UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
(Rule
13e-4)
(Amendment
No. 1)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
Sypris
Solutions, Inc.
(Name
of Subject Company (Issuer))
Sypris
Solutions, Inc.
(Names
of Filing Persons (Offeror))
Options
to Purchase Common Stock, par value $0.01 per share
(Title
of Class of Securities)
871655106
(CUSIP
Number of Class of Securities (Underlying Common Stock))
Jeffrey T. Gill
President
and Chief Executive Officer
Sypris
Solutions, Inc.
101
Bullitt Lane, Suite 450
Louisville,
Kentucky 40222
(502)
329-2000
(Name,
address, and telephone numbers of person authorized to receive notices
and
communications
on behalf of filing persons)
with
a copy to:
Caryn
F. Price, Esq.
Wyatt,
Tarrant & Combs, LLP
500
W. Jefferson Street, Suite 2800
Louisville,
Kentucky 40202
(502)
589-5235
CALCULATION
OF FILING FEE
|
Transaction
valuation*
|
Amount
of filing fee**
|
|
|
$328,484
|
$12.91
|
*
Calculated solely for purposes of determining the filing fee. This amount
assumes that options to purchase 679,553 shares of common stock of Sypris
Solutions, Inc., having an aggregate value of $328,484 as of March 31, 2008 will
be exchanged or cancelled pursuant to this offer. The aggregate value of such
options was calculated based on the Black-Scholes option pricing
model.
** The
amount of the filing fee, calculated in accordance with Rule 0-11(b) of the
Securities Exchange Act of 1934, as amended, equals $39.30 per million dollars
of the value of the transaction.
|
Amount
Previously Paid: $12.91
|
Filing
Party: Sypris Solutions, Inc.
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|||
| Form or Registration No.: 005-48797 | Date Filed: March 31, 2008 | |||
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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.
|
|||
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Amount
Previously Paid: N/A
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Form
or Registration No.: N/A
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|||
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Filing
Party: N/A
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Date
Filed: N/A
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|||
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
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|||
Check the
appropriate boxes below to designate any transactions to which the statement
relates:
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¨
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third-party
tender offer subject to Rule 14d-1.
|
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x
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issuer
tender offer subject to Rule 13e-4.
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|
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¨
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going-private
transaction subject to Rule 13e-3.
|
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¨
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amendment
to Schedule 13D under Rule 13d-2.
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Check the
following box if the filing is a final amendment reporting the results of the
tender offer: ¨
INTRODUCTORY
STATEMENT
This
Amendment No. 1 (this “Amendment No. 1”) to the Tender Offer Statement
on Schedule TO amends and supplements the Tender Offer Statement
on Schedule TO filed by Sypris Solutions, Inc., a Delaware
corporation (“Sypris”), with the Securities and Exchange Commission on March 31,
2008, in connection with the offer by Sypris to exchange (the “Exchange Offer”)
all vested, unexercised options to purchase shares of Sypris’s common stock that
are held by eligible participants that have exercise prices equal to or greater
than $4.31 per share (the “Eligible Options”). These Eligible Options may be
exchanged for shares of common stock or for new options (the “New Options”) that
will be granted under the terms and subject to the conditions set forth in the
Offer to Exchange Certain Outstanding Options for New Options or Shares of
Common Stock, dated March 31, 2008 (the “Offer to Exchange”). Items
not amended remain unchanged, and capitalized terms used herein and not
otherwise defined have the respective meanings ascribed thereto in the Offer to
Exchange.
As
permitted by General Instruction F to Schedule TO, the information set forth in
the Schedule TO, as amended by this Amendment No. 1, including exhibits and
annexes thereto that were previously filed with the Schedule TO, is hereby
expressly incorporated by reference herein in response to Items 1 through 13 of
this Amendment No. 1as set forth herein. You should read this Amendment
No. 1together with the Schedule TO filed on March 31
2008.
The
introductory paragraph of the Schedule TO is hereby amended and supplemented by
adding the following language:
“The
expiration date has been changed from 5:00 p.m., Eastern Time, on May 1,
2008, to 5:00 p.m., Eastern Time, on May 12, 2008, unless otherwise
terminated or further extended.”
ITEM
1. Summary
Term Sheet
Item 1 of
the Schedule TO, which incorporates by reference the information set forth in
the Offer to Purchase under “Summary Term Sheet and Frequently Asked Questions”,
is hereby amended and supplemented by adding the following
language:
“The
expiration date has been changed from 5:00 p.m., Eastern Time, on May
1, 2008, to 5:00 p.m., Eastern Time, on May 12, 2008, unless otherwise
terminated or further extended. Any extension of the Offer to Exchange will be
sent by email notice or other written notice to all eligible optionees
disclosing the extension no later than 9:00 a.m., Eastern Time, on the business
day following the previously scheduled expiration date.”
ITEM
4. Terms
of the Transaction
(a) Material Terms. Item 4 of the
Schedule TO, which incorporates by reference, among other things, the
information set forth in the Offer to Purchase under “Summary Term Sheet and
Frequently Asked Questions” and “The Offer”, is hereby amended and
supplemented by adding the following language:
“The
expiration date has been changed from 5:00 p.m., Eastern Time, on May
1, 2008, to 5:00 p.m., Eastern Time, on May 12, 2008, unless otherwise
terminated or further extended. Any extension of the Offer to Exchange will be
sent by email notice or other written notice to all eligible optionees
disclosing the extension no later than 9:00 a.m., Eastern Time, on the business
day following the previously scheduled expiration date.”
Item 4 of
the Schedule TO, which incorporates by reference, among other things, the
information set forth in the Offer to Purchase under “The Offer – Material U.S.
federal income tax consequences” is hereby amended and supplemented by
deleting the following language:
“CIRCULAR 230
DISCLAIMER. THE FOLLOWING DISCLAIMER IS PROVIDED IN ACCORDANCE WITH THE
INTERNAL REVENUE SERVICE’S CIRCULAR 230 (21 C.F.R. PART 10). THIS ADVICE IS NOT
INTENDED OR WRITTEN TO BE USED, AND IT CANNOT BE USED BY YOU FOR THE PURPOSE OF
AVOIDING ANY PENALTIES THAT MAY BE IMPOSED ON YOU. THIS ADVICE WAS WRITTEN TO
SUPPORT THE PROMOTION OR MARKETING OF PARTICIPATION IN THE COMPANY’S EQUITY
INCENTIVE PLAN. YOU SHOULD SEEK ADVICE BASED ON YOUR PARTICULAR CIRCUMSTANCES
FROM AN INDEPENDENT TAX ADVISOR.”
ITEM
12. Exhibits
Item 12
of the Schedule TO is hereby amended to read as follows:
Exhibit
Index
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Item
12
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Exhibits.
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99.(a)(1)(a)
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Offer
to Exchange Certain Unexercised Vested Options for New Vested Shares of
Common Stock or New Vested Options to Purchase Common Stock dated March
31, 2008
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99.(a)(1)(b)
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Exchange
Offer Letter
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99.(a)(1)(c)
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Form
of Announcement of Program email
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|
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99.(a)(1)(d)
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Standard
Terms of Awards Granted Executives Under the 2008 Stock Option Exchange
Program
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|
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99.(a)(1)(e)
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Standard
Terms of Awards Granted Employees Under the 2008 Stock Option Exchange
Program
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99.(a)(1)(f)
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Withdrawal
Form
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|
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99.(a)(1)(g)
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Form
of Confirmation of Receipt of Election Form
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99.(a)(1)(h)
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Form
of Confirmation of Receipt of Withdrawal Form
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|
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99.(a)(1)(i)
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Form
of Reminder of Deadline Emails
|
|
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99.(a)(1)(j)
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Stock
Value Calculator
|
|
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99.(a)(1)(k)
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Election
Form
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|
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99.(a)(1)(l)
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Form
of Email Notice to Optionees
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99.(a)(1)(m)
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Additional
Optionee Information Regarding Tax Withholding Obligations and Form of
Stock Ownership
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99.(a)(1)(n)
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Form
of Acceptance of Options for Cancellation
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99.(a)(1)(o)
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Form
of Notice of New Shares Tendered for Tax Withholding
Obligations
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| 99.(a)(1)(p) | Form of Notice of Certain Amendments to the Offer to Exchange | |
| 99.(a)(1)(q) | Form of Confirmation of Receipt of Election Form (Original Expiration Date) | |
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99.(b)
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None
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99.(d)(1)
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2004
Sypris Equity Plan
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99.(g)
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None
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99.(h)
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None
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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.
| Sypris Solutions, Inc. | |||
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|
By:
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/s/ John R. McGeeney | |
| Name: John R. McGeeney | |||
| Title: General Counsel and Secretary | |||
Date:
April 7, 2008
Exhibit
Index
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Item
12
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Exhibits.
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99.(a)(1)(a)*
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Offer
to Exchange Certain Unexercised Options for New Options
and Common Stock dated March 31, 2008
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99.(a)(1)(b)*
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Exchange
Offer Letter
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99.(a)(1)(c)*
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Form
of Announcement of Program email
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|
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99.(a)(1)(d)*
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Standard
Terms of Awards Granted Executives Under the 2008 Stock Option Exchange
Program
|
|
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99.(a)(1)(e)*
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Standard
Terms of Awards Granted Employees Under the 2008 Stock Option Exchange
Program
|
|
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99.(a)(1)(f)*
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Withdrawal
Form
|
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99.(a)(1)(g)
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Form
of Confirmation of Receipt of Election Form
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99.(a)(1)(h)
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Form
of Confirmation of Receipt of Notice of Withdrawal
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99.(a)(1)(i)
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Form
of Reminder of Deadline Emails
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99.(a)(1)(j)*
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Stock
Value Calculator
|
|
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99.(a)(1)(k)*
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Election
Form
|
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99.(a)(1)(l)
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Form
of Email Notice to Optionees
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|
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99.(a)(1)(m)
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Additional
Optionee Information Regarding Tax Withholding Obligations and Form of
Stock Ownership
|
|
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99.(a)(1)(n)*
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Form
of Acceptance of Options for Cancellation
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|
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99.(a)(1)(o)*
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Form
of Notice of New Shares Tendered for Tax Withholding
Obligations
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99.(a)(1)(p)
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Form
of Notice of Certain Amendments to the Offer to
Exchange
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| 99.(a)(1)(q) | Form of Confirmation of Receipt of Election Form (Original Expiration Date) | |
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99.(b)
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None
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99.(d)(1)**
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2004
Sypris Equity Plan
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99.(g)
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None
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99.(h)
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None
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*
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Previously
filed with the Schedule TO filed with the Securities and Exchange
Commission on March 31, 2008 and incorporated herein by
reference.
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**
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Incorporated
by reference to Sypris’s Registration Statement on Form S-8 (File No.
333-114982) filed with the Commission on April 29,
2004.
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8
Exhibit
99.(a)(1)(g)
CONFIRMATION
OF RECEIPT OF ELECTION FORM
This
email confirms our receipt of your Election Form, which sets forth your election
to exchange one or more of your Eligible Grants in the 2008 Sypris Stock Option
Exchange Program. This email does not serve as a formal acceptance by Sypris of
the Eligible Grants designated on your Election Form for exchange. The procedure
for acceptance of Eligible Grants for exchange is described in the Offer to
Exchange previously made available to you.
Your
election to exchange your Eligible Grants may be withdrawn or changed at any
time prior to 5:00 p.m. Eastern Time on May 12, 2008, the Expiration Date of the
Offer to Exchange, or withdrawn by May 12, 2008. Withdrawals must be submitted
to the Company according to the instructions set forth in the Notice of
Withdrawal.
You may
email questions about the Offer to Exchange to andrea.luescher@sypris.com or
call (502) 329-2029.
Exhibit
99.(a)(1)(h)
CONFIRMATION
OF RECEIPT OF NOTICE OF WITHDRAWAL
This
email confirms our receipt of your Notice of Withdrawal rejecting Sypris’ Offer
to Exchange Certain Unexercised Vested Outstanding Options to Purchase Common
Stock dated March 31, 2008 (the “Offer”) and nullifying your previously
submitted Election Forms. Please note that the Notice of
Withdrawal completely withdraws you from the Offer and cannot be used to make
changes to your previously submitted Election Forms. If you would like to change your
election with respect to particular options only, you should submit a new
Election Form instead.
In
addition, you may change your mind and re-accept the Offer by completing and
delivering a new Election Form at any time prior to 5:00 p.m. Eastern Time on
May 12, 2008.
You may
email questions about the Offer to andrea.luescher@sypris.com or call
(502) 329-2029.
Exhibit
99.(a)(1)(i)
To All
Sypris Optionees Eligible to Participate in the Offer to Exchange:
REMINDER
— If you are electing to exchange any of your Eligible
Grants under the Stock Option Exchange Program, the deadline to deliver your
Election Form is May 12, 2008 at 5:00 p.m. Eastern Time.
We cannot
accept late submissions, and therefore we urge you to respond early to avoid any
last minute problems.
Even if
you are not electing to tender any of your outstanding Eligible Grants for
exchange, please submit a completed Election Form indicating that you wish to
keep your Eligible Grants.
If you
have questions regarding the Stock Option Exchange Program, contact
andrea.luescher@sypris.com or call (502) 329-2029.
Exhibit
99.(a)(1)(l)
Email
Notice- Conference Call Reminder
We will
conduct a conference call on April 7th at 2:00 p.m. ET to
review any additional questions you may have as you prepare your election form
for the Exchange Program.
The dial
in number for this call is 1-888-346-3950, entry code is 579937#. We urge you to
work through your election form prior to this call to help determine whether you
have any further questions.
We
have also attached your personalized information regarding your tax withholding
obligations should you elect to exchange your eligible options for shares of
common stock. Please review the attached information and if you
intend to elect stock, please complete part II of the Form (telling us how you
wish to receive your shares) and send via email to andrea.luescher@sypris.com
or fax to 502-329-2036.
This
2008 Stock Option Exchange Program will expire on May 12th at 5pm EST and
requires you to elect one of the choices provided before that
time. If you wish to withdraw your prior election to participate in
the Offer you may do so until 5:00 p.m. EST on May 12, 2008.
Exhibit
99.(a)(1)(m)
SYPRIS
SOLUTIONS, INC.
OFFER
TO EXCHANGE CERTAIN OUTSTANDING OPTIONS
__________________________________
ISSUES
RELATING TO RECEIPT OF NEW SHARES OF STOCK
Part I. Tax
Withholding Percentage
Your tax
withholding percentage for any New Shares of common stock that you have elected
to receive is:
[Insert Applicable
Rate]%
For any
grant of New Shares of stock, you can estimate the tax you would owe as
follows:
|
(a)
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the
number of New Shares that you elect to receive for any Eligible
Grant,
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multiplied
by
|
(b)
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your
estimate of the closing price per share of Sypris stock on May 12, 2008
(“Estimated Value”), multiplied
by
|
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(c)
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[Insert Applicable
Rate].
|
For
example, if you were to receive 100 New Shares (in exchange for one of your
Eligible Grants), your tax withholding obligation for that grant would be [Insert calculated
result] if the Estimated Value of Sypris stock were $5.00 per share,
because 100 x $5.00 x [Insert Applicable
Rate] = [Insert
calculated result]. To estimate your total tax withholding
obligation, you should perform this calculation by including each Eligible Grant
that you choose to exchange for New Shares.
Please
use this form to elect which method you will use to meet your required tax
withholding obligation. We will
automatically withhold sufficient New Shares to pay the withholding obligation
if you do not provide your preference by May 12, 2008.
[
] I will pay with a
check [
] Please withhold sufficient shares to pay for the withholding
obligation
Note: We
must receive your check for the required tax withholding amount by 5:00pm ET on
May 16, 2008, if not we will automatically withhold wages from your next pay
check to meet the tax obligation.
Part II. Preferred Form of
Stock Ownership
Please
use this form to designate the manner in which you wish to receive any New
Shares of stock. If you do not designate any preference by May 12, 2008, you
will automatically receive an original share certificate.
[
] Please send an original share certificate to my home address
below:
_________________________________________________
_________________________________________
_________________________________________
Original
certificates are valuable items which you should keep in a safety deposit box or
other safe place.
OR
Please
transfer shares electronically (by way of DTC) to my brokerage account
below:
Brokerage
Firm Name:___________________________
Broker's
Name:________________________________
Broker
Phone Number:__________________________
DTC
Participant #:_____________________________
Please
provide your broker with a copy of this election.
Note
to Brokers: You must initiate the DWAC Deposit on May 14, 2008, in order to
receive the shares.
Signature
:__________________________
Name:______________________________
Date:_______________________________
Exhibit
99.(a)(1) (p)
NOTICE
OF CERTAIN AMENDMENTS TO THE OFFER TO EXCHANGE
We are
providing this notice in connection with Sypris’ Offer to Exchange Certain
Unexercised, Vested Options for New Vested Shares of Common Stock or New Vested
Options to Purchase Common Stock (the “Offer to Exchange”) as provided on March
31, 2008. We have made certain amendments to the Offer to Exchange as
follows:
1. The
expiration date of the offer has been changed from May 1, 2008 to May 12,
2008. Accordingly, the definitions of “expiration date” and “offer
period” have been amended to read as follows:
“expiration date” refers to
the date that this offer expires. We expect that the expiration date will be May
12, 2008 at 5:00 p.m., Eastern Time. We may extend the expiration date at our
sole discretion; any extension will be made by written notice. If we extend the
offer, the term “expiration date” will refer to the time and date at which the
extended offer expires.
“offer period” refers to the
period from the first business day of this offer to the expiration
date. We expect that this period will begin on March 31, 2008 and
expire on May 12, 2008.
To
participate in the offer, you must complete and sign the personalized election
form you receive from us and deliver it in accordance with the instructions set
forth in the Offer to Exchange before 5:00 p.m. Eastern Time on May 12,
2008. Each reference to “May 1, 2008” in the Offer to Exchange and
the Standard Terms of Awards is amended to read “May 12,
2008.”
2. Notice of extension of
the offer. Any extension of the Offer to Exchange will be sent by email
notice or other written notice to all eligible optionees disclosing the
extension no later
than 9:00 a.m., Eastern Time, on the business day following the
previously scheduled expiration date. We will file a copy of such notice with
the SEC.
3. Section
14 of the Offer to Exchange is amended to delete the following
language:
“CIRCULAR 230
DISCLAIMER. THE FOLLOWING DISCLAIMER IS PROVIDED IN ACCORDANCE WITH THE
INTERNAL REVENUE SERVICE’S CIRCULAR 230 (21 C.F.R. PART 10). THIS ADVICE IS NOT
INTENDED OR WRITTEN TO BE USED, AND IT CANNOT BE USED BY YOU FOR THE PURPOSE OF
AVOIDING ANY PENALTIES THAT MAY BE IMPOSED ON YOU. THIS ADVICE WAS WRITTEN TO
SUPPORT THE PROMOTION OR MARKETING OF PARTICIPATION IN THE COMPANY’S EQUITY
INCENTIVE PLAN. YOU SHOULD SEEK ADVICE BASED ON YOUR PARTICULAR CIRCUMSTANCES
FROM AN INDEPENDENT TAX ADVISOR.”
Section
14 now reads in its entirety as follows:
The
following is a general summary of the material U.S. federal income tax
consequences of the exchange of options pursuant to the offer. This discussion
is based on the U.S. Internal Revenue Code, its legislative history, treasury
regulations thereunder and administrative and judicial interpretations as of the
date of this offer, all of which are subject to change, possibly on a
retroactive basis. This summary does not discuss all of the tax consequences
that may be relevant to you in light of your particular circumstances, nor is it
intended to be applicable in all respects to all categories of option holders.
We strongly recommend that you consult with your own advisors to discuss the
consequences to you of this transaction.
We
recommend that you consult your own tax advisor with respect to the federal,
state and local tax consequences of participating in the offer, as the tax
consequences to you are dependent on your individual tax situation.
Option
holders who exchange unexercised options for New Options should not be required
to recognize income for U.S. federal income tax purposes at the time the
exchanged options are surrendered. We believe that the exchange will be treated
as a non-taxable exchange.
New Shares of Common
Stock.
If you participate in this offer and
elect to receive New Shares, you generally will recognize ordinary income equal
to the fair market value of the shares as of the cancellation date. When
shares are delivered to you, you must make adequate provision for any sums
required to satisfy applicable federal, state, local and foreign tax withholding
obligations. We may withhold these sums from any amounts otherwise payable to
you, through payroll withholding, by withholding proceeds received upon sale of
the underlying common stock through a sell-to-cover arrangement, or otherwise.
We may also authorize the withholding of shares in such amounts as we determine
are necessary to satisfy our tax withholding obligations. Unless the foregoing
tax withholding obligations are satisfied, we have no obligation to deliver any
shares to you.
Non-qualified
Stock Options.
All New
Options are non-qualified stock options for purposes of the Internal Revenue
Code, regardless of whether the exchanged options are incentive stock options or
non-qualified stock options.
Under
current law, an option holder will not realize taxable income upon the grant of
a non-qualified stock option. However, when an option holder exercises the
option, the difference between the exercise price of the option and the fair
market value of the shares covered by the option on the date of exercise will be
compensation income taxable to the option holder.
Sypris
generally will be entitled to a tax deduction equal to the amount of
compensation income taxable to the U.S. option holder if we comply with eligible
reporting requirements.
It is
intended that any options granted under this offer will meet the safe harbor
provisions of the regulations under IRC Section 409A so as to avoid any adverse
tax consequences under such provisions. Eligible optionees are urged
to consult their tax advisors concerning the application of IRC Section 409A in
these circumstances.
We
recommend that you consult your own tax advisor with respect to the federal,
state and local tax consequences of participating in the offer.
Exhibit
99.(a)(1) (q)
CONFIRMATION
OF RECEIPT OF ELECTION FORM (Original Expiration Date)
This
email confirms our receipt of your Election Form which sets forth your
election to exchange one or more of your Eligible Grants in the 2008 Sypris
Stock Option Exchange Program. This email does not serve as a formal acceptance
by Sypris of the Eligible Grants designated on your Election Form for exchange.
The procedure for acceptance of Eligible Grants for exchange is described in the
Offer to Exchange previously made available to you.
Your
election to exchange your Eligible Grants may be withdrawn or changed at any
time prior to 5:00 p.m. Eastern Time on May 1, 2008, the Expiration Date of the
Offer to Exchange, or withdrawn by May 12, 2008. Withdrawals must be submitted
to the Company according to the instructions set forth in the Notice of
Withdrawal.
You may
email questions about the Offer to Exchange to andrea.luescher@sypris.com or
call (502) 329-2029.