APEX ACQUISITION CORPORATION SC TO-T/A
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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. 6)
APPLICA INCORPORATED
(Name of Subject Company (Issuer))
Apex Acquisition Corporation
NACCO Industries, Inc.
(Names of Filing Persons (Offerors))
Common Stock, par value $0.10 per share
(Title of Class of Securities)
03815A106
(CUSIP Number of Class of Securities)
Charles A. Bittenbender, Esq.
Vice President, General Counsel, and Secretary
NACCO Industries, Inc.
5875 Landerbrook Drive
Cleveland, Ohio 44124
(440) 449-9600
(Name, Address and Telephone Numbers of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Thomas C. Daniels, Esq.
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114-1190
(216) 586-3939
CALCULATION OF FILING FEE
     
Transaction Valuation*   Amount of Filing Fee**
$207,385,710   $22,190.27
*For purposes of calculating the filing fee pursuant to Rule 0-11(d) only, the Transaction Valuation was calculated on the basis of (i) the aggregate of 25,762,200 shares of common stock, par value $0.10 per share, of Applica Incorporated outstanding on a fully diluted basis consisting of (a) 25,001,100 shares of common stock outstanding and (b) 761,100 shares of common stock subject to outstanding options granted under Applica’s equity incentive plans and (ii) the tender offer price of $8.05 per Share (as defined herein).
** The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, is calculated by multiplying the Transaction Valuation by 0.000107.
ý 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: $413.49
  Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc.
Form or Registration No.: Schedule TO-T/A
  Date Filed: January 9, 2007
Amount Previously Paid: $689.13
  Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc.
Form or Registration No.: Schedule TO-T/A
  Date Filed: January 3, 2007
Amount Previously Paid: $1,378.28
  Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc.
Form or Registration No.: Schedule TO-T/A
  Date Filed: December 26, 2006
Amount Previously Paid: $1,378.28
  Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc.
Form or Registration No.: Schedule TO-T/A
  Date Filed: December 21, 2006
Amount Previously Paid: $17,917.61
  Filing Party: Apex Acquisition Corporation/NACCO Industries, Inc.
Form or Registration No.: Schedule TO-T
  Date Filed: December 15, 2006
o      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:
ý      third-party tender offer subject to Rule 14d-1.
o      issuer tender offer subject to Rule 13e-4.
o      going-private transaction subject to Rule 13e-3.
o      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


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Item 12. Exhibits.
SIGNATURE
EXHIBIT INDEX
EX-A.5.VI
EX-A.5.VII
EX-A.5.VIII


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Items 1 through 9, and Item 11.
    This Amendment No. 6 (this “Amendment”) to the Tender Offer Statement on Schedule TO amends and supplements the tender offer statement originally filed with the Securities and Exchange Commission on December 15, 2006, as amended (as so amended and supplemented, the “Schedule TO”), by Apex Acquisition Corporation, a Florida corporation (“Purchaser”) and a newly formed, indirect, wholly owned subsidiary of NACCO Industries, Inc., a Delaware corporation (“NACCO”). The Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.10 per share (the “Shares”), of Applica Incorporated, a Florida corporation (the “Company”), other than Shares held by NACCO or its affiliates, at a price of $7.90 per Share, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer To Purchase dated December 15, 2006, as amended, and in the related Letter of Transmittal (which, together with the Offer To Purchase and any amendments or supplements thereto constitute the “Offer”). Capitalized terms used but not defined herein have the meanings specified in the Offer To Purchase and the Schedule TO. The item numbers referenced herein are in accordance with the requirements of Schedule TO. Except as specifically provided herein, this Amendment does not modify any of the information previously reported on Schedule TO.
     The price per Share to be paid pursuant to the Offer has been increased from $7.90 per Share to $8.05 per Share, net to the seller in cash, without interest. The full text of the press release issued by NACCO on January 16, 2007, announcing the increase in the Offer Price and extending the Expiration Date is filed herewith as Exhibit (a)(5)(vi).
     The Offer To Purchase and the related Letter of Transmittal, together with the Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, and the Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, are each hereby amended to delete all references to the Offer Price of $7.90 per Share and to replace them with references to $8.05 per Share except in the paragraph of “The Offer — Section 11. Contacts and Transactions with the Company; Background of the Offer” describing the price increase made by Purchaser and NACCO on January 9, 2007.
     The Offer To Purchase and the related Letter of Transmittal, together with the Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, and the Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, are each hereby amended to delete all references to the January 23, 2007 Expiration Date and to replace them with references to a January 29, 2007 Expiration Date.
     On January 9, 2007, the Company sent a letter to NACCO in response to NACCO’s increase of the Offer Price on January 9, 2007, from $7.75 per Share to $7.90 per Share. The full text of the Company’s letter sent to NACCO on January 9, 2007, is filed herewith as Exhibit (a)(5)(vii).
     On January 11, 2007, NACCO responded in writing to the Company’s January 9, 2007 letter to address certain issues raised therein. The full text of NACCO’s response letter sent to the Company on January 11, 2007, is filed herewith as Exhibit (a)(5)(viii).
     The Offer To Purchase is hereby amended as follows:
  1.   The second paragraph under the question “What does the Company Board recommend regarding the offer?” in the “Summary Term Sheet” is hereby amended and restated in its entirety to read as follows:
      “On January 12, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the Securities and Exchange Commission (the “SEC”) in connection with the offer recommending that the Company’s shareholders reject the offer and not tender their Shares in the offer. Our obligation to purchase shares under the offer is subject to the condition that the Company Board shall have either recommended that the holders of shares accept the offer and tender their shares in the offer, taken a neutral position with respect to the offer or not recommended against the offer. See “The Offer — Section 14. Conditions to the Offer.” Satisfaction of this

 


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      condition will require the Company Board to change its current recommendation.”
  2.   The twelfth paragraph of the “Introduction” is hereby amended and restated in its entirety to read as follows:
      “On January 12, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in connection with the Offer recommending that the Company’s shareholders reject the Offer and not tender their Shares in the Offer. The Schedule 14D-9 contains other important information, and Purchaser recommends that holders of Shares review it carefully. None of NACCO, Purchaser or any of their respective affiliates or representatives takes any responsibility for the disclosure included in or incorporated by reference into the Schedule 14D-9.”
  3.   The first sentence of “The Offer — Section 10. Source and Amount of Funds” is hereby amended and restated in its entirety to read as follows:
      “The total amount of funds required by Purchaser to complete the Offer and consummate the Merger, and expected to be incurred by Purchaser, is estimated to be approximately $201,250,796.95 plus any related transaction fees and expenses.”
  4.   The following is hereby added at the end of “The Offer — Section 11. Contacts and Transactions with the Company; Background of the Offer”:
      “On January 9, 2007, the Company sent a letter to NACCO in response to NACCO’s increase of the Offer Price from $7.75 per Share to $7.90 per Share. Although we believe that the Offer has substantially the same conditions precedent as those in the Harbinger Agreement, the Company stated in its letter that it considered our Offer highly conditional.
      On January 10, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in connection with the Offer stating that the Company had not changed its recommendation that the Company’s shareholders vote “FOR” the Harbinger Agreement. The Schedule 14D-9 stated that the Offer was under review by the Company Board and the Company would advise the Company’s shareholders of the results of the review as soon as possible. The Company requested in the Schedule 14D-9 that the Company’s shareholders defer making a determination whether to accept or reject the Offer until they had been advised by the Company Board.
      In addition, on January 10, 2007, representatives of NACCO held discussions with representatives of the Company to seek clarification of certain items contained in the Company’s January 9, 2007 letter.
      Also, on January 10, 2007, NACCO voluntarily dismissed, without prejudice, its complaint against the Company and Harbinger, filed in the United States District Court, Northern District of Ohio, Eastern Division.
      On January 11, 2007, NACCO responded in writing to the Company’s January 9, 2007 letter to address certain issues raised therein.
      On January 12, 2007, the Company filed an amended Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC in connection with the Offer recommending that the Company’s shareholders reject the Offer and not tender their Shares in the Offer. The Schedule 14D-9 contains other important information, and Purchaser recommends that holders of Shares review it carefully. None of NACCO, Purchaser or any of their respective affiliates or representatives takes any responsibility for the disclosure included in or incorporated by reference into the Schedule 14D-9.
      On January 16, 2007, Purchaser and NACCO increased the Offer Price to $8.05 per Share, net to the seller in cash, without interest and extended the Expiration Date of the Offer.”

 


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Item 12. Exhibits.
     Item 12 of the Schedule TO is hereby amended and supplemented to add the following exhibit:
     
(a)(5)(vi)
  Press release issued by NACCO, dated January 16, 2007
(a)(5)(vii)
  Letter from the Company to NACCO, dated January 9, 2007
(a)(5)(viii)
  Letter from NACCO to the Company, dated January 11, 2007

 


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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.
         
Date: January 16, 2007   Apex Acquisition Corporation
 
       
 
  By:   /s/ Charles A Bittenbender
 
       
 
      Name: Charles A. Bittenbender
 
      Title: Secretary
 
       
    NACCO Industries, Inc.
 
       
 
  By:   /s/ Charles A Bittenbender
 
       
 
      Name: Charles A. Bittenbender
 
      Title: Vice President, General Counsel, and Secretary

 


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EXHIBIT INDEX
     
Exhibit   Description
(a)(1)(A)
  Offer To Purchase, dated December 15, 2006*
(a)(1)(B)
  Letter of Transmittal*
(a)(1)(C)
  Notice of Guaranteed Delivery*
(a)(1)(D)
  Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
(a)(1)(E)
  Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
(a)(1)(F)
  Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9*
(a)(1)(G)
  Press release issued by NACCO, dated December 15, 2006*
(a)(1)(I)
  Summary advertisement, published December 15, 2006*
(a)(5)(i)
  Complaint filed on December 18, 2006 in the United Stated District Court for the Northern District of Ohio, Eastern Division*
(a)(5)(ii)
  Press release issued by NACCO, dated December 21, 2006*
(a)(5)(iii)
  Press release issued by NACCO, dated December 26, 2006*
(a)(5)(iv)
  Press release issued by NACCO, dated January 3, 2007*
(a)(5)(v)
  Press release issued by NACCO, dated January 9, 2007*
(a)(5)(vi)
  Press release issued by NACCO, dated January 16, 2007
(a)(5)(vii)
  Letter from the Company to NACCO, dated January 9, 2007
(a)(5)(viii)
  Letter from NACCO to the Company, dated January 11, 2007
*   Previously filed.