UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(L) OR 13(E)(L)
OF THE SECURITIES EXCHANGE ACT OF 1934
ELMER'S RESTAURANTS, INC.
(NAME OF SUBJECT COMPANY (ISSUER))
BRUCE N. DAVIS
LINDA ELLIS-BOLTON
KAREN K. BROOKS
RICHARD P. BUCKLEY
DAVID D. CONNOR
STEPHANIE M. CONNOR
THOMAS C. CONNOR
CORYDON H. JENSEN, JR.
DEBRA A. WOOLLEY-LEE
DOUGLAS A. LEE
DAVID C. MANN
SHEILA J. SCHWARTZ
GERALD A. SCOTT
WILLIAM W. SERVICE
DENNIS M. WALDRON
GARY N. WEEKS
GREG W. WENDT
RICHARD C. WILLIAMS
DOLLY W. WOOLLEY
DONALD W. WOOLLEY AND
DONNA P. WOOLLEY, TOGETHER
WITH ERI ACQUISITION CORP., AS OFFEROR
(NAMES OF FILING PERSONS (IDENTIFYING STATUS AS OFFEROR,
ISSUER OR OTHER PERSON))
COMMON STOCK, NO PAR VALUE
(TITLE OF CLASS OF SECURITIES)
289393
(CUSIP NUMBER OF CLASS OF SECURITIES)
JEFFREY C. WOLFSTONE, ESQ.
GREGORY L. ANDERSON, ESQ.
LANE POWELL SPEARS LUBERSKY LLP
601 SW SECOND AVENUE, SUITE 2100
PORTLAND, OREGON 97204
(503) 778-2100
(NAME, ADDRESS, AND TELEPHONE NUMBERS OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS)
Calculation of Filing Fee
--------------------------------------------------------------------------------
Transaction valuation* Amount of filing fee**
$6,019,091 $708.45
--------------------------------------------------------------------------------
*Estimated for purposes of calculating the filing fee only. This calculation
assumes the purchase of 756,601 shares of common stock of Elmer's Restaurants,
Inc. at the tender offer price of $7.50 per share of common stock. The
transaction value also includes the offer price of $7.50 less $4.81, which is
the average exercise price of outstanding options, multiplied by 128,098, the
estimated number of options outstanding not held by the Filing Persons listed
above.
**The amount of filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Fee Rate
Advisory No. 6 for fiscal year 2005, equals $117.70 per million of transaction
value, or $708.45.
[ ] 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: ________________________________
Form or Registration No.: ________________________________
Filing Party: 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 below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-l.
[ ] issuer tender offer subject to Rule 13e-4.
[X] going-private transaction subject to Rule 13e-3.
[X] 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 Tender Offer Statement and Rule 13e-3 Transaction Statement filed under
cover of Schedule TO relates to the offer by ERI Acquisition Corp., a newly
formed Oregon corporation ("Purchaser"), to purchase all of the outstanding
shares of common stock, no par value per share (the "Shares"), of Elmer's
Restaurants, Inc., an Oregon corporation ("Elmer's"), not currently owned by the
Continuing Shareholders (as defined below), at a purchase price of $7.50 per
Share, in cash, upon the terms and subject to the conditions set forth in the
Offer to Purchase dated December 20, 2004 (the "Offer to Purchase"), a copy of
which is attached hereto as Exhibit (a)(1)(i), and in the related Letter of
Transmittal (which, together with the Offer to Purchase, constitute the
"Offer"), a copy of which" is attached hereto as Exhibit (a)(l)(ii).
ITEM 1. SUMMARY TERM SHEET
Reference is made to the information set forth under Summary Term Sheet and
Questions and Answers About the Tender Offer in the Offer to Purchase, which is
incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION
(a) Reference is made to the information set forth under The Offer--Section 7
("Certain Information Concerning the Company") in the Offer to Purchase, which
is incorporated herein by reference.
(b) Reference is made to the information set forth under Introduction and The
Offer--Section 7 ("Certain Information Concerning the Company") in the Offer to
Purchase, which is incorporated herein by reference.
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(c) Reference is made to the information set forth under The Offer--Section 6
("Price Range of Shares; Dividends; Ownership of and Transactions in Shares") in
the Offer to Purchase, which is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON
(a) Reference is made to the information set forth under The Offer--Section 8
("Certain Information Concerning Purchaser and the Continuing Shareholders") in
the Offer to Purchase, which is incorporated herein by reference.
(b) Reference is made to the information set forth under The Offer--Section 8
("Certain Information Concerning Purchaser and the Continuing Shareholders") in
the Offer to Purchase, which is incorporated herein by reference.
(c) Reference is made to the information set forth under The Offer--Section 8
("Certain Information Concerning Purchaser and the Continuing Shareholders") in
the Offer to Purchase, which is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION
(a) Reference is made to the information set forth under Summary Term Sheet;
Questions and Answers About the Tender Offer; Introduction; Special
Factors--Sections 2 ("Purpose and Structure of the Offer and the Merger; Reasons
of the Purchaser and the Continuing Shareholders for the Offer and the Merger;
Alternatives Considered"); and The Offer--Sections 1 ("Terms of the Offer;
Expiration Date"), 2 ("Acceptance for Payment and Payment for Shares"), 3
("Procedures for Tendering Shares), 4 ("Rights of Withdrawal") and 14 ("Certain
Effects of the Offer and the Merger") in the Offer to Purchase, which is
incorporated herein by reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) Reference is made to the information set forth under Special
Factors--Section 1 ("Background of the Offer"); Section 2 ("Purpose and
Structure of the Offer and the Merger; Reasons of the Purchaser and the
Continuing Shareholders for the Offer and the Merger; Alternatives Considered");
Section 6 ("Conflicts of Interests") and The Offer--Section 8 ("Certain
Information Concerning the Purchaser and the Continuing Shareholders") in the
Offer to Purchase, which is incorporated herein by reference.
(b) Reference is made to the information set forth under Special
Factors--Section 1 ("Background of the Offer"); Section 2 ("Purpose and
Structure of the Offer and the Merger; Reasons of the Purchaser and the
Continuing Shareholders for the Offer and the Merger; Alternatives Considered");
Section 6 ("Conflicts of Interests") and The Offer--Section 7 ("Certain
Information Concerning the Company") and Section 8 ("Certain Information
Concerning the Purchaser and the Continuing Shareholders") in the Offer to
Purchase, which is incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS
(a) and (c)(l)-(7) Reference is made to the information set forth under Summary
Term Sheet, Questions and Answers about the Tender Offer, Introduction, Special
Factors--Sections 1 ("Background of the Offer"), 2 ("Purpose and Structure of
the Offer and the Merger; Reasons of the Purchaser and the Continuing
Shareholders for the Offer and the Merger; Alternatives Considered), 5
("Purchaser's Plans for the Company") and 7 ("Conduct of Company's Business if
the Offer is not Completed or if Purchaser waives the Minimum Tender Condition")
and The Offer--Section 9 ("Merger; Dissenters' Rights; Rule 13e-3"), 14
("Certain Effects of the Offer and the Merger") and Schedule A ("Oregon
Dissenters' Rights Statutes") in the Offer to Purchase, which is incorporated
herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a), (b) and (d) Reference is made to the information set forth under The
Offer--Section 10 ("Source and Amount of Funds") in the Offer to Purchase, which
is incorporated herein by reference.
ITEM 8. INTEREST IN SECURITIES OF SUBJECT COMPANY
(a) and (b) Reference is made to the information set forth under Special
Factors--Sections 1 ("Background of the Offer") and 6 ("Conflicts of Interests")
and The Offer--Section 6 ("Price Range of Shares; Dividends; Ownership of and
Transactions in Shares") and Section 8 ("Certain Information Concerning the
Purchaser and the Continuing Shareholders") in the Offer to Purchase, which is
incorporated herein by reference.
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ITEM 9. PERSONS / ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED
(a) Reference is made to the information set forth under Introduction and The
Offer--Section 15 ("Fees and Expenses") in the Offer to Purchase, which is
incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS
(a) The financial statements of Elmer's are not material to the Offer. (b) The
pro forma financial statements of Elmer's are not material to the Offer.
ITEM 11. ADDITIONAL INFORMATION
(a)(l) Reference is made to the information set forth under Special
Factors--Section 1 ("Background of the Offer") and Section 6 ("Conflicts of
Interests") in the Offer to Purchase, which is incorporated herein by reference.
(a)(2) Reference is made to the information set forth under Introduction, The
Offer--Sections 2 ("Acceptance for Payment and Payment for Shares"), 3
("Procedures for Tendering Shares"), 9 ("Merger; Dissenters' Rights; Rule
13e-3"), 11 ("Certain Conditions of the Offer"), 13 ("Certain Legal Matters")
and Schedule A ("Oregon Dissenters' Rights Statutes") in the Offer to Purchase,
which is incorporated herein by reference.
(a)(3) Reference is made to the information set forth under The Offer--Section
13 ("Certain Legal Matters ") in the Offer to Purchase, which is incorporated
herein by reference.
(a)(4) Reference is made to the information set forth under The Offer--Section
13 ("Certain Legal Matters") and Section 14 ("Certain Effects of the Offer and
the Merger") in the Offer to Purchase, which is incorporated herein by
reference.
(a)(5) None.
(b) The information set forth in the Offer to Purchase is incorporated herein by
reference.
ITEM 12. EXHIBITS
EXHIBIT DESCRIPTION
(a)(l)(i) Offer to Purchase dated December 20, 2004.
(a)(l)(ii) Letter of Transmittal.
(a)(l)(iii) Notice of Guaranteed Delivery.
(a)(l)(iv) Letter of Information from the Information Agent to Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(l)(v) Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(a)(l)(vi) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(l)(vii) Notice of Offer to Purchase for Cash.
(a)(l)(viii) Text of Press Release issued by ERI Acquisition Corp. on
December 20, 2004.
(a)(l)(ix)* Proposal Letter to Elmer's Restaurants, Inc. dated August 5,
2004.
(a)(1)(x) Letter to the Shareholders of Elmer's Restaurants, Inc. from ERI
Acquisition Corp., dated December 20, 2004.
(b)(i) Financing Proposal from GE Capital Franchise Finance Corporation
dated October 5, 2004.
(b)(ii) Loan Commitment from GE Capital Franchise Finance Corporation
dated December 3, 2004.
(c) Report of Veber Partners, LLC dated September 17, 2004.
(d) Exchange Agreement dated December 20, 2004.
* Previously filed with the SEC as an exhibit to that certain Schedule TO-C
dated August 9, 2004.
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ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3
ITEM 2. SUBJECT COMPANY INFORMATION
(a) Reference is made to the information set forth under The Offer--Section 7
("Certain Information Concerning the Company") in the Offer to Purchase, which
is incorporated herein by reference.
(b) Reference is made to the information set forth under Introduction and The
Offer--Section 7 ("Certain Information Concerning the Company") in the Offer to
Purchase, which is incorporated herein by reference.
(c) Reference is made to the information set forth under The Offer--Section 6
("Price Range of Shares; Dividends; Ownership of and Transactions in Shares") in
the Offer to Purchase, which is incorporated herein by reference.
(d) Reference is made to the information set forth under The Offer--Section 6
("Price Range of Shares; Dividends; Ownership of and Transactions in Shares")
and Section 7 ("Certain Information Concerning the Company") in the Offer to
Purchase, which is incorporated herein by reference.
(e) Not Applicable.
(f) Reference is made to the information set forth under Special
Factors--Section 6 ("Conflicts of Interests") and The Offer--Section 6 ("Price
Range of Shares; Dividends; Ownership of and Transactions in Shares") and
Section 8 ("Certain Information Concerning the Purchaser and the Continuing
Shareholders") in the Offer to Purchase, which is incorporated herein by
reference.
ITEM 4. TERMS OF THE TRANSACTION
(c) None.
(d) Reference is made to the information set forth under The Offer--Section 9
("Merger; Dissenters' Rights; Rule 13e-3" and Schedule A ("Oregon Dissenters'
Rights Statutes") in the Offer to Purchase, which is incorporated herein by
reference.
(e) None.
(f) Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
(c) Reference is made to the information set forth under Introduction, Special
Factors--Sections 1 ("Background of the Offer"), and 2 ("Purpose and Structure
of the Offer and the Merger; Reasons of the Purchaser and the Continuing
Shareholders for the Offer and the Merger; Alternatives Considered") in the
Offer to Purchase, which is incorporated herein by reference.
(e) Reference is made to the information set forth under Introduction, Special
Factors--Section 1 ("Background of the Offer") and The Offer--Sections 1 ("Terms
of the Offer; Expiration Date"), 2 ("Acceptance for Payment and Payment for
Shares"), 3 ("Procedures for Tendering Shares"), 4 ("Rights of Withdrawal"), 10
("Source and Amount of Funds"), and 11 ("Certain Conditions of the Offer") in
the Offer to Purchase, which is incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS
(b) Reference is made to the information set forth under Special
Factors--Section 2 ("Purpose and Structure of the Offer and the Merger; Reasons
of the Purchaser and the Continuing Shareholders for the Offer and the Merger;
Alternatives Considered") and The Offer--Sections 14 ("Certain Effects of the
Offer and Merger") and 10 ("Source and Amount of Funds") in the Offer to
Purchase, which is incorporated by reference.
(c)(8) Reference is made to the information set forth under Special
Factors--Sections 4 ("Certain Effects of the Offer and Merger") and 5
("Purchaser's Plans for the Company") in the Offer to Purchase, which is
incorporated herein by reference.
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ITEM 7. PURPOSES, ALTERNATIVES, REASONS AND EFFECTS
(a), (b) and (c) Reference is made to the information set forth under
Introduction, Special Factors--Sections 1 ("Background of the Offer; Expiration
Date"), 2 ("Purpose and Structure of the Offer and the Merger; Reasons of the
Purchaser and the Continuing Shareholders for the Offer and the Merger;
Alternatives Considered"), and 4 ("Position of Purchaser and the Continuing
Shareholders Regarding the Fairness of the Offer and the Merger") and The
Offer--Section 14 ("Certain Effects of the Offer and Merger") in the Offer to
Purchase, which is incorporated herein by reference.
(d) Reference is made to the information set forth under Introduction, The
Offer--Section 14 ("Certain Effects of the Offer and Merger") and Section 9
("Merger and Dissenters' Rights; Rule 13e-3") in the Offer to Purchase, which is
incorporated herein by reference.
ITEM 8. FAIRNESS OF THE TRANSACTION
(a), (b), (c), (d), (e) and (f) Reference is made to the information set forth
under Summary Term Sheet, Questions and Answers about the Tender Offer, Special
Factors--Sections 1 ("Background of the Offer"), 2 ("Purpose and Structure of
the Offer and the Merger; Reasons of the Purchaser and the Continuing
Shareholders for the Offer and the Merger; Alternatives Considered"), and 4
("Position of Purchaser and the Continuing Shareholders Regarding the Fairness
of the Offer and the Merger") in the Offer to Purchase, which is incorporated
herein by reference.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS
(a), (b) and (c) Reference is made to the information set forth under Special
Factors--Sections 1 ("Background of the Offer; Expiration Date") and 3
("Analysis of Veber Partners, LLC") in the Offer to Purchase, which is
incorporated herein by reference.
ITEM 10. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(c) Reference is made to the information set forth under The Offer--Section 15
("Fees and Expenses") in the Offer to Purchase, which is incorporated by
reference.
ITEM 12. THE SOLICITATION OR RECOMMENDATION
(d) Reference is made to the information set forth under Introduction and
Special Factors--Section 5 ("Purchaser's Plans for the Company") of the Offer to
Purchase, which is incorporated herein by reference.
(e) The filing persons are not aware of any officer, director or affiliate of
Elmer's who has made a recommendation either in support of or against the Offer.
ITEM 13. FINANCIAL INFORMATION.
(a) and (b) Reference is made to The Offer--Section 7 ("Certain Information
Concerning the Company") of the Offer to Purchase, which is incorporated herein
by reference. The financial statements included in Elmer's Annual Report on Form
10-K for the fiscal year ended March 29, 2004 and Quarterly Report on Form 10-Q
for the period ended October 11, 2004, are hereby incorporated herein by this
reference. Copies of such reports and other documents may be inspected and
copies obtained from the SEC as provided in The Offer--Section 7 ("Certain
Information Concerning the Company") in the Offer to Purchase, which is
incorporated herein by reference.
ITEM 14. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED
(b) Reference is made to the information set forth under Introduction and
Special Factors--Section 6 ("Conflicts of Interest") of the Offer to Purchase,
which is incorporated herein by reference.
ITEM 16. EXHIBITS. (C) ANALYSIS OF VEBER PARTNERS, LLC TO PURCHASER, DATED
SEPTEMBER 17, 2004.
(f) Oregon Business Corporation Act (included as Schedule A ("Oregon Dissenters'
Rights Statutes") of the Offer to Purchase filed herewith as Exhibit (a)(l)(i)).
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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.
Dated: December 20, 2004 ERI ACQUISITION CORP.
By: /s/ BRUCE N. DAVIS
------------------------------
Name: Bruce N. Davis
Title: President
/s/ LINDA ELLIS-BOLTON /s/ GERALD A. SCOTT
-------------------------------------- ------------------------------------
Linda Ellis-Bolton Gerald A. Scott
/s/ KAREN K. BROOKS /s/ SHEILA J. SCHWARTZ
-------------------------------------- ------------------------------------
Karen K. Brooks Sheila J. Schwartz
/s/ RICHARD P. BUCKLEY /s/ WILLIAM W. SERVICE
-------------------------------------- ------------------------------------
Richard P. Buckley William W. Service
/s/ DAVID D. CONNOR /s/ DENNIS M. WALDRON
-------------------------------------- ------------------------------------
David D. Connor Dennis M. Waldron
/s/ STEPHANIE M. CONNOR /s/ GARY N. WEEKS
-------------------------------------- ------------------------------------
Stephanie M. Connor Gary N. Weeks
/s/ THOMAS C. CONNOR /s/ GREGORY W. WENDT
-------------------------------------- ------------------------------------
Thomas C. Connor Gregory W. Wendt
/s/ BRUCE N. DAVIS /s/ RICHARD C. WILLIAMS
-------------------------------------- ------------------------------------
Bruce N. Davis Richard C. Williams
/s/ CORYDON H. JENSEN, JR. /s/ DOLLY W. WOOLLEY
-------------------------------------- ------------------------------------
Corydon H. Jensen, Jr. Dolly W. Woolley
/s/ DEBORAH A. WOOLLEY-LEE /s/ DONALD W. WOOLLEY
-------------------------------------- ------------------------------------
Debra A. Woolley-Lee Donald W. Woolley
/s/ DOUGLAS A. LEE /s/ DONNA P. WOOLLEY
-------------------------------------- ------------------------------------
Douglas A. Lee Donna P. Woolley
/s/ DAVID C. MANN
--------------------------------------
David C. Mann
7
EXHIBIT INDEX
EXHIBIT DESCRIPTION
(a)(l)(i) Offer to Purchase dated December 20, 2004.
(a)(l)(ii) Letter of Transmittal.
(a)(l)(iii) Notice of Guaranteed Delivery.
(a)(l)(iv) Letter of Information from the Information Agent to Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(l)(v) Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(a)(l)(vi) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(l)(vii) Notice of Offer to Purchase for Cash.
(a)(l)(viii) Text of Press Release issued by ERI Acquisition Corp. on
December 20, 2004.
(a)(l)(ix)* Proposal Letter to Elmer's Restaurants, Inc. dated August 5,
2004.
(a)(1)(x) Letter to the Shareholders of Elmer's Restaurants, Inc. from ERI
Acquisition Corp., dated December 20, 2004.
(b)(i) Financing Proposal from GE Capital Franchise Finance Corporation
dated October 5, 2004.
(b)(ii) Loan Commitment from GE Capital Franchise Finance Corporation
dated December 3, 2004.
(c) Report of Veber Partners, LLC dated September 17, 2004.
(d) Exchange Agreement dated December 20, 2004.
* Previously filed with the SEC as an exhibit to that certain Schedule TO-C
dated August 9, 2004.
8