Amended Tender Offer Statement by Third Party (sc To-t/a)
January 03 2018 - 3:10PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on January 3, 2018
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Amplify Snack
Brands, Inc.
(Name of Subject Company (Issuer))
Alphabet Merger Sub Inc.
(Offeror)
A wholly
owned subsidiary of
The Hershey Company
(Parent of Offeror)
Common Stock, par value $0.0001 per share
(Title of Class of Securities)
03211L102
(CUSIP Number
of Class of Securities)
Leslie M. Turner
Senior Vice President, General Counsel and Secretary
The Hershey Company
100
Crystal A Drive
Hershey, PA 17033
Tel: (717)
534-4200
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Martha
E. McGarry
Thomas W. Greenberg
Maxim O. Mayer-Cesiano
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New
York, New York 10036
(212)
735-3000
CALCULATION OF FILING FEE
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Transaction Valuation
(1)
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Amount of Filing Fee
(2)
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$945,150,311
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$117,671
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(1)
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Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated as the sum of (i) 75,468,620 outstanding shares of common stock, par value $0.0001 per share (the
Shares
), of Amplify Snack Brands, Inc. (excluding restricted shares which are addressed in clause (iii)) multiplied by $12.00, (ii) 2,428,849 Shares issuable pursuant to outstanding stock options that have vested (or are
anticipated to vest prior to the completion of the transaction) multiplied by $4.38 (which is $12.00 minus the weighted average exercise price for such options of $7.62 per Share) and (iii) 2,407,376 Shares issuable pursuant to outstanding
restricted stock units and restricted stock awards that have vested (or are anticipated to vest prior to the completion of the transaction) multiplied by $12.00. The calculation of the filing fee is based on information provided by Amplify Snack
Brands, Inc. as of December 15, 2017, the most recent practicable date.
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(2)
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The filing fee was calculated in accordance with Rule
0-11
under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2018, issued
August 24, 2017, by multiplying the transaction value by 0.0001245.
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☒
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Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2)
of the Securities Exchange Act of 1934 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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$117,671
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Filing Party:
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Alphabet Merger Sub Inc. and The Hershey Company
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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 2, 2018
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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
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the appropriate boxes below to designate any transactions to which the statement relates:
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☒
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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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☐
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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:
☐
This Amendment No. 1 (this
Amendment
) amends and supplements the
Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the
Schedule TO
) filed by Alphabet Merger Sub Inc., a Delaware corporation (
Purchaser
) and a wholly
owned subsidiary of The Hershey Company, a Delaware corporation (
Parent
), with the U.S. Securities and Exchange Commission on January 2, 2018. The Schedule TO relates to the offer by Purchaser to purchase all
outstanding shares of common stock, par value $0.0001 per share (the
Shares
), of Amplify Snack Brands, Inc., a Delaware corporation (the
Company
), at a price per Share of $12.00 (such
price as it may be amended from time to time in accordance with the Merger Agreement, the
Offer Price
), net to the seller in cash, without any interest, but subject to and reduced by any required withholding of taxes upon
the terms and subject to the conditions set forth in the Offer to Purchase dated January 2, 2018 (together with any amendments or supplements thereto, the
Offer to Purchase
) and in the related Letter of Transmittal
(together with any amendments or supplements thereto, the
Letter of Transmittal
and, together with the Offer to Purchase, the
Offer
), which are annexed to and filed with the Schedule TO as Exhibits
(a)(1)(A) and (a)(1)(B), respectively. This Amendment is being filed on behalf of Purchaser and Parent. Unless otherwise indicated, references to sections in this Amendment are references to sections of the Offer to Purchase.
Amendment to the Offer to Purchase
Items 1 through 11.
The information set forth in the Offer to Purchase under The OfferSection 15Certain Legal Matters and
Items 1 through 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented by adding the following paragraph at the end of the subsection titled
Antitrust:
On January 2, 2018, each of Parent and the Company filed a Premerger Notification and Report Form with
the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer. Accordingly, the required waiting period with respect to the Offer is expected to expire in the ordinary course at 11:59 p.m. Eastern Time on January 17,
2018.
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.
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Dated: January 3, 2018
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THE HERSHEY COMPANY
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By:
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/s/ Patricia Little
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Name:
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Patricia Little
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Title:
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Senior Vice President, Chief Financial Officer
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ALPHABET MERGER SUB INC.
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By:
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/s/ Bjork Hupfeld
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Name:
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Bjork Hupfeld
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Title:
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Treasurer
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EXHIBIT INDEX
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(a)(1)(A)
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Offer to Purchase, dated January 2, 2018*
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(a)(1)(B)
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Form of Letter of Transmittal*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
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(a)(1)(E)
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Form of 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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Internal Revenue Service Form
W-9
(Request for Taxpayer Identification Number and Certification), including
instructions for completing the form*
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(a)(1)(G)
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Summary Advertisement, published January 2, 2018 in The Wall Street Journal*
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(a)(2)
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Not applicable
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(a)(3)
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Not applicable
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(a)(4)
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Not applicable
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(a)(5)(A)
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Joint Press Release of Parent and the Company, dated December 18, 2017 (incorporated by reference to the Current Report on Form
8-K
filed by the Company with the Securities and Exchange Commission on December 18, 2017)*
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(a)(5)(B)
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Investor Presentation, dated December
18, 2017 (incorporated by reference to the Current Report on Form
8-K
filed by Parent with the Securities and Exchange Commission on December 18, 2017)*
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(a)(5)(C)
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Letter Sent to Parent Employees on December 18, 2017 (incorporated by reference to the Tender Offer Statement on Schedule
TO-C
of Parent filed with the Securities and Exchange Commission on December 19, 2017)*
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(a)(5)(D)
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Conference Call Transcript, dated December 18, 2017 (incorporated by reference to the Tender Offer Statement on Schedule
TO-C
of Parent filed with the Securities and Exchange Commission on December 19, 2017)*
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(b)
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Not applicable
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(d)(1)
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Agreement and Plan of Merger, dated as of December
17, 2017, among Parent, Purchaser and the Company (incorporated by reference to the Current Report on Form
8-K
filed by the Company with the Securities and Exchange Commission on December 18, 2017)*
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(d)(2)
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Form of Support Agreement (incorporated by reference to the Statement on Schedule 13D filed by Parent with the Securities and Exchange Commission
on December 27, 2017)*
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(d)(3)
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Confidentiality Agreement, dated as of January
23, 2017, between the Company and The Hershey Company (incorporated by reference to Exhibit (e)(2) to the Schedule
14D-9
filed by the Company with the Securities and Exchange Commission on January
2, 2018)*
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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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