-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OHebj0aPQMEvuYqQnbXyfXkWM8VOmAQqp4XS5nOx7DYPb+S6uTjy4tjL7f0XLasA teKOsm2ugxdUppdX5DavgQ== 0001017062-98-002491.txt : 19981218 0001017062-98-002491.hdr.sgml : 19981218 ACCESSION NUMBER: 0001017062-98-002491 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981217 GROUP MEMBERS: BISCO IND. PROFIT SHARING & SAVINGS PLAN GROUP MEMBERS: BISCO INDUSTRIES INC GROUP MEMBERS: BISCO INDUSTRIES, INC. GROUP MEMBERS: MR. GLEN F. CEILEY SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DATA I/O CORP CENTRAL INDEX KEY: 0000351998 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 910864123 STATE OF INCORPORATION: WA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-33828 FILM NUMBER: 98771368 BUSINESS ADDRESS: STREET 1: 10525 WILLOWS RD NE STREET 2: P O BOX 97046 CITY: REDMOND STATE: WA ZIP: 98073-9746 BUSINESS PHONE: 2068816444 MAIL ADDRESS: STREET 1: P O BOX 97046 STREET 2: 10525 WILLOWS RD NE CITY: REDMOND STATE: WA ZIP: 98073-9746 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BISCO INDUSTRIES INC CENTRAL INDEX KEY: 0001029296 STANDARD INDUSTRIAL CLASSIFICATION: [] STATE OF INCORPORATION: IL FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 704 W SOUTHERN AVENUE CITY: ORANGE STATE: CA ZIP: 92865 BUSINESS PHONE: 7142837140 MAIL ADDRESS: STREET 1: 704 W SOUTHERN AVENUE CITY: ORANGE STATE: CA ZIP: 92865 SC 13D/A 1 AMEND. #6 TO SCHEDULE 13D RE: DATA I/O CORPORATION UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------ SCHEDULE 13D (AMENDMENT NO.6) Under the Securities Exchange Act of 1934 Data I/O Corporation ------------------------------------ (Name of Issuer) Common Stock, No Par Value ------------------------------------ (Title of Class of Securities) CUSIP Number: 237690102 Glen F. Ceiley Bisco Industries, Inc. 704 W. Southern Ave. Orange, CA 92865 (714) 283-7140 ------------------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 15, 1998 ------------------------------------ (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 which is subject of this Schedule 13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check the following box: ( ) Page 1 of 18 Pages Exhibit Index on Page 7. SCHEDULE 13D CUSIP No. 237690102 1. Name of Reporting Person Mr. Glen F. Ceiley 2. Check the Appropriate Box if a Member of a group (a) (X) (b) ( ) 3. SEC Use Only 4. Source of Funds PF 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) ( ) 6. Citizenship or Place of Organization U.S.A. Number of 7. Sole Voting Power Shares Beneficially 0 Owned By Each 8. Shared Voting Power Reporting Person 889,825 shares of Common Stock (See Item 5) With 9. Sole Dispositive Power 0 10. Shared Dispositive Power 889,825 shares of Common Stock (See Item 5) 11. Aggregate Amount Beneficially Owned by Each Reporting Person 889,825 shares of Common Stock (See Item 5) 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ( ) 13. Percent of Class Represented by Amount in Row (11) 12.38% 14. Type of Reporting Person IN Page 2 of 18 Pages SCHEDULE 13D CUSIP No. 237690102 1. Name of Reporting Person Bisco Industries, Inc. 2. Check the Appropriate Box if a Member of a Group (a) (X) (b) ( ) 3. SEC Use Only 4. Source of Funds WC 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) ( ) 6. Citizenship or Place of Organization Illinois Number of 7. Sole Voting Power Shares Beneficially 493,000 shares of Common Stock (See Item 5) Owned By Each Reporting 8. Shared Voting Power Person With 0 9. Sole Dispositive Power 493,000 shares of Common Stock (See Item 5) 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person 493,000 shares of Common Stock (See Item 5) 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ( ) 13. Percent of Class Represented by Amount in Row (11) 6.86% 14. Type of Reporting Person CO Page 3 of 18 Pages SCHEDULE 13D CUSIP No. 237690102 1. Name of Reporting Person Bisco Industries, Inc. Profit Sharing and Savings Plan 2. Check the Appropriate Box if a Member of a Group (a) (X) (b) ( ) 3. SEC Use Only 4. Source of Funds 00 5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) ( ) 6. Citizenship or Place of Organization U.S.A. Number of 7. Sole Voting Power Shares Beneficially 396,825 shares of Common Stock (See Item 5) Owned By Each Reporting 8. Shared Voting Power Person With 0 9. Sole Dispositive Power 396,825 shares of Common Stock (See Item 5) 10. Shared Dispositive Power 0 11. Aggregate Amount Beneficially Owned by Each Reporting Person 396,825 shares of Common Stock (See Item 5). 12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares ( ) 13. Percent of Class Represented by Amount in Row (11) 5.52% 14. Type of Reporting Person EP Page 4 of 18 Pages Item 1. Security and Issuer ------------------- This statement relates to shares of common stock, no par value per share (the "Shares"), of Data I/O Corporation, a Washington corporation (the "Issuer"). The principal executive offices of the Issuer are located at 10525 Willows Road N.E., Redmond, Washington, 98052. Item 2. Identity and Background ----------------------- Item 2 to Schedule 13D is amended as follows: (a)-(c), (f). This Amendment NO. 6 To Schedule 13D is being filed by Mr. Glen F. Ceiley ("Mr. Ceiley"), Bisco Industries, Inc., an Illinois corporation ("Bisco"), and the Bisco Industries, Inc. Profit Sharing and Savings Plan (the "Plan"). Mr. Ceiley, Bisco, and the Plan are hereinafter collectively referred to as the "Reporting Persons", to amend the Schedule 13D which was originally dated August 29, 1998. Mr. Ceiley's principal employment is President of Bisco and his business address is 704 W. Southern Ave., Orange, CA 92865. Mr. Ceiley is a citizen of the United States of America. Bisco's principal business is the distribution of fasteners and electronic components. Bisco is an Illinois corporation. Its principal office is located at 704 W. Southern Ave., Orange, CA 92865. Mr. Ceiley owns 100% of the voting common stock of Bisco. The Plan was adopted by the Board of Directors of Bisco for the exclusive benefit of eligible Bisco employees. The Plan's business address is 704 W. Southern Ave., Orange, CA 92865. Mr. Ceiley is the sole trustee of the Plan. (d) and (e). During the last five years, none of the Reporting Persons has (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws, except that Bisco is subject to a Cease-And-Desist order which is attached as Exhibit 2 to this Schedule 13D. Item 3. Source and Amount of Funds or Other Consideration ------------------------------------------------- Bisco purchased 493,000 shares for a total consideration of $1,092,980.58. Bisco paid for such Shares from its working capital, including funds made available in the ordinary course of business under its working capital credit facility. The Plan purchased 396,825 shares for a total consideration of $1,113,283.32 using funds held in the Plan for investment purposes. Page 5 of 18 Pages Item 4. Purpose of Transaction ---------------------- The Reporting Persons acquired the Shares to obtain an equity position in the Issuer. The Reporting Persons presently consider the Shares an attractive investment and intend to review their investment on an ongoing basis. Such continuing review may result in the Reporting Persons acquiring additional Shares in the open market or in privately negotiated transactions, maintaining their holdings at current levels or selling all or a portion of their holdings in the open market or in privately negotiated transactions. Any such actions the Reporting Persons undertake will be dependent upon, among other things, the availability of Shares for purchase and the price levels of such Shares; general market and economic conditions; on-going evaluation of the Issuer's business, financial condition, operations and prospects; the relative attractiveness of alternative business and investment opportunities; the availability of funds for the purchase of additional Shares; the actions of the management and Board of Directors of the Issuer; and other future developments. The Reporting Persons also are presently assessing whether to acquire a more significant equity stake or controlling interest in the Issuer, with a view toward proposing to the Issuer's Board of Directors strategic alternatives to improve the Issuer's performance and enhance shareholder value. Depending on their ability to increase their ownership of Shares and their continuing assessment of the factors enumerated above (including the Issuer's financial condition, market conditions and the actions of the management and Board of Directors of the Issuer), the Reporting Persons may seek to propose an acquisition of all or part of the Issuer or another extraordinary corporate transaction involving the Issuer or the sale of a material amount of assets of the Issuer or solicit proxies or consents for the election of one or more of their representatives as directors of the Issuer. As part of their ongoing review, the Reporting Persons may have discussions with third parties, including other shareholders, or with management of the Issuer regarding any or all of the foregoing matters. There can be no assurance that the Reporting Persons (or any of there affiliates) will take any of the actions described above with respect to the Shares or the Issuer. Although the foregoing reflects activities presently contemplated by the Reporting Persons with respect to the Issuer, the foregoing is subject to change at any time. Except as set forth above, the Reporting Persons have no present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Page 6 of 18 Pages Item 5. Interest in Securities of the Issuer ------------------------------------ Item 5 to Schedule 13D is amended as follows; (a) As of the close of business on December 16, 1998, the Reporting Persons owned in the aggregate, 889,825 Shares, which represent approximately 12.38% of the 7,186,851 Shares outstanding as of November 3, 1998 as reported in the Issuer's Quarterly Report on Form 10-Q for the quarter ended September 29, 1998. In accordance with Rule 13d-5(b)(1) of the General Rules and regulations under the Securities Exchange Act of 1934, as amended, each of Mr. Ceiley, individually and as Trustee of the Plan, the Plan and Bisco may be deemed to have acted as a group and such group may be deemed to have acquired beneficial ownership of Shares beneficially owned by any of such persons. As of the close of business on December 16, 1998, Mr. Ceiley beneficially owned an aggregate of 889,825 Shares, of which 493,000 Shares were owned by Bisco, of which Mr. Ceiley is the sole stockholder and President, and 396,825 Shares were held by Mr. Ceiley as sole Trustee of the Plan. (b) Mr. Ceiley has the sole power to vote and to dispose of the Shares owned by the Plan and Bisco. (c) The reporting persons purchased and sold Shares in the manner, in the amounts, on the dates and at the prices set forth on Schedule 1 attached hereto and incorporated herein by reference. (d) Not applicable (e) Not applicable Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. ----------------------------------------------------------------------- Not Applicable Item 7. Material to be Filed as Exhibits ------------------------------------------ Exhibit 1. Joint Filing Agreement dated as of Page Number December 17, 1998 12 Exhibit 2. Cease-And-Desist Order 13 Page 7 of 18 Pages SIGNATURE --------- After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 17, 1998 Glen F. Ceiley -------------------------- Name: Glen F. Ceiley Page 8 of 18 pages SIGNATURE --------- After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 17, 1998 Bisco Industries, Inc. Glen F. Ceiley --------------------------------- Name: Glen F. Ceiley Title: President Page 9 of 18 pages SIGNATURE --------- After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: December 17, 1998 Bisco Industries, Inc. Profit Sharing And Savings Plan Glen F. Ceiley _______________________________ Name: Glen F. Ceiley Title: Trustee Page 10 of 18 Pages SCHEDULE 1 The Reporting Persons have engaged in the following transactions in Shares since November 25, 1998, the last day on which a transaction in the shares by the reporting persons was reported on the Schedule 13D. All transactions involved purchases of Shares on the NASDAQ.
Transaction Number of Price Date Shares Per Share* Purchaser - ----------- ----------- ----------- ---------------------- 27-NOV-98 1,000 1.5625 BISCO 01-DEC-98 6,000 1.625 BISCO 02-DEC-98 14,000 1.5892 BISCO 03-DEC-98 3,000 1.5625 PLAN 04-DEC-98 7,100 1.6241 BISCO 07-DEC-98 1,200 1.5625 BISCO 08-DEC-98 17,700 1.5836 BISCO 09-DEC-98 6,000 1.5625 BISCO 10-DEC-98 6,000 1.5625 BISCO 11-DEC-98 5,000 1.5625 BISCO 14-DEC-98 3,000 1.5625 BISCO 15-DEC-98 5,000 1.6875 PLAN 15-DEC-98 7,000 1.6875 BISCO 16-DEC-98 9,000 1.7430 BISCO
* Excluding commissions Page 11 of 18 pages EX-1 2 JOINT FILING AGREEMENT DATED DECEMBER 16, 1998 EXHIBIT 1 JOINT FILING AGREEMENT ---------------------- In accordance with rule 13d-(f) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with all other Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock. no par value (the "Common Stock"), of Data I/O Corporation, a Washington corporation, and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of December 17, 1998. /s/ GLEN F. CEILEY ---------------------- Glen F. Ceiley Bisco Industries, Inc. /s/ GLEN F. CEILEY ---------------------- Name: Glen F. Ceiley Title: President Bisco Industries, Inc. Profit Sharing and Savings Plan /s/ GLEN F. CEILEY ---------------------- Name: Glen F. Ceiley Title: Trustee Page 12 of 18 Pages EX-2 3 CEASE-AND-DESIST ORDER EXHIBIT 2 UNITED STATES OF AMERICA Before the SECURITIES AND EXCHANGE COMMISSION SECURITIES EXCHANGE ACT OF 1934 Release No. ADMINISTRATIVE PROCEEDING File No. - -------------------------------- In the Matter of : ORDER INSTITUTING PUBLIC : ADMINISTRATIVE PROCEEDINGS : PURSUANT TO SECTION 21C OF BISCO INDUSTRIES, INC. : THE SECURITIES EXCHANGE ACT OF : 1934, MAKING FINDINGS, AND : IMPOSING A CEASE-AND-DESIST : ORDER : Respondent. : ------------------------------ - -------------------------------- I. The Securities and Exchange Commission ("Commission") deems it appropriate that public administrative proceedings be, and hereby are, instituted pursuant to Section 21C of the Securities Exchange Act of 1934 ("Exchange Act") against Bisco Industries, Inc. (hereinafter "Bisco"). II. In anticipation of the institution of these administrative proceedings, the Respondent has submitted an Offer of Settlement (hereinafter the "Offer") which the Commission has determined to accept. Solely for the purpose of these proceedings and any other proceedings brought by or on behalf of the Commission or in which the Commission is a party, and without admitting or denying the findings set forth herein, Respondent consents to the entry of this Order Instituting Public Administrative Proceedings Pursuant to Section 21C of the Exchange Act of 1934, Making Findings, and Imposing A Cease-and-Desist Order (hereinafter the "Order"). Page 13 of 18 Pages III. On the basis of this Order and the Respondent's Offer, the Commission makes the following findings: A. Summary ------- This matter arises under Rule 10b-13 of the Exchange Act, which prohibits, among other things, any person who makes a cash tender offer for an equity security from, directly or indirectly, purchasing that security otherwise than pursuant to its tender offer. Bisco, a privately-held, California-based company engaged in the business of distributing fasteners and electronic components, violated Rule 10b-13 of the Exchange Act by, directly and indirectly, purchasing 336,100 shares of Family Steak Houses of Florida, Inc. ("Family Steak") during the pendency of a cash tender offer it had made for Family Steak. Bisco purchased Family Steak shares in two market purchases and one off the market transaction. These purchases were made in Bisco's own account and in the account of Bisco's owner and president. The last and largest purchase, executed on May 19, 1997, was a purchase for Bisco's own account. In that transaction, Bisco purchased 330,800 shares -- approximately 3% of the total outstanding shares of family Steak -- in a privately-negotiated transaction with a Family Steak investor. B. Respondent ---------- During all relevant times, Bisco was a privately-held company incorporated in Illinois in 1974, engaged in the distribution of fasteners and electronic components. The company's principal place of business is located in Orange, California. C. Facts ----- 1. Bisco's Tender Offer for Family Steak ------------------------------------- On March 6, 1997, Bisco filed with the Commission a tender offer on Schedule 14D-1 in which the company offered to purchase up to 2,600,000 shares of Family Steak at $0.90 per share in cash (the "Tender offer"). Family Steak is a Florida corporation that owns a chain of 25 restaurants in Florida operating under the name "Ryan's Family Steak House." The Tender Offer was originally scheduled to expire an April 4, 1997. However, that date was extended several times and, eventually, the offer was extended to October 30, 1997. 2 Page 14 of 18 pages Bisco's Tender Offer was conditioned on, among other things, its determination that the Florida Control Share Act ("Control Act") -- which removes the voting rights from all shares purchased pursuant to a "control share acquisition" -- was inapplicable to the shares purchased pursuant to the Tender Offer./1/ On March 19, 1997, the Board of Directors of Family Steak announced that it recommended that shareholders reject the Tender Offer. The Family Steak Board also refused to confer voting rights on shares that Bisco purchased in the Tender Offer. In fact, the Board passed a "Rights Agreement" on March 18, 1997, designed to serve as a "poison pill" to deter Bisco's Tender Offer. As a further anti-takeover measure, the Board of Family Steak adopted new corporate bylaws that made changes in corporate control more difficult. In response to Family Steak's actions, Bisco filed a consent solicitation statement on April 30, 1997, for shareholder consents to nullify the poison pill, repeal the new bylaws, and amend Family Steak's existing bylaws to waive the applicability of the Control Act to the Tender Offer. Bisco, however, did not receive enough shareholder consents to waive the applicability of the Control Act. As a result, Bisco filed an amended Schedule 13D on July 24, 1997, disclosing that on that day, it had made a written demand to Family Steak for a special meeting of shareholders to vote in directors who would confer voting rights on shares that Bisco purchased in the Tender Offer. On September 26, 1997, approximately one month before its Tender Offer was to expire, Bisco announced it was withdrawing its offer. As a result, Bisco did not purchase any of the 2,237,548 shares that had been tendered into its offer as of that date. 2. Bisco's Purchase of 336,100 Shares of Family Steak Outside the Tender Offer ------------------------------------- Bisco, directly and indirectly, purchased Family Steak common stock during the pendency of its Tender Offer. These purchases were done both in and off the market. Bisco's ______________ /1/ Under the Control Act, Bisco could not obtain voting rights for its shares purchased in the Tender Offer unless either (1) the Family Steak Board of Directors agreed to confer voting rights on those shares, or (2) a majority of Family Steak's disinterested shareholders waived the applicability of the Control Act to control share acquisitions of shares of the Company. 3 Page 15 of 18 pages president decided to purchase Family Steak stock on these occasions in order to increase Bisco's holdings in Family Steak./2/ On April 7, 1997, Bisco's president purchased 5,000 shares of Family Steak for his own account in the NASDAQ market for $0.75 per share. On April 9, 1997, Bisco's president purchased another 300 shares in the NASDAQ market for his own account for $0.75 per share. The third purchase of Family Steak common stock outside the Tender Offer, executed on May 19, 1997, was substantially larger than the two earlier transactions. On that day, Bisco purchased 330,800 shares of Family Steak (totaling approximately 3% of all outstanding shares), at $0.90 a share. This purchase was made in a privately-negotiated transaction with a large Family Steak shareholder and was executed away from the market./3/ The shareholder was aware of the existing Tender Offer and approached Bisco's president in April 1997, to determine whether Bisco was interested in purchasing his shares of Family Steak. During a dinner meeting in Phoenix, Arizona, which was arranged to gain the shareholder's support of Bisco's efforts to acquire Family Steak, the shareholder told Bisco's president that he did not want to wait until the Tender Offer closed to sell his shares because he had another business opportunity for which he immediately needed cash. Bisco's president consulted the company's securities counsel about the possible transaction with the large Family Steak shareholder. After being advised that the transaction could be completed, Bisco purchased the shares. This transaction, and the transactions in the NASDAQ market noted above (concerning which Bisco did not consult counsel), were reported timely by Bisco in its Schedule 13D filings with the Commission. D. Violations ---------- Rule 10b-13 of the Exchange Act prohibits, among other things, any person who makes a cash tender offer for any equity security from, directly or indirectly, purchasing, or making any arrangement to purchase, any such security otherwise than pursuant to the tender offer. The prohibition on purchases extends from the time the tender offer is publicly announced ____________________ /2/ Bisco's president had the sole power to vote and dispose of the shares he owned individually and the sole power to vote and dispose of the shares Bisco owned. /3/ At the time of this purchase, approximately 2.2 million shares had been tendered into Bisco's Tender Offer. 4 Page 16 of 18 pages until the expiration of the period during which securities tendered pursuant to the tender offer may, by the terms of such offer (or the terms of any extension of the offer), be accepted or rejected. The purpose of Rule 10b-13 is, inter ----- alia, to safeguard the interests of persons who have tendered their securities - ---- in response to a tender offer. See Exchange Act Release No. 8712, October 8, --- 1969 (adopting release). Bisco's direct and indirect purchases of 336,100 shares of Family Steak outside its Tender Offer violated Rule 10b-13 of the Exchange Act. Bisco's purchases did not comply with the unambiguous terms of Rule 10b-13 and unfairly treated those Family Steak shareholders who had tendered into Bisco's offer by conferring a number of special benefits to those shareholders who sold to Bisco outside the Tender Offer. First, those who tendered into Bisco's Tender Offer were subjected to the risk, which became a reality on September 26, 1997, that Bisco would withdraw its offer and not buy any of their shares. Those who sold to Bisco outside the Tender Offer faced no such risk. Second, those who tendered into Bisco's offer had to await the outcome of the tender offer or withdraw their tendered shares. Those who sold to Bisco outside the Tender Offer, however, received immediate cash for their stock early in the Tender Offer. Third, Bisco conferred a financial benefit upon the large Family Steak shareholder that it did not confer upon any other shareholder. The two purchases Bisco made outside the Tender Offer in the NASDAQ market were executed at market price which, at the time, was below the Tender Offer price of $0.90 a share./4/ Bisco's purchase of 330,800 shares from the large Family Steak shareholder, however, was done at the Tender Offer price of $0.90 which, at a time, was $0.09 above Family Steak's market price. As a result, Bisco paid this investor a $0.09 a share premium over the market price for his stock, something it did not do for any other Family Steak shareholder. Fourth, even though Bisco withdrew its Tender Offer on September 26, 1997, during the pendency of the Tender Offer, those who had tendered into Bisco's offer were subject to the risk of proration. Those who sold to Bisco outside the Tender ____________ /4/ Family Steak only closed above $0.90 a share on 10 of the 144 days the Tender Offer was open. The stock reached a high of $1.00 on March 7, 1997, the day after the Tender Offer was made. After that, the price only closed above $0.90 a share on nine days, all in March 1997, closing at $0.90625 seven times and $0.9375 twice. 5 Page 17 of 18 pages Offer, however, were not. Finally, Bisco's purchases allowed it to raise its own position in Family Steak to over 1,000,000 shares, creating the potential that Bisco would need to purchase fewer shares through its Tender Offer. IV. Based on the foregoing, the Commission deems it appropriate to accept the Respondent's Offer and to impose a Cease-and-Desist Order as specified in the Offer. Accordingly, IT IS HEREBY ORDERED, pursuant to Section 21C of the Exchange Act, that Bisco cease-and-desist from committing or causing any violation, and any future violations, of Rule 10b-13 of the Exchange Act. By the Commission. _________________________ Jonathan G. Katz Secretary 6 Page 18 of 18 pages -----END PRIVACY-ENHANCED MESSAGE-----