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)
The Fresh Market, Inc.
(Name of Subject Company (issuer))
Pomegranate Merger Sub, Inc.
(Name of Filing Persons (offeror)) a wholly owned subsidiary of
Pomegranate Holdings, Inc.
(Name of Filing Persons (parent of offeror))
Apollo Management VIII, L.P.
(Names of Filing Persons (other person))
Common Stock, $0.01 par value
(Title of Class of Securities)
35804H106
(CUSIP Number of Class of Securities)
Pomegranate Merger Sub, Inc.
c/o Apollo Management VIII, L.P.
9 West 57th Street, 43rd Floor
New York, New York 10019
Attention: John J. Suydam
Telephone: (212) 515-3200
(Name, address and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Howard Kenny
Robert G. Robison
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
Telephone: (212) 309-6000
CALCULATION OF FILING FEE
| Transaction value* | Amount of filing fee** | |
| $1,449,002,757.00 | $145,914.58 | |
| * | Estimated for purposes of calculating the amount of the filing fee only. Calculated by (1) multiplying the offer price of $28.50 per share of common stock, par value $0.01 per share (“Shares”), of The Fresh Market, Inc., a Delaware corporation (“The Fresh Market”), by 50,842,202 Shares, which is the sum of (1) 47,049,217 Shares issued and outstanding (including all shares entitled to vote in the election of directors of The Fresh Market or on the adoption of the Merger Agreement (as defined below), if applicable, of which 25,860 shares were subject to risk of forfeiture), (2) 727,997 Shares reserved and available for issuance pursuant to The Fresh Market’s 2010 Omnibus Incentive Compensation Plan (the “Company Stock Plan”), (3) 1,470,457 Shares issuable upon the exercise outstanding options granted under the Company Stock Plan, (4) 350,677 Shares issuable pursuant to restricted stock units granted under the Company Stock Plan, (5) 1,630 Shares issuable pursuant to deferred share units granted under the Company Stock Plan, (6) a maximum of 264,218 Shares issuable pursuant to performance stock unit awards granted under the Company Stock Plan and (7) 978,006 Shares reserved and available for purchase under The Fresh Market’s Employee Stock Purchase Plan. The foregoing share figures have been provided by The Fresh Market to the Offeror and are as of March 9, 2016, the most recent practicable date. |
| ** | The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Fee Advisory Rate #1 for fiscal year 2016, issued August 17, 2015, is calculated by multiplying the Transaction Valuation 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: $145,914.58 | Filing Party: Pomegranate Merger Sub, Inc. | |
| Form or Registration No.: Not applicable | Date Filed: March 25, 2016 |
| ¨ | 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: x
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 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Pomegranate Merger Sub, Inc., a Delaware corporation (the “Offeror”), Pomegranate Holdings, Inc., a Delaware corporation (“Parent”), and Apollo Management VIII, L.P., a Delaware limited partnership (“Management VIII”) on March 25, 2016 (such Tender Offer Statement, together with any amendments or supplements thereto, the “Schedule TO”). The Offeror is a wholly owned subsidiary of Parent. Parent is controlled by equity funds managed by Management VIII. This Schedule TO relates to the offer by the Offeror to purchase all of the issued and outstanding Shares at a purchase price of $28.50 per Share, net to the holders thereof, payable in cash (the “Offer Price”), without interest, less any applicable tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 25, 2016 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase, as each may be amended or supplemented from time to time in accordance with the Merger Agreement described below, collectively constitute the “Offer”), copies of which are annexed to and filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. All the information set forth in the Offer to Purchase is incorporated herein by reference in response to Items 1 through 9 and Item 11 in this Schedule TO and is supplemented by the information specifically provided in this Schedule TO. The Agreement and Plan of Merger, dated as of March 11, 2016, by and among The Fresh Market, Parent and the Offeror (the “Merger Agreement”), a copy of which is attached as Exhibit (d) hereto, is incorporated herein by reference with respect to Items 4 through 11 of this Schedule TO. Unless otherwise indicated, references to sections in this Schedule TO are references to sections of the Offer to Purchase.
This Amendment is being filed to amend and supplement Items to the extent specifically provided herein.
Item 1 through 9 and Item 11.
Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented by adding the following text thereto:
At 12:00 midnight, New York City time, on April 21, 2016 (one minute after 11:59 p.m., New York City time, on April 21, 2016), the Offer expired as scheduled and was not extended. Offeror was advised by the American Stock Transfer & Trust Company, LLC, the depositary for the Offer, that, as of the expiration time of the Offer, a total of 32,103,659 Shares were validly tendered into and not withdrawn from the Offer, representing approximately 68.2% of the currently outstanding Shares. In addition, Notices of Guaranteed Delivery have been delivered with respect to 4,465,161 Shares, representing approximately 9.5% of the currently outstanding Shares.
The number of Shares tendered into the Offer satisfies the Minimum Condition. All conditions to the Offer having been satisfied, Offeror accepted for payment, and expects to promptly pay for, all Shares validly tendered into and not withdrawn from the Offer.
As the final step of the acquisition process, The Fresh Market, Parent and Offeror will, as promptly as practicable following the acceptance of the Shares for payment, but in any event no later than the date of, and immediately following, the payment for the Shares in the Offer, effect the Merger under Section 251(h) of the DGCL, pursuant to which Offeror will be merged with and into The Fresh Market, with The Fresh Market continuing as the surviving corporation. At the Effective Time, each Share then outstanding will be converted into the right to receive an amount equal to the Offer Price, net to the holder in cash without interest and less any applicable tax withholding, other than (i) Shares subject to forfeiture conditions, (ii) Shares owned by The Fresh Market as treasury stock or (iii) Shares owned by any stockholders who have properly exercised their appraisal rights under Section 262 of the DGCL in connection with the Merger.
The press release announcing the expiration of the Offer and the acceptance of Shares for payment is attached hereto as Exhibit (a)(1)(H)
Item 12
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| (a)(1)(H) |
Joint Press Release issued by The Fresh Market and Apollo Global Management, dated April 22, 2016. |
SIGNATURES
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.
| POMEGRANATE MERGER SUB, INC. | ||
| By: | /s/ Laurie D. Medley | |
| Name: | Laurie D. Medley | |
| Title: | Vice President | |
| POMEGRANATE HOLDINGS, INC. | ||
| By: | /s/ Laurie D. Medley | |
| Name: | Laurie D. Medley | |
| Title: | Vice President | |
| APOLLO MANAGEMENT VIII, L.P. | ||
| BY: AIF VIII Management, LLC, its General Partner | ||
| By: | /s/ Laurie D. Medley | |
| Name: | Laurie D. Medley | |
| Title: | Vice President | |
Dated: April 22, 2016
Exhibit (a)(1)(H)
FOR IMMEDIATE RELEASE
Certain Funds Affiliated with Apollo Global Management Announce Successful Tender Offer for
The Fresh Market, Inc.
NEW YORK, NY — April 22, 2016 — Certain funds affiliated with Apollo Global Management, LLC (NYSE: APO) (together with its consolidated subsidiaries, “Apollo”), a leading global alternative investment manager, today announced the successful completion of the previously announced $28.50 per share cash tender offer for all of the outstanding shares of common stock of The Fresh Market, Inc. (NASDAQ: TFM) (“The Fresh Market”).
The tender offer, which was made pursuant to the agreement and plan of merger entered into by certain affiliates of Apollo and The Fresh Market on March 11, 2016, expired as scheduled at 12:00 midnight (New York City time) on April 21, 2016 (one minute after 11:59 P.M. on April 21, 2016). A total of 32,103,659 shares of common stock of The Fresh Market (excluding 4,465,161 shares tendered by guaranteed delivery), representing approximately 68.2% of the outstanding shares, were tendered into and not withdrawn from the tender offer. According to the terms of the tender offer, all such shares (and any additional shares tendered by guaranteed delivery unless actual delivery does not occur) have been irrevocably accepted for payment, which will be made on April 27, 2016.
Concurrently with payment for the tendered shares, Apollo and The Fresh Market intend to complete the acquisition of The Fresh Market by merging it with an affiliate of Apollo. As a result of the tender offer and the merger, The Fresh Market will become a privately-held, indirect wholly-owned subsidiary of the Apollo funds and certain other investors, and The Fresh Market’s common stock will cease trading on the NASDAQ.
About Apollo
Apollo (NYSE:APO), a leading global alternative investment manager with offices in New York, Los Angeles, Houston, Chicago, Bethesda, Toronto, London, Frankfurt, Madrid, Luxembourg, Singapore, Mumbai, Delhi, Shanghai and Hong Kong. Apollo had assets under management of approximately $170 billion as of December 31, 2015, in private equity, credit and real estate funds invested across a core group of nine industries where Apollo has considerable knowledge and resources. For more information about Apollo, please visit www.agm.com.
Forward-Looking Statements
This press release contains “forward-looking statements.” Words such as “believe,” ‘intend,” “demonstrate,” “expect,” “estimate,” “anticipate,” “should” and “likely” and similar expressions identify forward-looking statements. In addition, statements that are not historical should also be considered forward-looking statements. Readers are cautioned not to place undue reliance on those forward-looking statements, which speak only as of the date the statement was made. Such forward-looking statements are based on current expectations that involve a number of known and unknown risks, uncertainties and other factors which may cause actual events to be materially different from those expressed or implied by such forward-looking statements. These risks include uncertainties associated with the Apollo tender offer and the merger including uncertainties as to the timing of the tender offer and merger, uncertainties as to how many of The Fresh Market’s stockholders will tender their shares in the offer, the risk that competing offers will be made, and the possibility that various closing conditions for the transaction may not be satisfied or waived. Other factors may cause The Fresh Market’s actual results to differ materially from those expressed or implied in the forward-looking statements and such factors are discussed in The Fresh Market’s filings with the U.S. Securities and Exchange Commission (“SEC”), including its Annual Report on Form 10-K for the fiscal year ended January 31, 2016, and subsequent reports filed by The Fresh Market with the SEC. Copies of The Fresh Market’s filings with the SEC may be obtained, free of charge, from The Fresh Market at ir.thefreshmarket.com or by directing a request to Fresh Market’s Investor Relations, at 336-615-8065 or investorrelations@thefreshmarket.com. or on the SEC’s website at www.sec.gov. In addition, other factors may
cause Apollo’s actual results to differ materially from those expressed or implied in the forward-looking statements and such factors are discussed in Apollo’s filings with the SEC, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2015, and subsequent reports filed by Apollo with the SEC. Copies of Apollo’s filings with the SEC may be obtained on the SEC’s website at www.sec.gov.
The forward-looking statements included in this announcement are made as of the date hereof. Apollo is not under any obligation to (and expressly disclaims any such obligation to) update any of the information in this press release if any forward-looking statement later turns out to be inaccurate whether as a result of new information, future events or otherwise, except as otherwise may be required by the federal securities laws.
Media Contact:
Apollo Global Management, LLC
Gary M. Stein, 212-822-0467
gstein@apollolp.com
Noah Gunn, 212-822-0540
ngunn@apollolp.com
or
Rubenstein Associates, Inc. for Apollo Global Management, LLC
Charles Zehren, 212-843-8590
czehren@rubenstein.com