SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
to
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT
(UNDER SECTION 13(E) OF THE SECURITIES EXCHANGE ACT OF 1934)
WOLOHAN LUMBER CO.
(Name of Issuer)
WOLOHAN LUMBER CO.
WOLOHAN ACQUISITION CO.
JAMES L. WOLOHAN
JOHN A. SIEGGREEN
DANIEL P. ROGERS
EDWARD J. DEAN
(Name of Persons Filing Statement)
Common Stock, Par Value $1.00 Per Share
(Title of Class of Securities)
977865-104
(CUSIP Number of Class of Securities)
James L. Wolohan
President and Chief Executive Officer
Wolohan Lumber Co.
1740 Midland Road
Saginaw, Michigan 48605
(989) 793-4532
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of Persons Filing Statement)
Copies to:
Verne C. Hampton II
Dickinson Wright PLLC
500 Woodward Avenue, Suite 4000
Detroit, Michigan 48226
This statement is filed in connection with (check appropriate box):
a. [X] The filing of solicitation materials or an information
statement subject to Regulation 14A, Regulation 14C or Rule
13e-3(c) under the Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities
act of 1933.
c. [ ] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are the preliminary copies. [X]
Check the following box if the filing is a final amendment reporting the results
of the transaction: [ ]
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE
$26,451,368 $2,140
---------- -----
* The filing fee was determined based upon the sum of (a) the product of
shares of common stock, par value $1.00 per share, proposed to be
acquired by the acquirer, 994,537 shares (which does not include
1,048,151 shares which will be owned by the continuing shareholders
after the merger) times the merger consideration of $25.75 per share
of Common Stock, and (b) $842,040 payable to holders of options and
performance shares in exchange for the cancellation of such options
and performance shares (the "Total Consideration"). In accordance with
Exchange Act Rule 0-11(c) and Securities and Exchange Commission Fee
Rate Advisory #11 for Fiscal Year 2003, the filing fee was determined
by calculating a fee of $80.90 per $1,000,000 of the aggregate merger
consideration of $26,451,368.
[X] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previously filing by registration
statement number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $2,140 Filing Party: Wolohan Lumber Co.
Form or Registration No.: Schedule 14A Date Filed: August 20, 2003
Preliminary Proxy Statement
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INTRODUCTION
This Amendment No. 1 to Rule 13e-3 Transaction Statement on
Schedule 13E-3 (the "Amendment") amends the Rule 13e-3 Transaction Statement on
Schedule 13E-3 filed with the Securities and Exchange Commission on August 20,
2003 (the "Schedule 13E-3). The Amendment is being filed by Wolohan Lumber Co.,
a Michigan corporation (the "Company") and the issuer of the equity securities
which are the subject of a Rule 13e-3 transaction, Wolohan Acquisition Co., a
Michigan corporation, James L. Wolohan, President and Chief Executive Officer of
the Company, John A. Sieggreen, President and Chief Executive Officer of Wolohan
Acquisition Co., Daniel P. Rogers, Senior Vice President - General Merchandise
Manager of the Company and Edward J. Dean, Vice President and Chief Operating
Officer of the Company. This Amendment and Schedule 13E-3 relates to the
Agreement and Plan of Merger, dated as of August 13, 2003 (the "Merger
Agreement"), between the Company and Wolohan Acquisition Co. pursuant to which
Wolohan Acquisition Co. will be merged (the "Merger") with and into the Company,
with the Company as the surviving corporation (the "Surviving Corporation").
Under the terms and subject to the conditions of the Merger Agreement,
(a) each outstanding share of Common Stock, other than Common Stock owned by
certain current shareholders and members of management of the Company, will be
converted into the right to receive $25.75 in cash without interest thereon (the
"Merger Consideration"); (b) each outstanding option to acquire a share of
Common Stock, other than options held by certain members of management of the
Company, will be converted into the right to receive an amount per share equal
to the Merger Consideration minus the exercise price per share for each such
option, without interest thereon (the "Option Consideration"); and (c) each
outstanding performance share under the Long-Term Incentive Plan, other than
performance shares held by certain members of management of the Company, will be
converted into the right to receive an amount equal to the product of (i) the
number of performance shares and (ii) the Merger Consideration.
Concurrently with the filing of this Amendment, the Company is filing
with the Securities and Exchange Commission an Amendment No. 1 to a preliminary
proxy statement (the "Proxy Statement") under Regulation 14A of the Exchange Act
relating to a Special Meeting of Shareholders of the Company at which the
shareholders of the Company will consider and vote upon a proposal to approve
and adopt the Merger Agreement. A copy of the Proxy Statement is attached hereto
as Exhibit (a), and a copy of the Merger Agreement was previously filed as
Exhibit (d) to the Schedule 13E-3. All references in this Amendment to Items
numbered 1001 through 1016 are references to Items contained in Regulation M-A
under the Exchange Act.
The information in the Proxy Statement, including all appendixes
thereto, is hereby expressly incorporated by reference to this Schedule 13E-3 in
its entirety, and the responses to each item are qualified in their entirety by
the provisions of the Proxy Statement. The Proxy Statement is in preliminary
form and is subject to completion or amendment. Capitalized terms used but not
defined in this statement shall have the meanings given to them in the Proxy
Statement.
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ITEM 1. SUMMARY TERM SHEET.
ITEM 1001
The information contained in the section of the Proxy
Statement entitled "QUESTIONS AND ANSWERS" and "SUMMARY" is
incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
ITEM 1002
(a) The information contained in the section of the Proxy
Statement entitled "GENERAL INFORMATION REGARDING WOLOHAN
LUMBER AND WOLOHAN ACQUISITION - GENERAL" is incorporated
herein by reference.
(b) As of September 15, 2003, there were 2,042,688 shares of
Company Common Stock outstanding.
(c)(d)(f) The information contained in the section of the Proxy
Statement entitled "GENERAL INFORMATION REGARDING WOLOHAN
LUMBER AND WOLOHAN ACQUISITION -- Price Range of Shares;
Dividends; and Stock Repurchases" and - "Interests of
Certain Persons in the Merger" is incorporated herein by
reference.
(e) Not Applicable.
ITEM 3. IDENTITY AND BACKGROUND OF THE FILING PERSON.
ITEM 1003
(a)-(c) This Statement is being filed by Wolohan Lumber Co., Wolohan
Acquisition Co., James L. Wolohan, John A. Sieggreen, Daniel
P. Rogers and Edward J. Dean. The information contained in the
section of the Proxy Statement entitled "GENERAL INFORMATION
REGARDING WOLOHAN LUMBER AND WOLOHAN ACQUISITION" is
incorporated herein by reference.
(b) The information set forth in the section entitled "SUMMARY" is
incorporated herein by reference. Neither Wolohan Lumber nor
Wolohan Acquisition, during the last five years, have been
convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or been a party to a
judicial or administrative proceeding that resulted in a
judgment, decree or final order finding any violation of
federal or state securities laws or enjoining further
violations of, or prohibiting activities subject to, any such
law. Both are incorporated under Michigan law.
(c) The biographical information regarding James L. Wolohan,
John A. Sieggreen, Daniel P. Rogers and Edward J. Dean set
forth in the section of the Proxy Statement entitled "GENERAL
INFORMATION REGARDING WOLOHAN LUMBER AND WOLOHAN
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ACQUISITION-EXECUTIVE OFFICERS AND DIRECTORS" is
incorporated herein by reference. Mr. Wolohan, Mr. Sieggreen,
Mr. Rogers or Mr. Dean have not during the last five years,
been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or been a party to a
judicial or administrative proceeding that resulted in a
judgment, decree or final order enjoining them from future
violations of, or prohibiting activities subject to, federal
or state securities laws, or a finding of any violation of
federal or state securities laws. They are citizens of the
U.S.A.
ITEM 4. TERMS OF THE TRANSACTION.
ITEM 1004
(a)(1) Not applicable.
(a)(2) The information contained in the following sections of the
Proxy Statement is incorporated herein by reference:
"THE MERGER AGREEMENT -- The Merger"
"SPECIAL FACTORS - Purposes of the Merger and Plans
or Proposals"
"SPECIAL FACTORS - Reasons for the Merger; Fairness
of the Merger"
"MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF THE
"MERGER"
"THE SPECIAL MEETING - Required Vote"
(b) Not Applicable
(c) The information contained in the following sections of the
Proxy Statement is incorporated herein by reference:
"THE MERGER AGREEMENT -- Conversion of Common Stock"
"GENERAL INFORMATION REGARDING WOLOHAN LUMBER AND
WOLOHAN ACQUISITION -- Interest of Certain Persons
in the Merger"
(d) The information contained in the following section of the
Proxy Statement is incorporated herein by reference:
"The Merger Agreement - Appraisal Rights"
(e) None
(f) Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
ITEM 1005
(a) The information contained in the following section of the
Proxy Statement is incorporated herein by reference:
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"GENERAL INFORMATION REGARDING WOLOHAN LUMBER AND WOLOHAN
ACQUISITION - Interest of Certain Persons in the Merger".
(b)-(c) The information contained in the following sections of the
Proxy Statement and Appendix A to the Proxy Statement are
incorporated herein by reference:
"SPECIAL FACTORS - Background of the Merger"
"GENERAL INFORMATION REGARDING WOLOHAN LUMBER AND
WOLOHAN ACQUISITION -- Price Range of Shares;
Dividends; and Stock Repurchases"
(e) The information contained in the following section of the
Proxy Statement is incorporated herein by reference:
"THE MERGER - Merger Financing".
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
ITEM 1006
(a),(b),(c) The information contained in the following sections of the
Proxy Statement is incorporated herein by reference:
"SPECIAL FACTORS - Purposes of the Merger and Plans
or Proposals"
"SPECIAL FACTORS - Background of the Merger"
ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS.
ITEM 1013
(a)-(c) The information contained in the following sections of the
Proxy Statement is incorporated herein by reference:
"SPECIAL FACTORS - Purposes of the Merger and Plans
or Proposals"
"SPECIAL FACTORS - Reasons for the Merger and
Fairness of the Merger"
(d) The information contained in the following sections of the
Proxy Statement and ANNEX A to the Proxy Statement are
incorporated herein by reference:
"MATERIAL FEDERAL INCOME TAX CONSEQUENCES OF THE
MERGER"
"SPECIAL FACTORS - Purposes of the Merger and
Plans or Proposals"
"THE MERGER AGREEMENT - Conversion of Common Stock"
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ITEM 8. FAIRNESS OF THE TRANSACTION.
ITEM 1014
(a)-(e) The information contained in the following sections of the
Proxy Statement is incorporated herein by reference:
"SPECIAL FACTORS - Reasons for the Merger and
Fairness of the Merger"
"SPECIAL FACTORS - Background of the Merger"
"SPECIAL FACTORS - Recommendation of the Special
Committee and the Board of Directors"
"THE SPECIAL MEETING -- Required Vote"
(f) Not applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
ITEM 1015
(a)-(c) The information contained in the section of the Proxy
Statement entitled "SPECIAL FACTORS - Opinion of McDonald
Investments", and Appendix B to the Proxy Statement are
incorporated herein by reference.
ITEM 10. SOURCES AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
ITEM 1007
(a),(b),(c),(d) The information contained in the following sections
of the Proxy Statement are incorporated herein by
reference.
"THE MERGER AGREEMENT - Fees and Expenses"
"THE MERGER AGREEMENT - Merger Financing"
ITEM 11. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
ITEM 1-008
(a) The information contained in the following sections
of the Proxy Statement is incorporated herein by
reference:
"GENERAL INFORMATION REGARDING WOLOHAN LUMBER AND
WOLOHAN ACQUISITION - Stock Ownership"
(b) None.
ITEM 12. THE SOLICITATION OR RECOMMENDATION.
ITEM 1012
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(d) The information contained in the section of the Proxy
Statement entitled "GENERAL", "THE SPECIAL MEETING --
Required Vote", "Special Factors - Recommendations of
the Special Committee and the Board of Directors" and
"THE MERGER AGREEMENT" - Recommendation of the
Special Committee and the Board of Directors is
incorporated herein by reference.
(e) None
ITEM 13. FINANCIAL STATEMENTS.
ITEM 1010
(a),(c) The information contained in the following sections
of the Proxy Statement is incorporated herein by
reference:
"SELECTED CONSOLIDATED FINANCIAL DATA;
APPENDIX C; APPENDIX D"
(b) Not applicable.
ITEM 14. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
ITEM 1009
(a),(b) The information contained in the following sections
of the Proxy Statement is incorporated herein by
reference.
"THE SPECIAL MEETING - Time Place and Date; Proxy
Solicitation"
ITEM 15. ADDITIONAL INFORMATION.
ITEM 1011
(a) Not applicable.
(b) The information contained in the Proxy Statement,
including all annexes thereto, is incorporated
herein by reference.
ITEM 16. EXHIBITS.
ITEM 1016
(a)
Amendment No. 1 to Preliminary Proxy Statement filed
with the Securities and Exchange Commission on
September 26, 2003.
(b) Commitment Letter dated June 30, 2003 from Citizens
Bank*
(c)(1) Opinion of McDonald Investments Inc. attached as
APPENDIX B to the preliminary Proxy Statement which
is filed as Exhibit (a).
(c)(2) Report of McDonald Investments Inc. dated
August 13, 2003.
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(d) Agreement and Plan of Merger, dated as of August 13,
2003 between Wolohan Lumber Co. and Wolohan
Acquisition Co. attached as Appendix A to the
preliminary Proxy Statement which is filed as
Exhibit (a).
(e) None
(f) Not Applicable
(g) None.
(h) None.
* Filed with Schedule 13E-3
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SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in the statement is true,
complete and correct.
Dated: September 25, 2003 WOLOHAN LUMBER CO.
By: /s/ James L. Wolohan
---------------------------------
Name: James L. Wolohan
Title: President and Chief
Executive Officer
WOLOHAN ACQUISITION CO.
By: /s/ John A. Sieggreen
---------------------------------
Name: John A. Sieggreen
Title: President and Chief
Executive Officer
/s/ James L. Wolohan
------------------------------------------
James L. Wolohan
/s/ John A. Sieggreen
------------------------------------------
John A. Sieggreen
/s/ Daniel P. Rogers
------------------------------------------
Daniel P. Rogers
/s/ Edward J. Dean
------------------------------------------
Edward J. Dean
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
99(a) Amendment No. 1 to the Preliminary Proxy Statement filed with
the Securities and Exchange Commission on September 26, 2003
99(b) Commitment Letter dated June 30, 2003 from Citizens Bank*
99(c)(1) Opinion of McDonald Investments, Inc. attached as APPENDIX B
to the preliminary Proxy Statement which is filed as Exhibit
99(a).
99(c)(2) Report of McDonald Investments Inc. dated August 13, 2003.
99(d) Agreement and Plan of Merger, dated as of August 13, 2003
between Wolohan Lumber Co. and Wolohan Acquisition Co.
attached as Appendix A to the preliminary Proxy Statement
which is filed as Exhibit 99(a).
* Filed with Schedule 13E-3