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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
SCHEDULE 13E-3
AMENDMENT NO. 2
TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND RULE 13e-3 THEREUNDER
ANTHONY & SYLVAN POOLS CORPORATION
(Name of Issuer)
ANTHONY & SYLVAN POOLS CORPORATION
(Name of Person(s) Filing Statement)
Common Shares, No Par Value
(Title of Class of Securities)
036762102
(Cusip Number of Class of Securities)
Stuart D. Neidus
Chairman and Chief Executive Officer
Anthony & Sylvan Pools Corporation
6690 Beta Drive
Mayfield Village, Ohio 44143
(440) 720-3301
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
WITH COPIES TO:
Mary Ann Jorgenson
Squire, Sanders & Dempsey L. L. P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
(216) 479-8500
This statement is filed in connection with (check the appropriate box):
a. [ ] The filing of solicitation materials or an information statement subject
to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange
Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act of 1993.
c. [X] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [ ]
Check the following box if the filing is a final amendment reporting the results
of the transaction: [ ]
CALCULATION OF FILING FEE
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Transaction Valuation: Amount of Filing Fee
$34,400* $2.79
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* Calculated solely for the purpose of determining the filing fee, based upon
the odd-lot tender offer price of $4.00 per share for the eligible Common
Shares, multiplied by 8,600, the maximum number of shares to be purchased in the
offer.
[ ] 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: $2.79
Filing Party: Anthony & Sylvan Pools Corporation
Form or Registration No.: Schedule 13E-3
Date Filed: October 28, 2003
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INTRODUCTION
This Amendment No. 2 to Schedule 13E-3 amends and restates the Schedule 13E-3
(as amended and restated, the "Schedule 13E-3") filed on October 28, 2003, as
amended and restated by Amendment No. 1 filed on November 13, 2003 and the Offer
to Purchase dated October 28, 2003, as amended November 13, 2003 (as amended,
the "Offer to Purchase"), which is attached hereto as Exhibit (a)(l)(ii). The
Schedule 13E-3 and the Offer to Purchase relate to the offer by Anthony & Sylvan
Pools Corporation (the "Company") to purchase for cash (the "Offer") all of the
Company's common shares, no par value (the "Common Shares"), held by
shareholders that own 99 or fewer Common Shares as of the close of business on
October 23, 2003 (the "Record Date"). The Offer is an "odd-lot tender offer"
pursuant to Rule 13e-4(h)(5) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). In addition, because the Offer has a reasonable
likelihood or a purpose of causing the Common Shares to be held of record by
fewer than 300 persons, the Offer is a "Rule 13e-3 transaction" as defined in
Rule 13e-3(a)(3) under the Exchange Act. As a result, the Company is hereby
filing the Schedule 13E-3 as required under the Exchange Act.
ITEM 1: SUMMARY TERM SHEET.
The information set forth in "Summary of Terms" and "Questions and
Answers" of the Offer to Purchase is incorporated herein by reference.
ITEM 2: SUBJECT COMPANY INFORMATION.
(a) The name of the subject company is Anthony & Sylvan Pools
Corporation. The Company's principal executive office is
located at 6690 Beta Drive, Mayfield Village, Ohio 44143 and
its telephone number is (440) 720-3301.
(b) The Company's Common Shares, no par value, are the subject
class of equity securities of this Schedule 13E-3. As of
October 23, 2003, 5,341,931 Common Shares were issued and
outstanding.
(c) The information set forth in "Information About the
Company--Market Price and Dividend Information" of the Offer
to Purchase is incorporated herein by reference.
(d) The information set forth in "Information About the
Company--Market Price and Dividend Information" of the Offer
to Purchase is incorporated herein by reference.
(e) During the past three years, the Company has not made any
underwritten public offering of Common Shares.
(f) The information set forth in "Information About the
Company--Share Repurchases" is incorporated herein by
reference.
ITEM 3: IDENTITY AND BACKGROUND OF FILING PERSON.
(a) The Company is the filing person for this Schedule 13E-3. The
information set forth in "Management Information--Directors
and Executive Officers" of the Offer to Purchase is
incorporated herein by reference.
(b) Not applicable.
(c) The information set forth in "Management
Information--Directors and Executive Officers" of the Offer to
Purchase is incorporated herein by reference.
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ITEM 4: TERMS OF THE TRANSACTION.
(a) The information set forth in "Summary of Terms," "Questions
and Answers," "Special Factors" and "Terms of the Offer" of
the Offer to Purchase is incorporated herein by reference.
(c) The Offer is an "odd-lot tender offer" and is being conducted
pursuant to Rule 13e-4(h)(5) under the Exchange Act. In
addition, the information set forth in "Summary of Terms,"
"Questions and Answers--Am I eligible to participate in the
offer?" and "Terms of the Offer--General" of the Offer to
Purchase is incorporated herein by reference.
(d) The information set forth in "Terms of the Offer - No
Dissenters Rights; No Shareholder Vote" of the Offer to
Purchase is incorporated herein by reference.
(e) None.
(f) Not applicable.
ITEM 5: PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a)-(c) The information set forth in "Special Factors - Our
Reasons for Pursuing the Offer," and "Special Factors --Recent
Transactions, Negotiations and Contacts" of the Offer to
Purchase is incorporated herein by reference.
(e) None.
ITEM 6: PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(b) All Common Shares purchased in the Offer will become treasury
shares. The information set forth in "Special Factors--Effects
of the Offer; Plans After Completing the Offer" is
incorporated herein by reference.
(c) The information set forth in "Summary of Terms," "Questions
and Answers," "Special Factors--Purposes of the Offer" and
"Special Factors--Effects of the Offer; Plans After Completing
the Offer" is incorporated herein by reference.
Except as otherwise provided in the Offer to Purchase, there are no
plans, proposals or negotiations that would result in:
(i) any extraordinary transaction, such as a merger,
reorganization or liquidation, involving the Company
or any of its subsidiaries;
(ii) any purchase, sale or transfer of a material amount
of assets of the Company or any of its subsidiaries;
(iii) any material change in the present dividend rate or
policy, or indebtedness or capitalization of the
Company;
(iv) any change in the present board of directors or
management of the Company including, but not limited
to, any plans or proposals to change the number or
the term of directors or to fill any existing
vacancies on the board or to change any material term
of the employment contract of any executive officer;
or
(v) any other material change in the Company's corporate
structure or business.
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ITEM 7: PURPOSES, ALTERNATIVES, REASONS AND EFFECT.
(a) The information set forth in "Summary of Terms," "Questions
and Answers" and "Special Factors--Purposes of the Offer" is
incorporated herein by reference.
(b) The information set forth in "Special Factors--Our Reasons for
Pursuing the Offer" is incorporated herein by reference.
(c) The information set forth in "Summary of Terms," "Questions
and Answers," "Special Factors--Purposes of the Offer" and
"Special Factors--Our Reasons for Pursuing the Offer" is
incorporated herein by reference.
(d) The information set forth in "Summary of Terms," "Questions
and Answers," "Special Factors--Purposes of the Offer,"
"Special Factors--Potential Adverse Effects of the Offer,"
"Special Factors--Effects of the Offer; Plans After Completing
the Offer" and "Special Factors--Certain U.S. Federal Income
Tax Considerations" is incorporated herein by reference.
ITEM 8: FAIRNESS OF THE TRANSACTION.
(a)-(f) The information set forth in "Special Factors--Our
Position as to the Fairness of the Offer to Unaffiliated
Shareholders" is incorporated herein by reference.
ITEM 9: REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
(a)-(c) The Company has not obtained any report, opinion, or appraisal
relating to the fairness of the consideration to be offered to
security holders or the fairness of the transaction. The
Company received from Rhone Group LLC historical analyses of
trading price, volume and liquidity prepared from publicly
available data. The information set forth in "Special
Factors--Our Position as to the Fairness of the Offer to
Unaffiliated Shareholders" is incorporated herein by
reference.
ITEM 10: SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in "Terms of the Offer--Source and
Amount of Funds" of the Offer to Purchase is incorporated
herein by reference.
(b) Not applicable.
(c) The information set forth in "Terms of the Offer--Fees and
Expenses" of the Offer to Purchase is incorporated herein by
reference. The foregoing expenses will be paid by the Company.
(d) Not applicable.
ITEM 11: INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information set forth in "Management
Information--Beneficial Ownership of Directors and Executive
Officers" of the Offer to Purchase is incorporated herein by
reference.
(b) None.
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ITEM 12: THE SOLICITATION OR RECOMMENDATION.
(d) The Company has not granted any shareholder (including any
executive officer, director or affiliate) any voting,
appraisal or dissenters' rights in connection with the Offer.
No executive officer, director or affiliate is eligible to
participate in the Offer.
(e) No executive officer, director or affiliate of the Company has
made any recommendation to holders of Common Shares either in
support of or opposed to the Offer.
ITEM 13: FINANCIAL STATEMENTS.
(c) The information set forth in "Summary Consolidated Financial
Information" and "Where You Can Find Additional Information"
of the Offer to Purchase is incorporated herein by reference.
ITEM 14: PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) The Company has retained Georgeson Shareholder to act as
Information Agent and Alpine Fiduciary Services, Inc. to act
as Depositary for the Offer. Neither the Information Agent nor
the Depositary has been authorized to make any recommendation
in respect of the Offer. The Information Agent and the
Depositary will be paid customary fees and expenses for their
services.
(b) Tenders may be solicited by directors, officers and employees
of the Company in person, by telephone or through other forms
of communication, but such persons will not receive any
additional compensation for such solicitation. Additionally,
employees of the Company may perform administrative tasks in
connection with the Offer, and they will not be separately
compensated for such services.
ITEM 15: ADDITIONAL INFORMATION.
(b) The information set forth in the Offer to Purchase is
incorporated herein by reference.
ITEM 16: EXHIBITS.
(a)(1) Offer to Purchase, dated October 28, 2003.*
(a)(1)(i) Offer to Purchase, dated October 28, 2003, as
amended on November 13, 2003.**
(a)(1)(ii) Offer to Purchase, dated October 28, 2003, as
amended on November 19, 2003.
(a)(2) Acceptance Card to Record Holders.*
(a)(3) Acceptance Card to Beneficial Holders.*
(a)(4) Press release dated November 13, 2003.**
(a)(5) Press release dated November 19, 2003.
(c) Preliminary Draft discussion materials prepared by Rhone
Group LLC.
* Previously filed by the Company on Schedule 13E-3, dated
October 28, 2003.
** Previously filed by the Company on Amendment No. 1 to
Schedule 13E-3, dated November 13, 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.
ANTHONY & SYLVAN POOLS CORPORATION
By: /s/ STUART D. NEIDUS
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Name: Stuart D. Neidus
Title: Chairman and Chief Executive Officer
Dated: November 19, 2003
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
(a)(1) Offer to Purchase, dated October 28, 2003.*
(a)(1)(i) Offer to Purchase, dated October 28, 2003, as
amended on November 13, 2003.**
(a)(1)(ii) Offer to Purchase, dated October 28, 2003, as
amended on November 19, 2003.
(a)(2) Acceptance Card to Record Holders.*
(a)(3) Acceptance Card to Beneficial Holders.*
(a)(4) Press release dated November 13, 2003.**
(a)(5) Press release dated November 19, 2003.
(c) Preliminary draft discussion materials prepared
by Rhone Group LLC.
* Previously filed by the Company on Schedule 13E-3, dated
October 28, 2003.
** Previously filed by the Company on Amendment No. 1 to
Schedule 13E-3, dated November 13, 2003.
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