- Amended tender offer statement by Third Party (SC TO-T/A)
29 January 2011 - 8:34AM
Edgar (US Regulatory)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 1)
TENDER OFFER STATEMENT
UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
MARTEK BIOSCIENCES CORPORATION
(Name of Subject Company (Issuer))
KONINKLIJKE DSM N.V.
GREENBACK ACQUISITION CORPORATION
(Name of Filing Persons (Offerors))
Common Stock, $0.10 Par Value Per Share
(Title of Class of Securities)
572901106
(CUSIP Number of Class of Securities)
Hugh C. Welsh
President and General Counsel
DSM North America
45 Waterview Boulevard
Parsippany, NJ 07054
(973) 257-8300
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
William A. Groll
David Leinwand
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$1,146,313,287
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$133,086.97
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*
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Estimated
solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended
(the "
Exchange Act
"). The Transaction Valuation was calculated on the basis of (a) 36,390,898 shares of common stock, $0.10 par value per share, of
Martek Biosciences Corporation (the "Shares"), the estimated maximum number of Shares that may be acquired in this tender offer (consisting of (i) 33,522,548 Shares issued and outstanding as of
December 31, 2010, (ii) 2,066,297 Shares issuable upon the exercise of outstanding options and (iii) 802,053 Shares issuable upon the exercise of outstanding restricted stock
units), multiplied by (b) the offer price of $31.50 per Share.
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**
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The
filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #5 for
fiscal year 2011, issued December 22, 2010, by multiplying the transaction value by 0.0001161.
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ý
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Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify
the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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$133,086.97
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Filing Party:
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Koninklijke DSM N.V., Greenback Acquisition Corporation
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Form or Registration No.:
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Schedule TO
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Date Filed:
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January 13, 2011
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o
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Check
the box if the filing relates solely to preliminary communications made before the commencement of a
tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
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third-party
tender offer subject to Rule 14d-1.
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o
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issuer
tender offer subject to Rule 13e-4.
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going-private
transaction subject to Rule 13e-3.
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o
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amendment
to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer:
o
This Amendment No. 1 (this "
Amendment
") amends and supplements the Tender Offer Statement on Schedule TO (as amended, the
"
Schedule TO
") originally filed on January 13, 2011 in connection with the offer by Greenback Acquisition Corporation, a Delaware
corporation ("
Purchaser
") and an indirect wholly-owned subsidiary of Koninklijke DSM N.V., a corporation organized in the Netherlands
("
DSM
"), to purchase all outstanding shares of common stock, par value $0.10 (the "
Shares
"), of Martek
Biosciences Corporation, a Delaware corporation ("
Martek
"), at a price of $31.50 per Share, net to the seller in cash, without interest thereon and less
any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated January 13, 2011 (the "
Offer to
Purchase
"), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(A), and in the related Letter of Transmittal, which is annexed to and filed with
the Schedule TO as Exhibit (a)(1)(B), which, together with any amendments or supplements thereto, collectively constitute the "
Offer
."
All
capitalized terms used in this Amendment No. 1 without definition have the meanings ascribed to them in the Schedule TO.
Item 11.
Additional Information.
Item 11 is hereby amended and supplemented by adding the following paragraphs to Section 15"Certain Legal
MattersLitigation" of the Offer to Purchase:
On
January 25, 2011, a putative class action lawsuit was commenced against Martek, the members of its board of directors, DSM and Purchaser in the Circuit Court for Howard County,
State of Maryland. The lawsuit is captioned
Mary L. Richards v. Martek Biosciences Corporation, et al.
In the lawsuit,
plaintiff alleges, among other things, that (1) the Martek directors breached their fiduciary duties in connection with the transaction by, among other things, carrying out a defective sale
process that resulted in an unfair price to stockholders and a Merger Agreement that contains certain onerous and preclusive deal protection provisions, (2) the Martek directors breached their
fiduciary duties of disclosure in connection with the transaction because Martek's Solicitation/Recommendation Statement on Schedule 14D-9 and DSM's Tender Offer Statement on
Schedule TO are each materially misleading and incomplete and (3) DSM aided and abetted the alleged breaches of fiduciary duties by Martek's directors. Plaintiff purports to bring the
lawsuit on behalf of the public stockholders of Martek and seeks equitable relief to enjoin consummation of the Offer and the Merger, rescission of the Offer and the Merger and/or rescissory damages,
and fees and costs, among other relief. DSM believes that the lawsuit is without merit.
Previously,
on January 18, 2011, an amended complaint was filed by the plaintiff in the action captioned
Richard S. Kopp v. Martek Biosciences Corporation,
et al. (Civil Action No. 13C11085249)
. In addition to the allegations previously made in the original complaint, as described in the Offer to Purchase, the amended
complaint generally alleges that Martek's Solicitation/Recommendation Statement on Schedule 14D-9 is materially misleading and incomplete, and that Martek's directors have breached
their duty to Martek's stockholders because the directors stand to receive material financial benefits in the transaction not available to the other Martek stockholders. Martek has stated that it
continues to believe the lawsuit is without merit.
2
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is
true, complete and correct.
Dated:
January 28, 2011
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KONINKLIJKE DSM N.V.
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By:
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/s/ HUGH C. WELSH
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Name:
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Hugh C. Welsh
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Title:
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President and General Counsel,
DSM North America
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GREENBACK ACQUISITION CORPORATION
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By:
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/s/ HUGH C. WELSH
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Name:
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Hugh C. Welsh
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Title:
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Secretary and Director
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