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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement Under Section 14(d)(1)
or Section 13(e)(1) of the Securities Exchange Act of 1934
(Amendment No. 2)
THE EARTHGRAINS COMPANY
(Name of Subject Company (Issuer))
SLC ACQUISITION CORP.
a wholly owned subsidiary of
SARA LEE CORPORATION
(Names of Filing Persons (Offerors))
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COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
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270319-10-6
(CUSIP Number of Class of Securities)
Roderick A. Palmore, Esq.
Senior Vice President, General Counsel and Secretary
Sara Lee Corporation
Three First National Plaza
Chicago, Illinois 60602-4260
(312) 726-2600
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
With a copy to:
Charles W. Mulaney, Jr., Esq.
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 407-0700
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee
$1,836,427,954 $367,286
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* Estimated for purposes of calculating the filing fee only. The filing fee
calculation assumes the purchase of 42,648,084 outstanding shares of
common stock (together with the associated rights to purchase preferred
stock) of The Earthgrains Company at a purchase price of $40.25 per
share. The transaction value also includes the offer price of $40.25 per
share, less $15.92 which is the average exercise price of outstanding
options, multiplied by 4,925,712, the estimated number of options
outstanding under The Earthgrains Company's employee stock option plans.
The amount of the filing fee calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended, equals 1/50 of 1% of the
transaction value.
[X] 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: $367,286
Form or Registration No.: Schedule TO
Filing party: Sara Lee Corporation and SLC Acquisition Corp.
Date Filed: July 3, 2001
[_] 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: [_]
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This Amendment No. 2 (the "Amendment") amends and supplements the Tender Offer
Statement on Schedule TO filed with the Securities and Exchange Commission
(the "Commission") on July 3, 2001 as amended (the "Schedule TO"), by SLC
Acquisition Corp., a Delaware corporation (the "Purchaser") and a wholly owned
subsidiary of Sara Lee Corporation, a Maryland corporation ("Sara Lee"). The
Schedule TO relates to the offer by the Purchaser to purchase all outstanding
shares of common stock, par value $0.01 per share (the "Common Stock"), of The
Earthgrains Company, a Delaware corporation (the "Company"),and the associated
rights to purchase preferred stock (the "Rights" and, together with the Common
Stock, the "Shares") at $40.25 per Share net to the seller in cash, upon the
terms and conditions set forth in its Offer to Purchase dated July 3, 2001
(the "Offer to Purchase") and in the related Letter of Transmittal (which,
together with the Offer to Purchase and any amendments or supplements thereto,
collectively constitute the "Offer"). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in the Offer to
Purchase or in the Schedule TO.
Item 4. Terms of the Transaction.
Item 4 is hereby amended and supplemented by incorporating by reference the
information set forth in the Offer to Purchase except that the information set
forth under the heading "The Tender Offer-15. Certain Conditions of the Offer"
in the Offer to Purchase is hereby amended by deleting the first and last
paragraphs in such section and replacing them with the following,
respectively:
Notwithstanding any other provisions of the Offer, and in addition
to (and not in limitation of) the Purchaser's right to extend and amend
the Offer at any time in its sole discretion (subject to the provisions
of the Merger Agreement), the Purchaser shall not be required to accept
for payment or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) under the Exchange Act (relating to the
Purchaser's obligation to pay for or return tendered Shares after
termination or withdrawal of the Offer), pay for, and may delay the
acceptance for payment of or, subject to the restriction referred to
above, the payment for, any validly tendered Shares if by the expiration
of the Offer (as it may be extended in accordance with the requirements
of the Merger Agreement), (i) the Minimum Condition shall not be
satisfied, (ii) the applicable waiting periods under the HSR Act, the
ECMR or any other comparable provisions under any applicable pre-merger
notification laws or regulations of foreign jurisdictions have not
expired or terminated, or (iii) at any time on or after June 29, 2001,
any of the following events shall occur, and be continuing:
The foregoing conditions are for the benefit of Sara Lee and the
Purchaser, may be asserted by Sara Lee or the Purchaser regardless of the
circumstances giving rise to such condition, and may be waived by Sara
Lee or the Purchaser in whole or in part at any time and from time to
time, subject in each case to the terms of the Merger Agreement; provided
that the determination of the satisfaction or waiver of all conditions,
other than those involving receipt of government approvals, will be made
on or before the Expiration Date. The failure by Sara Lee or the
Purchaser at any time to exercise any of the foregoing rights shall not
be deemed a waiver of any such right and, each such right shall be deemed
an ongoing right which may be asserted at any time and from time to time
as set forth in the immediately preceding sentence.
Item 11. Additional Information.
Item 11 is hereby amended and supplemented to include the following:
On July 23, 2001, Sara Lee and Earthgrains issued a press release
announcing that the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, relating to the proposed acquisition of
Earthgrains, expired at 11:59 p.m., New York time, on July 20, 2001. A copy of
the press release is attached hereto as Exhibit (a)(9) and is incorporated
herein by reference.
References in the tender offer materials to the Private Securities
Litigation Reform Act of 1995 are not intended to claim the protections of
that act for statements made in connection with the tender offer. The
protections of such act are not available to statements made in connection
with tender offers. Any such references are intended for definitional purposes
only. Investors should remain aware, however, of the risks and uncertainties
inherent in forward-looking statements.
Item 12. Exhibits.
(a)(1)* Offer to Purchase dated July 3, 2001
(a)(2)* Letter of Transmittal.
(a)(3)* Notice of Guaranteed Delivery.
(a)(4)* Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(5)* Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
(a)(6)* Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(a)(7)* Press Release issued by Sara Lee on July 2, 2001,
incorporated herein by reference to the Schedule TO filed by
Sara Lee on July 2, 2001.
(a)(8)* Summary Advertisement as published in The Wall Street
Journal on July 3, 2001.
(a)(9) Joint Press Release issued by Sara Lee and Earthgrains on
July 23, 2001.
(b)(1)* Financing Commitment Letter dated June 29, 2001, to Sara Lee
Corporation from J.P. Morgan Securities Inc. and The Chase
Manhattan Bank.
(d)(1)* Agreement and Plan of Merger, dated as of June 29, 2001, by
and among Sara Lee, SLC Acquisition Corp. and Earthgrains.
(g) Not applicable
(h) Not applicable
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* Previously filed.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and
correct.
SLC Acquisition Corp.
By: /s/R. Henry Kleeman
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Name: R. Henry Kleeman
Title: Vice President and Treasurer
Sara Lee Corporation
By: /s/R. Henry Kleeman
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Name: R. Henry Kleeman
Title: Vice President, Deputy General Counsel
and Assistant Secretary
Dated: July 23, 2001
EXHIBIT INDEX
Exhibit No. Exhibit Name
(a)(1)* Offer to Purchase dated July 3, 2001
(a)(2)* Letter of Transmittal.
(a)(3)* Notice of Guaranteed Delivery.
(a)(4)* Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(5)* Letter to Clients for use by Brokers, Dealers,
Commercial Banks, Trust Companies and Other
Nominees.
(a)(6)* Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(a)(7)* Press Release issued by Sara Lee on July 2, 2001,
incorporated herein by reference to the Schedule TO
filed by Sara Lee on July 2, 2001.
(a)(8)* Summary Advertisement as published in The Wall
Street Journal on July 3, 2001.
(a)(9) Joint Press Release issued by Sara Lee and
Earthgrains on July 23, 2001.
(b)(1)* Financing Commitment Letter dated June 29, 2001, to
Sara Lee Corporation from J.P. Morgan Securities
Inc. and The Chase Manhattan Bank.
(d)(1)* Agreement and Plan of Merger, dated as of June 29,
2001, by and among Sara Lee, SLC Acquisition Corp.
and Earthgrains.
(g) Not applicable
(h) Not applicable
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* Previously filed.