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. 1)

 

 

 

O’CHARLEY’S INC.

(Name of Subject Company (Issuer))

 

FIDELITY NATIONAL FINANCIAL, INC. FIDELITY NATIONAL SPECIAL OPPORTUNITIES, INC. FRED MERGER SUB INC.

(Offerors)

 

(Names of Filing Persons (identifying status as offeror, issuer or other person))

 

 

 

COMMON STOCK, NO PAR VALUE

(Title of Class of Securities)

 

670823103

(CUSIP Number of Class of Securities)

 

Michael L. Gravelle Executive Vice President, General Counsel and Corporate Secretary Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, Florida 32204 (904) 854-8100

(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

 

 

Copies to:

 

Michael J. Aiello, Esq. Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000

CALCULATION OF FILING FEE

 

Transaction Valuation(1)		Amount of Filing Fee(2)
$211,261,765.75		$24,211

(1)

Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) (A) 21,947,206 shares of common stock, no par value per share (“Shares”), of O’Charley’s Inc. (“O’Charley’s”) outstanding, minus 2,079,542 Shares owned by Parent on the date hereof, multiplied by (B) the offer price of $9.85 per share and (ii) (A) 1,580,231 Shares issuable pursuant to the outstanding options to acquire Shares, multiplied by (B) the offer price of $9.85 per Share. The number of Shares outstanding and the number of Shares issuable pursuant to outstanding options reflected herein have been provided to Parent by O’Charley’s as of February 20, 2012.

(2)	The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934 by multiplying the transaction value by .00011460.

 

þ	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:  $24,211		Filing Party:  Fidelity National Financial, Inc.
Form of Registration No.:  Schedule TO		Date Filed:  February 27, 2012

 

¨	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:

 

þ

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.   ¨

 

 

 

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This Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the “SEC”) on February 27, 2012 (which, together with any amendments and supplements thereto, collectively constitute the “Schedule TO”) and is filed by (i) Fred Merger Sub Inc., a Tennessee corporation (the “Purchaser”), and an indirect, wholly-owned subsidiary of Fidelity National Financial, Inc., a Delaware corporation (“Parent”), (ii) Fidelity National Special Opportunities, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent, and (iii) Parent. The Schedule TO relates to the offer by the Purchaser to purchase all of the issued and outstanding shares of common stock, no par value per share (the “Shares”), of O’Charley’s Inc., a Tennessee corporation (“O’Charley’s”), at a purchase price of $9.85 per Share (the “Offer Price”) net to the sellers in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 27, 2012 (which, together with any amendments and supplements thereto, collectively constitute the “Offer to Purchase”) and in the related Letter of Transmittal, copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively (which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, collectively constitute the “Offer”). The Schedule TO (including the Offer to Purchase) and the Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC by O’Charley’s on February 27, 2012 contain important information about the Offer, all of which should be read carefully by O’Charley’s shareholders before any decision is made with respect to the Offer. The Offer is made pursuant to the Agreement and Plan of Merger, dated as of February 5, 2012, among Parent, Purchaser, and O’Charley’s.

Documentation relating to the Offer has been mailed to O’Charley’s shareholders and may be obtained at no charge at the website maintained by the SEC at www.sec.gov and may also be obtained at no charge by directing a request by mail to Georgeson Inc., 99 Water Street, 26th Floor, New York, New York 10038, or by calling toll-free at (866) 785-7395.

All information set forth in the Offer to Purchase and the related Letter of Transmittal is incorporated by reference in answer to Items 1 through 12 in the Schedule TO, except those items as to which information is specifically provided herein. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Offer to Purchase.

Item 12.    Exhibits.

Item 12 of the Schedule TO is hereby amended by adding the following exhibit thereto:

 

Exhibit		Exhibit Name
(a)(5)(D)		Press Release issued by Fidelity National Financial Inc. on February 27, 2012 (announcing early termination of HSR waiting period).

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SIGNATURE

After due inquiry and to the best of the knowledge and belief of each of the undersigned, each of the undersigned hereby certifies that the information set forth in this statement is true, complete and correct.

 

 

 

Dated: February 28, 2012

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Exhibit				Exhibit Name
	(a)(1)(A)			Offer to Purchase dated February 27, 2012.**
	(a)(1)(B)			Letter of Transmittal (including Form W-9 and General Instructions to Form W-9).**
	(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)(5)(A)			Press Release issued by Fidelity National Financial, Inc. on February 6, 2012 (incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by Fidelity National Financial, Inc. on February 6, 2012).
	(a)(5)(B)			Form of Summary Advertisement as published on February 27, 2012 in The Wall Street Journal.**
	(a)(5)(C)			Press Release issued by Fidelity National Financial Inc. on February 27, 2012 (announcing commencement of tender offer).**
	(a)(5)(D)			Press Release issued by Fidelity National Financial Inc. on February 27, 2012 (announcing early termination of HSR waiting period).*
	(b)(1)			Amendment and Restatement Agreement dated as of March 5, 2010 to the Credit Agreement among Fidelity National Financial, Inc., Bank of America, N.A., and certain agents and other lenders party thereto (incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Fidelity National Financial, Inc. on March 10, 2010).
	(b)(2)			Commitment Increase Agreement, dated as of March 5, 2010, among Fidelity National Financial, Inc., Bank of America, N.A. as Administrative Agent, and the other financial institutions party thereto (incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by Fidelity National Financial, Inc. on March 10, 2010).
	(d)(1)			Agreement and Plan of Merger, dated as of February 5, 2012, by and among Fidelity National Financial, Inc., Fred Merger Sub Inc., and O’Charley’s Inc.**
	(d)(2)			Tender and Support Agreement, dated as of February 5, 2012, by and among Fidelity National Financial, Inc., Fred Merger Sub Inc., and each of the shareholders of O’Charley’s Inc. listed on Schedule A thereto (incorporated herein by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by O’Charley’s Inc. on February 6, 2012).
	(d)(3)			Confidentiality Agreement, dated as of November 23, 2011, by and between Fidelity National Financial, Inc., American Blue Ribbon Holdings, LLC, and O’Charley’s Inc.**
	(g)			Not applicable.
	(h)			Not applicable.

 

*	Filed herewith.

**	Previously filed as an exhibit to Schedule TO filed with the SEC on February 27, 2012.

Exhibit (a)(5)(D)

 

Fidelity National Financial, Inc. Obtains Antitrust Clearance

in Connection With O’Charley’s Inc. Tender Offer

Jacksonville, Fla. — (February 28, 2012) — Fidelity National Financial, Inc. (NYSE:FNF), a leading provider of title insurance, mortgage services and diversified services, today announced that the waiting period under the Hart-Scott Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) has expired in connection with the tender offer through its indirect wholly-owned subsidiary, Fred Merger Sub Inc., for all of the outstanding common stock of O’Charley’s Inc. (NASDAQ:CHUX) that it does not currently own for $9.85 per share, net to the seller in cash, without interest and less any required withholding taxes.

The tender offer is scheduled to expire at 12:00 midnight, New York City time, at the end of the date Monday, April 2, 2012, unless the tender offer is extended. Expiration of the waiting period under the HSR Act satisfies one of the conditions of the tender offer. The tender offer remains subject to the other conditions described in the Offer to Purchase that was filed with the U.S. Securities and Exchange Commission on February 27, 2012.

About FNF

Fidelity National Financial, Inc. (NYSE:FNF), is a leading provider of title insurance, mortgage services and diversified services. FNF is the nation’s largest title insurance company through its title insurance underwriters - Fidelity National Title, Chicago Title, Commonwealth Land Title and Alamo Title - that collectively issue more title insurance policies than any other title company in the United States. In addition, among other operations, FNF owns minority interests in Ceridian Corporation, a leading provider of global human capital management and payment solutions, Remy International, Inc., a leading designer, manufacturer, remanufacturer, marketer and distributor of aftermarket and original equipment electrical components for automobiles, light trucks, heavy-duty trucks and other vehicles and American Blue Ribbon Holdings, LLC, an owner and operator of the Village Inn, Bakers Square and Max & Erma’s restaurants. More information about FNF can be found at www.fnf.com.

Important Information About the Tender Offer

THIS PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT AN OFFER TO BUY OR THE SOLICITATION OF AN OFFER TO SELL ANY SECURITIES. THE TENDER OFFER IS BEING MADE PURSUANT TO A TENDER OFFER STATEMENT ON SCHEDULE TO, CONTAINING AN OFFER TO PURCHASE, FORM OF LETTER OF

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TRANSMITTAL AND RELATED TENDER OFFER DOCUMENTS, FILED BY FNF WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) ON FEBRUARY 27, 2012. O’CHARLEY’S FILED A SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 RELATING TO THE TENDER OFFER WITH THE SEC ON FEBRUARY 27, 2012. FNF AND O’CHARLEY’S WILL MAIL THESE DOCUMENTS TO ALL O’CHARLEY’S SHAREHOLDERS OF RECORD. THESE DOCUMENTS, AS THEY MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER AND O’CHARLEY’S SHAREHOLDERS ARE URGED TO READ THEM CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER. THE TENDER OFFER MATERIALS MAY BE OBTAINED AT NO CHARGE BY DIRECTING A REQUEST BY MAIL TO GEORGESON INC., 99 WATER STREET, 26TH FLOOR, NEW YORK, NY 10038, OR BY CALLING TOLL-FREE AT (866) 785-7395, AND MAY ALSO BE OBTAINED AT NO CHARGE AT THE WEBSITE MAINTAINED BY THE SEC AT WWW.SEC.GOV.

Forward Looking Statements

This press release contains forward-looking statements relating to the potential acquisition of O’Charley’s by FNF and its affiliates. The actual results of the proposed transaction could vary materially as a result of a number of factors, including: uncertainties as to how many of shareholders of O’Charley’s will tender their stock in the offer, the possibility that competing offers will be made and the possibility that various closing conditions for the transaction may not be satisfied or waived. Other factors that may cause actual results to differ materially include those other risks detailed in the “Statement Regarding Forward-Looking Information,” “Risk Factors” and other sections of FNF’s Form 10-K and other filings with the Securities and Exchange Commission. These forward-looking statements reflect FNF’s expectations as of the date of this press release. FNF undertakes no obligation to update the information provided herein.

SOURCE: Fidelity National Financial, Inc.

CONTACT: Daniel Kennedy Murphy, Senior Vice President and Treasurer, 904-854-8120, dkmurphy@fnf.com

 

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