SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
GOLD KIST INC.
(Name of Subject Company)
PROTEIN ACQUISITION CORPORATION
PILGRIMS PRIDE CORPORATION
(Names of Filing PersonsOfferors)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
380614107
(CUSIP Number of Class of Securities)
Richard A. Cogdill
Pilgrims Pride Corporation
4845 US Highway 271 North
Pittsburg TX 75686-0093
(903) 434-1000
(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Alan G. Harvey
Baker & McKenzie LLP
2300 Trammell Crow Center
2001 Ross Avenue
Dallas TX 75201
CALCULATION OF FILING FEE
Transaction Valuation* | Amount of Filing Fee** | |
$1,060,016,120 |
$113,422.00 |
* | Estimated for purposes of calculating the amount of the filing fee only. Calculated by multiplying $20.00, the per share tender offer price, by the sum of (i) the 51,036,806 outstanding shares of Common Stock as of August 9, 2006 (according to the Quarterly Report on Form 10-Q for the period ended July 1, 2006 filed by Gold Kist Inc.), and (ii) the 1,964,000 shares of Common Stock subject to outstanding grants and awards under Gold Kist Inc. share-based compensation plans (according to the Report on Form 10-Q for the period ended July 1, 2006 filed by Gold Kist Inc.). |
** | Calculated as 0.0107% of the transaction value. |
¨ | 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: |
Filing Party: | |
Form or Registration No.: |
Date Filed: |
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes 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: ¨
This Amendment No. 4 (this Amendment) amends and supplements the Tender Offer Statement on Schedule TO filed on September 29, 2006 and amended by Amendment No. 1 filed September 29, 2006, Amendment No. 2 filed October 12, 2006 and Amendment No. 3 filed October 16, 2006 (as so amended, the Schedule TO) by Protein Acquisition Corporation, a Delaware corporation (Purchaser) and Pilgrims Pride Corporation, a Delaware Corporation (Parent) and owner of all of the outstanding common stock of Purchaser. The Schedule TO relates to the offer by Purchaser to purchase all the issued and outstanding shares of common stock, par value $0.01 per share (the Common Stock), of Gold Kist Inc., a Delaware corporation (the Company), and the associated common stock and Series A Junior Participating Preferred Stock purchase rights (the Rights, and together with the Common Stock, the Shares) issued pursuant to the Stockholder Protection Rights Agreement, dated as of July 9, 2004, between the Company and Sun Trust Bank, as Rights Agent (the Rights Agreement), for $20.00 per Share, net to the seller in cash (subject to applicable withholding taxes), without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 29, 2006, as amended. Except as specifically provided herein, this Amendment does not modify any of the information previously reported on the Schedule TO.
Item 4. Terms of the Transaction
Item 4 of the Schedule TO is hereby amended and supplemented as follows:
Section 14, Certain Conditions of the Offer, is hereby amended by adding the following sentence immediately following the first sentence of the last paragraph of such section:
Any waiver of any of the foregoing conditions will apply to all tenders of Shares to which the condition would otherwise apply.
Item 11. Additional Information
Item 11 of the Schedule TO is hereby amended and supplemented as follows:
Section 15, Certain Legal Matters and Regulatory Approvals, of the Offer to Purchase is hereby amended and supplemented as follows:
The second paragraph under the caption Antitrust in Section 15 of the Offer to Purchase is amended by the addition of the following sentence at the end thereof:
Parent received early termination of the waiting period required by the HSR Act on October 16, 2006.
Item 12. Material to Be Filed as Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by the addition of Exhibit (a)(26) and, as so amended, is restated as follows:
(a)(1) | Offer to Purchase dated September 29, 2006. | |
(a)(2) | Form of Letter of Transmittal. | |
(a)(3) | Form of Notice of Guaranteed Delivery. | |
(a)(4) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
(a)(5) | Form of Letter to Clients. | |
(a)(6) | Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. | |
(a)(7) | Summary Advertisement as published in The Wall Street Journal on September 29, 2006. | |
(a)(8) | Press Release announcing Parents intention to commence the Offer issued by Parent on September 28, 2006 (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). |
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(a)(9) | Letter dated September 28, 2006 from Parent to the Board of Directors of the Company (included in Exhibit (a)(8)). | |
(a)(10) | Letter dated September 28, 2006 to employees of Parent (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(11) | Letter dated September 28, 2006 to customers of Parent (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(12) | Letter dated September 28, 2006 to Parent growers (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(13) | Tender Offer FAQs (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(14) | Frequently Asked Questions for Pilgrims Pride Employees (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(15) | Press release issued by Parent on September 28, 2006 announcing Parents intention to commence the Offer to Purchase Gold Kist 10 1/4% Senior Notes due March 15, 2014 and related Consent Solicitation (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(16) | Press release issued by Parent on August 18, 2006 (previously filed on August 18, 2006 pursuant to Rule 14a-12 under the Securities Exchange Act of 1934 (the Exchange Act) and refiled on August 24, 2006 pursuant to Rule 425 under the Securities Act of 1933 (the Securities Act) and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(17) | Pilgrims Pride Corporations Proposal for Gold Kist Inc. Frequently Asked Questions (FAQs) dated August 21, 2006 (previously filed on August 21, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(18) | Investor Presentation dated August 21, 2006 (previously filed on August 21, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(19) | Letter dated August 18, 2006 from Parent to the Company regarding the stockholder proposal provided by O.B. Goolsby, Jr., to the Company (previously filed on August 22, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(20) | Letter dated August 30, 2006 from Parent to the Company. | |
(a)(21) | Letter dated September 20, 2006 from Parent to the Company. | |
(a)(22) | Press Release issued by Parent on September 29, 2006 announcing commencement of the Offer to Purchase the Companys 10¼% Senior Notes due March 15, 2014 and related Consent Solicitation. | |
(a)(23) | Press Release issued by Parent on October 12, 2006 responding to the Schedule 14D-9 filed by the Company. | |
(a)(24) | Press Release issued by Parent on October 12, 2006 announcing the purchase price for the Gold Kist Notes and receipt of tenders and related consents from holders of 73.2% of the outstanding Gold Kist Notes. | |
(a)(25) | Press Release issued by Parent on October 16, 2006 announcing receipt of tenders of Gold Kist Notes and related consents sufficient to approve proposed amendments to the Gold Kist Indenture. | |
(a)(26) | Press Release issued by Parent on October 17, 2006 announcing early termination of the waiting period under the HSR Act. | |
(b)(1) | Credit Agreement by and among CoBank ACB, Agriland FCS and the Company dated as of September 21, 2006 (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). |
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(b)(2) | Pilgrims Pride Corporation $450,000,000 Senior Unsecured Increasing Rate Bridge Facility Commitment Letter from Lehman Brothers to the Company dated September 27, 2006 (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(d) | None. | |
(g) | None. | |
(h) | None. |
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SIGNATURES
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.
Dated: October 17, 2006
PROTEIN ACQUISITION CORPORATION | ||
By: |
/s/ RICHARD A. COGDILL | |
Name: | Richard A. Cogdill | |
Title: | Executive Vice President, Chief Financial Officer, Secretary and Treasurer | |
PILGRIMS PRIDE CORPORATION | ||
By: |
/s/ RICHARD A. COGDILL | |
Name: | Richard A. Cogdill | |
Title: | Executive Vice President, Chief Financial Officer, Secretary and Treasurer |
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EXHIBIT INDEX
Exhibit No. | ||
(a)(1) | Offer to Purchase dated September 29, 2006. | |
(a)(2) | Form of Letter of Transmittal. | |
(a)(3) | Form of Notice of Guaranteed Delivery. | |
(a)(4) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
(a)(5) | Form of Letter to Clients. | |
(a)(6) | Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. | |
(a)(7) | Summary Advertisement as published in The Wall Street Journal on September 29, 2006. | |
(a)(8) | Press Release announcing Parents intention to commence the Offer issued by Parent on September 28, 2006 (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(9) | Letter dated September 28, 2006 from Parent to the Board of Directors of the Company (included in Exhibit (a)(8)). | |
(a)(10) | Letter dated September 28, 2006 to employees of Parent (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(11) | Letter dated September 28, 2006 to customers of Parent (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(12) | Letter dated September 28, 2006 to Parent growers (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(13) | Tender Offer FAQs (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(14) | Frequently Asked Questions for Pilgrims Pride Employees (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(15) | Press release issued by Parent on September 28, 2006 announcing Parents intention to commence the Offer to Purchase Gold Kist 10 1/4% Senior Notes due March 15, 2014 and related Consent Solicitation (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(a)(16) | Press release issued by Parent on August 18, 2006 (previously filed on August 18, 2006 pursuant to Rule 14a-12 under the Exchange Act and refiled on August 24, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(17) | Pilgrims Pride Corporations Proposal for Gold Kist Inc. Frequently Asked Questions (FAQs) dated August 21, 2006 (previously filed on August 21, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(18) | Investor Presentation dated August 21, 2006 (previously filed on August 21, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(19) | Letter dated August 18, 2006 from Parent to the Company regarding the stockholder proposal provided by O.B. Goolsby, Jr., to the Company (previously filed on August 22, 2006 pursuant to Rule 425 under the Securities Act and deemed filed pursuant to Rule 14a-12 and Rule 14d-2 under the Exchange Act). | |
(a)(20) | Letter dated August 30, 2006 from Parent to the Company. | |
(a)(21) | Letter dated September 20, 2006 from Parent to the Company. |
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Exhibit No. | ||
(a)(22) | Press Release issued by Parent on September 29, 2006 announcing commencement of the Offer to Purchase the Companys 10¼% Senior Notes due March 15, 2014 and related Consent Solicitation. | |
(a)(23) | Press Release issued by Parent on October 12, 2006 responding to the Schedule 14D-9 filed by the Company. | |
(a)(24) | Press Release issued by Parent on October 12, 2006 announcing the purchase price for the Gold Kist Notes and receipt of tenders and related consents from holders of 73.2% of the outstanding Gold Kist Notes. | |
(a)(25) | Press Release issued by Parent on October 16, 2006 announcing receipt of tenders of Gold Kist Notes and related consents sufficient to approve proposed amendments to the Gold Kist Indenture. | |
(a)(26) | Press Release issued by Parent on October 17, 2006 announcing early termination of the waiting period under the HSR Act. | |
(b)(1) | Credit Agreement by and among CoBank ACB, Agriland FCS and the Company dated as of September 21, 2006 (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(b)(2) | Pilgrims Pride Corporation $450,000,000 Senior Unsecured Increasing Rate Bridge Facility Commitment Letter from Lehman Brothers to the Company dated September 27, 2006 (incorporated by reference to the Current Report on Form 8-K filed by Parent on September 28, 2006). | |
(d) | None. | |
(g) | None. | |
(h) | None. |
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Exhibit (a)(26)
FOR IMMEDIATE RELEASE
Pilgrims Pride Announces Early Termination of Hart-Scott-Rodino Waiting
Period In Connection With Gold Kist Offer
Pittsburg, TX. October 17, 2006 Pilgrims Pride Corporation (NYSE: PPC) today announced that the Antitrust Division of the Department of Justice (DOJ) has granted early termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) in connection with its offer to purchase all of the outstanding shares of Gold Kist Inc. (NASDAQ: GKIS) common stock for $20 per share in cash.
O.B. Goolsby, Jr., president and chief executive officer of Pilgrims Pride, said, We are pleased to have been granted early termination under HSR in connection with our offer to purchase Gold Kist. This is a positive step forward in our efforts to acquire Gold Kist.
Pilgrims Pride commenced its offer to purchase all of the outstanding shares of Gold Kist common stock for $20 per share in cash on September 29, 2006. The Pilgrims Pride offer represents a premium of 55% over Gold Kists closing stock price on August 18, 2006, the last day of trading before Pilgrims Pride notified Gold Kists board of directors in a public letter that it was proposing to acquire Gold Kist for $20 per share in cash.
Pilgrims Prides tender offer is scheduled to expire at midnight, New York City Time, on Friday, October 27, 2006, unless extended.
Pilgrims Pride has obtained financing for the tender offer through a combination of an amendment to its existing credit facility and a commitment letter for an additional credit facility from Lehman Brothers Inc.
Baker & McKenzie LLP and Morris, Nichols, Arsht & Tunnell, LLP are acting as legal counsel and Credit Suisse, Legacy Partners Group LLC and Lehman Brothers Inc. are acting as financial advisors to Pilgrims Pride. Innisfree M&A Incorporated is acting as information agent for Pilgrims Prides offer.
Pilgrims Pride Corporation
Pilgrims Pride Corporation is the second-largest chicken producer in the United States and Mexico and the largest chicken producer in Puerto Rico. Pilgrims Pride employs approximately 40,000 people and has major operations in Texas, Alabama, Arkansas, Georgia, Kentucky, Louisiana, North Carolina, Pennsylvania, Tennessee, Virginia, West Virginia, Mexico and Puerto Rico, with other facilities in Arizona, Florida, Iowa, Mississippi and Utah.
Pilgrims Pride products are sold to foodservice, retail and frozen entree customers. The Companys primary distribution is through retailers, foodservice distributors and restaurants throughout the United States and Puerto Rico and in the Northern and Central regions of Mexico. For more information, please visit http://www.pilgrimspride.com.
Forward-Looking Statements:
Statements contained in this press release that state the intentions, plans, hopes, beliefs, anticipations, expectations or predictions of the future of Pilgrims Pride Corporation and its management, including as to the expected benefits of the proposed transaction with Gold Kist, are forward-looking statements. It is important to note that the actual results could differ materially from those projected in such forward-looking statements. Factors that could cause actual results to differ materially from those projected in such forward-looking statements include: matters affecting the poultry industry generally, including fluctuations in the commodity prices of feed ingredients, chicken and turkey; additional outbreaks of avian influenza or other diseases, either in our own flocks or elsewhere, affecting our
ability to conduct our operations and/or demand for our poultry products; contamination of our products, which has recently and can in the future lead to product liability claims and product recalls; exposure to risks related to product liability, product recalls, property damage and injuries to persons, for which insurance coverage is expensive, limited and potentially inadequate; changes in laws or regulations affecting our operations or the application thereof; competitive factors and pricing pressures or the loss of one or more of our largest customers; currency exchange rate fluctuations, trade barriers, exchange controls, expropriation and other risks associated with foreign operations; management of our cash resources, particularly in light of our leverage, and restrictions imposed by and as a result of, our leverage; inability to complete the proposed acquisition or effectively integrate Gold Kists business or realize the associated cost savings and operating synergies currently anticipated; and the impact of uncertainties of litigation as well as other risks described under Risk Factors in our Annual Report on Form 10-K and subsequent filings with the Securities and Exchange Commission. Pilgrims Pride Corporation undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.
Important Legal Information
This press release is provided for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell any securities of Gold Kist. Any offers to purchase or solicitation of offers to sell Gold Kist shares will be made only pursuant to the tender offer statement (including the offer to purchase, the letter of transmittal and other offer documents) filed with the Securities and Exchange Commission (SEC) on September 29, 2006. Gold Kist stockholders are advised to read these documents and any other documents relating to the tender offer that are filed with the SEC carefully and in their entirety because they contain important information. Gold Kist stockholders may obtain copies of these documents for free at the SECs website at www.sec.gov or by calling Innisfree M&A Incorporated, the Information Agent for the offer, at 877-687-1874 (toll free from the U.S. and Canada).
Pilgrims Pride currently intends to solicit proxies for use at Gold Kists 2007 Annual Meeting of Stockholders, or at any adjournment or postponement thereof, to vote to increase the number of directors constituting Gold Kists entire board to 15 and fill nine positions on the expanded board with nominees of the president and chief executive officer of Pilgrims Pride. Investors and security holders are urged to read the proxy statement and other disclosure documents regarding the proposed transaction, when they are filed, because they will contain important information. These disclosure documents will be filed with the Securities and Exchange Commission by Pilgrims Pride Corporation and security holders may obtain a free copy of these disclosure documents (when they become available) and other documents filed with the SEC by Pilgrims Pride Corporation at the SECs web site at www.sec.gov. The disclosure documents filed with the SEC by Pilgrims Pride Corporation may also be obtained for free by directing a request to Pilgrims Pride Corporation at 4845 U.S. Highway 271 N, Pittsburg, Texas, 75686 Attn. Secretary. The identity of people who, under SEC rules, may be considered participants in a solicitation of proxies from Gold Kist stockholders for use at its 2007 Annual Meeting of Stockholders and a description of their direct and indirect interest in the solicitation, by security holdings or otherwise, is contained in the Form 425 filed by Pilgrims Pride with the SEC on August 24, 2006.
Contacts:
Joele Frank / Steve Frankel
Joele Frank, Wilkinson Brimmer Katcher
212-355-4449