As filed with the Securities and Exchange Commission on January 31, 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. 6)
Amplify Snack Brands, Inc.
(Name of Subject Company (Issuer))
Alphabet Merger Sub Inc.
A wholly owned subsidiary of
The Hershey Company
(Names of Filing Persons (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, NY 10036
(212) 735-3000
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $945,150,311 | $117,671 | |
| (1) | 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. |
| (2) | 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. |
| ☒ | 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. |
| Amount Previously Paid: $117,671 | Filing Party: Alphabet Merger Sub Inc. and The Hershey Company | |
| Form or Registration No.: Schedule TO | Date Filed: January 2, 2018 |
| ☐ | 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:
| ☒ | third-party tender offer subject to Rule 14d-1. |
| ☐ | issuer tender offer subject to Rule 13e-4. |
| ☐ | going-private transaction subject to Rule 13e-3. |
| ☒ | 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: ☒
This Amendment No. 6 (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 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, is hereby amended and supplemented as follows:
At 12:00 midnight, New York City time, at the end of Tuesday, January 30, 2018, the Offer expired. The Depositary has advised Purchaser that, as of the expiration of the Offer, a total of approximately 71,970,009 Shares, representing approximately 95.1391% of the Company’s currently outstanding Shares, were validly tendered and not withdrawn in the Offer, including 1,849,932 Shares tendered pursuant to guaranteed delivery procedures.
As of the expiration of the Offer, the number of Shares validly tendered and not properly withdrawn pursuant to the Offer satisfied the Minimum Condition, and all other conditions to the Offer were satisfied or waived. Immediately after the expiration of the Offer, Purchaser irrevocably accepted for payment, and will promptly pay for, all Shares validly tendered and not properly withdrawn prior to the expiration time of the Offer.
Parent and Purchaser completed the acquisition of the Company on January 31, 2018 by consummating the Merger pursuant to the Merger Agreement without a meeting of the stockholders of the Company in accordance with Section 251(h) of the DGCL. As of the effective time of the Merger, each Share issued and outstanding immediately prior to such time (other than any (i) Shares held in the treasury of the Company, (ii) Shares that at the commencement of the Offer were owned by Parent or Purchaser, or any direct or indirect wholly owned subsidiaries of Parent or Purchaser, (iii) Shares irrevocably accepted for purchase in the Offer and (iv) Shares held by the Company’s stockholders who properly demanded and perfected appraisal rights under Delaware law) was converted into the right to receive an amount in cash equal to $12.00 per Share, net to the seller in cash, without any interest, but subject to and reduced by any required withholding of taxes.
Following consummation of the Merger, the Shares will be delisted and will cease to trade on the NYSE. Parent and Purchaser intend to take steps to cause the termination of the registration of the Shares under the Exchange Act and suspend all of the Company’s reporting obligations under the Exchange Act as promptly as practicable.
On January 31, 2018, Parent issued a press release announcing the expiration and results of the Offer. The full text of the press release is attached as Exhibit (a)(5)(E) hereto, and is incorporated herein by reference.
Item 12. Exhibits
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| (a)(5)(E) | Press Release of Parent, dated January 31, 2018, announcing the expiration and results of the Offer |
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.
| Dated: January 31, 2018
THE HERSHEY COMPANY | ||
| By: | /s/ Patricia Little | |
| Name: Patricia Little Title: Senior Vice President, Chief Financial Officer | ||
|
ALPHABET MERGER SUB INC. | ||
| By: | /s/ Bjork Hupfeld | |
| Name: Bjork Hupfeld Title: Treasurer | ||
EXHIBIT INDEX
| * | Previously filed. |
Exhibit (a)(5)(E)
| FINANCIAL CONTACT: | MEDIA CONTACT: | |
| Mark Pogharian | Leigh Horner | |
| 717-534-7556 | 717-508-1247 |
Hershey Completes Tender Offer for All Outstanding Shares of Amplify Snack Brands, Inc.
HERSHEY, Pa. and AUSTIN, Texas, Jan. 31, 2018 — The Hershey Company (NYSE: HSY) (“Hershey”) today announced the successful completion of the previously announced tender offer by Alphabet Merger Sub Inc., a subsidiary of Hershey (“Purchaser”), for all of the outstanding shares of common stock of Amplify Snack Brands, Inc. (NYSE: BETR) (“Amplify”) at a price of $12.00 per share in cash.
American Stock Transfer & Trust Co., LLC, the depositary for the tender offer, has advised Hershey that, as of 12:00 midnight, New York City time, at the end of January 30, 2018, the expiration of the tender offer, approximately 71,970,009 shares of common stock of Amplify, representing approximately 95.1391% of Amplify’s currently outstanding shares of common stock, were validly tendered and not withdrawn in the tender offer (including shares tendered pursuant to guaranteed delivery procedures). As a result, the condition to the tender offer that a majority of Amplify’s outstanding shares of common stock on a fully diluted basis be validly tendered and not withdrawn has been satisfied. Purchaser has accepted for payment all shares of common stock of Amplify validly tendered and not withdrawn and will promptly pay for such shares.
Hershey expects to complete the merger of Purchaser into Amplify under Section 251(h) of the General Corporation Law of the State of Delaware today. As a result of the merger, all remaining Amplify shares of common stock issued and outstanding immediately prior to the effective time of the merger (other than any (i) shares held in the treasury of Amplify, (ii) shares owned by Hershey or Purchaser, or their subsidiaries, (iii) shares irrevocably accepted for purchase in the tender offer and (iv) shares held by Amplify stockholders who properly demanded and perfected appraisal rights under Delaware law) will be converted into the right to receive an amount in cash equal to $12.00 per share, net to the seller in cash, without any interest, but subject to and reduced by any required withholding of taxes (i.e., the same price that was paid in the tender offer). As a result of the merger, Amplify will become a wholly owned subsidiary of Hershey, and Amplify common stock will cease to be traded on The New York Stock Exchange.
Safe Harbor Statement
This release contains forward-looking statements. Many of these forward-looking statements can be identified by the use of words such as “intend,” “believe,” “expect,” “anticipate,” “should,” “planned,” “projected,” “estimated,” and “potential,” among others. These statements are made based upon current expectations that are subject to risk and uncertainty. Because actual results may differ materially from those contained in the forward-looking statements, you should not place undue reliance on the forward-looking statements when deciding whether to buy, sell or hold Hershey’s securities. Factors that could cause results to differ materially include, but are not limited to: the ability of Hershey to realize the benefits of the transaction; issues or concerns related to the quality and safety of products, ingredients or packaging; changes in raw material and other costs, along with the availability of adequate supplies of raw
materials; selling price increases, including volume declines associated with pricing elasticity; market demand for new and existing products; increased marketplace competition; disruption to manufacturing operations or supply chain; failure to successfully execute and integrate acquisitions, divestitures and joint ventures; changes in governmental laws and regulations, including taxes; political, economic, and/or financial market conditions; risks and uncertainties related to international operations; disruptions, failures or security breaches of information technology infrastructure; the ability to hire, engage and retain a talented global workforce; the ability to realize expected cost savings and operating efficiencies associated with strategic initiatives or restructuring programs; complications with the design or implementation of Hershey’s new enterprise resource planning system; and such other matters as discussed in Hershey’s Annual Report on Form 10-K for the year ended December 31, 2016 and Hershey’s Quarterly Report on Form 10-Q for the quarter ended July 2, 2017. All information in this press release is as of January 31, 2018. Hershey does not undertake any duty to update any forward-looking statement to conform the statement to actual results or changes in expectations.
2