AMENDMENT NO 1
SCHEDULE 13E-3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934
and Rule 13e-3 thereunder)
Western Beef, Inc.
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(Name of the Issuer)
Western Beef, Inc., Cactus Acquisition, Inc.,
Ant Holding Corporation, Peter Castellana, Jr.,
Frank Castellana, Joseph Castellana,
Michael Castellana, Camile Castellana
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(Name of Person(s) Filing Statement)
Common Stock, par value $0.05 per share
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(Title of Class of Securities)
00145-95778110
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(CUSIP Number of Class of Securities)
Peter Admirand
Western Beef, Inc.
47-05 Metropolitan Avenue
Ridgewood, New York 11385
(718) 417-3770
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(Name, Address and Telephone Number of Person Authorized
To Receive Notices and Communications on
Behalf of the Person(s) Filing Statement)
Copies to:
MICHAEL A. SCHWARTZ HOWARD W. MUCHNICK
WILLKIE FARR & GALLAGHER MUCHNICK, GOLIEB & GOLIEB
787 SEVENTH AVENUE 630 FIFTH AVENUE, SUITE 1425
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10111
(212) 728-8000 (212) 315-5575
This statement is filed in connection with (check the 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 solicitation materials or information statement
referred to in checking box (a) are preliminary copies: [X]
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SCHEDULE 13E-3
Calculation of Filing Fee
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Transaction Valuation* Amount of Filing Fee
$ 14,296,879 $ 2,859.38
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* For purposes of calculating the filing fee only. This calculation
assumes the purchase of 1,633,929 shares of common stock of Western Beef, Inc.
at $8.75 per share in cash. The amount of the filing fee, calculated in
accordance with Regulation 240.0-11 promulgated under the Securities Exchange
Act of 1934, as amended, equals 1/50 of one percent of the value of the maximum
number of shares proposed to be purchased as described in the Proxy Statement.
/X/ Check 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 date of its filing.
Schedule 13E-3 filed August 27, 1999. File No. 5-37421.
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SCHEDULE 13E-3
This Amended Rule 13e-3 Transaction Statement on Schedule 13E-3 (the
"Transaction Statement") filed pursuant to Section 13(e) of the Securities
Exchange Act of 1934, as amended, relates to the Agreement and Plan of Merger
(the "Merger Agreement"), dated as of July 29, 1999, by and between Western
Beef, Inc., a Delaware corporation ("Western Beef"), and Cactus Acquisition,
Inc. ("Cactus"). Pursuant to the Merger Agreement, Cactus will merge with and
into Western Beef, with Western Beef being the surviving corporation (the
"Merger").
The terms and conditions of the Merger Agreement are described in the
preliminary proxy statement (the "Proxy Statement") filed herewith as Exhibit
99.(d). A copy of the Merger Agreement is annexed to the Proxy Statement as
Appendix A thereto. The Proxy Statement incorporated by reference in this filing
is in preliminary form and is subject to completion or amendment. In addition,
the information in the Proxy Statement is intended to be solely for the
information and use of the Securities and Exchange Commission, and should not be
relied upon by any other person for any purpose. The responses and
cross-references presented in the following table are supplied pursuant to
General Instruction F to Schedule 13E-3 and show the locations in the Proxy
Statement (including all annexes and appendices thereto) of the information
required to be included in response to the items of this Transaction Statement.
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SCHEDULE 13E-3
CROSS REFERENCE SHEET REQUIRED PURSUANT TO
GENERAL INSTRUCTION "F" OF SCHEDULE 13E-3
ITEM IN SCHEDULE 13E-3 CAPTION IN PROXY STATEMENT
Item 1(a) "Cover Page"; "Proposals at the Annual Meeting --
Proposal One -- The Merger -- The Parties."
Item 1(b) "Summary -- Voting;"; "Information Concerning the
Annual Meeting -- Record Date; Outstanding Common Stock
Entitled to Vote"; "Market Price Information;
Dividends."
Item 1(c) and (d) "Market Price Information; Dividends"; "Management
Discussion and Analysis of Financial Condition and
Results of Operations."
Item 1(e) and (f) Not Applicable.
Item 2(a), (b), (c), (d) and (g) "Proposals at the Annual Meeting -- Proposal One -- The
Merger -- The Parties"; "Proposals at the Annual
Meeting -- Proposal Two -- Election of Directors --
Information About Nominees; -- Directors and Executive
Officers of Western Beef."
Item 2(e) and (f) Not Applicable.
Item 3(a)(1) "Proposals at the Annual Meeting -- Proposal Two --
Election of Directors -- Certain Relationships and
Related Transactions."
Item 3(a)(2) "Special Factors -- Background of the Merger"; "Proposals
at the Annual Meeting -- Proposal One -- The Merger";
"Proposals at the Annual Meeting -- Proposal Two --
Election of Directors -- Certain Relationships and
Related Transactions."
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ITEM IN SCHEDULE 13E-3 CAPTION IN PROXY STATEMENT
Item 3(b) "Special Factors -- Background of the Merger";
"Proposals at the Annual Meeting -- Proposal Two --
Election of Directors -- Certain Relationships and
Related Transactions."
Item 4(a) "Summary -- Certain Effects of the Merger"; "Special
Factors -- Purposes and Reasons of the Merger; Certain
Effects of the Merger"; "Proposals at the Annual
Meeting -- Proposal One -- The Merger."
Item 4(b) "Summary -- Certain Effects of the Merger -- Financing
of the Merger"; "Special Factors -- Purposes and
Reasons of the Merger; Certain Effects of the Merger;
-- Conflicts of Interest; -- Financing and Expenses of
the Merger"; "Proposals at the Annual Meeting --
Proposal One -- The Merger."
Item 5(a), (b) and (c) Not Applicable.
Item 5(d) "Summary -- Financing of the Merger"; "Special Factors
-- Financing and Expenses of the Merger."
Item 5(e), (f) and (g) Not Applicable.
Item 6(a), (b) and (c) "Summary -- Financing of the Merger"; "Special Factors
-- Financing and Expenses of the Merger."
Item 6(d) Not Applicable.
Item 7(a), (b) and (c) "Special Factors -- Background of the Merger; --
Purposes and Reasons of the Merger; Certain Effects of
the Merger."
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Item 7(d) "Summary -- Certain Effects of the Merger; -- Federal
Income Tax Consequences"; "Special Factors -- Background
of the Merger; -- Purposes and Reasons of the Merger;
Certain Effects of the Merger; -- Opinion of Houlihan
Lokey; -- Position of the Buyer Group as to Fairness; --
Rights of Dissenting Stockholders"; "Proposals at the
Annual Meeting -- Proposal One -- Terms of the Merger; --
Certain Tax Considerations."
Item 8(a) and (b) "Summary -- Recommendations of the Special Committee
and the Board of Directors; -- Opinion of Houlihan
Lokey"; "Special Factors -- Background of the Merger;
--Purpose and Reasons for the Merger; Certain Effects
of the Merger; -- Recommendations of the Special
Committee and the Board of Directors; Fairness of the
Merger; -- Opinion of Houlihan Lokey; -- Position of
the Buyer Group as to Fairness."
Item 8(c) "Special Factors -- Purposes and Reasons of the Merger;
Certain Effects of the Merger."
Item 8(d) "Summary -- Opinion of Houlihan Lokey"; "Special
Factors -- Background of the Merger; -- Recommendations
of the Special Committee and the Board of Directors;
Fairness of the Merger; -- Opinion of Houlihan Lokey."
Item 8(e) "Special Factors -- Recommendations of the Special
Committee and the Board of Directors; Fairness of the
Merger."
Item 8(f) Not Applicable.
Item 9(a), (b) and (c) "Summary -- Opinion of Houlihan Lokey"; "Special
Factors -- Background of the Merger; -- Opinion of
Houlihan Lokey; -- Position of the Continuing
Stockholders as to Fairness; -- Appendix B: Opinion of
Houlihan
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ITEM IN SCHEDULE 13E-3 CAPTION IN PROXY STATEMENT
Lokey Howard & Zukin."
Item 10(a) "Proposals at the Annual Meeting -- Proposal Two --
Election of Directors -- Security Ownership of Certain
Beneficial Owners and Management."
Item 10(b) "Proposals at the Annual Meeting -- Proposal Two --
Election of Directors -- Certain Transactions in the
Shares of Common Stock."
Item 11 "Summary -- Required Vote; Approval of the Proposals
Assured"; "Information Concerning the Annual Meeting --
Vote Required for the Merger and the Election of
Directors; Certain Common Stock Voting in Favor of the
Proposals"; "Proposals at the Annual Meeting --
Proposal One -- The Merger"; "Proposals at the Annual
Meeting -- Proposal Two -- Election of Directors --
Executive Officer and Director Compensation; -- Certain
Relationships and Related Transactions; -- Security
Ownership of Certain Benefical Owners and Management."
Item 12(a) "Summary -- Required Vote; Approval of the Proposals
Assured"; "Information Concerning the Annual Meeting --
Vote Required for the Merger and the Election of
Directors; Certain Common Stock Voting in Favor of the
Proposals"; "Special Factors -- Conflicts of Interest";
"Proposals at the Annual Meeting -- Proposal Two --
Election of Directors -- Certain Relationships and
Related Transactions."
Item 12(b) "Summary -- Recommendations of the Special Committee
and the Board of Directors"; "Special Factors --
Recommendations of the Special Committee and the Board
of Directors; Fairness of the Merger; -- Position
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ITEM IN SCHEDULE 13E-3 CAPTION IN PROXY STATEMENT
of the Buyer Group as to Fairness."
Item 13(a) "Summary -- Appraisal Rights"; "Special Factors --
Rights of Dissenting Stockholders."
Item 13(b) Not Applicable.
Item 13(c) Not Applicable.
Item 14(a) "Selected Financial Data"; "Management Discussion and
Analysis of Financial Condition and Results of
Operations -- Results of Operations"; "Financial
Statements."
Item 14(b) Not Applicable.
Item 15(a) "Summary -- Financing of the Merger"; "Special Factors
-- Financing and Expenses of the Merger."
Item 15(b) "Information Concerning the Annual Meeting --
Solicitation and Revocation of Proxies."
Item 16 The information set forth in the Proxy Statement and
the Appendices thereto is incorporated herein by
reference in its entirety.
Item 17(a) Not Applicable.
Item 17(b) Appendix B -- Opinion of Houlihan Lokey Howard & Zukin.
Item 17(c) Appendix A -- Agreement and Plan of Merger by and
between Cactus Acquisition, Inc. and Western Beef,
Inc., dated as of July 29, 1999.
Item 17(d) Preliminary Proxy Statement.
Item 17(e) Appendix C --Appraisal Rights, Section 262 of the
Delaware General Corporation Law.
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ITEM IN SCHEDULE 13E-3 CAPTION IN PROXY STATEMENT
Item 17(f) Not Applicable.
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This Statement is being jointly filed by Cactus Acquisition, Inc. ("Cactus") for
the sole purpose of effecting the Merger, Western Beef, Inc. ("Western Beef")
(the issuer of the class of equity securities that is the subject of the
transaction); and the following executive officers and affiliates of Western
Beef who are members of the group formed to consummate the transaction described
in the Proxy Statement (the "Buyer Group"): Ant Holding Corporation, Peter
Castellana, Jr., Frank Castellana, Joseph Castellana, Michael Castellana and
Camile Castellana.
ITEM 1. ISSUER AND CLASS OF SECURITY SUBJECT TO THE TRANSACTION
(a) The information set forth in "Cover Page" and "Proposals at the
Annual Meeting --Proposal One -- The Merger -- The Parties" in the Proxy
Statement is incorporated herein by reference.
(b) The class of securities that is the subject of the transaction is
Western Beef's common stock, par value $.05 per share. As of August 17, 1999,
there were 5,475,153 shares of common stock issued and outstanding. The
information set forth in "Summary -- Voting"; "Information Concerning the Annual
Meeting--Record Date; Outstanding Common Stock Entitled to Vote"; and "Market
Price Information; Dividends" of the Proxy Statement is incorporated by
reference.
(c) and (d) The information set forth in "Market Price Information" and
"Management Discussion and Analysis of Financial Condition and Results of
Operations" in the Proxy Statement is incorporated herein by reference.
(e) and (f) Not applicable.
ITEM 2. IDENTITY AND BACKGROUND
(a), (b), (c), (d) and (g) The information set forth in "Proposals at
the Annual Meeting --Proposal One -- The Merger -- The Parties"; and "Proposals
at the Annual Meeting -- Proposal Two -- Election of Directors -- Information
About Nominees; -- Directors and Executive Officers of Western Beef" in the
Proxy Statement is incorporated herein by reference.
(e) and (f) None of Western Beef, Cactus, Ant Holding Corporation,
Peter Castellana, Jr., Frank Castellana, Joseph Castellana, Michael Castellana,
Camile Castellana or, to the best of their knowledge, no executive officer,
director or controlling person of Western Beef, has during the past five years
(i) been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
further violations of, or prohibiting activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS
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(a)(1) The information set forth in "Proposals at the Annual Meeting --
Proposal Two --Election of Directors -- Certain Relationships and Related
Transactions" in the Proxy Statement is incorporated herein by reference.
(a)(2) The information set forth in "Special Factors -- Background of
the Merger"; "Proposals at the Annual Meeting -- Proposal One -- The Merger" and
"Proposals at the Annual Meeting -- Proposal Two --Election of Directors --
Certain Relationships and Related Transactions" in the Proxy Statement is
incorporated herein by reference.
(b) The information set forth in "Special Factors -- Background of the
Merger" and "Proposals at the Annual Meeting -- Proposal Two -- Election of
Directors -- Certain Relationships and Related Transactions" in the Proxy
Statement is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION
(a) The information set forth in "Summary -- Certain Effects of the
Merger"; "Special Factors -- Purposes and Reasons of the Merger; Certain Effects
of the Merger" and "Proposals at the Annual Meeting -- Proposal One -- The
Merger" in the Proxy Statement is incorporated herein by reference.
(b) The information set forth in "Summary -- Certain Effects of the
Merger -- Financing of the Merger"; "Special Factors -- Purposes and Reasons of
the Merger; Certain Effects of the Merger; -- Conflicts of Interest; --
Financing and Expenses of the Merger;" and "Proposals at the Annual Meeting --
Proposal One --The Merger" in the Proxy Statement is incorporated herein by
reference.
ITEM 5. PLANS OR PROPOSALS OF THE ISSUER OR AFFILIATE
(a), (b) and (c) Not applicable.
(d) The information set forth in "Summary -- Financing of the Merger;"
and "Special Factors -- Financing and Expenses of the Merger" in the Proxy
Statement is incorporated herein by reference.
(e), (f) and (g) Not applicable.
ITEM 6. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION
(a), (b) and (c) The information set forth in "Summary -- Financing of
the Merger" and "Special Factors -- Financing and Expenses of the Merger" in the
Proxy Statement is incorporated herein by reference.
(d) Not applicable.
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ITEM 7. PURPOSE(S), ALTERNATIVES, REASONS AND EFFECTS
(a), (b) and (c) The information set forth in "Special Factors --
Background of the Merger; -- Purposes and Reasons of the Merger; Certain Effects
of the Merger" in the Proxy Statement is incorporated herein by reference.
(d) The information set forth in "Summary -- Certain Effects of the
Merger; -- Federal Income Tax Consequences"; "Special Factors -- Background of
the Merger; -- Purposes and Reasons of the Merger; Certain Effects of the
Merger; -- Opinion of Houlihan Lokey; -- Position of the Buyer Group as to
Fairness; --Rights of Dissenting Stockholders" and "Proposals at the Annual
Meeting -- Proposal One -- Terms of the Merger; -- Certain Tax Considerations"
in the Proxy Statement is incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION
(a) and (b) The information set forth in "Summary -- Recommendations of
the Special Committee and the Board of Directors; -- Opinion of Houlihan Lokey"
and "Special Factors -- Background of the Merger; -- Purpose and Reasons for the
Merger; Certain Effects of the Merger; -- Recommendations of the Special
Committee and the Board of Directors; Fairness of the Merger; -- Opinion of
Houlihan Lokey; -- Position of the Buyer Group as to Fairness" in the Proxy
Statement is incorporated herein by reference.
(c) The information set forth in "Special Factors -- Purposes and
Reasons of the Merger; Certain Effects of the Merger" in the Proxy Statement is
incorporated herein by reference.
(d) The information set forth in "Summary -- Opinion of Houlihan Lokey"
and "Special Factors -- Background of the Merger; -- Recommendations of the
Special Committee and the Board of Directors; Fairness of the Merger; -- Opinion
of Houlihan Lokey" in the Proxy Statement is incorporated herein by reference.
(e) The information set forth in "Special Factors -- Recommendations of
the Special Committee and the Board of Directors; Fairness of the Merger" in the
Proxy Statement is incorporated herein by reference.
(f) Not applicable.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS
(a), (b) and (c) The information set forth in "Summary -- Opinion of
Houlihan Lokey"; "Special Factors -- Background of the Merger; -- Opinion of
Houlihan Lokey; -- Position of the Continuing Stockholders as to Fairness;
Appendix B: Opinion of Houlihan Lokey Howard & Zukin" is incorporated herein by
reference.
The opinion of Houlihan Lokey shall also be made available for
inspection and copying during regular business hours at the principal executive
offices of the Company by any interested holder of common stock or by the
representative of any such holder who has
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been so designated in writing upon written request and at the expense of the
requesting securityholder.
ITEM 10. INTEREST IN SECURITIES OF THE ISSUER
(a) The information set forth in "Proposals at the Annual Meeting --
Proposal Two --Election of Directors -- Security Ownership of Certain Beneficial
Owners and Management" in the Proxy Statement is incorporated herein by
reference.
(b) The information set forth in "Proposals at the Annual Meeting --
Proposal Two --Election of Directors -- Certain Transactions in the Shares of
Common Stock" in the Proxy Statement is incorporated herein by reference.
ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER
IS SECURITIES
The information set forth in "Summary -- Required Vote; Approval of the
Proposals Assured"; "Information Concerning the Annual Meeting -- Vote Required
for the Merger and the Election of Directors; Certain Common Stock Voting in
Favor of the Proposals"; "Specials Factors -- Background of the Merger";
"Proposals at the Annual Meeting -- Proposal One -- The Merger" and "Proposals
at the Annual Meeting -- Proposal Two -- Election of Directors -- Executive
Officer and Director Compensation; -- Certain Relationships and Related
Transactions; --Security Ownership of Certain Benefical Owners and Management"
in the Proxy Statement is incorporated herein by reference.
ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD TO
THE TRANSACTION
(a) The information set forth in "Summary -- Required Vote; Approval of
the Proposals Assured"; "Information Concerning the Annual Meeting -- Vote
Required for the Merger and the Election of Directors; Certain Common Stock
Voting in Favor of the Proposals"; "Special Factors -- Conflicts of Interest"
and "Proposals at the Annual Meeting -- Proposal Two -- Election of Directors --
Certain Relationships and Related Transactions" in the Proxy Statement is
incorporated herein by reference.
(b) The information set forth in "Summary -- Recommendations of the
Special Committee and the Board of Directors"; and "Special Factors --
Recommendations of the Special Committee and the Board of Directors; Fairness of
the Merger; -- Position of the Buyer Group as to Fairness" in the Proxy
Statement is incorporated herein by reference.
ITEM 13. OTHER PROVISIONS OF THE TRANSACTION
(a) The information set forth in "Summary -- Appraisal Rights" and
"Special Factors --Rights of Dissenting Stockholders" in the Proxy Statement is
incorporated herein by reference.
(b) Not applicable.
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(c) Not applicable.
ITEM 14. FINANCIAL INFORMATION
(a) The information set forth in "Selected Financial Data";
"Management's Discussion and Analysis of Financial Condition and Results of
Operations -- Results of Operations" and "Financial Statements" in the Proxy
Statement is incorporated herein by reference.
(b) Not applicable.
ITEM 15. PERSONS AND ASSETS EMPLOYED, RETAINED OR UTILIZED
(a) The information set forth in "Summary -- Financing of the Merger"
and "Special Factors -- Financing and Expenses of the Merger" in the Proxy
Statement is incorporated herein by reference.
(b) The information set forth in "Information Concerning the Annual
Meeting --Solicitation and Revocation of Proxies" in the Proxy Statement is
incorporated herein by reference.
ITEM 16. ADDITIONAL INFORMATION
The information set forth in the Proxy Statement and the Appendices
thereto is incorporated herein by reference in its entirety.
ITEM 17. MATERIAL TO BE FILED AS EXHIBITS
99.(a) Commitment Letter of July 27, 1999, by and among
North Fork Bank, Cactus Acquisition, Inc. and
Western Beef, Inc.
99.(b) Opinion of Houlihan Lokey dated July 29, 1999.(*)
99.(c)(1) The Agreement and Plan of Merger by and between
Cactus Acquisition, Inc. and Western Beef, Inc.,
dated as of July 29, 1999.(*)
99.(c)(2) Memorandum of Understanding between the parties to
various class actions arising out of the proposed
merger and Western Beef, Inc. dated June 28, 1999.
99.(d) Preliminary Proxy Statement.
99.(e) Appraisal Rights under Section 262 of the Delaware
General Corporation Law.(*)
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(*) Incorporated by reference from the Preliminary Proxy
Statement, a copy of which is attached as Exhibit 99.(d).
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After due inquiry and to the best of my knowledge and belief,
I certify that the information in this statement is true, complete and correct.
Dated: October 12, 1999
Western Beef, Inc.
By: /s/ Peter Castellana, Jr.
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Name: Peter Castellana, Jr.
Title: President and CEO
Cactus Acquisition, Inc.
By: /s/ Peter Castellana, Jr.
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Name: Peter Castellana, Jr.
Title: President and CEO
Ant Holding Corporation
By: /s/ Peter Castellana, Jr.
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Name: Peter Castellana, Jr.
Title: President and CEO
By: /s/ Peter Castellana, Jr.
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Name: Peter Castellana, Jr.
By: /s/ Frank Castellana
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Frank Castellana
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By: /s/ Joseph Castellana
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Joseph Castellana
By: /s/ Michael Castellana
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Michael Castellana
By: /s/ Camile Castellana
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Camile Castellana
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