SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
ODWALLA, INC.
(Name of Subject Company (Issuer))
TCCC ACQUISITION CORP.
AND
THE COCA-COLA COMPANY
(OFFERORS)
(Names of Filing Persons (identifying status as offeror,
issuer or other person))
COMMON STOCK, NO PAR VALUE PER SHARE
(Title of Class of Securities)
676111107
(Cusip Number of Class of Securities)
THE COCA-COLA COMPANY
AND
TCCC ACQUISITION CORP.
C/O THE COCA-COLA COMPANY
ONE COCA-COLA PLAZA
ATLANTA, GEORGIA 30313
ATTENTION: CHIEF FINANCIAL OFFICER AND GENERAL COUNSEL
TELEPHONE: 404-676-2121
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
Copies To:
C. WILLIAM BAXLEY, ESQ.
ALANA L. GRIFFIN, ESQ.
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
TELEPHONE: (404) 572-4600
NOVEMBER 20, 2001
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE
$199,191,108 $39,839
* For the purpose of calculating the fee only, this amount assumes the
purchase of 13,060,712 shares of Common Stock, no par value per share, of
Odwalla at a purchase price of $15.25 per share. Such number includes all
outstanding shares as of October 25, 2001, and assumes the exercise of all
in-the-money stock options and warrants to purchase shares of Common Stock
which are outstanding as of such date.
[X] 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: $39,839
Form or Registration No.: Schedule TO-C
Filing Party: TCCC Acquisition Corp. and
The Coca-Cola Company
Date Filed: October 30, 2001
[ ] 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-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: [ ]
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
This Amendment No. 1 amends and supplements the Tender Offer Statement
on Schedule TO (the "Schedule TO") filed with the Securities and Exchange
Commission on November 6, 2001 by The Coca-Cola Company, a Delaware corporation
("TCCC"), and TCCC Acquisition Corp., a California corporation and a wholly
owned subsidiary of TCCC (the "Offeror"). The Schedule TO relates to the offer
by the Offeror to purchase all the outstanding shares of common stock, no par
value (the "Shares"), of Odwalla, Inc., a California corporation ("Odwalla"), at
a purchase price of $15.25 per Share, net to the seller in cash, less any
required withholding taxes and without interest thereon (the "Offer Price"),
upon the terms and subject to the conditions set forth in the related offer to
purchase dated November 6, 2001 (the "Offer to Purchase"), and in the related
letter of transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer"). Capitalized terms used herein but
not otherwise defined have the meanings ascribed to such terms in the
Schedule TO.
ITEMS 1 THROUGH 9, 11 and 12
Items 1 through 9, 11 and 12 of the Schedule TO which incorporate by
reference the information contained in the Offer to Purchase are hereby amended
as follows:
1. The seventh paragraph in the section of the Offer to Purchase
entitled "Acceptance for Payment and Payment for Shares"
beginning on page 11 is hereby amended and restated in its
entirety as follows:
"If any tendered Shares are not accepted for payment for any
reason pursuant to the terms and conditions of the Offer, or
if Share Certificates are submitted for more Shares than are
tendered, Share Certificates evidencing unpurchased or
untendered Shares will be returned without expense to the
tendering shareholder (or, in the case of Shares tendered by
book-entry transfer into the Depositary's account at the
Book-Entry Transfer Facility pursuant to the procedures set
forth in Section 3, such Shares will be credited to an
account maintained at the Book-Entry Transfer Facility),
promptly following the expiration, termination or withdrawal
of the Offer."
2. The first sentence of the first paragraph in the section of
the Offer to Purchase entitled "Certain United States Federal
Income Tax Consequences" beginning on page 16 is hereby
amended and restated to read in its entirety as follows:
"The following is a summary of the material United
States federal income tax consequences of the Offer and the
Merger to beneficial owners of Shares whose Shares are
purchased pursuant to the Offer or whose Shares are converted
to cash in the Merger."
3. The second paragraph in the subsection of the Offer to
Purchase entitled "Certain Information Concerning Odwalla -
Odwalla Projections" beginning on page 22 is hereby amended
by deleting the last sentence of such paragraph in its
entirety.
4. The first sentence of the third paragraph in the subsection
of the Offer Purchase entitled "Certain Information
Concerning Odwalla - Odwalla Projections" beginning on page
22 is hereby amended and restated to read in its entirety as
follows:
"Certain matters discussed and statements made
herein may constitute forward looking statements."
5. The first paragraph in the section of the Offer to Purchase
entitled "Certain Conditions of the Offer" beginning on page
44 is hereby amended and restated to read in its entirety as
follows:
"The following is a discussion of all of the
conditions to the Offer. Notwithstanding any other provision
of the Offer, and in addition to (and not in limitation of)
the Offeror's rights to extend and/or amend the Offer at any
time in its sole discretion prior to the Expiration Date or
the termination of the Offer (subject to the provisions of
the Merger Agreement), the Offeror's obligations under the
Merger Agreement pursuant to the Offer shall be subject to
the following conditions, and if such conditions are not
satisfied, the Offeror may delay the acceptance for payment
of or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act,
the payment for, any tendered Shares, and may terminate or
amend the Offer as to any Shares not then paid for:"
6. The last paragraph in the section of the Offer to Purchase
entitled "Certain Conditions of the Offer" beginning on page
44 is hereby amended and restated to read in its entirety as
follows:
"The foregoing conditions are for the sole benefit
of TCCC and the Offeror and may be asserted or waived by TCCC
or the Offeror, regardless of the circumstances giving rise
to any such condition (including any action or omission by
TCCC or the Offeror), in whole or in part and from time to
time in their sole discretion at any time prior to the
Expiration Date or the termination of the Offer. All of the
foregoing conditions, other than those involving receipt of
necessary governmental approvals, will be asserted, satisfied
or waived on or before the Expiration Date. The failure by
TCCC or the Offeror at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such
right; the waiver of any such right with respect to any
particular facts and circumstances shall not be deemed a
waiver with respect to any other facts and circumstances; and
each such
right shall be deemed an ongoing right and may be asserted at
any time and from time to time on or prior to the Expiration
Date or the termination of the Offer."
7. The section of the Offer to Purchase entitled "Certain Legal
Matters and Regulatory Approvals" beginning on page 46 is
hereby amended and supplemented by adding the following
paragraph as a new sixth paragraph:
"On November 19, 2001, the 15-day waiting period
applicable to the Offer under the HSR Act expired. The early
termination or expiration of the waiting period under the HSR
Act was a condition to the Offer, and such condition has now
been satisfied."
8. Item 12 of the Schedule TO is hereby amended and supplemented
to add:
"(a)(11) Press Release issued by The Coca-Cola Company on
November 20, 2001."
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.
THE COCA-COLA COMPANY
By: /s/ David M. Taggart
-------------------------------------------------
Name: David M. Taggart
--------------------------------------------
Title: Vice President and Treasurer
-------------------------------------------
TCCC ACQUISITION CORP.
By: /s/ Paul Etchells
-------------------------------------------------
Name: Paul Etchells
--------------------------------------------
Title: President
-------------------------------------------
Date: November 20, 2001
EXHIBIT INDEX
EXHIBIT
DESCRIPTION
NO.
*(a)(1) Offer to Purchase dated November 6, 2001.
*(a)(2) Form of Letter of Transmittal.
*(a)(3) Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
*(a)(4) Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
*(a)(5) Form of Notice of Guaranteed Delivery.
*(a)(6) Guidelines for Certification of Taxpayer Identification Number on substitute Form W-9.
*(a)(7) Instructions for Form W-8BEN.
*(a)(8) Summary Advertisement as published on November 6, 2001.
*(a)(9) Press Release jointly issued by Odwalla and TCCC on October 30, 2001.
*(a)(10) Press Release issued by TCCC on November 6, 2001.
(a)(11) Press Release issued by TCCC on November 20, 2001.
*(d)(1) Agreement and Plan of Merger, dated October 29, 2001, by and among The Coca-Cola Company, Perry
Phillip Corp. and Odwalla, Inc. (Incorporated by reference from Appendix A to the Offer to
Purchase filed as Exhibit (a)(1) hereto.)
*(d)(2) Form of Tender Agreement with voting agreement, dated October 29, 2001, by and among the Tendering
Shareholders, The Coca-Cola Company and Perry Phillip Corp. (Incorporated by reference from Appendix B to the
Offer to Purchase filed as Exhibit (a)(1) hereto.)
*(d)(3) Form of Tender Agreement without voting agreement, dated October 29, 2001, by and among the Tendering
Shareholders, The Coca-Cola Company and Perry Phillip Corp. (Incorporated by reference from Appendix C to the
Offer to Purchase filed as Exhibit (a)(1) hereto.)
*(d)(4) Stock Option Agreement dated as of October 29, 2001, by and among Odwalla, Inc., The Coca-Cola Company and Perry
Phillip Corp. (Incorporated by reference from Appendix D to the Offer to Purchase filed as Exhibit (a)(1) hereto.)
*(d)(5) Employment Agreement, made October 29, 2001 by and between Odwalla, Inc. and D. Stephen C. Williamson.
---------
* Previously filed