Transaction Valuation* | Amount of Filing Fee** | |
$207,385,710 | $22,190.27 |
Amount Previously Paid: $413.49
|
Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc. | |
Form or Registration No.: Schedule TO-T/A
|
Date Filed: January 9, 2007 | |
Amount Previously Paid: $689.13
|
Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc. | |
Form or Registration No.: Schedule TO-T/A
|
Date Filed: January 3, 2007 | |
Amount Previously Paid: $1,378.28
|
Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc. | |
Form or Registration No.: Schedule TO-T/A
|
Date Filed: December 26, 2006 | |
Amount Previously Paid: $1,378.28
|
Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc. | |
Form or Registration No.: Schedule TO-T/A
|
Date Filed: December 21, 2006 | |
Amount Previously Paid: $17,917.61
|
Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc. | |
Form or Registration No.: Schedule TO-T
|
Date Filed: December 15, 2006 |
Item 12. Exhibits. | ||||||||
SIGNATURE | ||||||||
EXHIBIT INDEX | ||||||||
EX-A.5.VI | ||||||||
EX-A.5.VII | ||||||||
EX-A.5.VIII |
1. | The second paragraph under the question What does the Company Board recommend regarding the offer? in the Summary Term Sheet is hereby amended and restated in its entirety to read as follows: |
On January 12, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the Securities and Exchange Commission (the SEC) in connection with the offer recommending that the Companys shareholders reject the offer and not tender their Shares in the offer. Our obligation to purchase shares under the offer is subject to the condition that the Company Board shall have either recommended that the holders of shares accept the offer and tender their shares in the offer, taken a neutral position with respect to the offer or not recommended against the offer. See The Offer Section 14. Conditions to the Offer. Satisfaction of this |
condition will require the Company Board to change its current recommendation. |
2. | The twelfth paragraph of the Introduction is hereby amended and restated in its entirety to read as follows: |
On January 12, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in connection with the Offer recommending that the Companys shareholders reject the Offer and not tender their Shares in the Offer. The Schedule 14D-9 contains other important information, and Purchaser recommends that holders of Shares review it carefully. None of NACCO, Purchaser or any of their respective affiliates or representatives takes any responsibility for the disclosure included in or incorporated by reference into the Schedule 14D-9. |
3. | The first sentence of The Offer Section 10. Source and Amount of Funds is hereby amended and restated in its entirety to read as follows: |
The total amount of funds required by Purchaser to complete the Offer and consummate the Merger, and expected to be incurred by Purchaser, is estimated to be approximately $201,250,796.95 plus any related transaction fees and expenses. |
4. | The following is hereby added at the end of The Offer Section 11. Contacts and Transactions with the Company; Background of the Offer: |
On January 9, 2007, the Company sent a letter to NACCO in response to NACCOs increase of the Offer Price from $7.75 per Share to $7.90 per Share. Although we believe that the Offer has substantially the same conditions precedent as those in the Harbinger Agreement, the Company stated in its letter that it considered our Offer highly conditional. |
On January 10, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in connection with the Offer stating that the Company had not changed its recommendation that the Companys shareholders vote FOR the Harbinger Agreement. The Schedule 14D-9 stated that the Offer was under review by the Company Board and the Company would advise the Companys shareholders of the results of the review as soon as possible. The Company requested in the Schedule 14D-9 that the Companys shareholders defer making a determination whether to accept or reject the Offer until they had been advised by the Company Board. |
In addition, on January 10, 2007, representatives of NACCO held discussions with representatives of the Company to seek clarification of certain items contained in the Companys January 9, 2007 letter. |
Also, on January 10, 2007, NACCO voluntarily dismissed, without prejudice, its complaint against the Company and Harbinger, filed in the United States District Court, Northern District of Ohio, Eastern Division. |
On January 11, 2007, NACCO responded in writing to the Companys January 9, 2007 letter to address certain issues raised therein. |
On January 12, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in connection with the Offer recommending that the Companys shareholders reject the Offer and not tender their Shares in the Offer. The Schedule 14D-9 contains other important information, and Purchaser recommends that holders of Shares review it carefully. None of NACCO, Purchaser or any of their respective affiliates or representatives takes any responsibility for the disclosure included in or incorporated by reference into the Schedule 14D-9. |
On January 16, 2007, Purchaser and NACCO increased the Offer Price to $8.05 per Share, net to the seller in cash, without interest and extended the Expiration Date of the Offer. |
(a)(5)(vi)
|
Press release issued by NACCO, dated January 16, 2007 | |
(a)(5)(vii)
|
Letter from the Company to NACCO, dated January 9, 2007 | |
(a)(5)(viii)
|
Letter from NACCO to the Company, dated January 11, 2007 |
Date: January 16, 2007 | Apex Acquisition Corporation | |||
By: | /s/ Charles A Bittenbender | |||
Name: Charles A. Bittenbender | ||||
Title: Secretary | ||||
NACCO Industries, Inc. | ||||
By: | /s/ Charles A Bittenbender | |||
Name: Charles A. Bittenbender | ||||
Title: Vice President, General Counsel, and Secretary |
Exhibit | Description | |
(a)(1)(A)
|
Offer To Purchase, dated December 15, 2006* | |
(a)(1)(B)
|
Letter of Transmittal* | |
(a)(1)(C)
|
Notice of Guaranteed Delivery* | |
(a)(1)(D)
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
(a)(1)(E)
|
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* | |
(a)(1)(F)
|
Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9* | |
(a)(1)(G)
|
Press release issued by NACCO, dated December 15, 2006* | |
(a)(1)(I)
|
Summary advertisement, published December 15, 2006* | |
(a)(5)(i)
|
Complaint filed on December 18, 2006 in the United Stated District Court for the Northern District of Ohio, Eastern Division* | |
(a)(5)(ii)
|
Press release issued by NACCO, dated December 21, 2006* | |
(a)(5)(iii)
|
Press release issued by NACCO, dated December 26, 2006* | |
(a)(5)(iv)
|
Press release issued by NACCO, dated January 3, 2007* | |
(a)(5)(v)
|
Press release issued by NACCO, dated January 9, 2007* | |
(a)(5)(vi)
|
Press release issued by NACCO, dated January 16, 2007 | |
(a)(5)(vii)
|
Letter from the Company to NACCO, dated January 9, 2007 | |
(a)(5)(viii)
|
Letter from NACCO to the Company, dated January 11, 2007 |
* | Previously filed. |