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. 4
BOULDER BRANDS, INC.
(Name of Subject Company (Issuer))
SLOPE ACQUISITION INC.
a wholly owned subsidiary of
PINNACLE FOODS INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(Title of Class Of Securities)
101405108
(CUSIP Number of Class of Securities)
M. Kelley Maggs, Esq.
Executive Vice President, Secretary and General Counsel
Pinnacle Foods Inc.
399 Jefferson Road
Parsippany, New Jersey 07054
(973) 541-6620
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
With copies to:
Robert I. Townsend, III, Esq.
Jonathan L. Davis, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount Of Filing Fee(2) | |
| $789,124,226 | $79,464.81 | |
|
| ||
| (1) | The transaction valuation is an estimate calculated solely for purposes of determining the amount of the filing fee. The transaction valuation was determined by multiplying (x) $11.00 (i.e., the per share tender offer price) by (y) the sum of (a) 63,116,425, the number of shares of common stock issued and outstanding, plus (b) 8,317,141, the number of shares of common stock reserved for issuance upon the exercise and vesting of outstanding options, plus (c) 25,000, the number of shares of common stock reserved for issuance upon the exercise and vesting of outstanding stock appreciation rights, plus (d) 280,000, the number of shares of common stock reserved for issuance upon the vesting and settlement of restricted stock unit awards. The foregoing share figures have been provided by the issuer to the offerors and are as of December 7, 2015, 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 2016, issued August 27, 2015, by multiplying the transaction value by 0.0001007. |
| x | 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. |
| Amount Previously Paid: $79,464.81 |
Filing Party: Pinnacle Foods Inc. and Slope Acquisition Inc. | |
| Form or Registration No.: Schedule TO |
Date Filed: December 9, 2015 |
| ¨ | 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:
| x | 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: ¨
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ¨ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ¨ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 4 to the Tender Offer Statement on Schedule TO (the “Schedule TO”) amends and supplements the Schedule TO relating to the offer of Slope Acquisition Inc., a Delaware corporation (the “Purchaser”) and a wholly owned subsidiary of Pinnacle Foods Inc., a Delaware corporation (“Pinnacle”), to purchase all outstanding shares of common stock, par value $0.0001 per share (each a “Share”), of Boulder Brands, Inc., a Delaware corporation (“Boulder”), at a price of $11.00 per Share, net to the seller in cash, without interest, less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 9, 2015 (as it may be amended or supplemented, the “Offer to Purchase”) and in the related Letter of Transmittal (as it may be amended or supplemented, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), copies of which are attached as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Offer to Purchase.
Items 1 through 9 and Item 11.
Pursuant to Section 1.1(c) of the Merger Agreement, Purchaser may extend the Offer if the bank marketing period in connection with Pinnacle’s debt financing for the transaction (the “Bank Marketing Period”) has not ended prior to the scheduled expiration date of the Offer. The Bank Marketing Period began on January 4, 2016 and was continuing as of January 8, 2016. Accordingly, on January 8, 2016, Purchaser extended the Offer until 12:00 midnight, New York City time, on January 15, 2016, unless further extended or terminated.
The Depositary advised that as of midnight, New York City time, at the end of the day on January 7, 2016, approximately 56,409,889 Shares had been validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 86.5 percent of the currently issued and outstanding Shares. In addition, as of such time, Notices of Guaranteed Delivery had been delivered for 2,916,473 Shares, representing approximately 4.5 percent of the currently issued and outstanding Shares.
The press release announcing the extension of the Offer, issued by Pinnacle on January 8, 2016, is attached as Exhibit (a)(5)(E) hereto, and is incorporated herein by reference.
Item 12
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| Exhibit No. |
||
| (a)(5)(E) | Press Release issued by Pinnacle on January 8, 2016.* |
| * | Filed herewith. |
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 8, 2016
| SLOPE ACQUISITION INC. | ||
| By: | /s/ M. Kelley Maggs | |
| Name: | M. Kelley Maggs | |
| Title: | Vice President and Secretary | |
| PINNACLE FOODS INC. | ||
| By: | /s/ Craig Steeneck | |
| Name: | Craig Steeneck | |
| Title: | Executive Vice President and Chief Financial Officer | |
EXHIBIT INDEX
| (a)(5)(E) | Press Release issued by Pinnacle on January 8, 2016. |
Exhibit (a)(5)(E)
PINNACLE FOODS EXTENDS TENDER OFFER FOR ALL OUTSTANDING SHARES OF BOULDER BRANDS
PARSIPPANY, NJ —January 8, 2016—Pinnacle Foods Inc. (NYSE: PF) (“Pinnacle”) announced today that it has extended its tender offer to purchase all outstanding shares of Boulder Brands, Inc. (NASDAQ: BDBD) (“Boulder”) for $11.00 per share in cash. All terms and conditions of the tender offer, other than the expiration date, remain the same.
Unless extended further, the tender offer will now expire at 12:00 midnight, New York City time, on January 15, 2016. The tender offer was previously scheduled to expire at 12:00 midnight, New York City time, on January 7, 2016.
The tender offer was extended in accordance with the terms of the merger agreement between Pinnacle and Boulder because the bank marketing period in connection with Pinnacle’s debt financing for the transaction would not have ended prior to the previously scheduled expiration date of the tender offer.
As of 12:00 midnight at the end of the day, New York City time, on January 7, 2016, approximately 56,409,889 shares had been tendered and not withdrawn, representing approximately 86.5% of Boulder’s outstanding shares of common stock. The completion of the tender offer is subject to the tender of at least a majority of Boulder’s outstanding shares of common stock (on a fully diluted basis) and other customary closing conditions, including receipt of regulatory clearances.
As promptly as practicable following the completion of the tender offer, Pinnacle will acquire all remaining Boulder shares through a merger of one of its wholly owned subsidiaries into Boulder at the tender offer price.
On December 9, 2015, Pinnacle filed with the U.S. Securities and Exchange Commission (“SEC”) a tender offer statement on Schedule TO which sets forth in detail the terms of the tender offer. Additionally, Boulder has filed with the SEC a solicitation/recommendation statement on Schedule 14D-9 that includes the unanimous recommendation of Boulder’s board of directors that Boulder stockholders accept the tender offer and tender their Boulder shares.
The information agent for the tender offer is D.F. King & Co., Inc. (the “Information Agent”). Boulder stockholders who need additional copies of the Offer to Purchase, Letter of Transmittal or related materials or who have questions regarding the tender offer should contact the Information Agent toll free at (800) 499-8159.
American Stock Transfer & Trust Company, LLC is acting as depositary for the tender offer. Perella Weinberg Partners LP is acting as dealer manager for the tender offer and Cravath, Swaine & Moore LLP is acting as legal counsel to Pinnacle.
About Pinnacle Foods Inc.
In more than 85% of American households, consumers reach for Pinnacle Foods brands. Pinnacle Foods is ranked on Fortune Magazine’s 2015 Top 1000 companies list. We are a leading producer, marketer and distributor of high-quality branded food products, which have been trusted household names for decades. Headquartered in Parsippany, NJ, our business employs an average of 4,500 employees. We are a leader in the shelf-stable and frozen foods segments and our brands hold the #1 or #2 market position in 10 of the 14 major categories in which they compete. Our Birds Eye Frozen segment manages brands such as Birds Eye®, gardein™, Birds Eye Steamfresh®, C&W®, McKenzie’s®, and Freshlike® frozen vegetables, Birds Eye Voila!® complete bagged frozen meals, Van de Kamp’s® and Mrs. Paul’s® frozen prepared seafood, Hungry-Man® frozen dinners and entrees, Aunt Jemima® frozen breakfasts, Lender’s® frozen and refrigerated bagels, and Celeste® frozen pizza. Our Duncan Hines Grocery segment manages brands such as Duncan Hines® baking mixes and frostings, Vlasic® and Vlasic Farmer’s Garden® shelf-stable pickles, Wish-Bone® and Western® salad dressings, Mrs. Butterworth’s® and Log Cabin® table syrups, Armour® canned meats, Brooks® and Nalley® chili and chili ingredients, Duncan Hines® Comstock® and Wilderness® pie and pastry fruit fillings and Open Pit® barbecue sauces. Our Specialty Foods segment manages Tim’s Cascade Snacks®, Hawaiian® kettle style potato chips, Erin’s® popcorn, Snyder of Berlin® and Husman’s® snacks in addition to our food service and private label businesses. Further information is available at www.pinnaclefoods.com.
About Boulder Brands, Inc.
Boulder Brands, Inc. is committed to offering food solutions that give consumers opportunities to improve their lives - one product at a time. The company’s health and wellness platform consists of brands that target specific health trends: the Glutino® and Udi’s Gluten Free® brands for gluten-free diets; the Earth Balance® brand for plant-based diets; EVOL foods for consumers seeking simple and pure ingredients; and the Smart Balance® brand for heart healthier diets. For more information about Boulder Brands, Inc., please visit www.boulderbrands.com.
NOTICE TO INVESTORS
This press release is neither an offer to purchase nor a solicitation of an offer to sell shares of Boulder’s common stock. On December 9, 2015, Pinnacle filed with the SEC a tender offer statement on Schedule TO regarding the tender offer described herein, and Boulder filed with the SEC a solicitation/recommendation statement on Schedule 14D-9 regarding such tender offer. Boulder’s stockholders are strongly advised to read these tender offer materials carefully and in their entirety (as updated and amended from time to time) filed by Pinnacle and Boulder with the SEC, because they contain important information about such tender offer that Boulder’s stockholders should consider prior to making any decisions with respect to such tender offer. Stockholders of Boulder may obtain a free copy of these documents at the website maintained by the SEC at www.sec.gov or by directing a request to the Information Agent at (800) 499-8159.
FORWARD-LOOKING STATEMENTS
This press release may contain forward-looking statements, which describe or are based on current expectations; in particular, statements relating to the company’s tender offer for Boulder. Actual results may differ materially from these expectations. In addition, any statements that are not historical fact (including statements containing the words “believes,” “plans,” “anticipates,” “expects,” “estimates,” “will,” and similar expressions) should also be considered to be forward-looking statements. The company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events, or otherwise. Forward-looking statements in this document should be evaluated together with the many uncertainties that affect our businesses, particularly those mentioned in the risk factors and other cautionary statements in our 2014 Annual Report on Form 10-K and in our other reports filed with the Securities and Exchange Commission.
Pinnacle Foods Financial Contact
Maria Sceppaguercio
Senior Vice President, Investor Relations
(973) 541-8629
Pinnacle Foods Media Contact
Chris DeVault
Manager, External Communications
(973) 541-8620; mediainquiries@pinnaclefoods.com
Information Agent for the Offer
D.F. King & Co., Inc.
(800) 499-8159