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. 4)
HENNESSY CAPITAL ACQUISITION CORP.
(Name of Subject Company (issuer) and Name of Filing Person (Issuer))
Warrants exercisable for Common Stock at an exercise price of $11.50 per whole share
(Title of Class of Securities)
425886 116
(CUSIP Number of Common Stock Underlying Warrants)
Daniel J. Hennessy
Chairman and Chief Executive Officer
Hennessy Capital Acquisition Corp.
700 Louisiana Street, Suite 900
Houston, Texas 77002
Telephone: 713-300-8242
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Jeffrey N. Smith, Esq.
Michael P. Heinz, Esq.
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Telephone: (312) 853-7000
Stuart Neuhauser, Esq.
Joshua N. Englard, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105-0302
Telephone: (212) 370-1300
CALCULATION OF FILING FEE
| Transaction valuation* | Amount of filing fee** | |
| $2,300,000 | $267.26 | |
| * | Estimated for purposes of calculating the amount of the filing fee only. Hennessy Capital Acquisition Corp. (the “Company”) is offering holders of up to 5,750,000 of the Company’s warrants exercisable for shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), at an exercise price of $5.75 per half share ($11.50 per whole share), subject to adjustment (the “Warrants”), the opportunity to exchange such Warrants for Shares by tendering one Warrant in exchange for 0.1 of a Share. The transaction value was determined by using the average of the high and low prices of the Warrants as reported on the Nasdaq Capital Market on January 6, 2015, which was $0.40. |
| ** | Previously paid. The amount of the filing fee assumes that all 5,750,000 Warrants will be exchanged and is calculated pursuant to Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, which equals $116.20 for each $1,000,000 of the value of the transaction. |
| 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: $ 267.26 | Filing Party: Hennessy Capital Acquisition Corp. | |
| Form or Registration No.: Schedule TO-I | Date Filed: January 7, 2015 |
| ¨ | 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:
| ¨ | third-party tender offer subject to Rule 14d-1. |
| x | 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: ¨
SCHEDULE TO
This Amendment No. 4 (this “Amendment”) hereby amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission (“SEC”) by Hennessy Capital Acquisition Corp., a Delaware corporation (“Hennessy Capital” or the “Company”), on January 7, 2015 (as amended and supplemented, the “Schedule TO”), in connection with the offer by the Company to all holders of the Company’s outstanding warrants exercisable for shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), at an exercise price of $5.75 per half share ($11.50 per whole share), subject to adjustment (the “Warrants”), to exchange 0.1 of a Share in exchange for every Warrant tendered by the holders thereof (approximately one Share for every ten Warrants tendered), up to a maximum of 5,750,000 Warrants, subject to proration, as described in the Schedule TO. The offer is subject to the terms and conditions set forth in the Amended and Restated Offer to Exchange, dated January 21, 2015 (the “Offer to Exchange”), a copy of which was filed as Exhibit (a)(1)(E) to the Schedule TO, and in the related Amended and Restated Letter of Transmittal, a copy of which was filed as Exhibit (a)(1)(F) to the Schedule TO (the “Letter of Transmittal” which, together with the Offer to Exchange, as they may be further amended or supplemented from time to time, constitute the “Offer”).
This Amendment No. 4 to Schedule TO, as it amends and supplements the Schedule TO, is intended to satisfy the reporting requirements of Rule 13e-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Only those items reported in this Amendment are amended or supplemented. Except as specifically provided herein, the information contained in the Schedule TO, the Offer to Exchange and the related Letter of Transmittal remains unchanged. This Amendment should be read in conjunction with the Schedule TO, the Offer to Exchange and the Letter of Transmittal. Capitalized terms used and not defined herein have the meanings assigned to such terms in the Offer to Exchange.
Items 1 through 11.
Items 1 through 11 are hereby amended and supplemented as follows:
| 1. | The risk factor that begins with the caption “We have received a deficiency letter from Nasdaq, and we do not expect to regain compliance with Nasdaq’s listing requirements by the date required by Nasdaq…” on page 10 of the Offer to Exchange is hereby replaced with the following: |
We have received a delisting letter from Nasdaq, and there can be no assurance that our securities will continue to be listed on Nasdaq, which could limit investors’ ability to make transactions in our securities and subject us to additional trading restrictions.
On August 7, 2014, we received a letter from the Listing Qualifications Department of The Nasdaq Stock Market indicating that the staff of Nasdaq (the “Nasdaq Staff”) does not believe the Company is currently in compliance with Listing Rule 5550(a)(3) (the “Minimum Holders Rule”), which requires the Company to have at least 300 public holders for continued listing on Nasdaq. On September 22, 2014, the Company submitted a plan to Nasdaq to regain compliance with the Minimum Holders Rule and ensure compliance with Nasdaq’s initial listing requirements at closing. On September 30, 2014, the Nasdaq Staff granted the Company an extension until February 3, 2015 to obtain stockholder approval of the Business Combination, consummate the Business Combination and demonstrate compliance with Nasdaq’s initial listing requirements. On February 4, 2015, the Company received a letter from the Nasdaq Staff stating that the Company had failed to consummate the Business Combination by February 3, 2015, and that, accordingly, the Nasdaq Staff has determined to initiate procedures to delist the Company’s securities from Nasdaq, unless the Company appeals such determination. On February 11, 2015, the Company filed an appeal of the Nasdaq Staff’s delisting determination, and a hearing has been scheduled before the Nasdaq Hearings Panel on March 19, 2015. The Company’s securities will continue to trade on Nasdaq while such appeal is pending. There is no assurance that the Company will be successful in its appeal of the delisting determination. If the panel does not accept our appeal, our securities will likely cease trading on Nasdaq, which may adversely affect the liquidity and trading of our securities.
We are evaluating all potential options to regain compliance with the Minimum Holders Rule and Nasdaq’s initial listing requirements, including approaches designed to enable Blue Bird employees to purchase shares of the combined company following the completion of the Business Combination. We believe (though we cannot provide assurance) that once the Business Combination occurs, we will be in a better position to meet Nasdaq’s listing requirements and anticipate that Blue Bird’s dealers and other business partners, as well as other investors who do not typically invest in special purpose acquisition companies, will have an interest in acquiring shares of our common stock. We cannot provide assurance, however, that the combined company will be able to meet Nasdaq’s listing requirements. If we do not complete the Business Combination, we may not have enough time to consummate an alternative business combination and regain compliance with the Minimum Holders Rule before the Nasdaq Staff determines to delist our securities. If our securities become delisted from Nasdaq for any reason, the liquidity and price of our securities may be adversely affected.
| 2. | The first paragraph in the section entitled “The Business Combination” on page 10 of the Offer to Exchange is herby amended and restated as follows: |
On September 21, 2014, we entered into a Purchase Agreement (the “Purchase Agreement”) providing for the acquisition by us of all of the outstanding capital stock of School Bus Holdings Inc. (“SBH”), which, through its subsidiaries, conducts its business under the “Blue Bird” name, from The Traxis Group B.V. (“Seller”), which is majority owned by funds affiliated with Cerberus Capital Management, L.P. We refer to SBH and its consolidated subsidiaries hereafter collectively as “Blue Bird,” and we refer to such acquisition by us hereafter as the “Business Combination.” Pursuant to the Purchase Agreement, the aggregate equity purchase price for the Business Combination will be payable partially in cash and partially in Shares. On February 10, 2015, we entered into an amendment (the “Amendment”) to the Purchase Agreement. The terms of the Amendment provide for a reduction of the aggregate equity purchase price for the Business Combination from $255.0 million to $220.0 million. As a result of the Amendment, Seller will receive 3.5 million less shares of our common stock in the Business Combination, a decrease ranging from 22.6% (assuming redemptions of 4.0 million shares) to 30.4% (assuming no redemptions). The cash consideration payable to Seller in the Business Combination remains unchanged.
On February 10, 2015, we entered into a letter agreement with our Sponsor and Seller (the “Founder Share Cancellation Agreement”), which provides for the forfeiture by our initial stockholders, upon closing of the Business Combination, of 1,900,000 shares of our common stock issued prior to our initial public offering (“founder shares”), including all 718,750 “founder earnout shares” (which are subject to forfeiture in certain circumstances as described in the Definitive Proxy Statement). The founder share forfeitures contemplated by the Founder Share Cancellation Agreement will result in an approximately 66% decrease in the number of founder shares outstanding from 2,875,000 to 975,000 upon closing of the Business Combination.
The effect of the 5.4 million share reduction resulting from the Amendment and the founder share forfeitures contemplated by the Founder Share Cancellation Agreement, taken together, is to reduce the pro forma outstanding common share count by approximately 20%, from 27,087,500 (as disclosed in the Definitive Proxy Statement) to 21,687,500 (after giving effect to the Business Combination and the Offer and the Sponsor Warrant Exchange, but excluding any common shares underlying the Series A Convertible Preferred Stock to be issued by us in connection with the Business Combination and our unexchanged warrants).
The terms of the Business Combination are described in detail in the Definitive Proxy Statement, filed with the SEC on January 20, 2015, a copy of which is attached hereto as Annex A. The terms of the Amendment and the Founder Share Cancellation Agreement are described in detail in the Company’s Supplement to the Definitive Proxy Statement dated February 10, 2015 and the Company’s Current Report on Form 8-K, filed with the SEC on February 11, 2015. Assuming the adoption of the charter amendment proposals at the special meeting of our stockholders to be held on February 20, 2015 (subject to any adjournment or postponement thereof), we will change the Company’s name to “Blue Bird Corporation” following the consummation of the Business Combination.
| 3. | The following sentence is hereby appended to the end of the second paragraph of the section entitled “The Business Combination” on page 11 of the Offer to Exchange: |
If the Cash Component is less than $100.0 million and Seller does not elect to terminate the Purchase Agreement, the Equity Component will equal 12.0 million shares, plus one share of common stock for each $10.00 of the shortfall from $100.0 million to the actual amount of the Cash Component. In addition, if Seller does not elect to terminate the Purchase Agreement in this circumstance, Seller and the Sponsor have reached an agreement in principle whereby the Sponsor would be required to make certain cash payments to Seller during the period following the expiration of Seller’s 180-day post-closing lock-up agreement and ending on the first anniversary of the closing of the Business Combination, in an amount not to exceed the market value of 600,000 founder shares in the aggregate.
| Item 12. | Exhibits. |
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| Exhibit |
Description | |
| (a)(5)(G) | Supplement to Investor Presentation dated February 2015 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed with the SEC on February 11, 2015). | |
| (d)(18) | Amendment No. 1 to Purchase Agreement, dated as of February 10, 2015, by and among Hennessy Capital Acquisition Corp., Hennessy Capital Partners I LLC (solely for purposes of Section 10.01(a) thereof) and The Traxis Group B.V. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on February 11, 2015). | |
| (d)(19) | Founder Share Cancellation Agreement, dated as of February 10, 2015, by and among Hennessy Capital Acquisition Corp., Hennessy Capital Partners I LLC and The Traxis Group B.V. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on February 11, 2015). | |
| (g)(2) | Supplement to Definitive Proxy Statement, dated February 10, 2015 (incorporated by reference to the definitive additional proxy solicitation materials on Schedule 14A filed by the Company on February 10, 2015). | |
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.
| HENNESSY CAPITAL ACQUISITION CORP. | ||
| By: | /s/ Daniel J. Hennessy | |
| Name: | Daniel J. Hennessy | |
| Title: | Chairman Chief Executive Officer | |
| Date: | February 11, 2015 | |
EXHIBIT INDEX
| Exhibit |
Description | |
| (a)(1)(A)* | Offer to Exchange dated January 7, 2015. | |
| (a)(1)(B)* | Letter of Transmittal (including Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9). | |
| (a)(1)(C)* | Form of letter to brokers, dealers, commercial banks, trust companies and other nominees to their clients. | |
| (a)(1)(D)* | Form of letter to be used by brokers, dealers, commercial banks, trust companies and other nominees for their clients. | |
| (a)(1)(E)* | Amended and Restated Offer to Exchange dated January 21, 2015. | |
| (a)(1)(F)* | Amended and Restated Letter of Transmittal (including Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9). | |
| (a)(1)(G)* | Amended and restated form of letter to brokers, dealers, commercial banks, trust companies and other nominees to their clients. | |
| (a)(1)(H)* | Amended and restated form of letter to be used by brokers, dealers, commercial banks, trust companies and other nominees for their clients. | |
| (a)(5)(A) | Press release, issued by the Company on September 22, 2014 (incorporated by reference to Exhibit 99.1 to the Company’s Form 8-K filed by the Company on September 22, 2014). | |
| (a)(5)(B) | Current Report on Form 8-K dated September 21, 2014 and exhibits thereto (incorporated by reference to Current Report on Form 8-K filed by the Company on September 24, 2014). | |
| (a)(5)(C)* | Press release, issued by the Company on January 7, 2015. | |
| (a)(5)(D) | Investor Presentation dated January 2015 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed with the SEC on January 9, 2015). | |
| (a)(5)(E)* | Press release, issued by the Company on January 21, 2015. | |
| (a)(5)(F)* | Press release, issued by the Company on February 6, 2015. | |
| (a)(5)(G) | Supplement to Investor Presentation dated February 2015 (incorporated by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed with the SEC on February 11, 2015). | |
| (b) | Not applicable. | |
| (d)(1) | Amended and Restated Certificate of Incorporation of Hennessy Capital Acquisition Corp. (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K (File No. 001-36267), filed with the SEC on January 23, 2014). | |
| (d)(2) | Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.2 to the Company’s Registration Statement on Form S-1 (File No. 333-192982), filed with the SEC on December 20, 2013). | |
| (d)(3) | Securities Subscription Agreement by and between the Company and Hennessy Capital Partners I LLC, dated as of September 24, 2013 (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement on Form S-1 (File No. 333-192982), filed with the SEC on December 20, 2013). | |
| (d)(4) | Sponsor Warrants Purchase Agreement by and between the Company and Hennessy Capital Partners I LLC, dated as of October 15, 2013 (incorporated by reference to Exhibit 10.6 to the Company’s Registration Statement on Form S-1 (File No. 333-192982), filed with the SEC on December 20, 2013). | |
| (d)(5) | Warrant Agreement by and between the Company and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Company’s Form 8-K (File No. 001-36267), filed with the SEC on January 23, 2014). | |
| (d)(6) | Specimen Warrant Certificate (incorporated by reference to Exhibit A to Exhibit 4.1 to the Company’s Form 8-K (File No. 001-36267), filed with the SEC on January 23, 2014). | |
| (d)(7) | Registration Rights Agreement among the Company and certain holders party thereto, dated January 16, 2014 (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on January 23, 2014). | |
| (d)(8) | Letter Agreement by and among the Company, Hennessy Capital Partners I LLC and the insiders named therein, dated January 16, 2014 (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on January 23, 2014). | |
| (d)(9) | Purchase Agreement between the Company and The Traxis Group B.V., dated September 21, 2014 (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(10) | Form of Backstop and Subscription Agreement by and among the Company, The Traxis Group B.V., Hennessy Capital Partners I LLC and the investor named therein (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(11) | Amended and Restated Subscription Agreement among the Company and certain subscribers party thereto, dated September 23, 2014 (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(12) | Voting and Support Agreement among The Traxis Group B.V., Hennessy Capital Partners I LLC and the stockholders set forth therein, dated September 21, 2014 (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(13) | Director Removal Letter Agreement between The Traxis Group B.V. and Hennessy Capital Partners I LLC, dated September 21, 2014 (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(14) | Sponsor Warrant Exchange Letter Agreement among the Company, The Traxis Group B.V. and Hennessy Capital Partners I LLC, dated January 21, 2014 (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(15) | Form of Registration Rights Agreement among Blue Bird Corporation (formerly known as Hennessy Capital Acquisition Corp.), The Traxis Group B.V. and the investors named therein (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(16) | Form of Seller Lock-Up Agreement between the Company and The Traxis Group B.V. (incorporated by reference to Exhibit 10.7 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(17) | Form of Sponsor Lock-Up Agreement among The Traxis Group B.V., Hennessy Capital Partners I LLC and the stockholders set forth therein (incorporated by reference to Exhibit 10.8 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on September 24, 2014). | |
| (d)(18) | Amendment No. 1 to Purchase Agreement, dated as of February 10, 2015, by and among Hennessy Capital Acquisition Corp., Hennessy Capital Partners I LLC (solely for purposes of Section 10.01(a) thereof) and The Traxis Group B.V. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on February 11, 2015). | |
| (d)(19) | Founder Share Cancellation Agreement, dated as of February 10, 2015, by and among Hennessy Capital Acquisition Corp., Hennessy Capital Partners I LLC and The Traxis Group B.V. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-36267), filed with the SEC on February 11, 2015). | |
| (g)(1) | Definitive Proxy Statement, dated January 20, 2015 (incorporated by reference to the Definitive Proxy Statement on Schedule 14A filed by the Company on January 20, 2015). | |
| (g)(2) | Supplement to Definitive Proxy Statement, dated February 10, 2015 (incorporated by reference to the definitive additional proxy solicitation materials on Schedule 14A filed by the Company on February 10, 2015). | |
| (h) | Not applicable. | |
| * | Previously filed. |