UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
QUIXOTE CORPORATION
(Name of Subject Company (Issuer))
THP MERGER CO.
(Offeror)
a wholly-owned subsidiary of
TRINITY INDUSTRIES, INC.
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror issuer or other person))
Common Stock,
$0.012/3 par value per share (including the associated
Series C Junior Participating Preferred Stock Purchase Rights)
(Title of Class of Securities)
749056107
(CUSIP Number of Class of Securities)
S. Theis Rice, Esq.
Chief Legal Officer
Trinity Industries, Inc.
2525 Stemmons Freeway
Dallas, Texas 75207
Telephone: (214) 631-4420
(Name, address, and telephone numbers of person authorized to
receive notices and communications on behalf of filing persons)
Copy to:
Mary R. Korby, Esq.
Weil, Gotshal & Manges LLP
200 Crescent Court, Suite 300
Dallas, Texas 75201
Telephone: (214) 746-7700
CALCULATION OF FILING FEE
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Transaction Valuation(1) |
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Amount of Filing Fee(2) |
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$61,120,678 |
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4,357.90 |
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Estimated for purposes of calculating the filing
fee only. The transaction valuation was calculated
by adding (i) 9,333,867 shares of common stock, par
value $0.012/3 per share, of
Quixote Corporation, outstanding multiplied by the
offer price of $6.38 per share, (ii) 233,000 shares
of common stock, par value
$0.012/3 per share, of Quixote
Corporation, which were subject to issuance
pursuant to the exercise of outstanding options
that have an exercise price of less than $6.38,
multiplied by $6.38 and (iii) 210,166 shares of
common stock, par value $0.012/3
per share, of Quixote Corporation, which were
subject to issuance pursuant to the exercise of
outstanding options that have an exercise price
equal to or greater than $6.38 and are not held by
directors and certain executive officers of Quixote
Corporation, multiplied by $0.40 (the actual
consideration payable in respect of such options).
1,621,622 shares of common stock, par value
$0.012/3 per share, of Quixote
Corporation reserved for issuance upon conversion
of the 7% convertible notes of Quixote Corporation
due 2025 have been excluded from the calculation
because the conversion price of those notes ($25.90
per share) exceeds the offer price of $6.38. The
calculation of the filing fee is based on Quixote
Corporation’s representation of its capitalization
as of December 29, 2009. |
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The filing fee was calculated in accordance with
Rule 0-11 under the Securities Exchange Act of 1934
by multiplying the transaction value by 0.00007130. |
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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. |
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Amount Previously Paid: $4,357.90
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Filing Party: Trinity Industries, Inc. |
Form of Registration No.: Schedule TO
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Date Filed: January 7, 2010 |
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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:
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Third-party tender offer subject to Rule 14d-1. |
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Issuer tender offer subject to Rule 13e-4. |
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Going-private transaction subject to Rule 13e-3. |
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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. o
This Amendment No. 1 to the Tender Offer Statement on Schedule TO (this “Amendment”), filed
with the Securities and Exchange Commission (the “SEC”) on January 14, 2010, amends and supplements
the Tender Offer Statement on Schedule TO filed on January 7, 2010 (the “Schedule TO”), and relates
to the offer by THP Merger Co., a Delaware corporation (the “Purchaser”), to purchase all of the
outstanding shares of common stock, $0.012/3 par value (including the associated
preferred stock purchase rights,
the “Shares”), of Quixote Corporation, a Delaware corporation (“Quixote”), at a purchase price of
$6.38 per Share (the “Offer Price”), net to the seller in cash, without interest thereon and less
any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer
to Purchase dated January 7, 2010 (which, together with any amendments and supplements thereto,
collectively constitute the “Offer to Purchase”) and in the related Letter of Transmittal, copies
of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively (which,
together with the Offer to Purchase, as each may be amended or supplemented from time to time,
collectively constitute the “Offer”). The Schedule TO (including the Offer to Purchase) filed with
the SEC by Trinity Industries, Inc. (“Parent”), the parent of Purchaser, on January 7, 2010, and
the Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC by Quixote on
January 7, 2010 (and any further amendments thereto), contain important information about the
Offer, all of which should be read carefully by Quixote stockholders before any decision is made
with respect to the Offer.
Documentation relating to the Offer has been mailed to Quixote’s stockholders and may be
obtained at no charge at the website maintained by the SEC at www.sec.gov and may also be obtained
at no charge by directing a request by mail to D.F. King & Co., Inc., 48 Wall Street, New York, New
York 10005, or by calling toll-free at (800) 290-6427.
All information set forth in the Offer to Purchase and the related Letter of Transmittal is
incorporated by reference in answer to Items 1 through 12 in the Schedule TO, except those items as
to which information is specifically provided herein. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Offer to Purchase.
Item 11. Additional Information.
Item 11 (a)(5) of the Schedule TO is hereby amended and supplemented by replacing “None.” with
the following paragraph:
“On January 13, 2010, a lawsuit related to the Offer and the Merger was filed in the Circuit
Court of Cook County, Illinois County Department, Chancery Division, Superior Partners, on Behalf
of Itself and All Others Similarly Situated vs. Leslie J. Jezuit, Bruce Reimer, Daniel P. Gorey,
Robert D. van Roijen, Lawrence C. McQuade, Duane M. Tyler, Clifford D. Nastas, Quixote Corporation
and Trinity Industries, Inc. (Cause No. 10-CH-01613). The action is brought by Superior Partners,
which claims to be a stockholder of Quixote, on its own behalf and on behalf of all others
similarly situated, and seeks certification as a class action on behalf of all Quixote’s
stockholders, except the defendants and their affiliates. The lawsuit names Quixote Corporation,
each of Quixote’s directors and Parent as defendants. The lawsuit alleges, among other things, that
Quixote directors breached their fiduciary duties by (i) causing Quixote to enter into the Merger
Agreement even though there was an unfair process and inadequate consideration; (ii) receiving
certain personal compensation that they would not otherwise receive at this time absent the Merger;
and (iii) providing materially misleading and/or failing to provide certain material information in
the Recommendation Statement. In addition, the lawsuit alleges that Parent aided and abetted such
alleged breaches of fiduciary duties by Quixote’s directors. Based on these allegations, the
lawsuit seeks, among other relief, (i) compensatory and/or rescissory damages as allowed by law and
(ii) interest, attorney’s fees, expert fees and other costs in an amount to be determined. A copy
of the complaint filed by Superior Partners is filed as Exhibit (a)(5)(G) to the Schedule TO and
is incorporated herein by reference.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
(a)(5)(G) Complaint captioned Superior Partners, on Behalf of Itself and All Others Similarly
Situated vs. Leslie J. Jezuit, Bruce Reimer, Daniel P. Gorey, Robert D. van Roijen, Lawrence C.
McQuade, Duane M. Tyler, Clifford D. Nastas, Quixote Corporation and Trinity Industries, Inc.,
filed on January 13, 2010, in the Circuit Court of Cook County, Illinois County Department,
Chancery Division