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)
THE MICHAELS COMPANIES, INC.
(Name of Subject Company (Issuer))
MAGIC MERGECO, INC.
(Offeror)
A direct wholly owned subsidiary of
MAGIC ACQUIRECO, INC.
(Parent of Offeror)
APOLLO MANAGEMENT IX, L.P.
(Other Person)
(Names of Filing Persons (identifying status as Offeror, Issuer or Other Person))
COMMON STOCK, PAR VALUE $0.067751 PER SHARE
(Title of Class of Securities)
59408Q106
(CUSIP Number of Class of Securities)
Magic MergeCo, Inc.
c/o Apollo Management IX, 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:
Gregory B. Klein
Simpson Thacher & Bartlett LLP
1999 Avenue of the Stars – 29th Floor
Los Angeles, CA 90067
(310) 407-7500
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $3,298,666,432.00 | $359,884.51 | |
|
| ||
| (1) | Estimated for purposes of calculating the amount of the filing fee only. The transaction valuation was calculated by adding the sum of (i) 142,039,199 shares of common stock, par value $0.067751 per share (“Shares”), of The Michaels Companies, Inc., a Delaware corporation (“Michaels”), issued and outstanding multiplied by the offer price of $22.00 per share, (ii) 6,331,265 Shares issuable pursuant to outstanding restricted stock units multiplied by the offer price of $22.00 per Share, and (iii) the net offer price for options to purchase 3,370,725 Shares with an exercise price less than $22.00 per Share (which is calculated by multiplying the number of Shares underlying such in-the-money stock options by an amount equal to $22.00 per Share minus the weighted average exercise price of $11.76 per Share). The foregoing share figures have been provided by Michaels and are as of March 11, 2021, the most recent practicable date. |
| (2) | The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2021 beginning on October 1, 2020, issued August 26, 2020, by multiplying the transaction value by 0.0001091. |
| ☐ | 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: $359,884.51 | Filing Party: Magic MergeCo, Inc. | |
| Form or Registration No.: Schedule TO-T | Date Filed: March 16, 2021 |
| ☐ | 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 appropriate boxes below to designate any transactions to which the statement relates: ☐
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. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (as amended and together with any subsequent amendments and supplements thereto, the “Schedule TO”), filed with the Securities and Exchange Commission on March 16, 2021 by Magic MergeCo, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Magic AcquireCo, Inc. (“Parent”), a Delaware corporation. The Schedule TO relates to the tender offer by Purchaser for any and all of the outstanding shares of common stock, par value $0.067751 per share (“Shares”), of The Michaels Companies, Inc., a Delaware Corporation (“Michaels”), at a price of $22.00 per Share, without interest, net to the seller in cash, less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 16, 2021 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”, a copy of which is attached as Exhibit (a)(1)(B), and which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the “Offer”).
All the information set forth in the Offer to Purchase, including Schedule I thereto, is incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Amendment. This Amendment should be read together with the Schedule TO.
Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase.
This Amendment is being filed to amend and supplement Item 11 as reflected below.
Item 11. Additional Information.
Item 11 of the Schedule TO (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) and the disclosure under Section 16 “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase, are hereby amended and supplemented by:
Inserting after the subsection titled “Canada Antitrust Compliance” in Section 16 “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase a new subsection entitled “Certain Litigation” and the disclosure set forth below:
On March 17, 2021, a purported Michaels stockholder filed a complaint in the United States District Court for the Southern District of New York, captioned Wang v. The Michaels Companies, Inc., et al., Civil Action No. 1:21-cv-2346 (the “Wang Complaint”), against Michaels and the members of the Michaels Board of Directors. The complaint alleges, among other things, that Michaels and the members of the Michaels Board of Directors violated Sections 14(d), 14(e), and 20(a) of the Securities and Exchange Act of 1934 (the “Exchange Act”), and Rule 14d-9 promulgated under the Exchange Act, by misstating or omitting certain allegedly material information in the Schedule 14D-9 filed with the United States Securities and Exchange Commission on March 16, 2021 in connection with the tender offer by Purchaser to purchase all of Michaels’ outstanding shares of common stock (the “Proposed Transaction”). The complaint seeks, among other things, injunctive relief preventing the consummation of the Proposed Transaction, rescissory damages or rescission in the event of consummation of the Proposed Transaction, and certain fees and expenses. The outcome of this lawsuit cannot be predicted with certainty. However, Michaels believes that the plaintiff’s allegations lack merit.
If additional similar complaints are filed, absent new or different allegations that are material, Michaels will not necessarily announce such additional filings.
3
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.
| MAGIC MERGECO, INC. | ||
| By | /s/ James Elworth | |
| Name: | James Elworth | |
| Title: | Vice President | |
| Date: | March 18, 2021 | |
| MAGIC ACQUIRECO, INC. | ||
| By | /s/ James Elworth | |
| Name: | James Elworth | |
| Title: | Vice President | |
| Date: | March 18, 2021 | |
| APOLLO MANAGEMENT IX, L.P. | ||
| By | AIF IX Management, LLC, its General Partner | |
| By | /s/ James Elworth | |
| Name: | James Elworth | |
| Title: | Vice President | |
| Date: | March 18, 2021 | |
EXHIBIT INDEX
| * | Previously filed. |