Amended Tender Offer Statement by Third Party (sc To-t/a)
June 07 2017 - 9:00AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE
TO
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
ADVANCEPIERRE
FOODS HOLDINGS, INC.
(Name of Subject Company)
DVB MERGER SUB, INC.
(Offeror)
TYSON FOODS,
INC.
(Parent of Offeror)
(Names of Filing Persons)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
00782L107
(CUSIP Number of Class of Securities)
David L. Van Bebber
Tyson Foods, Inc.
2200 West Don Tyson Parkway
Springdale, AR 72762-6999
(479) 290-4000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With copies to
:
George R. Bason, Jr., Esq.
Marc O. Williams, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$3,213,906,411.35
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$372,491.75
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*
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Estimated solely for purposes of calculating the filing
fee. The calculation of the transaction value is determined by adding the sum of (i) 78,664,929 shares of common stock, par
value $0.01 per share, of AdvancePierre Foods Holdings, Inc. (“AdvancePierre”) multiplied by the offer price of $40.25
per share, (ii) the net offer price for 644,823 shares issuable pursuant to outstanding options with an exercise price less
than $40.25 per share (which is calculated by multiplying the number of shares underlying such outstanding options by an amount
equal to $40.25 minus the weighted average exercise price per share of $25.70) and (iii) 771,952 shares subject to issuance
upon settlement of outstanding restricted stock units multiplied by the offer price of $40.25 per share. The calculation of the
filing fee is based on information provided by AdvancePierre as of May 24, 2017.
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**
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The amount of the filing fee is calculated in accordance
with Rule 0-11 of the Securities Exchange Act of 1934, as amended, by multiplying the transaction valuation by 0.0001159.
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x
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Check box if any part of the fee is offset as provided
by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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$371,877.41
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Filing Party:
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DVB Merger Sub, Inc. and Tyson Foods, Inc.
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Form or Registration No.:
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Schedule TO
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Date Filed:
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May 9, 2017
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☐
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate
any transactions to which the statement relates:
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x
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third-party tender offer subject to Rule 14d-1.
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¨
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issuer tender offer subject to Rule 13e-4.
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¨
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going-private transaction subject to Rule 13e-3.
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x
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is
a final amendment reporting the results of the tender offer.
x
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1.
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Name of Reporting Person
TYSON FOODS, INC.
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2.
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Check the Appropriate Box if a Member of a Group
(a):
☐
(b):
☐
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3.
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SEC Use Only
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4.
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Source of Funds (See Instructions)
OO
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5.
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Check if Disclosure of Legal Proceedings Is Required Pursuant
to Items 2(d) or 2(e)
☐
N/A
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6.
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Citizenship or Place of Organization
DELAWARE
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Number of Shares Beneficially Owned by Each Reporting Person
With
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7.
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Sole Voting Power
0
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8.
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Shared Voting Power
1,000(1)
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9.
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Sole Dispositive Power
0
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10.
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Shared Dispositive Power
1,000
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person
1,000(1)
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12.
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐
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13.
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Percent
of Class Represented by Amount in Row (11)
100%(1)
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14.
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Type
of Reporting Person
CO
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_______________
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(1)
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Beneficial ownership of the common stock, par value $0.01, of AdvancePierre Foods Holdings, Inc. (“
AdvancePierre
”)
(the “
Shares
”) is being reported hereunder solely because the Reporting Person may be deemed to have beneficial
ownership of such Shares as a result of the relationships described under Item 2 and Item 3 of this Schedule 13D and the matters
described in Item 3, Item 4 and Item 5 of this Schedule 13D. Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission by any of the Reporting Persons that it is the beneficial owner of any Shares referred to
herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial
ownership is expressly disclaimed.
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1.
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Name of Reporting Person
DVB MERGER SUB, INC.(1)
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2.
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Check the Appropriate
Box if a Member of a Group
(a):
☐
(b):
☐
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
OO
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5.
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Check if Disclosure of
Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
☐
N/A
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6.
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Citizenship or Place
of Organization
DELAWARE
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Number of Shares Beneficially Owned by Each Reporting Person
With
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7.
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Sole Voting Power
0
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8.
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Shared Voting Power
0
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9.
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Sole Dispositive Power
0
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10.
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Shared Dispositive Power
0
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11.
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Aggregate Amount Beneficially
Owned by Each Reporting Person
0
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12.
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐
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13.
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Percent of Class Represented
by Amount in Row (11)
0%
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14.
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Type of Reporting Person
CO
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_______________
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(1)
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As a result of the merger, between DVB Merger Sub, Inc. (“
Merger Sub
”) and AdvancePierre, Merger Sub was
merged with and into the AdvancePierre and thereafter ceased to exist.
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1.
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Name of Reporting Person
TYSON LIMITED PARTNERSHIP
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2.
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Check the Appropriate
Box if a Member of a Group
(a):
☐
(b):
☐
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3.
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SEC Use Only
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4.
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Source of Funds (See
Instructions)
OO
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5.
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Check if Disclosure of
Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
☐
N/A
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6.
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Citizenship or Place
of Organization
DELAWARE
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Number of Shares Beneficially Owned by Each Reporting Person
With
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7.
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Sole Voting Power
0
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8.
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Shared Voting Power
1,000(1)
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9.
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Sole Dispositive Power
0
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10.
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Shared Dispositive Power
1,000(1)
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11.
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Aggregate Amount Beneficially
Owned by Each Reporting Person
1,000(1)
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12.
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares
☐
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13.
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Percent of Class Represented
by Amount in Row (11)
100%(1)
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14.
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Type of Reporting Person
PN
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_______________
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(1)
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Beneficial ownership of the Shares is being reported hereunder solely because the Reporting Person may be deemed to have beneficial
ownership of such Shares as a result of the relationships described under Item 2 and Item 3 of this Schedule 13D and the matters
described in Item 3, Item 4 and Item 5 of this Schedule 13D. Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission by any of the Reporting Persons that it is the beneficial owner of any Shares referred to
herein for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, or for any other purpose, and such beneficial
ownership is expressly disclaimed.
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This Amendment No. 4 (this “
Amendment
”)
amends and supplements the Tender Offer Statement on Schedule TO filed by DVB Merger Sub, Inc., a Delaware corporation (“
Purchaser
”)
and a wholly owned subsidiary of Tyson Foods, Inc., a Delaware corporation (“
Parent
”), with the U.S. Securities
and Exchange Commission on May 9, 2017 (together with any subsequent amendments and supplements thereto, the “
Schedule
TO
”). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par
value $0.01 per share (“
Shares
”), of AdvancePierre Foods Holdings, Inc., a Delaware corporation (“
AdvancePierre
”),
for $40.25 per Share, net to the seller in cash, without interest, but subject to any required withholding of taxes, upon the terms
and subject to the conditions set forth in the offer to purchase dated May 9, 2017 (the “
Offer to Purchase
”),
a copy of which is attached to the Schedule TO as Exhibit (a)(1)(A), and in the related letter of transmittal (the “
Letter
of Transmittal
”), a copy of which is attached to the Schedule TO as Exhibit (a)(1)(B), which, as each may be amended
or supplemented from time to time, collectively constitute the “
Offer
.”
All information contained in
the Offer to Purchase and the related Letter of Transmittal, including all schedules thereto, is hereby incorporated herein by
reference in response to Items 1 through 9 and Item 11 in the Schedule TO. Capitalized terms used and not otherwise defined in
this Amendment have the meanings given to such terms in the Offer to Purchase.
This Amendment is being filed
to amend and supplement Items 1 through 9, 11 and 12 as reflected below.
Items 1 through 9; Item 11.
Items 1 through 9 and 11 of the Schedule
TO are hereby amended and supplemented as follows:
The Offer and withdrawal rights expired
at 12:00 midnight, New York City time, at the end of the day on Tuesday, June 6, 2017. The Depositary for the Offer has indicated
that a total of 68,648,055 Shares were validly tendered and not validly withdrawn pursuant to the Offer as of the Expiration Date,
representing approximately 87.27% of the outstanding Shares. In addition, Notices of Guaranteed Delivery have been delivered
for 1,890,809 Shares, representing approximately 2.40% of the outstanding Shares. The number of Shares tendered (excluding
Shares presented pursuant to Notices of Guaranteed Delivery for which certificates were not yet delivered) satisfies the Minimum
Condition, and all Shares that were validly tendered and not validly withdrawn pursuant to the Offer have been accepted for payment
by Purchaser.
Parent expects to complete its
acquisition of AdvancePierre through the Merger as promptly as practicable without a meeting of stockholders of AdvancePierre
in accordance with Section 251(h) of the DGCL, with AdvancePierre surviving as a wholly owned subsidiary of Parent. Pursuant
to the Merger Agreement, at the Effective Time, each Share issued and outstanding immediately prior to the Effective Time
will be converted into the right to receive $40.25 per Share in cash, without interest but subject to any required
withholding of taxes (which is the same amount per Share paid in the Offer) other than (i) treasury Shares held by
AdvancePierre and any Shares owned by Parent or Purchaser or any direct or indirect wholly owned subsidiary of Parent or
AdvancePierre, which Shares will be canceled, and (ii) Shares held by any person who was entitled to and has properly
demanded statutory appraisal of his or her Shares. Instructions outlining the steps to be taken to obtain the Merger
Consideration will be mailed to AdvancePierre stockholders who did not tender their Shares in the Offer.
SIGNATURES
After due inquiry and to the best of their
knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and
correct.
Dated: June 7, 2017
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DVB MERGER SUB, INC.
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By:
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/s/ R. Read Hudson
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Name:
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R. Read Hudson
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Title:
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Vice President and Secretary
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TYSON FOODS, INC.
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By:
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/s/ R. Read Hudson
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Name:
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R. Read Hudson
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Title:
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Vice President, Associate General Counsel and Secretary
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EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(A)*
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Offer to Purchase, dated as of May 9, 2017.
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(a)(1)(B)*
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Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).
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(a)(1)(C)*
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Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(E)*
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(F)*
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Summary Advertisement as published in
The New York Times
on May 9, 2017.
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(a)(5)(A)*
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Joint Press Release of Tyson Foods, Inc. and AdvancePierre Foods Holdings, Inc. dated April 25, 2017 (incorporated by reference to Exhibit 99.1 of the Tyson Foods, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(B)*
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Note sent by Thomas P. Hayes, CEO of Tyson Foods, Inc., to Tyson Foods, Inc. employees on April 25, 2017 (incorporated by reference to Exhibit 99.1 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(C) *
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Note sent by Scott Rouse, Chief Customer Officer of Tyson Foods, Inc. to Tyson Foods, Inc.’s commercial sales team on April 25, 2017 (incorporated by reference to Exhibit 99.2 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(D)*
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Presentation given by Thomas P. Hayes, CEO of Tyson Foods, Inc. to Tyson Foods, Inc. employees entitled “Team Talk” on April 25, 2017 (incorporated by reference to Exhibit 99.3 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(E)*
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Transcript of Conference Call hosted by Tyson Foods, Inc. held on April 25, 2017 (incorporated by reference to Exhibit 99.4 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(F)*
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Note sent by Thomas P. Hayes, CEO of Tyson Foods, Inc. to Tyson Foods, Inc.’s senior leadership team on April 25, 2017 (incorporated by reference to Exhibit 99.5 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(G)*
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FAQ Memo issued by Tyson Foods, Inc. on April 25, 2017 (incorporated by reference to Exhibit 99.6 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(H)*
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Letter sent by Thomas P. Hayes, CEO of Tyson Foods, Inc., to Tyson Foods, Inc.’s customers on April 25, 2017 (incorporated by reference to Exhibit 99.7 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on April 25, 2017).
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(a)(5)(I)*
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Excerpts from the Form 10-Q filed by Tyson Foods, Inc. on May 8, 2017 (incorporated by reference to Exhibit 99.1 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on May 8, 2017).
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(a)(5)(J)*
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Excerpts from press release, dated May 8, 2017, announcing financial results for the first six months of the fiscal year ending October 1, 2017 (incorporated by reference to Exhibit 99.2 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on May 8, 2017).
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(a)(5)(K)*
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Excerpts from earnings presentation given by Tyson Foods, Inc. dated May 8, 2017 (incorporated by reference to Exhibit 99.3 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on May 8, 2017).
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(a)(5)(L)*
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Excerpts from earnings call held by Tyson Foods, Inc. on May 8, 2017 (incorporated by reference to Exhibit 99.4 of the Tyson Foods, Inc. Pre-Commencement Communication on Schedule TO filed with the Securities and Exchange Commission on May 8, 2017).
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Exhibit No.
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Description
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(a)(5)(M)*
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Class Action Complaint filed as of May 12, 2017 (Bushansky v. AdvancePierre Foods Holdings, Inc., et al., Case No. 17 Civ. 326).
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(a)(5)(N)*
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Class Action Complaint filed as of May 15, 2017 (Parshall v. AdvancePierre Foods Holdings, Inc., et al., Case No. 17 Civ. 333).
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(a)(5)(O)*
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Class Action Complaint filed as of May 24, 2017 (Gallagher v. AdvancePierre Foods Holdings, Inc., et al., Case No. 17 Civ. 356).
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(b)(1)*
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Senior Unsecured Term Loan Facility and Senior Unsecured Revolving Credit Facility Commitment Letter dated as of April 25, 2017 among Tyson Foods, Inc. and Morgan Stanley Senior Funding, Inc.
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(b)(2)*
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Senior Unsecured Bridge Facility Commitment Letter dated as of April 25, 2017 among Tyson Foods, Inc. and Morgan Stanley Senior Funding, Inc.
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(b)(3)*
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Term Loan Agreement, dated as of May 12, 2017, among Tyson Foods, Inc., the lenders party thereto and Morgan Stanley Senior Funding, Inc., as administrative agent (incorporated by reference to Exhibit 10.1 of the Tyson Foods, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 17, 2017).
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(b)(4)*
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Amended and Restated Credit Agreement, dated as of May 12, 2017, among Tyson Foods, Inc., the subsidiary borrowers party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent (incorporated by reference to Exhibit 10.2 of the Tyson Foods, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 17, 2017).
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(c)
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Not applicable.
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(d)(1)*
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Agreement and Plan of Merger dated as of April 25, 2017 among Tyson Foods, Inc., AdvancePierre Foods Holdings, Inc. and DVB Merger Sub, Inc. (incorporated by reference to Exhibit 2.1 of the Tyson Foods, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2017).
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(d)(2)*
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Tender and Support Agreement dated as of April 25, 2017 among Tyson Foods, Inc., DVB Merger Sub, Inc., OCM Principal Opportunities Fund IV Delaware, L.P. and OCM APFH Holdings, LLC. (incorporated by reference to Exhibit 99.1 of the Tyson Foods, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on April 28, 2017).
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(d)(3)*
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Confidentiality Agreement dated as of April 23, 2017 among Tyson Foods, Inc. and AdvancePierre Foods Holdings, Inc.
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(e)
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Not applicable.
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(f)
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Not applicable.
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(g)
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Not applicable.
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(h)
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Not applicable.
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_______________
* Previously Filed
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