UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

Tender Offer Statement under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

(Amendment No. 4)

 

 

J. ALEXANDER’S CORPORATION

(Name of Subject Company (Issuer))

FIDELITY NATIONAL FINANCIAL, INC.

FIDELITY NATIONAL SPECIAL OPPORTUNITIES, INC.

NEW ATHENA MERGER SUB, INC.

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

 

 

COMMON STOCK, PAR VALUE $0.05 PER SHARE (INCLUDING THE ASSOCIATED

SERIES A JUNIOR PREFERRED STOCK PURCHASE RIGHTS)

(Title of Class of Securities)

466096104

(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, NY 10153

(212) 310-8000

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation(1)		Amount of Filing Fee(2)
$94,811,776		$10,865

(1)

Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) (A) 5,999,735 shares of common stock, par value $0.05 per share, of J. Alexander’s Corporation (“J. Alexander’s”) outstanding, multiplied by (B) the offer price of $14.50 per share, and (ii) (A) 962,375 shares of common stock, par value $0.05 per share, of J. Alexander’s issuable pursuant to outstanding options with an exercise price less than the offer price of $14.50 per share, multiplied by (B) the offer price of $14.50 per share minus the weighted average exercise price for such options of $6.38 per share. The number of shares of common stock, par value $0.05 per share, of J. Alexander’s outstanding and the number of such shares issuable pursuant to outstanding options reflected herein have been provided to Parent by J. Alexander’s as of July 31, 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 0.00011460.

 

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: $10,865.00		Filing Party: Fidelity National Financial, Inc., Fidelity National Special Opportunities, Inc. and New Athena Merger Sub, Inc.
Form of Registration No.: Schedule TO		Date Filed: August 6, 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:

 

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.  x

 

 

 

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This Amendment No. 4 amends and supplements the Tender Offer Statement on Schedule TO filed with the U.S. Securities and Exchange Commission (the “SEC”) on August 6, 2012, as amended by Amendment No. 1 filed on August 23, 2012, Amendment No. 2 filed on September 6, 2012 and Amendment No. 3 filed on September 17, 2012 (which, together with any amendments and supplements thereto, collectively constitute the “Schedule TO”) and relates to the offer by New Athena Merger Sub, Inc., a Tennessee corporation (“Purchaser”) and an indirect wholly-owned subsidiary of Fidelity National Financial, Inc., a Delaware corporation (“Parent”), to purchase all of the outstanding shares of common stock, par value $0.05 per share (including the associated preferred stock purchase rights, the “Shares”), of J. Alexander’s Corporation, a Tennessee corporation (“J. Alexander’s”), at $14.50 per Share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated August 6, 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 J. Alexander’s on August 6, 2012 as amended by Amendment No. 1 filed on August 7, 2012, Amendment No. 2 filed on August 13, 2012, Amendment No. 3 filed on August 20, 2012, Amendment No. 4 filed on August 23, 2012, Amendment No. 5 filed on August 27, 2012, Amendment No. 6 filed on August 31, 2012, Amendment No. 7 filed on September 6, 2012 and Amendment No. 8 filed on September 17, 2012, each as may be further amended and supplemented from time to time, contain important information about the Offer, all of which should be read carefully by J. Alexander’s stockholders before making any decision with respect to the Offer. The Offer is made pursuant to the Amended and Restated Agreement and Plan of Merger, dated as of July 30, 2012, as amended on September 6, 2012, among Parent, Purchaser, Fidelity Newport Holdings, LLC (for the limited purposes set forth therein), American Blue Ribbon Holdings, Inc. (for the limited purposes set forth therein), Athena Merger Sub, Inc. (for the limited purposes set forth therein) and J. Alexander’s Corporation, as it may be further amended from time to time.

Documentation relating to the Offer has been mailed to stockholders of J. Alexander’s 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., 199 Water Street, 26th Floor, New York, New York 10038-3560, or by calling toll-free at (866) 261-1047.

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.

Amendments to the Schedule TO and the Offer to Purchase

Item 1. Summary Term Sheet.

Item 1 of the Schedule TO is amended and supplemented by adding the following text to such Item:

“The Offer and withdrawal rights expired at 5:00 P.M., New York City time, on Wednesday, September 19, 2012. The depositary for the Offer has advised that, as of the expiration time, an aggregate of approximately 4,451,627 Shares (excluding approximately 321,133 Shares subject to guarantees of delivery) were validly tendered and not withdrawn, representing approximately 73.8% of the total Shares on a fully-diluted basis (as defined in the Merger Agreement). Therefore, the minimum tender condition has been satisfied. All Shares that were validly tendered and not validly withdrawn have been accepted for purchase by the Purchaser. The Purchaser will promptly pay for such Shares in accordance with the terms of the Offer.

The Purchaser is commencing a subsequent offering period in connection with the Offer, at 9:00 a.m., New York City time, on Thursday, September 20, 2012, for all remaining untendered Shares. The subsequent offering period will expire at 5:00 p.m., New York City time, on Wednesday, September 26, 2012, unless extended. Parent and the Purchaser reserve the right to extend the subsequent offering period in accordance with applicable law. Any such extension will be followed by a public announcement, which will be issued no later than 9:00 a.m., New York City time, on the next business day after the subsequent offering period was scheduled to expire. During the subsequent

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offering period, the Purchaser will immediately accept and promptly pay for validly tendered Shares. J. Alexander’s stockholders who validly tender their Shares during the subsequent offering period will receive the same $14.50 per Share, net to the seller in cash, without interest thereon and subject to any applicable withholding taxes, that is payable to stockholders who tendered their Shares during the initial offering period. Procedures for tendering Shares during the subsequent offering period are the same as during the initial offering period with two exceptions: (i) Shares cannot be delivered by the guaranteed delivery procedure and (ii) pursuant to Rule 14d-7(a)(2) under the Securities Exchange Act of 1934, as amended, Shares validly tendered during the subsequent offering period will be accepted for payment on a daily, “as tendered” basis and, accordingly, may not be withdrawn.

As a result of the purchase of Shares in the Offer, Purchaser and Parent will have sufficient voting power to approve the Merger without the affirmative vote of any other stockholder of J. Alexander’s. In the event that a sufficient number of Shares are tendered by the expiration of the subsequent offering period, Parent intends to exercise the Top-Up Option and effect a short-form merger in accordance with the provisions of the Tennessee Business Corporation Act and the Merger Agreement. Otherwise, Parent intends to effect a long-form merger in accordance with the provisions of the Tennessee Business Corporation Act and the Merger Agreement. In either case, as a result of the Merger, J. Alexander’s will become an indirect, wholly-owned subsidiary of Parent, and any Shares not tendered in the Offer (other than Shares held by J. Alexander’s, Parent, Purchaser or any wholly-owned subsidiary of J. Alexander’s or Parent, which Shares will be cancelled and retired and will cease to exist without any consideration being delivered in exchange for those Shares) will be cancelled and converted into the right to receive $14.50 or any greater per Share price paid in the Offer, in cash, without interest thereon and subject to any required withholding taxes. Following the Merger, the Shares will cease to be traded on the NASDAQ Global Market, unless NASDAQ delists the Shares sooner because there are insufficient remaining shareholders and publicly-held shares following the closing of the Offer.

On Thursday, September 20, 2012, the Company and Parent issued a press release announcing the completion of the initial offering period and the commencement of the subsequent offering period. The full text of this press release is filed as Exhibit (a)(5)(E)to the Schedule TO and is incorporated herein by reference.

Item 4. Terms of the Transaction.

The information incorporated by reference into Item 4 of the Schedule TO is amended and supplemented by adding the amendment contained in Item 1, which is incorporated by reference into this Item 4.

Item 8. Interest in Securities of the Subject Company.

The information incorporated by reference into Item 8 of the Schedule TO is amended and supplemented by adding the amendment contained in Item 1, which is incorporated by reference into this Item 8.

Item 11. Additional Information.

The information incorporated by reference into Item 11 of the Schedule TO is amended and supplemented by adding the amendment contained in Item 1, which is incorporated by reference into this Item 11.

Item 12. Exhibits.

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

 

Exhibit		Exhibit Name
(a)(5)(E)		Joint Press Release issued by Fidelity National Financial, Inc. and J. Alexander’s Corporation on September 20, 2012.

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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.

 

Date: September 20, 2012

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EXHIBIT INDEX

 

Exhibit		Exhibit Name
(a)(1)(A)		Offer to Purchase dated August 6, 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 July 31, 2012 (incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by Fidelity National Financial, Inc. on July 31, 2012).*
(a)(5)(B)		Form of Summary Advertisement as published on August 6, 2012 in The Wall Street Journal.*
(a)(5)(C)		Press Release issued by Fidelity National Financial, Inc. on August 6, 2012.*
(a)(5)(D)		Joint Press Release issued by Fidelity National Financial, Inc. and J. Alexander’s Corporation on September 6, 2012 (incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by J. Alexander’s Corporation on September 6, 2012).*
(a)(5)(E)		Joint Press Release issued by Fidelity National Financial, Inc. and J. Alexander’s Corporation on September 20, 2012.
(b)(1)		Second Amended and Restated Credit Agreement, dated as of April 16, 2012, among Fidelity National Financial, Inc., Bank of America, N.A. as Administrative Agent and Swing Line Lender, and the other financial institutions 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 April 19, 2012).*
(d)(1)		Amended and Restated Agreement and Plan of Merger, dated as of July 30, 2012, by and among Fidelity National Financial, Inc., New Athena Merger Sub, Inc., Fidelity Newport Holdings, LLC (for the limited purposes set forth therein), American Blue Ribbon Holdings, Inc. (for the limited purposes set forth therein), Athena Merger Sub, Inc. (for the limited purposes set forth therein), and J. Alexander’s Corporation.*
(d)(2)		Confidentiality Letter Agreement, dated as of March 18, 2012, by and between Fidelity National Financial, Inc., Fidelity Newport Holdings, LLC and J. Alexander’s Corporation.*
(d)(3)		Confidentiality Agreement, dated as of April 9, 2012, by and between American Blue Ribbon Holdings, LLC and J. Alexander’s Corporation.*
(d)(4)		First Amendment to Amended and Restated Agreement and Plan of Merger, dated as of September 5, 2012, by and among Fidelity National Financial, Inc., New Athena Merger Sub, Inc. and J. Alexander’s Corporation (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by J. Alexander’s Corporation on September 6, 2012).*
(g)		Not applicable.
(h)		Not applicable.

 

 

*	Previously filed.

EXHIBIT – 99.(a)(5)(E)

 

Fidelity National Financial, Inc. and J. Alexander’s Corporation Announce

73.8% of Shares Tendered in Support of FNF Tender Offer Giving FNF Control; Announce Subsequent Offering Period to Acquire Remaining Shares

Jacksonville, Fla. And Nashville, Tenn. — (September 20, 2012) — Fidelity National Financial, Inc. (NYSE:FNF), a leading provider of title insurance, mortgage services and restaurant and other diversified services, and J. Alexander’s Corporation (NASDAQ:JAX) (“J. Alexander’s”) today announced the preliminary results of a tender offer through FNF’s indirect, wholly-owned subsidiary, New Athena Merger Sub, Inc. (“Purchaser”), for all outstanding common stock of J. Alexander’s.

The tender offer and withdrawal rights expired at 5:00 P.M., New York City time, on Wednesday, September 19, 2012. According to the depositary for the tender offer, approximately 4,451,627 shares (excluding approximately 321,133 shares subject to guarantees of delivery) were validly tendered and not withdrawn as of the expiration time. This represents approximately 73.8 percent of J. Alexander’s outstanding shares of common stock on a fully diluted basis, giving FNF control of J. Alexander’s. The Purchaser has accepted all shares that were validly tendered and not properly withdrawn and will promptly pay for such shares at the tender offer price of $14.50 per share, net to the seller in cash, without interest and less any required withholding taxes.

In response to the completion of the tender offer, Lonnie J. Stout II, President and Chief Executive Officer of J. Alexander’s, stated, “We are pleased with the successful completion of the first step of the transaction with FNF and believe it represents a significant achievement for our shareholders by maximizing value and providing them with a substantial cash premium for their shares. We look forward to a successful merger closing.”

“We are happy to welcome J. Alexander’s and its employees to the FNF family,” said FNF CEO George P. Scanlon. “J. Alexander’s has a strong reputation for providing great service and a high quality dining experience to its guests, and will enhance the growth of our upscale casual concepts at American Blue Ribbon Holdings.”

FNF and J. Alexander’s also announced today that the Purchaser is commencing a subsequent offering period to acquire the remaining untendered shares of J. Alexander’s common stock.

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The subsequent offering period will expire at 5:00 p.m., New York City time, on Wednesday, September 26, 2012, unless extended. During this subsequent offering period, holders of shares of J. Alexander’s common stock who did not previously tender their shares into the initial tender offer may do so, and the Purchaser will immediately accept and promptly pay for any shares properly tendered, for the same $14.50 per share, net to the seller in cash, without interest and less any applicable withholding taxes, that is payable to stockholders who tendered their shares during the initial offering period of the tender offer.

Procedures for tendering shares during the subsequent offering period are the same as during the initial offering period, with two exceptions: (i) shares cannot be delivered by the guaranteed delivery procedure and (ii) shares validly tendered during the subsequent offering period will be accepted for payment on a daily “as tendered” basis and, accordingly, may not be withdrawn. FNF and the Purchaser reserve the right to extend the subsequent offering period in accordance with applicable law.

Following the subsequent offering period, as may be extended, and any exercise of the top up option provided in the merger agreement, if the Purchaser has acquired at least 90 percent of the shares of J. Alexander’s common stock then outstanding, the Purchaser intends to merge with and into J. Alexander’s in accordance with the “short-form” merger and other applicable provisions of the Tennessee Business Corporation Act. If the Purchaser is not able to consummate a “short-form” merger, it intends to seek approval of the merger by a vote of J. Alexander’s stockholders at a duly held special meeting that is expected to be scheduled during the fourth quarter of 2012. As a result of the Purchaser’s purchase of shares tendered in the initial offering period, it will be able to approve the merger without the affirmative vote of any other J. Alexander’s stockholder at the meeting.

As a result of the merger, any shares of J. Alexander’s common stock not tendered will be cancelled and (except for shares held in the treasury of J. Alexander’s or by FNF or the Purchaser, or shares for which appraisal rights are properly demanded) will be converted into the right to receive the same $14.50 in cash per share, without interest and less any applicable withholding taxes, that is payable to stockholders who tendered their shares during the initial offering period of the tender offer. Accordingly, all J. Alexander’s stockholders will receive the same $14.50 cash consideration per share whether they tender their shares during the subsequent offering period or not, but those who tender their shares during the subsequent offering period will receive the consideration sooner than stockholders who wait for the merger to be consummated.

Following the merger, J. Alexander’s will become an indirect, wholly-owned subsidiary of FNF, and J. Alexander’s common stock will cease to be traded on NASDAQ.

About FNF

Fidelity National Financial, Inc. (NYSE:FNF), is a leading provider of title insurance, mortgage services and restaurant and other 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. FNF also owns a 55%

 

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stake in American Blue Ribbon Holdings, an owner and operator of the O’Charley’s, Ninety Nine Restaurant, Max & Erma’s, Village Inn, Bakers Square and Stoney River Legendary Steaks concepts. In addition, FNF owns a majority stake in 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. FNF also owns a minority interest in Ceridian Corporation, a leading provider of global human capital management and payment solutions. More information about FNF can be found at www.fnf.com.

About J. Alexander’s Corporation

J. Alexander’s Corporation (NASDAQ: JAX), operates 33 J. Alexander’s restaurants in 13 states: Alabama, Arizona, Colorado, Florida, Georgia, Illinois, Kansas, Kentucky, Louisiana, Michigan, Ohio, Tennessee and Texas. J. Alexander’ is an upscale, contemporary American restaurant known for its wood-fired cuisine. J. Alexander’s menu features a wide selection of American classics, including steaks, prime rib of beef and fresh seafood, as well as a large assortment of interesting salads, sandwiches and desserts. J. Alexander’s also has a full-service bar that features an outstanding selection of wines by the glass and bottle. More information about JAX can be found at www.jalexanders.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 TRANSMITTAL AND RELATED TENDER OFFER DOCUMENTS, FILED BY FNF AND ITS AFFILIATES WITH THE SECURITIES AND EXCHANGE COMMISSION (THE “SEC”) ON AUGUST 6, 2012. A SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 RELATING TO THE TENDER OFFER HAS BEEN FILED BY J. ALEXANDER’S WITH THE SEC ON AUGUST 6, 2012. THESE DOCUMENTS, AS THEY HAVE BEEN AND MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER AND J. ALEXANDER’S SHAREHOLDERS ARE URGED TO READ THEM CAREFULLY BEFORE MAKING ANY DECISION 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 (800) 261-1047, 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 J. Alexander’s by FNF and its affiliates, including the expected date of closing of the acquisition and the potential benefits of the transaction. The actual results of the

 

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transaction could vary materially as a result of a number of factors, including 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 J. Alexander’s and FNF’s Form 10-K and other filings with the SEC. These forward-looking statements reflect J. Alexander’s and FNF’s expectations as of the date of this press release. J. Alexander’s and FNF undertake no obligation to update the information provided herein.

CONTACT:

Fidelity National Financial, Inc.

Daniel Kennedy Murphy, 904-854-8120

Senior Vice President and Treasurer

dkmurphy@fnf.com

or

J. Alexander’s Corporation

R. Gregory Lewis, 615-269-1900

Vice President and Chief Financial Officer

glewis@jalexanders.com

 

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