Filed pursuant to Rule 424(b)(3)
Registration No.: 333-120186
PROSPECTUS
THE E.W. SCRIPPS COMPANY
[LOGO]
149,118 CLASS A COMMON SHARES
RESCISSION OFFER
We are offering, upon the terms and conditions set forth in this
prospectus, to rescind sales of up to 149,118 Class A Common Shares, $.01 par
value, made to persons who purchased those shares under our Employee Stock
Purchase Plan (the "Plan") during the period from July 1, 2002, through July 1,
2004 (the "Applicable Period").
If you own any Class A Common Shares that you purchased under the Plan
during the Applicable Period, we are offering to buy back those shares at the
price you paid for them plus interest, less any dividends you received on such
shares.
If you sold any Class A Common Shares that you purchased under the Plan
during the Applicable Period, we are offering to pay you the amount you paid
when you purchased those shares plus interest, less any dividends you received
on such shares and less the amount you received when you sold the shares.
Participants in our Employee Stock Purchase Plan purchased 149,118 Class A
Common Shares under the Plan during the Applicable Period at prices ranging from
$31.19 to $46.04 per share.
Our Class A Common Shares are listed on the New York Stock Exchange under
the symbol "SSP". On December 15, 2004, the last reported sale price for our
Class A Common Shares was $46.01 per share.
The mailing address of our principal executive offices is P.O. Box 5380,
Cincinnati, Ohio 45201, and our telephone number is (513) 977-3000.
THIS RESCISSION OFFER WILL EXPIRE AT 5:00 P.M.
EASTERN STANDARD TIME ON JANUARY 25, 2005.
YOU ARE NOT REQUIRED TO ACCEPT OUR RESCISSION OFFER. If you do not accept
it, you will be deemed to have purchased registered Class A Common Shares under
the Securities Act of 1933, as amended (the "Securities Act"), effective as of
the date of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS DECEMBER 17, 2004
TABLE OF CONTENTS
PAGE
----
About This Prospectus....................................... 2
Forward Looking Statements.................................. 2
Where You Can Find More Information......................... 2
Incorporation of Certain Documents by Reference............. 3
The E.W. Scripps Company.................................... 4
Risks Related to Our Rescission Offer....................... 4
The Rescission Offer........................................ 5
Experts..................................................... 15
ABOUT THIS PROSPECTUS
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
and the documents incorporated by reference is accurate only as of their
respective dates. Our business, financial condition, results of operations and
prospects may have changed since those dates.
As used in this prospectus, "Company," Scripps," "we," "our" and "us" may,
depending on the context, refer to The E.W. Scripps Company, to one or more of
its consolidated subsidiaries or to all of them taken as a whole.
FORWARD-LOOKING STATEMENTS
Some of the discussion and the information set forth in this prospectus and
any prospectus supplement and any other documents incorporated by reference
contain forward-looking statements that are based on our current expectations.
Forward-looking statements are subject to certain risks, trends and
uncertainties that could cause actual results to differ materially from the
expectations expressed in the forward-looking statements. Such risks, trends and
uncertainties, which in most instances are beyond our control, include changes
in advertising demand and other economic conditions; consumers' taste; newsprint
prices; program costs; labor relations; technological developments; competitive
pressures; interest rates; regulatory rulings; and reliance on third-party
vendors for various products and services. The words "believe," "expect,"
"anticipate," "estimate," "intend" and similar expressions identify
forward-looking statements.
All forward-looking statements, which are as of the date of this filing,
should be evaluated with the understanding of their inherent uncertainty. We
undertake no obligation to publicly update any forward-looking statement to
reflect events or circumstances after the date the statement is made.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all
amendments, schedules and exhibits, referred to as the "Registration Statement")
under the Securities Act relating to this rescission offer. As permitted by the
rules and regulations of the Commission, this prospectus does not contain all of
the information set forth in the Registration Statement, of which this
prospectus is a part. For further information with respect to us, the rescission
offer and our Class A Common Shares, please refer to the Registration Statement,
which may be inspected, without charge, at the public reference facilities of
the Commission referred to below, and copies of which may be obtained therefrom
upon payment of the Commission's customary charges.
We file reports, proxy statements and other information with the Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). You
may inspect and copy this information at the public reference facilities of the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. You may call the Commission at 1-800-SEC-0330 for further
information about its public reference facilities. The Commission also maintains
an Internet website (http://www.sec.gov) containing our reports, proxy
statements and other information.
2
You may also inspect and copy the reports, proxy statements and other
information we file, at the offices of the New York Stock Exchange, Inc., on
which our Class A Common Shares are listed, at 20 Broad Street, New York, New
York 10005.
In addition, we make available our Commission reports, proxy statements and
other information in the "Investor Relations" section of our Internet website
(http://www.scripps.com).
THE INFORMATION CONTAINED ON OUR INTERNET WEBSITE DOES NOT CONSTITUTE A
PART OF THIS PROSPECTUS.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" information into
this prospectus. This means that we can disclose important information to you by
referring to another document filed separately with the Commission. The
information incorporated by reference is considered to be a part of this
prospectus, except for information that is superseded by information contained
in this prospectus directly or in another, later document that is incorporated
by reference. We incorporate by reference the following documents:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, as amended by Amendment No. 1 filed by the Company on
Form 10-K/A dated April 20, 2004.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2004, June 30, 2004 and September 30, 2004.
3. The Company's Current Reports on Form 8-K dated January 16, 2004,
January 22, 2004, March 23, 2004, April 14, 2004, April 15, 2004, July 15,
2004, July 21, 2004, August 2, 2004, August 11, 2004, September 13, 2004,
October 8, 2004, October 13, 2004, October 14, 2004, November 10, 2004,
November 18, 2004, and December 13, 2004.
4. The description of the Company's Class A Common Shares contained in
the Company's Registration Statement on Form 10 (File No. 1-11969).
This prospectus also incorporates by reference additional documents that we
may file with the Commission between the date of this prospectus and before this
rescission offer terminates. These documents include periodic reports, such as
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K, as well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document from the Commission through its public reference facilities or Internet
website, as described above. The documents incorporated by reference are also
available through our Internet website as described above, or they may be
obtained from us without charge (excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference as an exhibit in
this prospectus) by requesting them in writing or by telephone at the following
address:
Vice President-Investor Relations
The E.W. Scripps Company
312 Walnut Street
P.O. Box 5380
Cincinnati, Ohio 45201
Telephone: (513) 977-3000
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THE E.W. SCRIPPS COMPANY
We are a diverse media concern with interests in national lifestyle
television networks, newspaper publishing, broadcast television, television
retailing, interactive media and licensing and syndication. All of our media
businesses provide content and advertising services via the Internet. Our media
businesses are organized into the following reportable business segments:
Scripps Networks, Newspapers, Broadcast television and Shop At Home.
SCRIPPS NETWORKS
Scripps Networks includes our five national lifestyle television networks:
Home & Garden Television, Food Network, DIY -- Do It Yourself Network, Fine
Living and Great American Country Network. Scripps Networks also includes our
12% interest in FOX Sports Net South, a regional television network. We own
approximately 70% of Food Network and approximately 90% of Fine Living. Each of
our networks is distributed by cable and satellite television systems pursuant
to the terms of long-term distribution agreements. Scripps Networks earns
revenue primarily from the sale of advertising time and from affiliate fees from
cable and satellite television systems.
NEWSPAPERS
Our newspaper business segment includes daily and community newspapers in
18 markets and the Washington-based Scripps Media Center, which includes the
Scripps Howard News Service. Four of our newspapers are operated pursuant to the
terms of a joint operating agreement. Each of those newspapers maintains an
independent editorial operation and receives a share of the operating profits of
the combined newspaper operations. We solely manage and operate each of the
other newspapers. Our newspapers earn revenue primarily from the sale of
advertising space to local and national advertisers and from the sale of
newspapers to readers.
BROADCAST TELEVISION
Our broadcast television business segment includes six ABC-affiliated
stations, three NBC-affiliated stations and one independent station. Each
station is located in one of the 60 largest television markets in the United
States. Our broadcast television stations earn revenue primarily from the sale
of advertising time to local and national advertisers.
SHOP AT HOME
Shop At Home markets a range of consumer goods directly to television
viewers and visitors to its Internet site. Shop At Home reaches approximately 51
million full-time equivalent households and can be viewed in more than 147
television markets, including 91 of the largest 100 television markets in the
United States. Shop At Home programming is distributed under the terms of
affiliation agreements with broadcast television stations and cable and
satellite television systems. In 2004, we acquired Summit America Television,
which owned a minority interest in Shop At Home and owned and operated five
television stations that exclusively broadcasted Shop At Home programming.
Substantially all of Shop At Home's revenues are earned from the sale of
merchandise.
RISKS RELATED TO OUR RESCISSION OFFER
CONTINUED LIABILITY
We may continue to have potential liability even after this rescission
offer is made since it is not certain that our offer will have the effect of
barring claims relating to our non-compliance with applicable federal and state
laws. Please refer to "Summary of Applicable Laws" in this prospectus for a more
detailed discussion regarding the effect of a rescission offer under federal and
applicable state laws.
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IF YOU CHOOSE TO ACCEPT OUR OFFER
If you choose to accept our rescission offer, you will receive the amount
you paid per share plus interest at the rate of 10% per annum (or if you are a
resident of Kansas, 15% per annum) from the date of purchase, less any income
you received on the shares. While we can make no assurances as to the prices
that our shares will trade at in the future, you should consider that on
December 15, 2004, the closing sale price for our Class A Common Shares was
$46.01 per share. Based upon the purchase prices and the number of shares
purchased through the Plan during the Applicable Period, the payment that would
be received upon acceptance by Plan participants of our rescission offer with
respect to a significant portion of their shares would be less than $46.01 per
share. As a result, a significant number of such participants may be able to
sell their shares in the open market at prices higher than the prices we are
offering to pay in this rescission offer. Please refer to the document enclosed
herewith and titled Employee Stock Purchase Plan Statement, which will inform
you as to whether you purchased shares through the Plan at less than or more
than the current market price. Please note that you have until January 25, 2005,
to change your acceptance or rejection of our rescission offer and, therefore,
to take into account any market price fluctuations that may occur between the
date you mail your acceptance or rejection and the expiration date (January 25,
2005) of our offer.
TAX CONSEQUENCES
Your decision regarding our rescission offer may have material tax
consequences. Please see the information set forth in this prospectus under
"Material Federal Income Tax Considerations."
THE RESCISSION OFFER
BACKGROUND AND REASONS FOR THE RESCISSION OFFER
At the inception of our Employee Stock Purchase Plan (the "Plan") in 1997,
we registered 400,000 Class A Common Shares under the Securities Act of 1933
(the "Securities Act") for sale pursuant to the Plan. From inception of the Plan
through July 1, 2004, we sold 549,118 Class A Common Shares to eligible
full-time employees. Of the shares sold, 149,118 were not registered under the
Securities Act or applicable state securities laws. These unregistered shares
were sold under the Plan from July 1, 2002, through July 1, 2004 (the
"Applicable Period"). We are making this rescission offer to ensure our
compliance with the registration provisions of federal and applicable state laws
and to extinguish or reduce any contingent liability we may have under such
laws.
If you purchased any unregistered shares under the Plan during the
Applicable Period, you may have the right under federal or state law to have
such shares repurchased by us or, if you have sold any of such shares, you may
be entitled under federal or state law to other relief as described herein. Your
rights in this regard are discussed in more detail in other sections of this
prospectus. See "Summary of Applicable Laws."
The maximum estimated amount that we would be required to refund if all
employees accepted our rescission offer is $5,535,072, not including interest.
TERMS OF THE RESCISSION OFFER
If you purchased Class A Common Shares under the Plan during the Applicable
Period, we are offering:
(i) to buy back all shares you purchased during the Applicable Period
at the price(s) you paid for such shares, plus interest at the rate of 10%
per annum (except for Kansas residents, where the law requires us to pay at
the rate of 15% per annum) minus any dividends you received on such shares,
upon receipt by us of (A) a properly completed and executed Rescission
Election Form (furnished herewith) and (B) certificates representing such
shares purchased pursuant to the Plan during the Applicable Period;
(ii) if you sold shares you purchased during the Applicable Period and
had a loss, to pay you the amount you paid when you purchased such shares
less the amount you received when you sold such
5
shares, plus interest at the rate of 10% per annum (except for Kansas
residents, where the law requires us to pay at the rate of 15% per annum)
minus any dividends you received on such shares, upon receipt by us of (A)
a properly executed Rescission Election Form and (B) proof reasonably
satisfactory to us evidencing the sale of such shares; or
(iii) if you sold shares you purchased during the Applicable Period
and had a gain, to pay you the excess, if any, of the sum of the amount you
paid when you purchased such shares plus interest at the rate of 10% per
annum (except for Kansas residents, where the law requires us to pay at the
rate of 15% per annum) over the sum of the amount you received when you
sold such shares plus any dividends you received on such shares, upon
receipt by us of (A) a properly executed Rescission Election Form and (B)
proof reasonably satisfactory to us evidencing the sale of such shares.
Interest will be calculated from the date of your purchase of the shares to
the expiration date of this offer.
While no assurance can be given as to the prices at which our Class A
Common Shares will trade in the future, you should consider that on December 15,
2004, the closing sale price for our Class A Common Shares on the New York Stock
Exchange was $46.01 per share. You may be able to sell your shares in the open
market at prices higher than the prices we are offering to pay you in our
rescission offer. Please refer to your personal Employee Stock Purchase Plan
Statement (furnished herewith) for the prices we are offering to pay for your
shares. You are urged to obtain current quotations of the market price of our
Class A Common Shares on The New York Stock Exchange (Symbol: SSP).
We recommend that you consider carefully any decision to elect rescission
and consult with your financial advisor if you deem it appropriate.
ACCEPTANCE
You are not required to accept this rescission offer. Acceptance is
optional. If you elect to accept this offer, you must complete the "Rescission
Election Form," a copy of which has been included for your convenience. You
should mail or return this form to the Company, Attention: Julie Elliott,
Director, Corporate Compensation, 312 Walnut Street, 28th Floor, Cincinnati,
Ohio 45202, as soon as practicable after the date of receipt of this prospectus.
A pre-addressed envelope has been provided to you for this purpose. Your
properly completed Rescission Election Form must be received by the Company by
5:00 p.m. Eastern Standard Time, on or before January 25, 2005, which is the
expiration date of this offer.
In completing the Rescission Election Form, please refer to the document
provided to you by the Company, titled "Employee Stock Purchase Plan Statement,"
which contains detailed information regarding your share purchases under the
Plan, including the number of shares purchased, the dates of purchase and the
prices you paid for the shares.
All acceptances of our rescission offer will be deemed to be effective on
the expiration date. Unless you accept our offer before the expiration date,
your right to accept it will terminate. You can revoke your acceptance or
rejection of our rescission offer prior to the expiration date by submitting a
new Rescission Election Form to us by the expiration date. You may obtain a new
Form by contacting Ms. Elliott.
If you have already sold the shares subject to our offer, you must enclose
with the Rescission Election Form proof reasonably satisfactory to us evidencing
the bona fide sale of such shares to a third party, including the sale price for
such shares. Satisfactory proof of the sale price of such shares may take the
form of a canceled check or a receipt from the broker, dealer or other person
conducting the sale. The sale price may have been paid in either cash or
property. If the sale price was paid in property, the price will be deemed to be
the fair market value of such property at the time of sale. If the proof of the
sale price is not reasonably satisfactory to us, we may require additional
proof. In addition, we may require evidence that any sale of such shares was a
bona fide transfer to a third party. We may require that an improperly completed
Rescission Election Form be properly completed and returned to us.
If you accept our rescission offer in accordance with its terms, we will
pay you for your rescinded shares within approximately five (5) business days of
the expiration date.
6
YOU WILL BE DEEMED TO HAVE REJECTED OUR RESCISSION OFFER IF YOU FAIL TO
NOTIFY US IN WRITING OF YOUR ACCEPTANCE OF OUR RESCISSION OFFER ON OR PRIOR TO
THE EXPIRATION DATE; HOWEVER, SUCH REJECTION MAY NOT BE DETERMINATIVE OF YOUR
ACTUAL LEGAL RIGHTS. SEE "EFFECT OF RESCISSION OFFER" BELOW.
OTHER TERMS AND CONDITIONS
Unless extended by us, our rescission offer will expire on January 25,
2005, as indicated above. If we do not receive your Rescission Election Form
fully completed and executed in pertinent part by the expiration date, we will
assume you have rejected our rescission offer. If you decide to accept our
rescission offer and intend to use the mail to return your stock certificates to
us, we recommend that you use insured registered mail, return receipt requested.
We have not retained nor do we intend to retain any person to make
solicitations or recommendations to you in connection with our rescission offer.
Neither we nor our officers or directors may make any recommendation to you with
respect to this offer. We urge you to read this prospectus carefully and to make
an independent evaluation with respect to our offer.
DILUTION IN BOOK VALUE
At September 30, 2004, we had 126,359,198 Class A Common Shares issued and
outstanding and 36,738,226 Common Voting Shares issued and outstanding. At such
date, our shareholders' equity was $2,016,321,000, for a book value per share of
approximately $12.36. The estimated amount that we would be required to pay if
all recipients of our rescission offer accept our offer with respect to the
149,118 shares subject to our offer is $5,535,072, not including interest. Thus,
if our rescission offer were accepted in full, the book value per share of our
capital stock, measured as if the offer were completed as of September 30, 2004,
would have been approximately $.02 lower than the actual book value per share.
EFFECT OF RESCISSION OFFER
If you do not accept our rescission offer, you may lose your right to bring
a civil action against us before expiration of the statute of limitations
applicable to our failure to register the shares subject to this rescission
offer under federal or state securities laws. Our rescission offer is not a
waiver by us of any applicable statute of limitations. We intend to assert,
among other defenses, in any litigation initiated by any person who does not
accept this rescission offer, that such person is estopped from asserting such
claims.
If you reject or fail to accept our rescission offer, you will retain
ownership of the shares you received and will not receive any cash for those
shares. In addition, the shares subject to our rescission offer held by persons
who reject or fail to accept our rescission offer will, for purposes of
applicable federal and state securities law, be registered securities as of the
expiration date of our rescission offer and, unless held by persons who may be
deemed to be "affiliates" of us, will be freely tradeable in the public market
at such time. Those shares held by our affiliates will be subject to certain
restrictions on resale provided in rules promulgated under the Securities Act.
We believe that our rescission offer complies in all material respects with
the requirements of applicable federal and state laws. Whether or not the
applicable state law (and federal law) statutes of limitations have expired, we
are making our offer to all participants in the Plan with respect to all shares
purchased during the Applicable Period. Nonetheless, the terms of our offer do
not constitute a waiver by us of any defense, including a defense based on an
applicable statute of limitations, in the event that any participant brings a
lawsuit against us with respect to his purchase of unregistered shares under the
Plan.
You should consult an attorney regarding all of your legal rights and
remedies before deciding whether or not to accept our rescission offer.
7
SUMMARY OF APPLICABLE LAWS
Federal Law. The statute of limitations for non-compliance with the
requirement to register securities under the Securities Act is one year. It is
unclear whether this rescission offer will terminate any liability we may have
under the Securities Act with respect to shares purchased by you or other
employees under the Plan within one year prior to the expiration date. The staff
of the Securities and Exchange Commission takes the position that a person's
federal right of rescission may survive a rescission offer so long as it is not
barred by the statute of limitations.
State Laws. To comply with applicable state laws, we will hold our
rescission offer open until January 25, 2005. A summary of the statutes of
limitations and the effect of a rescission offer under applicable state
securities laws appears in the table below. The law of your state of residence
is the law applicable to you.
STATE STATUTE OF LIMITATIONS EFFECT OF RESCISSION OFFER
----- ----------------------------- -----------------------------
Alabama.............................. Two years after If you own the securities and
non-compliance. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Arizona.............................. One year after If you do not accept our
non-compliance. offer, you retain your right
to sue for rescission or
damages unless the statute of
limitations has expired.
California........................... Earlier of two years after If you do not accept our
non-compliance or one year offer, you will lose your
after discovery of facts right to sue for rescission
constituting such or damages.
non-compliance.
Colorado............................. Two years after date of If you do not accept our
contract for sale of offer, you will lose your
securities. right to sue for rescission
or damages.
District of Columbia................. One year after If you own the securities and
non-compliance. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Florida.............................. Two years after purchaser If you do not accept our
discovered or should have offer, you will lose your
discovered the facts giving right to sue for rescission
rise to the non-compliance or damages.
but no more than five years
from the date of
non-compliance.
Illinois............................. Three years after non- If you do not accept our
compliance. offer, you will lose your
right to sue for rescission
or damages.
8
STATE STATUTE OF LIMITATIONS EFFECT OF RESCISSION OFFER
----- ----------------------------- -----------------------------
Indiana.............................. Three years after discovery If you own the securities and
of non-compliance. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Kansas............................... Three years after discovery If you own the securities and
of non-compliance. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Kentucky............................. Three years after discovery If you own the securities and
of non-compliance. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Maryland............................. One year after If you own the securities and
non-compliance. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Michigan............................. Two years after the date of If you own the securities and
contract for the sale of you do not accept our offer,
securities. you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Missouri............................. One year after If you do not accept our
non-compliance. offer, you will lose your
right to sue for rescission
or damages.
New Mexico........................... Three years after non- If you do not accept our
compliance. offer, you will lose your
right to sue for rescission
or damages.
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STATE STATUTE OF LIMITATIONS EFFECT OF RESCISSION OFFER
----- ----------------------------- -----------------------------
Ohio................................. Two years after purchaser If you do not accept our
knew or had reason to know of offer, you will lose your
the facts by reason of which right to sue for rescission
there was non-compliance or or damages.
five years from the date of
sale or contract of sale,
whichever is shorter.
Oklahoma............................. Three years from the date of If you own the securities and
sale. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
South Carolina....................... Three years from the contract If you own the securities and
of sale. you do not accept our offer,
you will lose your right to
sue for rescission.
If you sold the securities
prior to receiving our offer,
you will lose your right to
sue for damages unless you
reject the offer in writing
within 30 days of receipt.
Tennessee............................ Five years after Although there is no
non-compliance or two years statutory provision for a
after discovery of facts rescission offer, the
constituting non-compliance Tennessee Securities Division
or after discovery should has issued a policy statement
have been made, whichever outlining the requirements
shall first expire. for conducting a rescission
offer in Tennessee.
We believe that Tennessee
courts would give effect to
our offer if you subsequently
brought suit.
Texas................................ Three years after sale or one If you do not accept our
year after rejecting a offer, you will lose your
rescission offer meeting the right to sue for rescission
requirements of the Texas or damages unless you reject
Securities Act of 1957. the offer within 30 days of
receipt and expressly reserve
in the rejection your right
to sue.
Virginia............................. Two years after If you do not accept our
non-compliance. offer, you will lose your
right to sue for rescission
or damages.
Washington........................... Three years after discovery You will lose your right to
of the non-compliance. sue for rescission if all of
the following are true: (i)
you own the securities, (ii)
you have not previously
instituted suit regarding the
securities, (iii) the
director of the Washington
Securities Division has
passed upon the rescission
offer and (iv) you do not
accept our offer.
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Additional Information. Although the securities laws in New York do not
appear to require us to make a rescission offer to residents of New York who
participate in the Plan, we are, as indicated above, extending the offer to all
participants in the Plan who are residents of New York and purchased shares
during the Applicable Period.
California, Michigan and Texas require us to provide additional information
about their laws relating to our rescission offer. This information appears
below.
California. Under California law, an issuer is civilly liable to a
purchaser of its securities sold in violation of the requirements of the
California Corporate Securities Law of 1968. The relevant sections of the
California Securities Law of 1968 are set forth below.
Section 25503 of California Securities Law of 1968 states that:
Any person who violates Section 25110, 25130 or 25133, or a condition of
qualification under Chapter 2 (commencing with Section 25110) of this part,
imposed pursuant to Section 25141, or an order suspending trading issued
pursuant to Section 25219, shall be liable to any person acquiring from him
the security sold in violation of such section, who may sue to recover the
consideration he paid for such security with interest thereon at the legal
rate, less the amount of any income received therefrom, upon the tender of
such security, or for damages, if he no longer owns the security, or if the
consideration given for the security is not capable of being returned.
Damages, if the plaintiff no longer owns the security, shall be equal to
the difference between (a) his purchase price plus interest at the legal
rate from the date of purchase and (b) the value of the security at the
time it was disposed of by the plaintiff plus the amount of any income
received therefrom by the plaintiff.
Damages, if the consideration given for the security is not capable of
being returned, shall be equal to the value of that consideration plus
interest at the legal rate from the date of purchase, provided the security
is tendered; and if the plaintiff no longer owns the security, damages in
such case shall be equal to the difference between (a) the value of the
consideration given for the security plus interest at the legal rate from
the date of purchase and (b) the value of the security at the time it was
disposed of by the plaintiff plus the amount of any income received
therefrom by the plaintiff. Any person who violates Section 25120 or a
condition of qualification under Chapter 3 (commencing with Section 25120)
of this part imposed pursuant to Section 25141, shall be liable to any
person acquiring from him the security sold in violation of such section
who may sue to recover the difference between (a) the value of the
consideration received by the seller and (b) the value of the security at
the time it was received by the buyer, with interest thereon at the legal
rate from the date of purchase. Any person on whose behalf an offering is
made and any underwriter of the offering, whether on a best efforts or a
firm commitment basis, shall be jointly and severally liable under this
section, but in no event shall any underwriter (unless such underwriter
shall have knowingly received from the issuer for acting as an underwriter
some benefit, directly or indirectly, in which all other underwriters
similarly situated did not share in proportion to their respective interest
in the underwriting) be liable in any suit or suits authorized under this
section for damages in excess of the total price at which the securities
underwritten by him and distributed to the public were offered to the
public. Any tender specified in this section may be made at any time before
entry of judgment. No person shall be liable under this section for
violation of Section 25110, 25120 or 25130 if the sale of the security is
qualified prior to the payment or receipt of any part of the consideration
for the security sold, even though an offer to sell or a contract of sale
may have been made or entered into without qualification.
Section 25504 of California Securities Law of 1968 states that:
Every person who directly or indirectly controls a person liable under
Section 25501 or 25503, every partner in a firm so liable, every principal
executive officer or director of a corporation so liable, every person
occupying a similar status or performing similar functions, every employee
of a person so liable who materially aids in the act or transaction
constituting the violation, and every broker-dealer or agent who materially
aids in the act or transaction constituting the violation, are also liable
jointly and severally with and to the same extent as such person, unless
the other person who is so liable had no knowledge of
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or reasonable grounds to believe in the existence of the facts by reason of
which the liability is alleged to exist.
Section 25507(b) of California Securities Law of 1968 states that:
No buyer may commence an action under Section 25503 (or Section 25504 or
Section 25504.1 insofar as they relate to that section) if, before suit is
commenced, such buyer shall have received a written offer approved as to
form by the commissioner (1) stating the respect in which liability under
such section may have arisen, (2) offering to repurchase the security for a
cash price payable upon delivery of the security or offering to pay the
buyer an amount in cash equal in either case to the amount recoverable by
the buyer in accordance with Section 25503, or, offering to rescind the
transaction by putting the parties back in the same position as before the
transaction, (3) providing that such offer may be accepted by the buyer at
any time within a specified period of not less than 30 days after the date
of receipt thereof unless rejected earlier during such period by the buyer,
(4) setting forth the provisions of this subdivision (b), and (5)
containing such other information as the commissioner may require by rule
or order, and such buyer shall have failed to accept such offer in writing
within the specified period after receipt thereof.
In accordance with Section 260.507 of the California Administrative Code,
California offerees will have no less than thirty (30) days to accept our
rescission offer. A California offeree's right of action, if any, under Sections
25500, 25501 and 25502 of the California Administrative Code and under common
law is not necessarily foreclosed by acceptance or rejection of our rescission
offer.
Pursuant to Section 260.507 of California Administrative Code, please note
the following:
THIS OFFER OF REPURCHASE HAS BEEN APPROVED BY THE COMMISSIONER OF
CORPORATIONS IN ACCORDANCE WITH SECTION 25507(B) OF THE CORPORATE SECURITIES LAW
OF 1968 ONLY AS TO ITS FORM. SUCH APPROVAL DOES NOT IMPLY A FINDING BY THE
COMMISSIONER THAT ANY STATEMENTS MADE HEREIN OR IN ANY ACCOMPANYING DOCUMENTS
ARE TRUE OR COMPLETE; NOR DOES IT IMPLY A FINDING THAT THE AMOUNT OFFERED BY THE
SELLER IS EQUAL TO THE AMOUNT RECOVERABLE BY THE BUYER OF THE SECURITY IN
ACCORDANCE WITH SECTION 25503 IN A SUIT AGAINST THE SELLER, AND THE COMMISSIONER
DOES NOT ENDORSE THE OFFER AND MAKES NO RECOMMENDATION AS TO ITS ACCEPTANCE OR
REJECTION.
Michigan. Under Michigan law, an issuer is civilly liable to a purchaser
of its securities sold in violation of the registration or qualification
requirements of the Michigan Uniform Securities Act. The purchaser, at any time
prior to the two year anniversary of the contract for sale of such securities,
may sue at law or in equity to recover the consideration paid for such
securities together with interest (at 6% per year) from the date of payment,
costs and reasonable attorneys fees, less the amount of income received on the
securities, upon the tender of the securities or, if the purchaser sold the
securities, for damages in an amount that would be recoverable upon tender less
the value of the securities when the purchaser disposed of them and interest at
6% per year from the date of disposition.
An issuer may cure its non-compliance with the requirement to register or
qualify securities under the Michigan Uniform Securities Act by making a written
rescission offer, before suit and at a time when the purchaser still owns the
securities, to refund the consideration paid together with interest (at 6% per
year) from the date of payment, less the amount of any income received on the
securities. Concurrently with the offer, the issuer must provide the purchaser
with documents making full written disclosure about the financial and business
condition of the issuer and the financial and business risks associated with the
retention of the securities. The offer must recite the applicable provisions of
the Michigan Uniform Securities Act and will not be valid unless the issuer
substantiates in the disclosure documents that it has the ability to fund the
offering. If the purchaser owns the securities and fails to accept such offer
within 30 days of receipt of the offer or if the purchaser sold the securities
and fails to reject the offer within 30 days of receipt, then the purchaser will
lose the right to sue for rescission or damages under Michigan law. Acceptance
or rejection of the offer will not be binding until 48 hours after receipt of
the offer by the purchaser.
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We believe that our rescission offer complies in all material respects with
the rescission offer requirements of the Michigan Uniform Securities Act.
Texas. Under Texas law, we must deposit funds in escrow in a state or
national bank doing business in Texas in an aggregate amount sufficient to pay
the amount offered to all Texas residents under the terms of our rescission
offer. Accordingly, we have deposited such an amount with Wells Fargo Bank,
National Association. If a Texas resident accepts our offer to repurchase some
or all of their shares and fails to receive payment from us within approximately
five (5) business days of the expiration date of our offer (January 25, 2005),
then such Texas resident may contact Julie Elliot, Director, Corporate
Compensation, at (513) 977-3000 or Bobbie Tomme of Wells Fargo Bank at (303)
863-5645.
FUNDING OF THE RESCISSION OFFER
We will fund any payments required under this rescission offer from a
portion of our working capital. We have sufficient funds on hand to pay the
purchase price of any shares which may be tendered pursuant to our offer.
USE OF SHARES REPURCHASED BY THE COMPANY IN THE RESCISSION OFFER
The shares purchased by us pursuant to this offer, if any, will become
treasury shares and will be available for sale as registered shares pursuant to
the Plan.
QUESTIONS ABOUT THE RESCISSION OFFER
Those persons who have questions about our rescission offer may call Julie
Elliott, Director, Corporate Compensation, at (513) 977-3000 on weekdays between
9:00 a.m. and 5:00 p.m., Eastern Standard Time.
MATERIAL FEDERAL INCOME TAX CONSIDERATIONS
Set forth below is a discussion of certain United States federal income tax
considerations relating to our rescission offer. The discussion is based on
existing provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), the Treasury regulations promulgated thereunder, published revenue
rulings and revenue procedures of the Internal Revenue Service ("IRS"),
applicable legislative history, and judicial decisions. All such authorities are
subject to change at any time, either prospectively or retroactively, and any
such change could materially affect the federal income tax consequences
described below.
This discussion does not deal with all of the United States federal income
tax consequences of our rescission offer that may be relevant to a person in
light of that person's particular circumstances, or to persons subject to
special rules, such as dealers in securities, foreign persons, persons who are
subject to the alternative minimum tax, persons who are not individuals, and
persons holding shares that are subject to hedging, conversion or constructive
sale transactions. The discussion assumes that a person holds the shares subject
to our rescission offer as capital assets, or, as to a person who accepts our
rescission offer with respect to shares previously sold by such person, held
such sold shares as capital assets. The federal income tax law applicable to our
rescission offer is unclear, and we have received neither an opinion of counsel
nor a ruling from the IRS on the tax consequences of our rescission offer. The
IRS is not precluded from asserting a position contrary to that summarized in
this discussion or otherwise re-characterizing the transaction in whole or in
part.
FOR ALL OF THESE REASONS, ALL PERSONS CONSIDERING OUR RESCISSION OFFER
SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO
THEM OF OUR RESCISSION OFFER, INCLUDING THE APPLICABILITY AND POTENTIAL
APPLICABILITY OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS AND PROPOSED TAX
LAWS.
SHARE REDEMPTIONS
For United States federal income tax purposes, we intend to treat share
purchases pursuant to our rescission offer as a taxable redemption of shares
with a redemption price equal to the amount paid by us for
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such shares (including in the redemption price the portion of the payment equal
to the amount of interest on the original purchase price of such shares).
Assuming our treatment of our rescission offer as a redemption of shares is
correct, the redemption will be treated as a sale or exchange for federal income
tax purposes if it (a) results in a "complete redemption" of the person's
interest in our stock under Section 302(b)(3) of the Code; (b) is "substantially
disproportionate" with respect to the person under Section 302(b)(2) of the
Code; or (c) is "not essentially equivalent to a dividend" with respect to the
person under Section 302(b)(1) of the Code. These three tests, which are more
fully described below, are collectively referred to herein as the "Redemption
Tests." The Redemption Tests are applied on a person-by-person basis. If a sale
does not satisfy any of the Redemption Tests, the payment of the proceeds from
the sale will be treated as a distribution. Because the Redemption Tests are
applied independently to each person, it is possible that some persons accepting
our rescission offer will be subject to sale or exchange treatment and others
will receive distribution treatment.
BECAUSE THE APPLICATION OF THE REDEMPTION TESTS IS APPLIED ON A PERSON-
BY-PERSON BASIS, ALL PERSONS CONSIDERING OUR RESCISSION OFFER SHOULD CONSULT
THEIR OWN TAX ADVISORS IN CONNECTION WITH THE POSSIBLE FEDERAL INCOME TAX
TREATMENT THAT MAY APPLY IN THEIR PARTICULAR CASE.
In determining whether any of the Redemption Tests are satisfied, a person
must take into account not only shares that are actually owned, but also shares
which are constructively owned under Section 318 of the Code. Under Section 318,
a person may constructively own shares actually owned, and in some cases
constructively owned, by certain related individuals or entities and shares that
he has the right to acquire by exercise of an option, warrant or a conversion
right. Contemporaneous or related transactions in our stock or stock options may
also affect the Redemption Tests.
The redemption will result in a "complete redemption" of all the shares
owned by a person if either (a) all of the shares actually and constructively
owned by such person are sold pursuant to our rescission offer or (b) all of the
shares actually owned by a person are sold pursuant to our rescission offer and
the person is eligible to waive and effectively waives constructive ownership of
shares under procedures described in Section 302(c) of the Code.
The redemption will be "substantially disproportionate" with respect to a
person if (a) the percentage of our voting stock owned by the person immediately
after the redemption (taking into account all shares purchased by us pursuant to
our rescission offer) equals less than 80 percent of the percentage of our
voting stock owned by such person immediately before the redemption; (b) the
percentage of our common stock (whether voting or nonvoting stock) owned by the
person after the redemption (taking into account all shares purchased by us
pursuant to our rescission offer) equals less than 80 percent of the percentage
of our common stock owned by the person immediately before the redemption; and
(c) such person after the redemption owns less than 50 percent of the total
combined voting power of all classes of our stock entitled to vote (taking into
account all shares purchased by us pursuant to our rescission offer).
The redemption will satisfy the "not essentially equivalent to a dividend"
test with respect to a person if, in light of the person's particular
circumstances (including the person's relative interest in our stock), its sale
of shares pursuant to our rescission offer results in a "meaningful reduction"
of its interest in our stock (taking into account all shares purchased by us
pursuant to our rescission offer). This test may be satisfied irrespective of
the person's failure to satisfy the complete redemption or substantially
disproportionate tests.
If the redemption qualifies for sale or exchange treatment with respect to
a particular person under one or more of the Redemption Tests, such person will
have capital gain or loss equal to the difference between the amount received by
such person pursuant to our rescission offer (including the portion of such
amount equal to the interest on the original purchase price of the shares) and
such person's tax basis in the shares. Such gain or loss will be short-term or
long-term depending on whether such person held the shares for one year or less,
or more than one year, at the time of the redemption.
If the redemption fails to qualify for sale or exchange treatment with
respect to a particular person, the gross proceeds received by such person
pursuant to our rescission offer will be characterized as a dividend
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distribution to the extent of our accumulated and current earnings and profits
(on a pro rata basis with other persons whose redemptions fail to so qualify).
Under the Jobs and Growth Tax Relief Reconciliation Act of 2003, dividends
received by individuals in 2004 generally will be subject to tax at a reduced
rate of 15% (5% for lower income individuals). The portion, if any, of the
proceeds received by such person pursuant to our rescission offer in excess of
the amount treated as a dividend will be treated first as a tax-free recovery of
the person's basis in the redeemed shares and then as capital gain from a sale
or exchange. Under current rules, a person who receives proceeds that are taxed
as a dividend should generally be able to transfer any unrecovered tax basis in
the redeemed shares to any of our shares retained by such person, or possibly to
shares constructively owned by such person if such person retains none of our
shares. Under proposed rules that will not be effective until promulgated in
final Treasury regulations, such unrecovered basis would not be transferred to
any other shares, but instead generally would give rise to a capital loss,
either at the time of the redemption pursuant to our rescission offer, or at a
later time, depending on the person's particular circumstances. The loss would
be short-term or long-term depending on the person's holding period for the
shares at the time of the redemption, even if the loss could not be taken under
the proposed rules until a later time.
PAYMENTS WITH RESPECT TO SOLD SHARES
We believe that the amount paid to a person with respect to our shares
previously sold by such person (including the portion of the payment equal to
the amount of interest on the original purchase price of such shares) will be
capital gain at least to the extent of any losses incurred by such person on
such prior sales, although any payment in excess of such prior losses may be
taxable as ordinary income. To the extent the payment is taxable as capital
gain, such gain would be short-term or long-term depending on the holding period
for the previously sold shares.
BACKUP WITHHOLDING
Under the United States federal income tax backup withholding rules, 28% of
the gross proceeds payable to a person pursuant to our rescission offer must be
withheld and remitted to the United States Treasury unless such person (i) is an
exempt recipient that, if required, establishes his right to an exemption or
(ii) provides his taxpayer identification number, certifies that he is not
currently subject to backup withholding, and otherwise complies with applicable
requirements of the backup withholding rules. A person may generally avoid
backup withholding by furnishing a completed Substitute Form W-9 included as
part of the election form. Backup withholding is not an additional tax; any
amount withheld under these rules will be creditable against the United States
federal income tax liability of the person subject to the withholding, and may
entitle such person to a refund provided that the required information is
furnished to the IRS.
THE PRECEDING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF CERTAIN UNITED
STATES INCOME TAX CONSEQUENCES OF OUR RESCISSION OFFER AND DOES NOT PURPORT TO
BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL POTENTIAL TAX EFFECTS RELEVANT
THERETO. THUS, SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO
THE SPECIFIC TAX CONSEQUENCES TO THEM OF OUR RESCISSION OFFER, INCLUDING TAX
RETURN REPORTING REQUIREMENTS, THE APPLICABILITY AND EFFECT OF FOREIGN, FEDERAL,
STATE, LOCAL, AND OTHER APPLICABLE TAX LAWS AND THE EFFECT OF ANY PROPOSED
CHANGES IN THE TAX LAWS.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from our Annual Report on
Form 10-K for the year ended December 31, 2003, have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
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