Amended Tender Offer Statement by Third Party (sc To-t/a)
01 Aprile 2019 - 10:09PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
/ A
(RULE 14d-100)
Tender Offer Statement Pursuant to Section 14(d)(1)
or 13(e)(1) of the Securities Exchange Act of 1934
(Amendment No. 1)
Versum
Materials, Inc.
(Name of Subject Company)
EMD Performance
Materials Holding, Inc.
(Offeror)
an indirect wholly owned subsidiary of
Merck
KGaA
(Parent of Offeror)
(Names of Filing Persons (identifying
status as offeror, issuer or other person))
Common Stock, $1.00 par value per share
(including the associated preferred stock
purchase rights)
(Title of Class of Securities)
92532W103
(CUSIP Number of Class of Securities)
Dr. Friederike Rotsch
Merck KGaA
Frankfurter Strasse 250
64293 Darmstadt
Germany
+49 6151 720
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Matthew G. Hurd
Eric M. Krautheimer
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
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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 the appropriate boxes below to designate any transactions
to which the statement relates:
ý
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.
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Check the following box if the filing is a final amendment reporting
the results of the tender offer.
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If applicable, check the appropriate box(es) below to designate
the appropriate rule provision(s) relied upon:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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This Amendment No. 1 to Schedule TO (this
“Amendment”) is filed by Merck KGaA, Darmstadt, Germany, a German corporation with general partners (
Kommanditgesellschaft
auf Aktien
), and EMD Performance Materials Holding, Inc., a Delaware corporation (“Purchaser”) and an indirect
wholly owned subsidiary of Merck KGaA, Darmstadt, Germany, and amends and supplements the Tender Offer Statement on Schedule TO
filed with the Securities and Exchange Commission on March 26, 2019 (together with any prior amendments and supplements thereto,
the “Schedule TO”) by Merck KGaA, Darmstadt, Germany and Purchaser and relates to the offer by Purchaser to purchase
all outstanding shares of common stock, par value $1.00 per share (together with the associated preferred stock purchase rights,
the “Shares”), of Versum Materials, Inc., a Delaware corporation (“Versum”), upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated March 26, 2019 (as it may be amended or supplemented from time to time,
the “Offer to Purchase”), and in the related Letter of Transmittal (as it may be amended or supplemented from time
to time, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”). All capitalized
terms used in this Amendment and not otherwise defined have the respective meaning ascribed to them in the Schedule TO.
Items 1 through 9; Item 11.
Items 1 through 9 and Item 11 are hereby
amended and supplemented as follows:
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(1).
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“The Offer—Section 11—Background of the Offer” of the Offer to Purchase is hereby amended and
supplemented by adding the following paragraphs after the paragraph starting with “On March 26, 2019, we filed a Tender Offer
Statement on Schedule TO. . .”:
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“On March 28, 2019, Dr. Oschmann and
Mr. Ghasemi met to discuss the terms of our proposal and the Offer.
On March 29, 2019, Versum issued a press
release announcing that the Versum Board had unanimously determined to reject the Offer, unanimously determined that our proposal
could reasonably be expected to result in a superior proposal for purposes of the Entegris Merger Agreement, and authorized Versum’s
management and its advisors to engage in further discussions with, and provide non-public information to, Merck KGaA, Darmstadt,
Germany.
On March 29, 2019, Versum filed a solicitation/recommendation
statement on Schedule 14D-9 with respect to the Offer.
On March 29, 2019, Merck KGaA, Darmstadt,
Germany, and Versum entered into a confidentiality agreement in connection with the potential sharing of non-public information
for the purpose of evaluating a transaction between Merck KGaA, Darmstadt, Germany, and Versum.”
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: April 1, 2019
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EMD PERFORMANCE MATERIALS HOLDING, INC.
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By:
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/s/ Anthony O’Donnell
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Name:
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Anthony O’Donnell
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Title:
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President
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MERCK KGAA
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By:
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/s/ Dr. Stefan Fandel
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Name:
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Dr. Stefan Fandel
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Title:
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Head of Group Legal Services
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By:
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/s/ Dr. Friederike Rotsch
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Name:
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Dr. Friederike Rotsch
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Title:
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Group General Counsel
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Executive Vice President
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