SUMMARY ADVERTISEMENT AS PUBLISHED ON NOV. 6, 2001
Published on November 6, 2001
EXHIBIT (a)(8)
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN
OFFER TO SELL SHARES (AS DEFINED BELOW. THE OFFER (AS DEFINED BELOW) IS MADE
SOLELY BY THE OFFER TO PURCHASE, DATED NOVEMBER 6, 2001, AND THE RELATED LETTER
OF TRANSMITTAL, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO, AND IS BEING MADE TO
ALL HOLDERS OF SHARES. THE OFFER, HOWEVER, IS NOT BEING MADE TO (NOR WILL
TENDERS BE ACCEPTED FROM OR ON BEHALF OF) HOLDERS OF SHARES IN ANY JURISDICTION
IN WHICH THE OFFER OR ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES, BLUE SKY OR OTHER LAWS OF SUCH JURISDICTION. HOWEVER, THE OFFEROR
(AS DEFINED BELOW) MAY, IN ITS DISCRETION, TAKE SUCH ACTION AS IT MAY DEEM
NECESSARY TO MAKE THE OFFER IN ANY JURISDICTION AND EXTEND THE OFFER TO HOLDERS
OF SHARES IN SUCH JURISDICTION. IN THOSE JURISDICTIONS WHERE THE SECURITIES,
BLUE SKY OR OTHER LAWS REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR
DEALER, THE OFFER SHALL BE DEEMED TO BE MADE ON BEHALF OF THE OFFEROR BY MORGAN
STANLEY & CO. INCORPORATED OR ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED
UNDER THE LAWS OF SUCH JURISDICTIONS.
NOTICE OF OFFER TO PURCHASE FOR CASH
All Outstanding Shares of Common Stock
of
Odwalla, Inc.
at
$15.25 Net Per Share
by
TCCC Acquisition Corp.
a wholly owned subsidiary of
The Coca-Cola Company
TCCC Acquisition Corp., a California corporation (the "Offeror") and a
wholly owned subsidiary of The Coca-Cola Company, a Delaware corporation
("TCCC"), is offering to purchase all of the outstanding shares of common stock,
no par value per share ("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 Offer to
Purchase, dated November 6, 2001 ("Offer to Purchase"), and in the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer").
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, SAN FRANCISCO
TIME, ON THURSDAY, DECEMBER 6, 2001, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER SUCH NUMBER OF
SHARES THAT WOULD CONSTITUTE AT LEAST NINETY AND ONE-TENTH PERCENT (90.1%) OF
SHARES THAT ARE OUTSTANDING DETERMINED ON A FULLY DILUTED BASIS (INCLUDING FOR
PURPOSES OF SUCH CALCULATION ALL SHARES THAT ARE ISSUABLE UPON EXERCISE OF
VESTED OPTIONS AND OUTSTANDING WARRANTS BUT EXCLUDING SHARES THAT ARE ISSUABLE
UPON THE EXERCISE OF OPTIONS AND WARRANTS THAT ARE CANCELLED PURSUANT TO THE
MERGER AGREEMENT) (THE "MINIMUM CONDITION), (II) ANY WAITING PERIOD UNDER THE
HSR ACT (AS DEFINED IN THE OFFER TO PURCHASE) APPLICABLE TO THE PURCHASE OF
SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR HAVING BEEN TERMINATED PRIOR TO
THE EXPIRATION OF THE OFFER, AND (III) THE SATISFACTION OR WAIVER OF CERTAIN
OTHER TERMS AND CONDITIONS.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of October 29, 2001 (the "Merger Agreement"), among TCCC, the Offeror and
Odwalla. The Merger Agreement provides that, among other things, after the
purchase of Shares pursuant to the Offer and the satisfaction of the other
conditions set forth in the Merger Agreement and in accordance with the relevant
provisions of the California General Corporation Law, as amended (the "CGCL"),
the Offeror will be merged with and into Odwalla (the "Merger"). Following
consummation of the Merger, Odwalla will continue as the surviving corporation
(the "Surviving Corporation") and will be a wholly owned subsidiary of TCCC. At
the effective time of the Merger (the "Effective Time"), each Share that is
issued and outstanding (other than Shares owned by TCCC, the Offeror, any other
subsidiary of TCCC or the Offeror or Shares owned by Odwalla as treasury stock)
will be converted into the right to receive from the Surviving Corporation
$15.25 in cash or greater amount as may be paid in the Offer, less any required
withholding taxes and without interest thereon. If, however, after consummation
of the Offer, the Offeror owns less than 90% of the then outstanding Shares, a
vote of Odwalla's shareholders will be required under Section 1101 of the CGCL
to approve the Merger, and a significantly longer period of time will be
required to effect the Merger.
In connection with the Merger Agreement, the Offeror and TCCC entered into
Tender Agreements each dated as of October 29, 2001 (the "Tender Agreements"),
with certain shareholders (the "Tendering Shareholders"). Pursuant to the Tender
Agreements, the Tendering Shareholders have agreed to tender the 6,280,594
Shares owned by them (the "Committed Shares") pursuant to the Offer. The
Committed Shares represent approximately 57% of Shares that, as of October 25,
2001, were issued and outstanding on a fully diluted basis.
THE BOARD OF DIRECTORS OF ODWALLA HAS ADOPTED THE MERGER AGREEMENT AND
APPROVED THE OFFER AND THE MERGER, HAS DETERMINED THAT THE TERMS OF THE OFFER
AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, ODWALLA'S
SHAREHOLDERS, AND RECOMMENDS THAT ODWALLA'S SHAREHOLDERS ACCEPT THE OFFER AND
TENDER ALL THEIR SHARES PURSUANT TO THE OFFER.
For purposes of the Offer, the Offeror will be deemed to have accepted for
payment, and thereby purchased Shares validly tendered and not withdrawn, if and
when the Offeror gives oral followed by written notice to EquiServe Trust
Company, N.A. (the "Depositary"), of the Offeror's acceptance of such Shares for
payment. In all cases, payment for Shares purchased pursuant to the Offer will
be made by deposit of the purchase price with the Depositary, which shall act as
agent for tendering shareholders for the purpose of receiving payment from the
Offeror and transmitting payment to the tendering shareholders. Payment for
Shares accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (i) certificates for such Shares or timely
confirmation of a book-entry transfer of such Shares into the Depositary's
account at the Book-Entry Transfer Facility (as defined in the Offer to
Purchase) pursuant to the procedures set forth in the Offer to Purchase, (ii) a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required guarantees, or, in the case of a book-entry
transfer, an Agent's Message (as defined in the Offer to Purchase) and (iii) any
other documents required by the Letter of Transmittal.
If any of the conditions set forth in the Offer to Purchase that relate to
the Offeror's obligations to purchase Shares are not satisfied by 12:00
Midnight, San Francisco Time, on December 6, 2001 (the "Expiration Date") (or
any other time then set as the Expiration Date), the Offeror may, subject to the
terms of the Merger Agreement, (i) terminate the Offer and return all tendered
Shares to tendering shareholders,
(ii) waive such unsatisfied conditions and purchase all Shares validly tendered,
or (iii) extend the Offer and, subject to the terms of the Offer (including the
rights of shareholders to withdraw their shares), retain the shares which have
been tendered, until the termination of the Offer, as extended.
Under the terms of the Merger Agreement, the Offeror may not, without the
consent of Odwalla, (i) reduce the number of Shares subject to the Offer, (ii)
reduce the Offer Price, (iii) impose any other conditions to the Offer other
than the conditions set forth in Annex I to the Merger Agreement (the "Offer
Conditions") or modify the Offer Conditions (other than to waive any Offer
Conditions to the extent permitted by the Merger Agreement) in a manner adverse
to the holders of Shares, (iv) except as provided in the Merger Agreement,
extend the Offer, (v) change the form of consideration payable in the Offer, or
(vi) amend any other term of the Offer in a manner adverse to the Odwalla
shareholders. Notwithstanding the foregoing, the Offeror may, without the
consent of Odwalla, (i) extend the Offer, if at the scheduled or extended
expiration date of the Offer any of the Offer Conditions shall not be satisfied
or waived, until such time as such conditions are satisfied or waived, subject
in each case to any right of TCCC, the Offeror or Odwalla to terminate the
Merger Agreement pursuant to the terms thereof or (ii) extend the Offer for any
period required by any rule, regulation, interpretation or position of the
Commission or the staff thereof applicable to the Offer. Further, if the Minimum
Condition is not satisfied on any scheduled expiration date of the Offer, at the
request of Odwalla, the Offeror shall, and TCCC shall cause the Offeror to take
any of the actions set forth in clauses (x), (y), or (z) (provided that the
Offeror shall have complete discretion concerning which action to take): (x)
extend the Offer pursuant to the provisions of the Merger Agreement, (y) amend
the Offer in contemplation of the exercise of the Option Agreement (as defined
in the Offer to Purchase) (to the extent the Option Agreement is exercisable at
such time) to reduce the Minimum Condition to that number of shares (the "Option
Exercise Minimum Number") equal to the number of shares which, when combined
with the number of shares issued upon exercise of the Option Agreement, equals
90.1% of Shares on a fully diluted basis (including for purposes of such
calculation all Shares that are issuable upon exercise of vested options and
outstanding warrants but excluding Shares that are issuable upon the exercise of
options and warrants that are cancelled pursuant to the Merger Agreement) or (z)
amend the Offer to provide that, if (i) the Minimum Condition is not satisfied
at the next scheduled expiration date of the Offer (after giving effect to the
issuance of any Shares theretofore acquired by TCCC or the Offeror) and (ii) the
number of Shares tendered pursuant to the Offer and not withdrawn as of such
next scheduled expiration date is more than 50% of the then outstanding Shares,
the Offeror shall waive the Minimum Condition and amend the Offer to reduce the
number of Shares subject to the Offer to 49.9% of Shares then outstanding (the
"Revised Minimum Number") and, subject to the prior satisfaction or waiver of
the other conditions of the Offer, purchase, on a pro rata basis, the Revised
Minimum Number of shares (it being understood that the Offeror shall not in any
event be required to accept for payment, or pay for, any Shares less than the
Revised Minimum Number of Shares that are tendered pursuant to the Offer and not
withdrawn at the expiration date).
Subject to the limitations set forth in the Offer and the Merger Agreement,
the Offeror reserves the right (but will not be obligated), at any time or from
time to time in its sole discretion, to extend the period during which the Offer
is open by giving oral followed by written notice of such extension to the
Depositary and by making a public announcement of such extension. There can be
no assurance that the Offeror will exercise its right to extend the Offer. Any
extension of the period during which the Offer is open will be followed, as
promptly as practicable, by public announcement thereof, such announcement to be
issued not later than 9:00 a.m., New York Time, on the next business day after
the previously scheduled Expiration Date. During any such extension, all Shares
previously tendered and not withdrawn will remain subject to the Offer, subject
to the rights of a tendering shareholder to withdraw such shareholder's Shares.
Except as otherwise provided in Section 4 of the Offer to Purchase, tenders
of Shares made pursuant to the Offer are irrevocable, except that Shares
tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date, and, unless theretofore accepted for payment, may also be
withdrawn at any time after January 5, 2002. For a withdrawal to be effective,
a written or facsimile transmission notice of withdrawal must be timely received
by the Depositary at one of its addresses set forth on the back cover of the
Offer to Purchase. Any such notice of withdrawal must specify the name of the
person who tendered Shares to be withdrawn, the number of Shares to be withdrawn
and the name of the registered holder if different from
the name of the person who tendered Shares. If certificates for Shares to be
withdrawn have been delivered or otherwise identified to the Depositary, then
prior to the physical release of such certificates, the serial numbers shown on
such certificates must be submitted to the Depositary and, unless such Shares
have been tendered for the account of an Eligible Institution (as defined in the
Offer to Purchase), the signature on the notice of withdrawal must be Medallion
guaranteed by an Eligible Institution. If Shares have been tendered pursuant to
the procedures for book-entry transfer set forth in Section 3 of the Offer to
Purchase, the notice of withdrawal must specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with withdrawn
Shares, in which case a notice of withdrawal will be effective if delivered to
the Depositary by any method of delivery described in this paragraph. All
questions as to the form and validity (including time of receipt) of a notice of
withdrawal will be determined by the Offeror, in its sole discretion, and its
determination shall be final and binding on all parties.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6
of the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended, is contained in the Offer to Purchase and is incorporated herein by
reference.
Odwalla has provided to the Offeror its list of shareholders and security
position listings for the purpose of disseminating the Offer to holders of
Shares. The Offer to Purchase, the related Letter of Transmittal and other
related materials are being mailed to record holders of Shares and will be
mailed to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the shareholder
lists or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
Any questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager as set forth below. Requests for copies of the Offer
to Purchase and the related Letter of Transmittal and other tender offer
materials may be directed to the Information Agent as set forth below, and
copies will be furnished promptly at the Offeror's expense. No fees or
commissions will be payable to brokers, dealers or other persons (other than the
Dealer Manager and the Information Agent) for soliciting tenders of Shares
pursuant to the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[INNISFREE M&A INCORPORATED LOGO]
501 Madison Avenue, 20th Floor
New York, New York 10022
Banks and Brokers Call Collect: 212-750-5833
All Others Call Toll-Free: 1-888-750-5834
THE DEALER MANAGER FOR THE OFFER IS:
[MORGAN STANLEY LOGO]
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
(212) 761-3539