- Amended tender offer statement by Third Party (SC TO-T/A)
February 25 2011 - 12:13PM
Edgar (US Regulatory)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 7)
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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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: $133,086.97
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Filing Party: Koninklijke DSM N.V., Greenback Acquisition Corporation
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Form or Registration No.: Schedule TO
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Date Filed: January 13, 2011
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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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issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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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:
ý
This Amendment No. 7 (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. 7 without definition have the meanings ascribed to them in the Schedule TO.
Items 1 - 11.
The Offer to Purchase is hereby amended and supplemented by including the following:
The
subsequent offering period of the Offer expired at 12:00 midnight, New York City time, on Thursday, February 24, 2011. The Depositary for the Offer has advised DSM and
Purchaser that, as of such time, an aggregate of approximately 262,000 additional Shares had been validly tendered in the subsequent offering period, which, together with the Shares validly tendered
during the initial offering
period, resulted in Purchaser holding approximately 89.5% of the outstanding Shares. Purchaser has accepted for payment all Shares that were validly tendered and not withdrawn.
DSM
intends to exercise the top-up option that was granted to DSM pursuant to the Merger Agreement to purchase additional Shares directly from Martek later today. Shortly
thereafter, DSM intends to complete a short-form merger in accordance with the Merger Agreement. In the short-form merger, Purchaser will merge with and into Martek and each
Share not tendered in the Offer, other than those as to which holders exercise appraisal rights under Delaware law and those held by DSM or Martek or their respective subsidiaries, will be converted
in the merger into the right to receive $31.50 per Share in cash, without interest and less any required withholding taxes. This is the same price per Share paid in the Offer.
The
full text of the press release issued by DSM on February 25, 2011 in connection with the expiration of the subsequent offering period is filed as Exhibit (a)(5)(K)
hereto and is incorporated herein by reference.
Item 12.
Exhibits.
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(a)(5)(K)
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Press Release issued by DSM on February 25, 2011
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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 Schedule TO is
true, complete and correct.
Dated:
February 25, 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: Hugh C. Welsh
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Title:
President and General Counsel, DSM
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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: Hugh C. Welsh
Title:
Secretary and Director
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EXHIBIT INDEX
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(a)(5)(K)
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Press Release issued by DSM on February 25, 2011
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