SC TO-T/A: Third party tender offer statement
Published on June 16, 2003
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
AMENDMENT NO. 2
TO
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934.
EXEGENICS INC.
(Name of Subject Company (Issuer))
FOUNDATION GROWTH INVESTMENTS LLC (Parent of Offeror)
EI ACQUISITION INC. (Offeror)
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
SERIES A CONVERTIBLE PREFERRED STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
301610 (Common Stock)
(CUSIP not applicable for Preferred Stock)
(CUSIP Number of Class of Securities)
TERRY ROBBINS
FOUNDATION GROWTH INVESTMENTS LLC
EI ACQUISITION INC.
225 WEST WASHINGTON STREET
SUITE 2320
CHICAGO, ILLINOIS 60606
(312) 551-9900
(Name, address, and telephone number of person authorized to receive notices
and communications on behalf of filing person)
WITH A COPY TO:
TIMOTHY R. M. BRYANT
MCDERMOTT, WILL & EMERY
227 WEST MONROE STREET
CHICAGO, ILLINOIS 60606
(312) 372-2000
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CALCULATION OF FILING FEE: Previously Paid
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/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: $1,327.
Form or Registration No.: SC TO-T.
Filing Party: Foundation Growth Investments LLC and
EI Acquisition Inc.
Date Filed: May 29, 2003.
/ / 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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INTRODUCTION
This Amendment No. 2 to Schedule TO relates to the offer by Foundation
Growth Investments LLC, a Delaware limited liability company, and EI Acquisition
Inc., a Delaware corporation (collectively, the "Purchaser"), to purchase at a
price of $0.40 per share, net to the seller in cash, without interest thereon,
all outstanding shares of common stock, par value $0.01 per share, and all
outstanding shares of Series A Convertible Preferred Stock, par value $0.01 per
share, of eXegenics Inc., a Delaware corporation ("eXegenics"), upon the terms
and subject to the conditions set forth in the Offer to Purchase dated May 29,
2003, as amended on June 13, 2003, and as amended herein (the "Offer to
Purchase"), and in the related Letter of Transmittal, as amended herein (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"). The Offer is described in a Schedule TO (as amended or supplemented
from time to time, the "Schedule TO"), initially filed by Purchaser with the SEC
on May 29, 2003, as amended on June 13, 2003 and as herein amended. Copies of
the Offer to Purchase and the Letter of Transmittal have been filed as Exhibits
12(a)(1) and 12(a)(2), respectively, of the Purchaser's Schedule TO and are
incorporated herein by reference.
All information in (i) the Offer to Purchase, including all schedules
thereto, (ii) the Letter of Transmittal, and (iii) the Amendment No. 1 to
Purchaser's Schedule TO filed on June 13, 2003, are incorporated by reference in
answer to all of this items in this Schedule TO. Additional items with respect
to this Schedule TO are set forth below. Capitalized terms used but not defined
herein have the meanings ascribed to them in the Schedule TO.
ITEMS 1 THROUGH 13
Items 1 through 13 of the Schedule TO, which incorporate by reference the
information contained in the Offer to Purchase, are hereby amended and
supplemented as follows:
Item 1. Summary Term Sheet.
The Summary Term Sheet is hereby amended by adding a separate question heading
concerning the lawsuit filed May 15, 2003 as set forth below:
"Q. WHAT LAWSUIT WAS FILED ON MAY 15, 2003 AGAINST THE
COMPANY'S OFFICERS AND DIRECTORS?
A. A complaint captioned The M&B Weiss Family Limited
Partnership of 1996 v. Joseph M. Davie, Robert J. Easton,
Ronald J. Goode and Walter M. Lovenberg and eXegenics Inc.
(Civil Action No. 20302-NC) was filed on May 15, 2003, in the
Court of Chancery of the State of Delaware in and for New
Castle County. The foregoing action purports to be brought on
behalf of all stockholders of eXegenics. The action alleges
that the individual defendants have grossly mismanaged
eXegenics and that such actions constitute a breach of their
fiduciary duties to eXegenics. The complaint seeks as relief
for the court to order the individual defendants to carry out
their fiduciary duties to eXegenics and all of its
stockholders, to make full, prompt corrective disclosure of
any and all material information not yet disclosed and/or
misrepresented to eXegenics' stockholders prior to the 2003
annual meeting, to enjoin the 2003 annual meeting, and to
order the individual defendants to account to eXegenics and
its stockholders for all damages suffered and to be suffered
by them as a result of the actions alleged in the complaint."
Item 4. Terms of the Transaction.
The penultimate sentence of the first paragraph of Section 2, "The
Offer--Acceptance for Payment and Payment for Shares", is hereby amended to read
as follows:
"All conditions of the Offer, other than for or relating to
statutory or regulatory approvals, must be satisfied or waived
on or prior to the Expiration Date.
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Subject to applicable rules of the SEC, EI Acquisition
expressly reserves the right to delay acceptance for payment
for Shares in order to comply, in whole or in part, with any
regulatory or statutory approval. See Section 11, "The
Offer--Certain Conditions of the Offer."
The Offer to Purchase and the Letter of Transmittal are hereby amended so that
all references to "backup withholding" and "U.S. federal income tax withholding"
are revised to refer to a rate of 28% rather than a rate of 30%.
Section 5, "The Offer -- Certain U.S. Federal Income Tax Consequences of the
Offer" is hereby amended by amending and restating the heading of this section
to read as follows:
"Material U.S. Federal Income Tax Consequences of the Offer."
Section 11, "The Offer--Certain Conditions to the Offer" is hereby amended by
amending and restating the heading to this section to read as follows:
"Material Conditions to the Offer."
Section 11, "The Offer -- Certain Conditions of the Offer" is hereby amended by
amending and restating the introductory paragraph to read as follows:
"Notwithstanding any other term of the Offer, EI Acquisition
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 Company's
obligation to pay for or return tendered shares after the
termination or withdrawal of the Offer) to pay for any shares
of eXegenics common stock and preferred stock tendered
pursuant to the Offer not theretofore accepted for payment or
paid for, and may terminate or amend the Offer if at any time
on or after the date hereof and (except for or relating to
regulatory or statutory approvals) on or prior to the
Expiration Date, any of the following conditions shall occur:"
Section 11, "The Offer--Certain Conditions of the Offer" is hereby amended by
amending and restating the last paragraph to read as follows:
"The foregoing conditions are for the sole benefit of EI
Acquisition and its affiliates and may be asserted by EI
Acquisition, in its sole discretion, regardless of the
circumstances giving rise to any such conditions, or maybe be
waived by EI Acquisition, in whole or in part, at any time and
from time to time prior to the Expiration Date, in the sole
discretion of EI Acquisition. The failure by EI Acquisition at
any time to exercise any of the foregoing rights will not be
deemed a waiver of any right, the waiver of such right with
respect to any particular facts or circumstances shall not be
deemed a waiver with respect to any other facts or
circumstances, and each right will be deemed an ongoing right
which may be asserted at any time and (except for or relating
to regulatory or statutory approvals) from time to time prior
to the Expiration Date."
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
The following is hereby added to the end of "Section 8: Certain Information
Concerning EI Acquisition Inc. and Foundation Growth
Investments LLC" of the Offer to Purchase:
"On June 16, 2003, Purchaser issued a press release announcing
its intent to solicit consents from stockholders of eXegenics
in order to remove all directors
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from the eXegenics board and to appoint a new slate of
directors who are committed to repealing all amendments to the
eXegenics bylaws since the last version identified in
eXegenics' federal securities filings, redeeming all rights
under and terminating the eXegenics poison pill adopted last
week by the eXegenics board, and approving the merger with
Foundation Growth Investments' wholly-owned subsidiary, EI
Acquisition Inc., following the successful completion of the
tender offer.. The full text of the press release is filed as
Exhibit (a)(9) hereto."
Item 12. Exhibits.
Item 12 is hereby amended and supplemented to add the following exhibit:
(a) (9) Press Release issued by Purchaser, dated June 16, 2003.
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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.
EI ACQUISITION INC.
By: /s/ Terry Robbins
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Name: Terry Robbins
Title: Treasurer
FOUNDATION GROWTH INVESTMENTS LLC
By: Foundation Growth Management LLC
Its: Manager
By: /s/ Terry Robbins
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Name: Terry Robbins
Title: Manager
Dated: June 16, 2003
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ITEM 12: EXHIBITS
EXHIBIT
NUMBER TITLE
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(a)(9) Press Release dated June 16, 2003.