOE COMPANY INC.
(Name of Subject Company (Issuer))
MSC ACQUISITION CORP.
JONES APPAREL GROUP, INC.
(Names of Filing Persons -- Offerors)
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
577766108
(CUSIP Number of Class of Securities)
IRA M. DANSKY, ESQ.
JONES APPAREL GROUP, INC.
1411 BROADWAY
NEW YORK, NEW YORK 10018
TELEPHONE: (212) 536-9526
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
SCOTT A. BARSHAY, ESQ.
CRAVATH, SWAINE & MOORE LLP
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
TELEPHONE: (212) 474-1000
- --------------------------------------------------------------------------------
CALCULATION OF FILING FEE
- --------------------------------------------------------------------------------
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
- --------------------------------------------------------------------------------
$331,929,140 $42,056
- --------------------------------------------------------------------------------
* For purposes of calculating the amount of filing fee only. Based on the
offer to purchase 16,596,457 shares of Class A Common Stock, par value
$.01 per share, of Maxwell Shoe Company Inc., including the associated
preferred stock purchase rights, at a purchase price of $20.00 per share,
net to the seller in cash, without interest. Such number represents the
total of 14,837,806 shares issued and outstanding as of March 4, 2004 (as
reported in Maxwell Shoe Company Inc.'s Quarterly Report on Form 10-Q for
Maxwell Shoe Company Inc.'s fiscal quarter ended January 31, 2004), and
1,758,651 shares issuable upon the exercise of stock options outstanding
as of February 24, 2004 (as reported in Maxwell Shoe Company Inc.'s Proxy
Statement for Maxwell Shoe Company Inc.'s 2004 annual meeting of
stockholders).
** The amount of the filing fee is calculated in accordance with Regulation
240.0-11 of the Securities Exchange Act of 1934, as amended, and equals
0.00012670% of the transaction valuation based on Fee Rate Advisory #7 for
Fiscal Year 2004 issued by the Securities and Exchange Commission (the
"Commission") on January 26, 2004.
[ ] 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: None
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.
[ ] 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: [ ]
SCHEDULE TO
This Tender Offer Statement on Schedule TO ("Schedule TO") relates to the
offer by MSC Acquisition Corp., a New York corporation ("Purchaser") and an
indirect wholly owned subsidiary of Jones Apparel Group, Inc., a Pennsylvania
corporation ("Jones"), to purchase (1) all issued and outstanding shares of
Class A Common Stock, par value $.01 per share (the "Shares"), of Maxwell Shoe
Company Inc., a Delaware corporation ("Maxwell"), and (2) unless and until
validly redeemed by Maxwell's Board of Directors, the associated rights to
purchase shares of Series A Junior Participating Preferred Stock of Maxwell (the
"Rights"), at a price of $20.00 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 (the "Offer to Purchase") dated March 23, 2004, and in the related
Letter of Transmittal, copies of which are attached as Exhibits (a)(1)(A) and
(a)(1)(B) hereto, respectively. This Schedule TO is being filed on behalf of
Purchaser and Jones.
The information set forth in the Offer to Purchase, including Schedule I
thereto, is hereby incorporated by reference in answer to Items 1 through 11 of
this Schedule TO, and is supplemented by the information specifically provided
herein.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
During the last five years, to the best knowledge of Purchaser and Jones, none
of the persons listed on Schedule I to the Offer to Purchase (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has been a party to any judicial or administrative
proceeding (except for matters that were dismissed without sanction or
settlement) that resulted in a judgment, decree or final order enjoining the
person from future violations of, or prohibiting activities subject to, Federal
or state securities laws, or a finding of violations of such laws.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
Except as described in the Offer to Purchase, during the past two years there
have not been any negotiations, transactions or material contacts between
Purchaser, Jones or any of Jones's other subsidiaries or, to the best knowledge
of Purchaser and Jones, any of the persons listed in Schedule I to the Offer to
Purchase, on the one hand, and Maxwell or any of its directors, executive
officers or affiliates, on the other hand, that are required to be disclosed
pursuant to this item.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Except as described in the Offer to Purchase, none of Purchaser or Jones or, to
the best knowledge of Purchaser and Jones, any of the persons listed in Schedule
I to the Offer to Purchase, or any associate or majority-owned subsidiary of
Purchaser or Jones or any of the persons listed in Schedule I to the Offer to
Purchase, beneficially owns any equity security of Maxwell; and except as
described in the Offer to Purchase, none of Purchaser or Jones or, to the best
knowledge of Purchaser and Jones, any associate or majority-owned subsidiary of
Purchaser and Jones, has effected any transaction in any equity security of
Maxwell during the past 60 days.
ITEM 12. EXHIBITS.
(a)(1)(A) Offer to Purchase, dated March 23, 2004.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.
(a)(1)(E) Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(G) Press release issued by Jones Apparel Group, Inc., dated
March 23, 2004, announcing the commencement of the Offer.
(a)(1)(H) Summary Advertisement published March 23, 2004.
(b)(1) Three Year Credit Agreement, dated as of June 10, 2003,
by and among Jones Apparel Group USA, Inc., the
additional obligors referred to therein, the lenders
referred to therein, J.P. Morgan
Securities Inc. and Citigroup Global Markets Inc., as
Joint Lead Arrangers and Joint Bookrunners, Wachovia
Bank, National Association, as Administrative Agent,
JPMorgan Chase Bank and Citibank, N.A., as Syndication
Agents and Fleet National Bank and Bank of America, N.A.,
as Documentation Agents (incorporated by reference to
Exhibit 10.2 to Jones Apparel Group, Inc.'s Quarterly
Report on Form 10-Q for the six months ended July 5, 2003
filed with the Commission on August 14, 2003).
(b)(2) Five-Year Credit Agreement, dated as of June 15, 1999, as
amended, among Jones Apparel Group USA, Inc., the
additional obligors referred to therein, the lenders
referred to therein, and Wachovia Bank, National
Association (as successor to First Union National Bank),
as Administrative Agent, JPMorgan Chase Bank (as
successor to The Chase Manhattan Bank) and Citibank,
N.A., as Syndication Agents and Bank of America, N.A. (as
successor to Nationsbank, N.A.), as Documentation Agent
(incorporated by reference to Exhibit 10.2 to Jones
Apparel Group, Inc.'s Quarterly Report on Form 10-Q for
the six months ended July 4, 1999 filed with the
Commission on August 17, 1999).
(b)(3) Waiver and Amendment No. 2 to the Five-Year Credit
Agreement, dated as of June 10, 2003, among Jones Apparel
Group USA, Inc., the additional obligors referred to
therein, the lenders referred to therein, and Wachovia
Bank National Association (as successor to First Union
National Bank), as Administrative Agent, JPMorgan Chase
Bank (as successor to The Chase Manhattan Bank) and
Citibank, N.A., as Syndication Agents and Bank of
America, N.A. (as successor to Nationsbank, N.A.), as
Documentation Agent (incorporated by reference to Exhibit
10.1 to Jones Apparel Group, Inc.'s Quarterly Report on
Form 10-Q for the six months ended July 5, 2003 filed
with the Commission on August 14, 2003).
(c) Not applicable.
(d) License Agreement, dated November 1, 1999, as amended,
among Anne Klein, a division of Kasper, Ltd.,
B.D.S., Inc., Lion Licensing, Ltd. and Maxwell Shoe
Company Inc. (Portions deleted pursuant to application
for confidential treatment under Rule 24b-2 of the
Securities Exchange Act of 1934).
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.
SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned hereby certify as of March 23, 2004 that the information set forth
in this statement is true, complete and correct.
MSC ACQUISITION CORP.,
By: /s/ Wesley R. Card
---------------------------------------
Name: Wesley R. Card
Title: Chief Financial Officer
and Treasurer
JONES APPAREL GROUP, INC.,
By: /s/ Wesley R. Card
---------------------------------------
Name: Wesley R. Card
Title: Chief Operating and Financial
Officer
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
(a)(1)(A) Offer to Purchase, dated March 23, 2004.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and other Nominees.
(a)(1)(E) Form of Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(1)(G) Press release issued by Jones Apparel Group, Inc., dated
March 23, 2004, announcing the commencement of the Offer.
(a)(1)(H) Summary Advertisement published March 23, 2004.
(b)(1) Three Year Credit Agreement, dated as of June 10, 2003, by and
among Jones Apparel Group USA, Inc., the additional obligors
referred to therein, the lenders referred to therein, J.P.
Morgan Securities Inc. and Citigroup Global Markets Inc., as
Joint Lead Arrangers and Joint Bookrunners, Wachovia Bank,
National Association, as Administrative Agent, JPMorgan Chase
Bank and Citibank, N.A., as Syndication Agents and Fleet
National Bank and Bank of America, N.A., as Documentation
Agents (incorporated by reference to Exhibit 10.2 to Jones
Apparel Group, Inc.'s Quarterly Report on Form 10-Q for the
six months ended July 5, 2003 filed with the Commission on
August 14, 2003).
(b)(2) Five-Year Credit Agreement, dated as of June 15, 1999, as
amended, among Jones Apparel Group USA, Inc., the additional
obligors referred to therein, the lenders referred to therein,
and Wachovia Bank, National Association (as successor to First
Union National Bank), as Administrative Agent, JPMorgan Chase
Bank (as successor to The Chase Manhattan
Bank) and Citibank, N.A., as Syndication Agents and Bank of
America, N.A. (as successor to Nationsbank, N.A.), as
Documentation Agent (incorporated by reference to Exhibit 10.2
to Jones Apparel Group, Inc.'s Quarterly Report on Form 10-Q
for the six months ended July 4, 1999 filed with the
Commission on August 17, 1999).
(b)(3) Waiver and Amendment No. 2 to the Five-Year Credit Agreement,
dated as of June 10, 2003, among Jones Apparel Group USA,
Inc., the additional obligors referred to therein, the lenders
referred to therein, and Wachovia Bank, National Association
(as successor to First Union National Bank), as Administrative
Agent, JPMorgan Chase Bank (as successor to The Chase
Manhattan Bank) and Citibank, N.A., as Syndication Agents and
Bank of America, N.A. (as successor to Nationsbank, N.A.), as
Documentation Agent (incorporated by reference to Exhibit 10.1
to Jones Apparel Group, Inc.'s Quarterly Report on Form 10-Q
for the six months ended July 5, 2003 filed with the
Commission on August 14, 2003).
(c) Not applicable.
(d) License Agreement, dated November 1, 1999, as amended, among
Anne Klein, a division of Kasper A.S.L., B.D.S., Inc.,
Lion Licensing, Ltd. and Maxwell Shoe Company Inc. (Portions
deleted pursuant to application for confidential treatment
under Rule 24b-2 of the Securities Exchange Act of 1934).
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) Not applicable.