SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(AMENDMENT NO. 1)
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 $0.01 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
SCHEDULE TO
This Statement amends and supplements the Tender Offer Statement on
Schedule TO filed with the Securities and Exchange Commission on March 23,
2004 (the "Schedule TO"), relating to the offer by MSC Acquisition Corp., a
New York corporation ("MSC") 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 $0.01 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, 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. 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.
Capitalized terms used herein and not defined herein have the
respective meanings assigned such terms in the Offer to Purchase and the
Schedule TO.
ITEM 11. ADDITIONAL INFORMATION.
On March 26, 2004, Jones filed a Notification and Report Form with
the FTC and the Antitrust Division with respect to the Offer and the Proposed
Merger. The required waiting period with respect to the Offer and the Proposed
Merger will expire at 11:59 p.m., New York City time, on April 12, 2004,
unless early termination is granted or Jones receives a request from the FTC
or the Antitrust Division for additional information or material prior
thereto, in which case the waiting period will expire at 11:59 p.m., New York
City time, on the tenth calendar day after Jones has substantially complied
with such request.
On March 25, 2004, Maxwell announced that its Board of Directors had
"set a record date of March 25, 2004 in connection with Jones Apparel Group,
Inc.'s consent solicitation", despite the fact that no such consent
solicitation has yet been commenced by Jones and/or MSC. On March 26, 2004,
MSC wrote to Maxwell demanding the right to inspect certain books and records
relating, among other things, to Maxwell's setting of the March 25, 2004
record date. By letter dated March 28, 2004, Maxwell refused to permit such
inspection. As a result, on March 30, 2004, MSC filed a Complaint in the Court
of Chancery of the State of Delaware to compel Maxwell to make those books and
records available for inspection, pursuant to Section 220 of the Delaware
General Corporation Law, 8 Del. C. Section 220. A copy of that Complaint is
filed as Exhibit (a)(5)(A) hereto and is incorporated by reference.
On March 31, 2004, Jones and MSC filed a separate Complaint in the
Court of Chancery of the State of Delaware challenging Maxwell's Board's
attempt improperly to set March 25, 2004 as the record date for any possible
future consent solicitation by Jones and MSC. Maxwell's setting of a purported
record date for a solicitation that has not been commenced constitutes a
violation of Maxwell's Amended and Restated Certificate of Incorporation and a
breach of Maxwell's directors' fiduciary duties to the Company and its
stockholders under Delaware law. A copy of the press release announcing the
filing of that lawsuit is filed as Exhibit (a)(5)(B) hereto and is
incorporated by reference. A copy of the Complaint in that suit is filed as
exhibit (a)(5)(C) hereto and is incorporated by reference.
ITEM 12. EXHIBITS.
(a)(5)(A) Complaint filed in the Court of Chancery of the State of
Delaware, New Castle County, on March 30, 2004.
(a)(5)(B) Press release issued by Jones Apparel Group, Inc., dated
March 31, 2004.
(a)(5)(C) Complaint filed in the Court of Chancery of the State of
Delaware, New Castle County, on March 31, 2004.
SIGNATURE
After due inquiry and to the best of their knowledge and belief, the
undersigned hereby certify as of April 1, 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)(5)(A) Complaint filed in the Court of Chancery of the State of
Delaware, New Castle County, on March 30, 2004.
(a)(5)(B) Press release issued by Jones Apparel Group, Inc., dated
March 31, 2004.
(a)(5)(C) Complaint filed in the Court of Chancery of the State of
Delaware, New Castle County, on March 31, 2004.