EXHIBIT (a)(1)(H)
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES OR RIGHTS. THE OFFER IS MADE SOLELY BY THE OFFER TO PURCHASE
DATED MARCH 23, 2004 (THE "OFFER TO PURCHASE") AND THE RELATED LETTER OF
TRANSMITTAL AND IS NOT BEING MADE TO (NOR WILL TENDERS BE ACCEPTED FROM OR ON
BEHALF OF) HOLDERS OF SHARES OR RIGHTS IN ANY JURISDICTION IN WHICH THE MAKING
OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE LAWS
OF SUCH JURISDICTION. IN ANY JURISDICTION WHERE SECURITIES, BLUE SKY OR OTHER
LAWS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER
SHALL BE DEEMED MADE ON BEHALF OF PURCHASER BY BEAR, STEARNS & CO. INC. OR ONE
OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH
JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF
CLASS A COMMON STOCK
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
OF
MAXWELL SHOE COMPANY INC.
AT
$20.00 NET PER SHARE
BY
MSC ACQUISITION CORP.,
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
JONES APPAREL GROUP, INC.
MSC Acquisition Corp., a New York corporation ("Purchaser") and an indirect
wholly owned subsidiary of Jones Apparel Group, Inc., a Pennsylvania corporation
("Jones"), is offering 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") issued pursuant to the Rights Agreement, dated as of November 2, 1998
(as amended from time to time, the "Rights Agreement"), by and between Maxwell
and EquiServe Trust Company, N.A., as Rights Agent, at a price of $20.00 per
Share, net to the seller in cash, without interest (the "Offer Price"), upon the
terms and subject to the conditions set forth in the Offer to Purchase and in
the related Letter of Transmittal (which, together with any amendments or
supplements thereto, constitute the "Offer"). Unless the context otherwise
requires, all references herein to the "Shares" shall be deemed to include the
associated Rights, and all references herein to the "Rights" shall be deemed to
include the benefits that may inure to holders of Rights pursuant to the Rights
Agreement. Unless the Rights are redeemed prior to the Expiration Date (as
defined herein), holders of Shares will be required to tender one Right for each
Share tendered in order to effect a valid tender of such Share. Accordingly,
stockholders who sell their Rights separately from their Shares and do not
otherwise acquire Rights may not be able to satisfy the requirements of the
Offer for the tender of Shares.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, APRIL 19, 2004, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE A NUMBER OF SHARES THAT,
TOGETHER WITH THE SHARES THEN OWNED BY JONES AND ITS SUBSIDIARIES (INCLUDING,
WITHOUT LIMITATION, PURCHASER), WOULD REPRESENT AT LEAST A MAJORITY OF THE TOTAL
NUMBER OF OUTSTANDING SHARES ON A FULLY DILUTED BASIS, (2) MAXWELL'S BOARD OF
DIRECTORS REDEEMING THE RIGHTS OR PURCHASER BEING SATISFIED, IN ITS SOLE
DISCRETION, THAT THE RIGHTS HAVE BEEN INVALIDATED OR ARE OTHERWISE INAPPLICABLE
TO THE OFFER AND THE PROPOSED MERGER (AS DEFINED HEREIN), (3) PURCHASER BEING
SATISFIED, IN ITS SOLE DISCRETION, THAT SECTION 203 OF THE DELAWARE GENERAL
CORPORATION LAW WILL BE INAPPLICABLE TO THE PROPOSED MERGER OR ANY OTHER
BUSINESS COMBINATION INVOLVING JONES OR ANY OF ITS SUBSIDIARIES (INCLUDING,
WITHOUT LIMITATION, PURCHASER) AND MAXWELL AND (4) THE EXPIRATION OR TERMINATION
OF ALL WAITING PERIODS IMPOSED BY THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS
ACT OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER.
The purpose of the Offer is to enable Jones to acquire control of, and
ultimately the entire equity interest in, Maxwell. The Offer, as the first step
in the acquisition of Maxwell, is intended to facilitate the acquisition of all
issued and outstanding Shares. Purchaser currently intends, promptly following
consummation of the Offer, to seek to have Maxwell consummate a second-step
merger or similar business combination with Purchaser or another direct or
indirect wholly owned subsidiary of Jones (the "Proposed Merger"), pursuant to
which each then outstanding Share (other than Shares held by Jones or its
subsidiaries (including, without limitation, Purchaser) and Shares owned by
stockholders who perfect any available appraisal rights under Delaware law) will
be converted into the right to receive an amount in cash equal to the highest
price paid per Share pursuant to the Offer.
JONES AND PURCHASER ARE SEEKING TO DISCUSS WITH MAXWELL THE ACQUISITION OF
MAXWELL BY PURCHASER. JONES AND PURCHASER RESERVE THE RIGHT TO AMEND THE OFFER
(INCLUDING, WITHOUT LIMITATION, AMENDING THE NUMBER OF SHARES TO BE PURCHASED
AND THE OFFER PRICE) UPON ENTERING INTO A MERGER AGREEMENT WITH MAXWELL, OR TO
NEGOTIATE A MERGER AGREEMENT WITH MAXWELL NOT INVOLVING A TENDER OFFER PURSUANT
TO WHICH PURCHASER WOULD TERMINATE THE OFFER AND THE SHARES WOULD, UPON
CONSUMMATION OF SUCH MERGER, BE CONVERTED INTO THE CONSIDERATION NEGOTIATED BY
JONES, PURCHASER AND MAXWELL.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not withdrawn as, if
and when Purchaser gives oral or written notice to the Depositary of Purchaser's
acceptance of such Shares for payment pursuant to the Offer. Upon the terms and
subject to the conditions of the Offer, payment for Shares purchased pursuant to
the Offer will be made by deposit of the purchase price therefor with the
Depositary for the Offer, which will act as agent for tendering stockholders for
the purpose of receiving payment from Purchaser and transmitting payment to
validly tendering stockholders. In all cases, payment for Shares accepted for
payment pursuant to the Offer will be made only after timely receipt by the
Depositary of (1) certificates for such Shares (the "Share Certificates") and,
if applicable, certificates representing the Rights ("Rights Certificates"), or
timely confirmation of the book-entry transfer of such Shares and, if
applicable, Rights into the Depositary's account at the Book-Entry Transfer
Facility (as defined in "THE OFFER -- Section 2" of the Offer to Purchase)
pursuant to the book-entry transfer procedures discussed in "THE
OFFER -- Section 3" of the Offer to Purchase, (2) the Letter of Transmittal (or
a facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message (as defined in "THE OFFER -- Section
2" of the Offer to Purchase) in connection with a book-entry transfer, and (3)
any other documents required by the Letter of Transmittal. Upon the deposit of
funds with the Depositary for the purpose of making payments to tendering
stockholders, Purchaser's obligation to make such payment shall be satisfied and
tendering stockholders must thereafter look solely to the Depositary for payment
of amounts owed to them by reason of the acceptance for payment of Shares
pursuant to the Offer. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE TO BE PAID BY PURCHASER FOR ANY SHARES, REGARDLESS OF ANY
EXTENSION OF THE OFFER OR ANY DELAY IN PAYING SUCH PURCHASE PRICE. Purchaser
will pay any stock transfer taxes incident to the transfer to it of validly
tendered Shares, except as otherwise provided in Instruction 6 of the Letter of
Transmittal, as well as any charges and expenses of the Depositary and the
Information Agent.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Monday, April 19, 2004, unless and until Purchaser, in its sole discretion,
shall have extended the period of time during which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by Purchaser, will expire. Subject to the applicable
rules and regulations of the Securities and Exchange Commission, Purchaser
expressly reserves the right (but will not be obligated), in its sole
discretion, at any time and from time to time, and regardless of whether or not
any of the events or facts set forth in "THE OFFER -- Section 14" of the Offer
to Purchase shall have occurred, to extend the period during which the Offer is
open and thereby delay acceptance for payment of, and the payment for, any
Shares, by giving oral or written notice of such extension to the Depositary and
by making a public announcement of the extension. Under no circumstances will
interest be paid on the purchase price to be paid by Purchaser for any Shares,
regardless of any extension of the Offer or any delay in paying such purchase
price. Any such extension will be followed by a public announcement thereof no
later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date. Purchaser currently has no intention of
making available a "subsequent offering period" (within the meaning of Rule
14d-11 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), but has the right to do so under Rule 14d-11.
If Purchaser extends the Offer or if Purchaser is delayed in its acceptance
for payment of or payment (whether before or after its acceptance for payment of
Shares) for Shares or it is unable to pay for Shares pursuant to the Offer for
any reason, then, without prejudice to Purchaser's rights under the Offer, the
Depositary may nevertheless, on behalf of Purchaser and subject to Rule 14e-1(c)
under the Exchange Act, retain tendered Shares on behalf of Purchaser, and such
Shares may not be withdrawn except to the extent tendering stockholders are
entitled to withdrawal rights as discussed in "THE OFFER -- Section 4" of the
Offer to Purchase.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if Share Certificates are submitted representing more Shares than are
tendered, certificates representing unpurchased or untendered Shares will be
returned, without expense to the tendering stockholder (or, in the case of
Shares delivered by book-entry transfer pursuant to the procedures set forth in
"THE OFFER -- Section 3" of the Offer to Purchase, such Shares will be credited
to an account maintained within the Book-Entry Transfer Facility), as promptly
as practicable following the expiration, termination or withdrawal of the Offer.
In the event separate Rights Certificates are issued, similar action will be
taken with respect to unpurchased and untendered Rights.
Except as otherwise provided below, tenders of Shares (and, if applicable,
Rights) made pursuant to the Offer are irrevocable. Shares and Rights tendered
pursuant to the Offer may be withdrawn at any time on or prior to the Expiration
Date and, unless theretofore accepted for payment by Purchaser pursuant to the
Offer, may also be withdrawn at any time after May 21, 2004 (or such later date
as may apply in case the Offer is extended). A withdrawal of a Share will also
constitute a withdrawal of the associated Right. Rights may not be withdrawn
unless the associated Shares are also withdrawn.
To be effective, a notice of withdrawal must be timely received by the
Depositary at one of its addresses set forth on the back cover of the Offer to
Purchase. Any such notice of withdrawal must specify the name of the person who
tendered the Shares or Rights to be withdrawn, the number of Shares or Rights to
be withdrawn and the name of the registered holder of the Shares or Rights to be
withdrawn, if different from the name of the person who tendered the Shares or
Rights. If Share Certificates or Rights Certificates evidencing Shares or Rights
to be withdrawn have been delivered or otherwise identified to the Depositary,
then, prior to the physical release of such certificates, the serial numbers
shown on such certificates must be submitted to the Depositary and, unless such
Shares and Rights have been tendered by an Eligible Institution (as defined in
"THE OFFER -- Section 3" of the Offer to Purchase), the signatures on the notice
of withdrawal must be guaranteed by an Eligible Institution. If Shares or Rights
have been delivered pursuant to the procedures for book-entry transfer as set
forth in "THE OFFER -- Section 3" of the Offer to Purchase, any notice of
withdrawal must also specify the name and number of the account at the
Book-Entry Transfer Facility to be
credited with the withdrawn Shares or Rights and otherwise comply with the
Book-Entry Transfer Facility's procedures.
Withdrawals of Shares or Rights may not be rescinded. Any Shares or Rights
properly withdrawn will be deemed not validly tendered for purposes of the
Offer, but may be retendered at any subsequent time prior to the Expiration Date
by following any of the procedures discussed in "THE OFFER -- Section 3" of the
Offer to Purchase. All questions as to the form and validity (including, without
limitation, as to time of receipt) of notices of withdrawal will be determined
by Purchaser, in its sole discretion, whose determination will be final and
binding on all parties.
A request is being made to Maxwell pursuant to Rule 14d-5 under the
Exchange Act for the use of Maxwell's stockholder lists and security position
listings for the purpose of disseminating the Offer to stockholders. Upon
compliance by Maxwell with this request, the Offer to Purchase and the related
Letter of Transmittal and other relevant materials will be mailed to record
holders of Shares and will be furnished to brokers, dealers, banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on Maxwell's stockholder lists, or, if applicable, who are listed as
participants in a clearing agency's security position listing for subsequent
transmittal to beneficial owners of Shares.
The receipt of cash in the Offer or the Proposed Merger will be a taxable
transaction for U.S. Federal income tax purposes under the Internal Revenue Code
of 1986, as amended, and may also be a taxable transaction under applicable
state, local or foreign income or other tax laws. Stockholders should consult
their tax advisors about the particular effect the proposed transactions will
have on their Shares.
The information required to be disclosed by Rule 14d-6(d)(1) under the
Exchange Act is contained in the Offer to Purchase and is incorporated herein by
reference.
NEITHER THIS NOTICE, THE OFFER TO PURCHASE NOR THE OFFER REFERRED TO HEREIN
AND THEREIN CONSTITUTES A SOLICITATION OF PROXIES IN CONNECTION WITH ANY MATTER
TO BE CONSIDERED AT MAXWELL'S 2004 ANNUAL MEETING OF STOCKHOLDERS SCHEDULED TO
BE HELD ON APRIL 8, 2004. NEITHER JONES NOR PURCHASER IS SOLICITING, OR INTENDS
TO SOLICIT, PROXIES IN RESPECT OF ANY MATTER TO BE CONSIDERED AT MAXWELL'S 2004
ANNUAL MEETING.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION THAT STOCKHOLDERS SHOULD READ BEFORE MAKING ANY DECISION WITH
RESPECT TO THE OFFER.
Requests for copies of the Offer to Purchase, the Letter of Transmittal and
all other tender offer materials may be directed to the Information Agent as set
forth below, and copies will be furnished promptly at Purchaser's expense. No
fees or commissions will be payable to brokers, dealers or other persons (other
than the Dealer Manager and the Information Agent) for soliciting tenders of
Shares pursuant to the Offer.
The Information Agent for the Offer is:
(INNISFREE LOGO)
501 Madison Avenue, 20th Floor
New York, New York 10022
Banks and Brokers Call Collect:
(212) 750-5833
All Others Please Call Toll-free:
(888) 750-5834
The Dealer Manager for the Offer is:
BEAR, STEARNS & CO. INC.
383 Madison Avenue
New York, New York 10179
(212) 272-2000
March 23, 2004