UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No.
2
to
SCHEDULE TO
Tender Offer Statement Under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
WESTWAY GROUP, INC.
(Name of Subject Company (Issuer))
BISHOP INFRASTRUCTURE III
ACQUISITION COMPANY, INC.
(Offeror)
a wholly-owned subsidiary of
BISHOP INFRASTRUCTURE II ACQUISITION
COMPANY, INC.
(Other Person)
and a controlled affiliate of
EQT INFRASTRUCTURE II LIMITED PARTNERSHIP
(Other Person)
(Filing Persons)
Class A
Common Stock, Par Value $0.0001 Per Share
Class B Common Stock, Par Value $0.0001 Per Share
Series A Perpetual Convertible Preferred Stock, Par Value $0.0001 Per Share
Warrants to Purchase Class A Common Stock
(Title of Class of Securities)
96169B100
(Class A Common Stock)
None (Class B Common Stock)
None (Series A Perpetual Convertible Preferred Stock)
None (Warrants to Purchase Class A Common Stock)
(CUSIP Number of Class
of Securities)
Gideon J. Van der Ploeg
EQT Infrastructure II Limited Partnership
World Trade Center Schiphol
H Tower, Floor 4
Schiphol Boulevard 355
1118 BJ Schiphol, The Netherlands
(+31) 20 577-6670
(Name, address and telephone number of persons authorized to receive notices and communications on behalf of filing persons)
Copies to:
Matthew F. Herman, Esq.
Doug Bacon, Esq.
Freshfields Bruckhaus Deringer US LLP
601 Lexington Avenue, 31
st
Floor
New York, New York 10022
(212) 277-4000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$421,268,822.18
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$57,461.07
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*
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Estimated for purposes of calculating the amount of the filing fee only. The transaction valuation was calculated by adding the sum of (i)(A) 14,571,663 shares of Class
A Common Stock issued and outstanding, multiplied by (B) $6.70, (ii)(A) 13,652,763 shares of Class B Common Stock issued and outstanding, multiplied by (B) $6.70, (iii) (A) 33,321,892 shares of Preferred Stock issued and outstanding, multiplied by
(B) $6.79, and (iv) (A) 3,476,189 shares of Class A Common Stock subject to the outstanding Warrants, multiplied by (B) $1.70.
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**
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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 0.00013640.
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x
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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: $57,461.07.
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Filing Party:
Bishop
Infrastructure III Acquisition Company, Inc.
Bishop Infrastructure II Acquisition Company, Inc.
EQT Infrastructure II Limited Partnership.
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Form or Registration No.: Schedule TO.
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Date Filed: December 31, 2012.
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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x
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third-party tender offer subject to Rule 14d-1.
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¨
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issuer tender offer subject to Rule 13e-4.
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¨
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going-private transaction subject to Rule 13e-3.
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¨
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer:
¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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¨
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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¨
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission on December 31, 2012 (which, together with this Amendment and Amendment No. 1 filed on January 7, 2013, and any subsequent amendments and supplements thereto, collectively
constitute the “Schedule TO”) by Bishop Infrastructure III Acquisition Company, Inc., a Delaware corporation (the “Purchaser”), and a wholly-owned subsidiary of Bishop Infrastructure II Acquisition Company, Inc., a Delaware
corporation (the “Parent”), and a controlled affiliate of EQT Infrastructure II Limited Partnership, a limited partnership registered in England and Wales (the “Guarantor”). This Schedule TO relates to the offer by the Purchaser
to purchase for cash:
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•
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all of the outstanding shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), of Westway Group, Inc.,
a Delaware corporation (the “Company”), at a purchase price equal to $6.70 per share (the “Common Stock Offer Price”);
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•
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all of the outstanding shares of Class B common stock, par value $0.0001 per share (the “Class B Common Stock,” and together with the
Class A Common Stock, the “Common Stock”), of the Company at a purchase price per share equal to the Common Stock Offer Price;
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•
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all of the outstanding shares of Series A perpetual convertible preferred stock, par value $0.0001 per share (the “Preferred Stock,” and
together with the Common Stock, the “Shares”), of the Company at a purchase price equal to $6.79 per share (the “Preferred Stock Offer Price”); and
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•
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all of the outstanding warrants to purchase shares of Class A Common Stock (all of which have an exercise price of $5.00 per share of Class A
Common Stock, the “Warrants,” and together with the Shares, the “Securities”), at a purchase price per share of Class A Common Stock subject to each such Warrant (the “Warrant Shares”) equal to $1.70 (the
“Warrant Offer Price,” and together with the Common Stock Offer Price and the Preferred Stock Offer Price, the “Offer Price”),
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other than any Shares held by the Company as treasury stock or otherwise, in each case, net to the seller thereof in cash, without interest thereon and less any applicable withholding taxes, upon the
terms and subject to the conditions set forth in the offer to purchase, dated December 31, 2012 (as it may be amended or supplemented from time to time, the “Offer to Purchase”) and the related letter of transmittal (as it may be
amended or supplemented from time to time, the “Letter of Transmittal”) which, together with the Offer to Purchase, constitute the “Offer.” The Offer to Purchase and Letter of Transmittal are annexed to the Schedule TO as
Exhibits (a)(1) and (a)(2), respectively.
You should read this Amendment together with the Schedule TO. All information contained in the
Offer to Purchase and Letter of Transmittal, including the schedules thereto, is incorporated herein by reference in response to Items 1 through 9 and Item 11 in the Schedule TO, and is amended and supplemented by the information
specifically provided in this Amendment.
The Items of the Schedule TO are hereby amended and supplemented as follows:
Item 4. Terms of the Transaction
Item 4 of the Schedule TO, and the Offer to Purchase, to the extent incorporated by reference therein, are hereby amended and supplemented as set
forth below:
(1) Sub-paragraph (f) of Section 2 – “Certain Conditions of the Offer” is hereby deleted in its
entirety and and replaced with the following:
“the Company shall have failed to receive the consents identified on
Section A-1 of the Company Disclosure Letter, in each case, in a form reasonably acceptable to Parent, or any such consent shall have been revoked, challenged or contested.”
Item 12. Exhibits
Item 12 of the Schedule is hereby amended and supplemented as
follows:
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(d)(1)(i)
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Amendment No. 1 to Agreement and Plan of Merger, dated as of January 14, 2013, by and among the Parent, the Purchaser and the Company.
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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: January 16, 2013
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BISHOP INFRASTRUCTURE II ACQUISITION COMPANY, INC.
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By:
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/s/ G.J. Van der Ploeg
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Name:
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G.J. Van der Ploeg
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Title:
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Director
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By:
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/s/ M.H.J. Hedeman Joosten
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Name:
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M.H.J. Hedeman Joosten
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Title:
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Director
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BISHOP INFRASTRUCTURE III ACQUISITION COMPANY, INC.
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By:
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/s/ G.J. Van der Ploeg
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Name:
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G.J. Van der Ploeg
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Title:
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Director
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By:
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/s/ M.H.J. Hedeman Joosten
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Name:
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M.H.J. Hedeman Joosten
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Title:
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Director
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EQT INFRASTRUCTURE II LIMITED PARTNERSHIP
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By:
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EQT Infrastructure II GP B.V.
its General Partner
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By:
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/s/ G.J. Van der Ploeg
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Name:
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G.J. Van der Ploeg
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Title:
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Director
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By:
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/s/ M.H.J. Hedeman Joosten
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Name:
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M.H.J. Hedeman Joosten
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Title:
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Director
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EXHIBIT INDEX
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Exhibit
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Description
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(a)(1)*
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Offer to Purchase, dated December 31, 2012.
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(a)(2)*
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Form of Letter of Transmittal for Securities.
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(a)(3)*
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Form of Notice of Guaranteed Delivery.
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(a)(4)*
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
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(a)(5)*
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(6)*
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Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(7)(i)*
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Summary Advertisement as published in the Wall Street Journal on December 31, 2012.
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(a)(7)(ii)*
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Joint Press Release by the Guarantor and the Company, dated December 20, 2012.
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(a)(7)(iii)*
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Press Release by the Guarantor, dated December 20, 2012.
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(a)(7)(iv)*
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Press Release by the Company, dated January 7, 2013.
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(d)(1)*
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Agreement and Plan of Merger, dated as of December 20, 2012, by and among the Parent, the Purchaser and the Company.
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(d)(1)(i)
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Amendment No. 1 to Agreement and Plan of Merger, dated as of January 14, 2013, by and among the Parent, the Purchaser and the Company.
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(d)(2)*
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Limited Guarantee, dated as of December 20, 2012, by and among the Guarantor and the Company.
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(d)(3)*
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Confidentiality Agreement, dated as of October 30, 2012, by and among the Guarantor and the Company.
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(d)(4)*
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Support Agreement, dated as of December 20, 2012, by and among the Parent, the Purchaser, the Company and Agman Louisiana, Inc.
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(d)(5)*
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Support Agreement, dated as of December 20, 2012, by and among the Parent, the Purchaser, the Company and Mr. Francis P. Jenkins.
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(d)(6)*
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Support Agreement, dated as of December 20, 2012, by and among the Parent, the Purchaser, the Company and Mr. John E. Toffolon, Jr.
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(d)(7)*
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Management Participation Agreement, dated as of December 20, 2012, by and among the Parent and Mr. Wade Blanchard.
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(d)(8)*
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Management Participation Agreement, dated as of December 20, 2012, by and among the Parent and Mr. Robert C. Johnson.
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(d)(9)*
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Management Participation Agreement, dated as of December 20, 2012, by and among the Parent and Mr. Gene McClain.
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(d)(10)*
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Management Participation Agreement, dated as of December 20, 2012, by and among the Parent and Mr. Thomas A. Masilla, Jr.
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