- Amended Statement of Ownership: Solicitation (SC 14D9/A)
28 April 2012 - 7:08AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
(Amendment
No. 2)
X-RITE, INCORPORATED
(Name of Subject Company)
X-RITE,
INCORPORATED
(Name of Person Filing Statement)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
983857103
(CUSIP Number of Class of Securities)
Thomas J.
Vacchiano Jr.
Chief Executive Officer
X-Rite, Incorporated
4300 44th Street, S.E.
Grand Rapids, Michigan 49512
(616) 803-2100
(Name, address and telephone number of person authorized to
receive
notices and communications on behalf of the persons filing statement)
With copies to:
Bruce A. Toth, Esq.
Brian M. Schafer, Esq.
Winston & Strawn LLP
35 West Wacker Drive
Chicago, Illinois 60601
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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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This Amendment No. 2 (the
Amendment
) amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 of X-Rite, Incorporated (
X-Rite
or the
Company
) filed with the Securities and Exchange Commission (the
SEC
) on April 17, 2012 (as
amended and supplemented, the
Schedule 14D-9
). This Schedule 14D-9 relates to the tender offer by Termessos Acquisition Corp., a Michigan corporation (
Purchaser
) and wholly-owned subsidiary of Danaher
Corporation, a Delaware corporation (
Danaher
), pursuant to which Purchaser has offered to purchase all of the outstanding Shares at a price of $5.55 per Share, net to the seller in cash, without interest and less any applicable
withholding taxes, upon the terms and conditions set forth in the Offer to Purchase dated April 17, 2012 (the
Offer to Purchase
) and the related Letter of Transmittal (the
Letter of Transmittal
and together
with the Offer to Purchase, as each may be amended or supplemented from time to time, constitute the
Offer
). The Offer is described in a Tender Offer Statement on Schedule TO filed by Danaher and Purchaser with the SEC on
April 17, 2012. The Offer to Purchase and the Letter of Transmittal were filed with the Schedule 14D-9 as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Except as otherwise set forth below, the information set forth in the Schedule 14D-9 remains unchanged and is incorporated by reference as relevant to the items in this Amendment. Capitalized terms used
and not defined herein shall have the meanings assigned to such terms in the Schedule 14D-9. This Amendment is being filed to reflect certain updates as disclosed below.
Item 8.
Additional Information
.
The subsection
Litigation
of Item 8 of the Schedule 14D-9 is hereby amended and supplemented by inserting the following paragraph as the fourth paragraph:
On April 26, 2012, a putative class action lawsuit captioned
Storm v. X-Rite, Inc. et al.
, Case No. 1:12-CV-00414, was filed in the United States District Court for the Western
District of Michigan, Southern Division. The complaint names as defendants the Company, the Company Board, Purchaser, and Danaher. The plaintiff alleges that the Company Board breached fiduciary duties owed to the Companys shareholders in
connection with the Offer and the Merger, and further alleges that Danaher and Purchaser aided and abetted those alleged breaches of fiduciary duty. The complaint alleges that the Offer and the Merger involve an unfair price and an inadequate sale
process, that certain provisions contained in the Merger Agreement are preclusive of offers from other potential acquirers, that the Company Board will receive personal benefits not available to public shareholders of the Company as a result of the
Merger Agreement, and that the Company has failed to make adequate disclosures about the background of the Offer and the Merger and the work performed by Centerview as the Companys financial advisor with respect to the Offer and the Merger.
The complaint seeks injunctive relief, including to enjoin the Offer and the Merger, compensatory relief, rescission or rescissionary damages in the event the Offer or the Merger is consummated, and an award of attorneys and other fees and
costs, in addition to other relief. The Company believes the plaintiffs allegations lack merit and intends to contest them vigorously.
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Item 9.
Exhibits
.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following exhibits:
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Exhibit
Number
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Description
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(a)(5)(5)
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Complaint filed in the United States District Court for the Western District of Michigan, Southern Division, captioned
Storm v. X-Rite, Inc. et al.
, Case No.
1:12-CV-00414
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.
X-RITE, INCORPORATED
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By:
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/s/ Rajesh K. Shah
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Name:
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Rajesh K. Shah
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Title:
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Executive Vice President and Chief Financial Officer
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Dated:
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April 27, 2012
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