sc13dza

0000950134-06-007264.txt : 20060413 0000950134-06-007264.hdr.sgml : 20060413 20060413160956 ACCESSION NUMBER: 0000950134-06-007264 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060413 DATE AS OF CHANGE: 20060413 GROUP MEMBERS: MSD SBI LP SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SCHOOL SPECIALTY INC CENTRAL INDEX KEY: 0001055454 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-PAPER AND PAPER PRODUCTS [5110] IRS NUMBER: 390971239 STATE OF INCORPORATION: WI FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-55741 FILM NUMBER: 06758632 BUSINESS ADDRESS: STREET 1: W6316 DESIGN DRIVE CITY: GREENVILLE STATE: WI ZIP: 54942 BUSINESS PHONE: (920) 734-5712 MAIL ADDRESS: STREET 1: P.O. BOX 1579 CITY: APPLETON STATE: WI ZIP: 54912-1579 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MSD CAPITAL L P CENTRAL INDEX KEY: 0001105497 IRS NUMBER: 742880190 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 645 FIFTH AVENUE 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10022-5910 BUSINESS PHONE: 2123031650 MAIL ADDRESS: STREET 1: 645 FIFTH AVENUE 21ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10022-5910 SC 13D/A 1 d35063asc13dza.htm AMENDMENT TO SCHEDULE 13D sc13dza


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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 1 )*

School Specialty, Inc.

(Name of Issuer)

Common Stock, $0.001 par value

(Title of Class of Securities)

807863105

(CUSIP Number)

Janice V. Sharry, Esq.
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
(214) 651-5562

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

April 11, 2006

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.


CUSIP No.		807863105		Page		2		of		6


1	NAMES OF REPORTING PERSONS: MSD Capital, L.P., a Delaware limited partnership

	I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
	74-2880190

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
	(a) o
	(b) þ

3	SEC USE ONLY:



4	SOURCE OF FUNDS (SEE INSTRUCTIONS):

	AF

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION:

	Delaware

		7	SOLE VOTING POWER:

NUMBER OF			0

SHARES		8	SHARED VOTING POWER:
BENEFICIALLY
OWNED BY			2,168,300

EACH		9	SOLE DISPOSITIVE POWER:
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER:

			2,168,300

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

	2,168,300

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

	9.4%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

	PN


CUSIP No.		807863105		Page		3		of		6


1	NAMES OF REPORTING PERSONS: MSD SBI, L.P., a Delaware limited partnership

	I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
	61-1420251

2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
	(a) o
	(b) þ

3	SEC USE ONLY:



4	SOURCE OF FUNDS (SEE INSTRUCTIONS):

	WC

5	CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

	o

6	CITIZENSHIP OR PLACE OF ORGANIZATION:

	Delaware

		7	SOLE VOTING POWER:

NUMBER OF			0

SHARES		8	SHARED VOTING POWER:
BENEFICIALLY
OWNED BY			2,168,300

EACH		9	SOLE DISPOSITIVE POWER:
REPORTING
PERSON			0

WITH		10	SHARED DISPOSITIVE POWER:

			2,168,300

11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

	2,168,300

12	CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

	o

13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

	9.4%

14	TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

	PN

This Amendment No. 1 to Schedule 13D relates to the common stock, par value $0.001 per share (“Common Stock”), of School Specialty, Inc., a Wisconsin corporation (the “Issuer”), and is being filed on behalf of the Reporting Persons to amend the Schedule 13D that was originally filed with the Securities and Exchange Commission (the “Commission”) on November 7, 2005, to report the entry into an agreement with respect to the Common Stock and to reflect the change in beneficial ownership of the Reporting Persons. Except as set forth below, all previous Items are unchanged. Capitalized terms used herein which are not defined herein have the meanings given to them in the Schedule 13D previously filed with the Commission.

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 is hereby supplemented as follows:

Since the original Schedule 13D was filed with the Commission on November 7, 2005, the Reporting Persons have acquired an aggregate of 217,200 shares of Common Stock of the Issuer in open market transactions for an aggregate purchase price of approximately $7,593,534.75. Such open market purchases were made using funds available from working capital.

Item 4. Purpose of the Transaction.

Item 4 is hereby supplemented as follows:

The response to Item 6 with respect to the agreement by and between MSD and the Issuer dated as of April 11, 2006 is incorporated by reference into this Item 4.

Item 5. Interest in Securities of the Issuer.

Item 5 is hereby amended and restated in its entirety as follows:

(a) As of April 12, 2006, the Reporting Persons may be deemed to beneficially own 2,168,300 shares of Common Stock (which represents approximately 9.4% of the outstanding Common Stock as of March 6, 2006, as disclosed in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended January 28, 2006).

(b)

Sole

Shared

Sole

Shared

Voting

Dispositive

Power

MSD Capital, L.P.

2,168,300

MSD SBI, L.P.

2,168,300

(c) Except as set forth below, there have been no transactions in the Common Stock by any of the Reporting Persons during the past sixty days.

During the past sixty days, the Reporting Persons effected the following purchases of shares of Common Stock in open market transactions:

Page 4 of 6


Date		Price		MSD		SBI
	2/15/2006		34.86		0		55,300
	2/17/2006		35.00		0		2,600
	2/21/2006		34.85		0		22,800
	2/22/2006		34.95		0		9,300
	2/23/2006		34.92		0		38,000
	2/24/2006		35.00		0		22,000
	4/11/2006		34.96		0		66,800
	4/12/2006		35.00		0		400

(d) Not applicable.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 is hereby amended and restated in its entirety as follows:

Other than as provided herein, there are no contracts, arrangements, understandings or relationships between the Reporting Persons or any other person with respect to the securities of the Issuer.

On April 11, 2006, MSD entered into an agreement (the “Agreement”) with the Issuer. Under the Agreement, MSD is permitted to acquire up to 19.95% of the issued and outstanding Common Stock of the Issuer (the “Potential Acquisition”) without being subject to certain restrictions on business combinations under the Wisconsin Business Corporation Law. The Board of Directors of the Issuer approved the Potential Acquisition. MSD agreed that, with certain exceptions, on the date that MSD becomes the beneficial owner of more than 19.95% of the shares of Common Stock of the Issuer then issued and outstanding, MSD will be subject to these restrictions under the Wisconsin Business Corporation Law as if the Board of Directors’ approval of the Potential Acquisition was not granted. In addition, MSD agreed that if it exceeds the permitted ownership level, the Issuer will have the right to require MSD to sell any excess shares within 45 days.

The foregoing description of the Agreement is not intended to be complete and is qualified in its entirety by the complete text of the Agreement, which is filed as Exhibit 2 hereto, and which is incorporated herein by reference.

In addition, the Reporting Persons previously sold put options in the open market with respect to the Issuer’s Common Stock, thereby granting the buyers of such put options the right to sell 300,000 shares of Common Stock to the Reporting Persons at a strike price of $35.00 per share. Such put options expire in May 2006.

Item 7. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 7 is hereby supplemented as follows:

Exhibit 2 Agreement, dated as of April 11, 2006, by and between School Specialty, Inc., a Wisconsin corporation, and MSD Capital, L.P., a Delaware limited partnership, together with certain of its affiliates.

Page 5 of 6

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule 13D is true, complete and correct.

Date: April 13, 2006


MSD CAPITAL, L.P.

By:	MSD Capital Management LLC, its general partner

	By:	/s/ Marc R. Lisker

		Marc R. Lisker
		Manager and General Counsel

MSD SBI, L.P.

By:	MSD Capital, L.P., its general partner

By:	MSD Capital Management LLC, its general partner

	By:	/s/ Marc R. Lisker

		Marc R. Lisker
		Manager and General Counsel

Page 6 of 6

INDEX TO EXHIBITS


Exhibit 1		Joint Filing Agreement, dated as of November 7, 2005, by and between MSD Capital, L.P. and MSD SBI, L.P. (Exhibit A to Schedule 13D filed with the Securities and Exchange Commission on November 7, 2005 and incorporated by reference herein).


Exhibit 2		Agreement, dated as of April 11, 2006, by and between School Specialty, Inc., a Wisconsin corporation, and MSD Capital, L.P., a Delaware limited partnership, together with certain of its affiliates.

EX-99.2 2 d35063aexv99w2.htm AGREEMENT DATED AS OF APRIL 11, 2006 exv99w2

EXHIBIT 2

Execution Copy

AGREEMENT

THIS AGREEMENT is made as of this 11^th day of April, 2006 by and between School Specialty, Inc., a Wisconsin corporation (“SSI”) and MSD Capital, L.P., a Delaware limited partnership (together with its affiliates (other than portfolio companies of MSD which MSD does not control and other than Dell Inc. and its subsidiaries), “MSD”).

WHEREAS, MSD is the beneficial owner of less than 10% of the outstanding shares of the $0.001 par value common stock of SSI (the “Common Stock”) as of the date of this Agreement;

WHEREAS, MSD has indicated to SSI its interest in being able to acquire more than 10% of the issued and outstanding Common Stock in a single transaction or series of transactions (the “Acquisition”) without being subject to certain restrictions applicable to shareholders of SSI under the Wisconsin Business Corporation Law (the “WBCL”);

WHEREAS, the Board of Directors of SSI (the “Board”) has approved the Acquisition and related exemption from certain provisions of the WBCL subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the premises and the representations, warranties, and agreements contained herein, and other good and valuable consideration, the parties hereto mutually agree as follows:

1. Representations and Warranties of MSD. MSD hereby represents and warrants to SSI that: (i) as of the date of this Agreement, MSD is the “beneficial owner” (as defined by Section 180.1140(3) of the WBCL, with such definition applying to the use of such term throughout the remainder of this Agreement as it may relate to any ownership of Common Stock) of less than 10% of the issued and outstanding Common Stock, (ii) MSD has all requisite authority to enter into and perform its obligations under this Agreement and to bind the entire number of shares of Common Stock which it beneficially owns, (iii) the execution and delivery of this Agreement by MSD has been duly authorized by all necessary action on the part of MSD, (iv) this Agreement constitutes a valid and binding obligation of MSD, enforceable against MSD in accordance with its terms, (v) neither the execution and delivery of this Agreement by MSD, nor the consummation of the transactions contemplated hereby, will violate, conflict with or constitute a breach of any charter or formation document, agreement, instrument or restriction to which MSD is a party or by which MSD is bound, in each case (A) except as would not adversely affect MSD’s obligations hereunder, (B) subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and (C) subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (vi) there are no arrangements, agreements or understandings between MSD and any third party relating to the acquisition or ownership of shares of Common Stock or otherwise relating to the subject matter of this Agreement, except, in the case of clause (vi) only, ordinary course arrangements, agreements or understandings with brokerage firms, financial institutions, research departments and other third parties customarily entered into by MSD in the course of its business as presently conducted (which for purposes of clarity do not affect the accuracy of the representations made in clauses (i) through (v) hereof).

2. Representations and Warranties of SSI. SSI hereby represents and warrants to MSD that: (i) SSI has all requisite authority to enter into and perform its obligations under this Agreement, (ii) the

execution and delivery of this Agreement by SSI has been duly authorized by the Board and no further action of the Board or shareholders of SSI is necessary or required for SSI to perform its obligations, (iii) this Agreement constitutes a valid and binding obligation of SSI, enforceable against SSI in accordance with its terms, (iv) neither the execution and delivery of this Agreement by SSI, nor the consummation of the transactions contemplated hereby, will violate, conflict with or constitute a breach of any charter or formation document, agreement, instrument or restriction to which SSI is a party or by which SSI is bound, in each case (A) except as would not adversely affect SSI’s obligations hereunder, (B) subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and (C) subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (v) the Board has approved the Acquisition subject to the terms and conditions of this Agreement as set forth in the resolutions of the Board attached hereto as Exhibit A.

3. Restrictions on Certain Actions. MSD agrees that on the date (the “Threshold Date”) that MSD becomes the beneficial owner of more than 19.95% (the “Threshold”) of the then issued and outstanding Common Stock, MSD shall be subject to Sections 180.1140-180.1144 of the WBCL as if the Board’s approval of the Acquisition was not granted, provided that the “stock acquisition date” (for the purpose of Section 180.1141 of the WBCL) shall be deemed to be the Threshold Date, subject to the limitation in the next sentence. In the event that MSD exceeds the Threshold directly as a result of a stock repurchase or other anti-dilutive action undertaken by SSI, or MSD has unintentionally exceeded the Threshold due to inaccurate public reporting by SSI, the Threshold shall be increased to a percentage equal to the quotient obtained by dividing the number of shares of Common Stock beneficially owned by MSD, by the aggregate number of shares of Common Stock issued and outstanding immediately following such action (or based on such public reporting, as the case may be), effective immediately following the decrease in the number of shares of outstanding Common Stock or on the date of such disclosure, as the case may be.

4. Material Nonpublic Information. MSD expressly acknowledges that federal and state securities laws prohibit any person who misappropriates material nonpublic information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances to which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

5. Remedies. If, as a direct result of MSD’s actions, MSD’s beneficial ownership of the Common Stock exceeds the Threshold, the Board, acting by the majority vote of the Independent Directors (as defined below), may require MSD to dispose, within 45 days of written notice to MSD, of up to such number of shares of Common Stock as will restore MSD’s beneficial ownership to the Threshold. SSI and MSD acknowledge and agree that a breach or threatened breach by either party may give rise to irreparable injury inadequately compensable in damages, and accordingly each party shall be entitled to injunctive relief to prevent a breach of the provisions hereof and to enforce specifically the terms and provisions hereof in any state or federal court having jurisdiction, in addition to any other remedy to which such aggrieved party may be entitled to at law or in equity. In the event either party institutes any legal action to enforce such party’s rights under, or recover damages for breach of, this Agreement, the prevailing party or parties in such action shall be entitled to recover from the other party or parties all costs and expenses, including but not limited to reasonable attorneys’ fees, court costs, witness fees, disbursements and any other expenses of litigation or negotiation incurred by such prevailing party or parties.

6. Notices. All notice requirements and other communications shall be deemed given when delivered, on the following business day after being sent by overnight courier with a nationally recognized courier service such as Federal Express, or when sent by facsimile transmission, receipt confirmed, in each case addressed to MSD and SSI as follows:


SSI:		School Specialty, Inc.
		W6316 Design Drive
		Greenville, Wisconsin 54942
		Attention: David J. Vander Zanden, Chief Executive Officer
		Facsimile: (920) 882-5863

With a copy to:		Franzoi & Franzoi, SC
		514 Racine Street
		Menasha, Wisconsin 54952
		Attention: Joseph F. Franzoi IV, Esq.
		Facsimile: (920) 725-0998

MSD:		MSD Capital, L.P.
		645 Fifth Avenue, 21^st Floor
		New York, New York 10022
		Attention: Marc R. Lisker
		Facsimile: (212) 303-1772

With a copy to:		Wachtell, Lipton, Rosen & Katz
		51 West 52^nd Street
		New York, New York 10019
		Attention: Andrew J. Nussbaum
		Facsimile: (212) 403-2269

7. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereby pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to herein.

8. Counterparts; Facsimile. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, and signature pages may be delivered by facsimile, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

9. Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

10. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Wisconsin, without regard to choice of law principles that would compel the application of the laws of any other jurisdiction.

11. Consent to Jurisdiction. Each of the parties hereby irrevocably submits to the exclusive jurisdiction and venue of the United States District Court for the Eastern District of Wisconsin-Green Bay Division, or the state court sitting in Outagamie County, Wisconsin, in any action or proceeding arising out of or relating to this Agreement and each of the parties hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any such court.

12. Severability. In the event one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be

construed as if such invalid, illegal or unenforceable provision had never been contained herein to the maximum extent possible to achieve the substance of the agreements contained herein.

13. Assignment and Successors. This Agreement shall not be assignable by any of the parties to this Agreement. This Agreement, however, shall be binding on successors of the parties hereto.

14. Survival of Representations, Warranties and Agreements. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.

15. Amendments. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written agreement executed by all of the parties hereto; provided, however, that no such modification, amendment, alteration or supplement shall be effective unless approved by a majority of Independent Directors. For purposes of this Agreement, “Independent Directors” shall mean those members of the Board who were not nominated for election or appointment to the Board by or on behalf of a holder of any shares beneficially owned by MSD, or any of such holders’ members, partners, trustees, managers, shareholders, officers, directors, employees or agents.

16. Further Action. Each party agrees to execute any and all documents, and to do and perform any and all acts and things necessary or proper to effectuate or further evidence the terms and provisions of this Agreement.

17. Expenses. Each party agrees to bear its own expenses in connection with the transactions contemplated hereby.

18. WBCL. All references to the WBCL shall mean the WBCL as in effect as of the date of this Agreement.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.


		SCHOOL SPECIALTY, INC.

		By:		/s/ David J. Vander Zanden, CEO

				(Title)

		MSD CAPITAL, L.P.

		By:		MSD Capital Management LLC, its general partner

		By:		/s/ Marc Lisker, Manager

				(Title)

Exhibit A

Resolutions of the Board of Directors of School Specialty, Inc.

RESOLVED, that any and all notice to take any action in adopting the following resolutions is hereby waived by the undersigned pursuant to Section 180.0823 of the WBCL:

FURTHER RESOLVED, that, subject to the entry into the agreement described in the following resolution, the purchase of common stock of the Corporation by MSD Capital (“MSD”) pursuant to which MSD will become an “interested stockholder” (as defined in Section 180.1140(8) of the WBCL) is hereby approved for purposes of Section 180.1141(1) of the WBCL;

FURTHER RESOLVED, that, as a condition to the approval granted in the foregoing resolution, the Corporation shall enter into an agreement with MSD, a form which is materially similar to that which is attached hereto as Exhibit A, and that the Chief Executive Officer and the Chief Financial Officer are, and each of them hereby is, authorized, in the name and on behalf of the Corporation, to execute and deliver such agreement in form and substance, and with such changes, modifications and amendments thereto, as the officer or officers executing the same may approve as necessary or appropriate, such approval to be conclusively evidenced by the execution and delivery thereof;

FURTHER RESOLVED, that this consent may be signed in counterpart and/or by facsimile signature;

FURTHER RESOLVED, that the Corporation be, and it hereby is, authorized and directed to enter into such ancillary contracts and agreements as the Chief Executive Officer and Chief Financial Officer of the Corporation may deem to be proper and appropriate in order to implement the intendment of these resolutions and that each such contract and agreement is hereby adopted and approved; and

FURTHER RESOLVED, that the Chief Executive Officer and Chief Financial Officer of the Corporation be, and each hereby is, authorized, for and on behalf and in the name of the Corporation to do and perform any and all further things and acts, and to execute, with or without attesting signature, and deliver any and all contracts agreements, instruments, certificates or other documents which they may determine to be necessary or convenient to implement or accomplish the intendment of the foregoing resolutions, or any of them, any such determination to be conclusively evidenced by the doing or performing of any such act or thing or the execution and delivery of any such papers.