SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO.1 TO SCHEDULE TO-I/13E-3
(Rules 13e-3 and 13e-4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
INTERCORP EXCELLE INC.
(Name of Subject Company (Issuer))
INTERCORP EXCELLE INC.
(Name of Filing Person)
Common Stock, No Par Value
(Title of Class of Securities)
451 651 106
(CUSIP Number of Class of Securities)
Arnold Unger
Chief Executive Officer
1880 Ormont Drive
Toronto, Ontario M9L 2V4
(416) 744-2124
(Name, address and telephone number of person
authorized to receive notices and communications on
behalf of filing person)
Copy to:
Arthus S. Marcus, Esq.
Gersten, Savage & Kaplowitz, LLP
101 East 52nd Street
New York, New York 10022
(212)752-9700
CALCULATION OF FILING FEE
-------------------------
Transaction valuation* Amount of filing fee**
$1,227,374 $245.47
---------------------- ----------------------
* For purposes of calculating amount of filing fee only. This calculation
assumes the purchase of all outstanding shares of common stock, no par value, of
Intercorp Excelle Inc. not currently owned by the principal shareholders and
primary officers of Intercorp Excelle Inc. at a purchase price of $1.15 per
share, to the seller in cash, without interest. This calculation also assumes
that the holders of the 1,067,282 shares of common stock offered for hereby will
agree to sell such shares.
** The amount of the filing fee calculated in accordance with Regulation
2400.0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th of
one percent of the value of the transaction.
[ 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 the date of its filing.
Amount Previously Paid: $245.47 Filing party: Intercorp Excelle Inc.
Form or Registration No.: SC TO-I/13E-3 Date filed: November 1, 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:
[_] third party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[X] 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. [_]
INTRODUCTORY STATEMENT
This amendment (the "Amendment") to the Schedule TO-I and 13E-3 (the
"Statement") amends and supplements the Statement filed by Intercorp Excelle
Inc., an Ontario corporation (the "Company" or the "Issuer," as appropriate) on
November 1, 2001, relating to the Company's tender offer (the "Offer") to
purchase all its outstanding shares of common stock, no par value per share (the
"Common Shares"). The Offer is to be followed by a merger (the "Merger") of the
Company and a company affiliated with the Unger Group as a preliminary step to
completing the Company's going-private transaction (the "Transaction"). Arnold
and Renee Unger, the principal shareholders and primary officers of the Company
and The Unger Family Trust (collectively, the "Unger Group"), do not intend to
tender their Common Shares. The Unger Group owns approximately 72.6% of the
issued and outstanding Common Shares. The Common Shares are tendered for
pursuant to the Offer at a purchase price of $1.15 per Common Share, to the
seller in cash, without interest, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated November 1, 2001, as amended hereby
(the "Offer to Purchase"), a copy of which is filed herewith as Exhibit (A)(1)
and in the related Letter of Transmittal, previously filed as Exhibit (A)(4) to
the Statement. Unless otherwise specifically stated, all monetary figures refer
to US Dollars.
The information in the Offer to Purchase, including all schedules and
annexes thereto, is hereby expressly incorporated herein by reference in
response to all the Items of this Statement, except as otherwise set forth
below.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the Offer to Purchase under the caption "Summary
Term Sheet" is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) Name and Address. The name of the Company is Intercorp Excelle Inc., which
is the issuer of the Common Shares subject to the Offer. The Company's principal
executive offices are located at 1880 Ormont Drive, Toronto, Ontario, M9L 2V4.
The telephone number for the Company is (416) 744-2124. Reference is made to the
information set forth in the Offer to Purchase under the caption "THE OFFER--7.
Certain Information Concerning Intercorp Excelle Inc.," which information is
incorporated herein by reference.
(b) Securities. The securities which are the subject of the Offer consist of the
Company's common stock, no par value (the "Common Shares"). As of December 4,
2001, there were 3,902,282 Common Shares outstanding, of which the Unger Group
owns 2,835,000. Reference is made to the information set forth on the cover page
of the Offer to Purchase and in the Offer to Purchase under the caption
"INTRODUCTION," which information is incorporated herein by reference.
2
(c) Trading Market and Price. The Common Shares trade on the NASD
Over-the-Counter Bulletin Board (the "OTC BB") under the symbol "RENE." Trading
in the Common Shares has been limited and sporadic. The Common Shares are not
listed for trading on any exchange. Reference is made to the information set
forth in the Offer to Purchase under the captions "SPECIAL FACTORS--2. Purpose
and Fairness of the Offer" and "THE OFFER--5. Price Range of the Common Shares;
Dividends," which information is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) Name and Address. This is an offer made by the Company. The address of the
Company is 1880 Ormont Drive, Toronto, Ontario, M9L 2V4. The information set
forth in the Offer to Purchase under the caption "THE OFFER--7. Certain
Information Concerning Intercorp Excelle Inc." is incorporated herein by
reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) Material Terms. The information set forth in the Offer to Purchase under the
captions "INTRODUCTION," "SPECIAL FACTORS--2. Purpose and Fairness of the
Offer," "SPECIAL FACTORS--3. Interests of Certain Persons in the Offer,"
"SPECIAL FACTORS--4. Material United States Federal Income Tax Consequences,"
"SPECIAL FACTORS--5. Material Canadian Federal Income Tax Consequences,"
"SPECIAL FACTORS--9. Certain Effects of the Transaction," "THE OFFER--1. Terms
of the Offer," "THE OFFER--2. Acceptance for Payment and Payment," "THE
OFFER--3. Procedures for Accepting the Offer and Tendering the Common Shares,"
"THE OFFER--4. Withdrawal Rights," "THE OFFER--8. Conditions to the Offer" and
"THE OFFER--9. Legal Matters" is incorporated herein by reference.
(b) Purchases. None.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(e) Agreements involving the subject company's securities. Arnold Unger, the
Chief Executive Officer and Co- Chairman of the Board of Directors of the
Company, Renee Unger, its President and Co-Chairman of the Board and The Unger
Family Trust collectively own approximately 72.6% of the Common Shares. The
members of the Unger Group have executed no formal agreement with respect to the
Offer in particular.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a) Purposes. The information set forth in the Offer to Purchase under the
caption "INTRODUCTION" and "SPECIAL FACTORS--2. Purpose and Fairness of the
Offer" is incorporated herein by reference.
(b) Use of Securities. The information set forth in the Offer to Purchase under
the caption "SPECIAL FACTORS-9. Certain Effects of the Transaction" is
incorporated herein by reference.
(c) Plans. The information set forth in the Offer to Purchase under the captions
"SPECIAL FACTORS--1. Operating History; Payment of Dividends and Redemption of
Common Shares Uncertain", "SPECIAL FACTORS--2. Purpose and Fairness of the
Offer" and "SPECIAL FACTORS-9. Certain Effects of the Transaction" is
incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) Source of Funds. The information set forth in the Offer to Purchase under
the caption "SPECIAL FACTORS-6. Financing of the Offer" is incorporated herein
by reference.
(b) Conditions. Not applicable.
3
(d) Borrowed Funds. Not applicable.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) Securities Ownership. The information set forth in the Offer to Purchase
under the caption "SPECIAL FACTORS-3. Interests of Certain Persons in the
Offer", "SPECIAL FACTORS-7. Beneficial Ownership of the Common Shares", "SPECIAL
FACTORS-8. Transactions and Arrangements Concerning the Common Shares" and "THE
OFFER--7. Certain Information Concerning Intercorp Excelle Inc." is incorporated
herein by reference.
(b) Securities Transactions. None.
ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) Solicitations or Recommendations. The information set forth in the Offer to
Purchase under the captions "THE OFFER--10. Fees and Expenses" is incorporated
herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
The financial statements contained in the Company's Annual Report on Form 10-KSB
filed with the Securities and Exchange Commission (the "Commission") on April
28, 2001 and the Company's Quarterly Reports on Form 10-QSB filed with the
Commission on June 14, 2001 and September 14, 2001 are incorporated herein by
reference.
ITEM 11. ADDITIONAL INFORMATION.
(a) Agreements, Regulatory Requirements and Legal Proceedings.
(1) None other than previously disclosed.
(2) See (3) below.
(3) The information set forth in the Offer to Purchase under the
caption "THE OFFER--9. Legal Matters" is incorporated herein by reference.
(4) Not applicable.
(5) The information set forth in the Offer to Purchase under the
caption "THE OFFER--9. Legal Matters" is incorporated herein by reference.
(b) Other Material Information. The information set forth in the Offer to
Purchase, a copy of which is attached hereto as Exhibit (A)(1) and the Letter of
Transmittal, previously filed as Exhibit (A)(4), is incorporated herein by
reference.
ITEM 12. EXHIBITS.
(A)(1) Offer to Purchase dated December 5, 2001.
(A)(4) Form of Letter of Transmittal for Common Shares.*
(A)(5) Form of Notice of Guaranteed Delivery.*
(A)(6) Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
(A)(7) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
4
(A)(8) Form T 2062, "Request by a Non-Resident of Canada for a Certificate of
Compliance Related to the Disposition of Taxable Canadian Property," including
the Instructions thereto.*
* Previously filed.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
The Transaction constitutes a "going-private" transaction within the meaning of
Rule 13e-3. As such, the following sets forth that information required by
Schedule 13E-3 that has not already been set forth in Items 1-12 of the Schedule
TO above. The information set forth in the Offer to Purchase is incorporated
herein by reference to the items required by Schedule 13E-3.
ITEM 2 OF SCHEDULE 13E-3. SUBJECT COMPANY INFORMATION
(d) Dividends. The information is set forth in the Offer to Purchase under the
Caption "THE OFFER--5. Price Range of the Common Shares; Dividends" is
incorporated herein by reference.
(e) Prior Public Offerings. The Company completed its initial public offering
pursuant to a registration statement on Form SB-2 that the Commission declared
effective on October 9, 1997. The Company sold 1,000,000 Common Shares and
1,224,750 warrants to purchase Common Shares at a price of $5.00 per share and
$0.10 per warrant, respectively, for aggregate gross proceeds of $5,122,475.
(f) Prior Stock Purchases. The information set forth in "SPECIAL FACTORS-8.
Transactions and Arrangements Concerning the Common Shares" is hereby
incorporated by reference.
ITEM 3 OF SCHEDULE 13E-3 IDENTITY AND BACKGROUND OF FILING PERSON
(a) Name and address. Arnold and Renee Unger (the "Affiliates") are the CEO and
President, respectively, of the Company. In addition, they both serve as
Co-Chairmen of the Company's Board of Directors. Their address is c/o the
Company's principal executive office, at 1880 Ormont Drive, Toronto, Ontario,
M9L 2V4. The telephone number for the Company is (416) 744-2124. Reference is
made to the information set forth in the Offer to Purchase under the caption
"THE OFFER--7. Certain Information Concerning Intercorp Excelle Inc.," which
information is incorporated herein by reference.
(b) Business and Background of Entities. Not applicable.
(c) Business and Background of Natural Persons. Not applicable.
ITEM 4 OF SCHEDULE 13E-3 TERMS OF THE TRANSACTION
(c) Different Terms. None.
(d) Appraisal Rights. Shareholders who do not accept the Company's Offer will be
granted appraisal rights as provided for under Ontario law. See "SPECIAL
FACTORS--9. Certain Effects of the Transaction."
(e) Provisions for Unaffiliated Security Holders. Unaffiliated security holders
have access to the Company's public filings on the Commission's Web site at
http://www.sec.gov/edgar/searchedgar/formpick.htm. No other information or
services are provided to the unaffiliated security holders. Unaffiliated
security holders are asked to contact MacKenzie Partners, Inc., the Company's
Information Agent, collect at (212) 929-5500 or Toll-Free at (800) 322-2885.
(f) Eligibility for Listing or Trading. Not applicable.
5
ITEM 5 OF SCHEDULE 13E-3 PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS, AND
AGREEMENTS
(a) Transactions. See (c) below.
(b) Significant Corporate Events. See (c) below.
(c) Negotiations or Contracts. The information set forth in the Offer to
Purchase under the captions "SPECIAL FACTORS--2. Purpose and Fairness of the
Offer" and "SPECIAL FACTORS-3. Interests of Certain Persons in the Offer" is
incorporated herein by reference.
(e) Agreements Involving the Subject Company's Securities. Arnold Unger, the
Chief Executive Officer and Co- Chairman of the Board of Directors of the
Company, Renee Unger, its President and Co-Chairman of the Board and The Unger
Family Trust collectively own approximately 72.6% of the Common Shares. The
members of the Unger Group have executed no formal agreement with respect to the
Offer in particular.
ITEM 7 OF SCHEDULE 13E-3. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS.
(a) Purposes. The information set forth in the Offer to Purchase under the
captions "INTRODUCTION," the "Summary Term Sheet" and "SPECIAL FACTORS--2.
Purpose and Fairness of the Offer" is incorporated herein by reference.
(b) Alternatives. The information set forth in the Offer to Purchase under the
caption "SPECIAL FACTORS--2. Purpose and Fairness of the Offer" is incorporated
herein by reference.
(c) Reasons. The information set forth in the Offer to Purchase under the
caption "SPECIAL FACTORS--2. Purpose and Fairness of the Offer" is incorporated
herein by reference.
(d) Effects. The information set forth in the Offer to Purchase under the
captions "SPECIAL FACTORS--2. Purpose and Fairness of the Offer," "SPECIAL
FACTORS-4. Material United States Federal Income Tax Consequences," "SPECIAL
FACTORS-5. Material Canadian Federal Income Tax Consequences" and "SPECIAL
FACTORS-9. Certain Effects of the Transaction" is incorporated herein by
reference.
ITEM 8 OF SCHEDULE 13E-3. FAIRNESS OF THE GOING-PRIVATE TRANSACTION
(a) Fairness. The information set forth in the Offer to Purchase under the
captions "SPECIAL FACTORS--2. Purpose and Fairness of the Offer" is incorporated
herein by reference.
(b) Factors Considered in Determining Fairness. The information set forth in the
Offer to Purchase under the captions "SPECIAL FACTORS--2. Purpose and Fairness
of the Offer" is incorporated herein by reference.
(c) Approval of Security Holders. The information set forth in the Offer to
Purchase under the captions "SPECIAL FACTORS--2. Purpose and Fairness of the
Offer" is incorporated herein by reference.
(d) Unaffiliated Representative. At the request of John Rothschild and Taketo
Murata, the Company's independent Directors, the Board of Directors retained
Cole and Partners Limited ("Cole") to produce a Fairness Opinion and a valuation
(the "Fairness Opinion") to be delivered to all shareholders, which were
collectively attached as Exhibit (A)(2) to the Statement. No unaffiliated
representative was retained to negotiate the Common Share Offer Price on behalf
of the unaffiliated shareholders. In addition, the information set forth in the
Offer to Purchase under the captions "SPECIAL FACTORS--2. Purpose and Fairness
of the Offer" is incorporated herein by reference.
(e) Approval of Directors. The Merger and the Transaction have been approved by
the Board, including the Company's non-employee directors. See further the
information set forth in the Offer to Purchase under the captions "SPECIAL
FACTORS--2. Purpose and Fairness of the Offer," which is incorporated herein by
reference.
6
(f) Other Offers. Not applicable.
ITEM 9 OF SCHEDULE 13E-3. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS
(a) Report, Opinion or Appraisal. The Board has received a Fairness Opinion from
Cole on the fairness of the Transaction and a report on the valuation of the
Common Shares, which were collectively attached to the Statement as Exhibit
(A)(2). The Fairness Opinion, of which the report forms a part, is based upon
analysis Cole performed, which analysis is included therein. In addition, the
information set forth in the Offer to Purchase under "SPECIAL FACTORS" is
incorporated herein by reference.
(b) Preparer and Summary of the Report, Opinion or Appraisal.
(1) The identity of the preparer of the Fairness Opinion is Cole
and Partners Limited.
(2) Cole, an investment bank, is regularly engaged in the
valuation of businesses and their securities in connection
with mergers and acquisitions, sales and divestitures,
strategic and financial partnerships and valuations for
estate, corporate and other purposes.
(3) The method the Company used to select Cole was a resolution
adopted by the Company's Board of Directors after discussions
with several investment banks and the decision to retain Cole
was made at the behest of the Company's independent Directors.
(4) Inapplicable with respect to prior or contemplated material
relationships. Cole is to be paid a fee of $30,000 for its
services.
(5) The price at which the Company is offering to purchase its
outstanding Common Shares (the "Common Share Offer Price") was
determined by the Company.
(6) Summary of the Fairness Opinion:
(i) The Company did not place any limitations on Cole on the
scope of the investigation.
(ii) The instructions given Cole by the Company consisted of
informing the Company's Board of Directors whether, in Cole's
opinion, $1.15 per Common Share is a fair price for the
Company to offer its shareholders from a financial point of
view.
(iii) The procedures followed by Cole were to examine any
information in the public domain that Cole deemed relevant to
its task. In addition, where information on the Company is
concerned. Cole accepted as true and correct the information
made available to it by the Company or derived from other
sources, and relied on the representations made to Cole by the
Company's senior management that, to the best knowledge of
management, nothing has occurred that would render the
information provided to Cole incomplete, false or misleading.
(iv) Cole's bases for and methods of arriving at the
conclusion were to review any financial information deemed
relevant to the discharge of its responsibilities, including
the Offer to Purchase, the market price of the Company's
Common Shares in comparison with that of similar companies,
and the performance of the Company and the terms of recent
acquisitions of a similar nature. In addition, Cole discussed
anything it deemed pertinent with management of the Company,
assessed general market and economic conditions and, finally,
reviewed any other information it deemed appropriate.
(v) Based on the foregoing, Cole found that $1.15 is a fair
price for the Company to offer its shareholders, but made no
recommendations in this or any other regard.
(c) Availability of Documents. The Fairness Opinion was filed as Exhibit (A)(2)
to the Offer to Purchase dated November 1, 2001.
7
ITEM 10 OF SCHEDULE 13E-3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(c) Expenses. The Information contained in the Offer to Purchase under the
caption "THE OFFER--10. Fees and Expenses" is incorporated herein by reference.
ITEM 12 OF SCHEDULE 13E-3. THE SOLICITATION OR RECOMMENDATION
(d) Intent to Tender or Vote in a Going-Private Transaction. The information set
forth in the Offer to Purchase under the caption "SPECIAL FACTORS-3. Interest of
Certain Persons in the Offer" is incorporated herein by reference.
(e) Recommendations of Others. None.
ITEM 14 OF SCHEDULE 13E-3. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR
USED
(b) Employees and Corporate Assets. Arnold and Renee Unger are the Company's
principal officers. They will be responsible for the Company's role in the
Offer. The Company will be responsible for the expenses incurred in connection
with the Offer.
ITEM 16 OF SCHEDULE 13E-3 EXHIBITS
(c) (A)(2) Form of Fairness Opinion*
(f) (A)(3) Rights of Dissenting Shareholders under the Ontario Business
Corporation Act*
* Previously filed
8
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this Schedule TO-I/13E-3/A is true, complete and
correct.
Intercorp Excelle Inc.
/s/ Arnold Unger
----------------
Arnold Unger
Chief Executive Officer
Date: December 5, 2001
9