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
| X-RITE, INCORPORATED |
(Name of Subject Company (Issuer))
| TERMESSOS ACQUISITION CORP. |
(Offeror)
A Wholly Owned Subsidiary of
| DANAHER CORPORATION |
(Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
| COMMON STOCK, PAR VALUE $0.10 PER SHARE |
(Title of Class of Securities)
| 983857103 |
(CUSIP Number of Class of Securities)
| Jonathan P. Graham Senior Vice President - General Counsel James F. O’Reilly Associate General Counsel and Secretary 2200 Pennsylvania Avenue, N.W., Suite 800W Washington, D.C. 20037-1701
(202) 828-0850 |
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
| Daniel Wolf, Esq. Joshua M. Zachariah, Esq. Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 (212) 446-4800 |
CALCULATION OF FILING FEE
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| Transaction Valuation(1) | Amount of Filing Fee(2) | |
| $495,507,055 | $56,786 | |
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| (1) | Calculated solely for purposes of determining the filing fee. The calculation assumes the purchase of 86,281,412 shares of voting common stock, par value $0.10 per share. The transaction value also includes the aggregate offer price for (i) 5,434,529 shares issuable pursuant to outstanding options with an exercise price less than $5.55 per share, which is calculated by multiplying the number of shares underlying such outstanding options at each exercise price therefor by an amount equal to $5.55 minus such exercise price and (ii) 382,898 shares issuable pursuant to the vesting of restricted stock units. |
| (2) | Calculated in accordance with Exchange Act Rule 0-11 by multiplying the transaction value by 0.0001146. |
| ¨ | 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: N/A | Filing Party: N/A | |
| Form of Registration No.: N/A | Date Filed: N/A |
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 Tender Offer Statement on Schedule TO (together with any amendments and supplements hereto, this “Schedule TO”) is filed by (i) Termessos Acquisition Corp., a Michigan corporation (“Purchaser”) and a wholly owned subsidiary of Danaher Corporation, a Delaware corporation (“Parent”), and (ii) Parent. This Schedule TO relates to the tender offer for all of the outstanding shares of voting common stock, par value $0.10 per share (the “Shares”), of X-Rite, Incorporated, a Michigan corporation (the “Company”), at a price of $5.55 per Share net to the seller in cash without interest and less any applicable withholding taxes, if any, upon the terms and conditions set forth in the offer to purchase dated April 17, 2012 (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), which, together with any amendments or supplements, collectively constitute the “Offer.”
All the information set forth in the Offer to Purchase is incorporated by reference herein 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.
| Item 1. | Summary Term Sheet. |
Regulation M-A Item 1001
The information set forth in the Offer to Purchase under the caption SUMMARY TERM SHEET is incorporated herein by reference.
| Item 2. | Subject Company Information. |
Regulation M-A Item 1002
(a) Name and Address. The name, address, and telephone number of the subject company’s principal executive offices are as follows:
X-Rite, Incorporated
4300 44th Street S.E.
Grand Rapids, Michigan 49512
(616) 803-2100
(b) Securities. This Schedule TO relates to the Offer by Purchaser to purchase all issued and outstanding Shares. As of April 10, 2012, there were 86,281,412 Shares issued and outstanding, 5,434,529 Shares were issuable pursuant to outstanding stock option grants with an exercise price of less than $5.55 per Share and 382,898 Shares were subject to restricted stock units. The information set forth on the cover page and in the INTRODUCTION of the Offer to Purchase is incorporated herein by reference.
(c) Trading Market and Price. The information set forth under the caption THE TENDER OFFER—Section 6 (“Price Range of Shares; Dividends”) of the Offer to Purchase is incorporated herein by reference.
| Item 3. | Identity and Background of Filing Person. |
Regulation M-A Item 1003
(a)-(c) Name and Address; Business and Background of Entities; and Business and Background of Natural Persons. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER—Section 8 (“Certain Information Concerning Parent and the Purchaser”) and Schedule I attached thereto
| Item 4. | Terms of the Transaction. |
Regulation M-A Item 1004
(a) Material Terms. The information set forth in the Offer to Purchase is incorporated herein by reference.
| Item 5. | Past Contacts, Transactions, Negotiations and Agreements. |
Regulation M-A Item 1005
(a) Transactions. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER—Section 10 (“Background of the Offer; Past Contacts or Negotiations with the Company”)
(b) Significant Corporate Events. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER—Section 10 (“Background of the Offer; Past Contacts or Negotiations with the Company”)
THE TENDER OFFER—Section 11 (“The Merger Agreement”)
THE TENDER OFFER—Section 12 (“Purpose of the Offer; Plans for the Company”)
| Item 6. | Purposes of the Transaction and Plans or Proposals. |
Regulation M-A Item 1006
(a) Purposes. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFER—Section 12 (“Purpose of the Offer; Plans for the Company”)
(c) (1)-(7) Plans. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference: SUMMARY TERM SHEET
THE TENDER OFFER—Section 9 (“Source and Amount of Funds”)
THE TENDER OFFER—Section 10 (“Background of the Offer; Past Contacts or Negotiations with the Company”)
THE TENDER OFFER—Section 11 (“The Merger Agreement”)
THE TENDER OFFER—Section 12 (“Purpose of the Offer; Plans for the Company”)
THE TENDER OFFER—Section 13 (“Certain Effects of the Offer”)
THE TENDER OFFER—Section 14 (“Dividends and Distributions”)
| Item 7. | Source and Amount of Funds or Other Consideration. |
Regulation M-A Item 1007
(a) Source of Funds. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference: SUMMARY TERM SHEET
THE TENDER OFFER—Section 9 (“Source and Amount of Funds”)
THE TENDER OFFER—Section 10 (“Background of the Offer; Past Contacts or Negotiations with the Company”)
(b) Conditions. The Offer is not subject to a financing condition.
(d) Borrowed Funds. Not applicable.
| Item 8. | Interest in Securities of the Subject Company. |
Regulation M-A Item 1008
(a) Securities Ownership. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFER—Section 8 (“Certain Information Concerning Parent and the Purchaser”) and Schedule I attached thereto
THE TENDER OFFER—Section 11 (“The Merger Agreement”)
THE TENDER OFFER—Section 12 (“Purpose of the Offer; Plans for the Company”)
(b) Securities Transactions. Not applicable.
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| Item 9. | Persons/Assets, Retained, Employed, Compensated or Used. |
Regulation M-A Item 1009
(a) Solicitations or Recommendations. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER—Section 3 (“Procedures for Accepting the Offer and Tendering Shares”)
THE TENDER OFFER—Section 10 (“Background of the Offer; Past Contacts or Negotiations with the Company”)
THE TENDER OFFER—Section 17 (“Fees and Expenses”)
| Item 10. | Financial Statements. |
Regulation M-A Item 1010
(a) Financial Information. Not Applicable.
(b) Pro Forma Information. Not Applicable.
| Item 11. | Additional Information. |
Regulation M-A Item 1011
(a) Agreements, Regulatory Requirements and Legal Proceedings. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER—Section 10 (“Background of the Offer; Past Contacts or Negotiations with the Company”)
THE TENDER OFFER—Section 11 (“The Merger Agreement”)
THE TENDER OFFER—Section 12 (“Purpose of the Offer; Plans for the Company”)
THE TENDER OFFER—Section 13 (“Certain Effects of the Offer”)
THE TENDER OFFER—Section 16 (“Certain Legal Matters; Regulatory Approvals”)
(b) Other Material Information. The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference.
| Item 12. | Exhibits. |
Regulation M-A Item 1016
| Exhibit No. |
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| (a)(1)(A) |
Offer to Purchase, dated April 17, 2012. | |
| (a)(1)(B) |
Letter of Transmittal (including Internal Revenue Service Form W-9). | |
| (a)(1)(C) |
Notice of Guaranteed Delivery. | |
| (a)(1)(D) |
Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. | |
| (a)(1)(E) |
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. | |
| (a)(1)(F) |
Press Release of Danaher Corporation, dated as of April 10, 2012 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Danaher Corporation with the Securities and Exchange Commission on April 10, 2012). | |
| (a)(1)(G) |
Summary Advertisement as published on April 17, 2012. | |
| (b) |
Not applicable. | |
| (c) |
Not applicable. | |
| (d)(1) |
Agreement and Plan of Merger, dated as of April 10, 2012, by and among X-Rite, Incorporated, Danaher Corporation, and Termessos Acquisition Corp. (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
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| (d)(2) |
Tender and Support Agreement, dated as of April 10, 2012, by and among Danaher Corporation, Termessos Acquisition Corp. and Sagard Capital Partners, L.P. (incorporated by reference to Exhibit 99.1 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(3) |
Tender and Support Agreement, dated as of April 10, 2012, by and among Danaher Corporation, Termessos Acquisition Corp. and Tinicum Capital Partners II, L.P., Tinicum Capital Partners II Parallel Fund, L.P. and Tinicum Capital Partners II Executive Fund L.L.C. (incorporated by reference to Exhibit 99.2 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(4) |
Tender and Support Agreement, dated as of April 10, 2012, by and among Danaher Corporation, Termessos Acquisition Corp. and OEPX, LLC (incorporated by reference to Exhibit 99.3 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(5) |
Confidentiality Agreement, dated as of January 29, 2012, by and between Danaher Corporation and X-Rite, Incorporated. | |
| (e) |
Not applicable. | |
| (f) |
Not applicable. | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| Item 13. | Information Required by Schedule 13E-3. |
Not applicable.
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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.
| TERMESSOS ACQUISITION CORP. | ||
| By | /s/ Daniel L. Comas | |
| Name: | Daniel L. Comas | |
| Title: | President | |
| Date: | April 17, 2012 | |
| DANAHER CORPORATION | ||
| By | /s/ Daniel L. Comas | |
| Name: | Daniel L. Comas | |
| Title: | Executive Vice President and Chief Financial Officer | |
| Date: | April 17, 2012 | |
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EXHIBIT INDEX
| Exhibit No. |
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| (a)(1)(A) |
Offer to Purchase, dated April 17, 2012. | |
| (a)(1)(B) |
Letter of Transmittal (including Internal Revenue Service Form W-9). | |
| (a)(1)(C) |
Notice of Guaranteed Delivery. | |
| (a)(1)(D) |
Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. | |
| (a)(1)(E) |
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees. | |
| (a)(1)(F) |
Press Release of Danaher Corporation, dated as of April 10, 2012 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Danaher Corporation with the Securities and Exchange Commission on April 10, 2012). | |
| (a)(1)(G) |
Summary Advertisement as published on April 17, 2012. | |
| (b) |
Not applicable. | |
| (c) |
Not applicable. | |
| (d)(1) |
Agreement and Plan of Merger, dated as of April 10, 2012, by and among X-Rite, Incorporated, Danaher Corporation, and Termessos Acquisition Corp. (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(2) |
Tender and Support Agreement, dated as of April 10, 2012, by and among Danaher Corporation, Termessos Acquisition Corp. and Sagard Capital Partners, L.P. (incorporated by reference to Exhibit 99.1 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(3) |
Tender and Support Agreement, dated as of April 10, 2012, by and among Danaher Corporation, Termessos Acquisition Corp. and Tinicum Capital Partners II, L.P., Tinicum Capital Partners II Parallel Fund, L.P. and Tinicum Capital Partners II Executive Fund L.L.C. (incorporated by reference to Exhibit 99.2 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(4) |
Tender and Support Agreement, dated as of April 10, 2012, by and among Danaher Corporation, Termessos Acquisition Corp. and OEPX, LLC (incorporated by reference to Exhibit 99.3 to the Form 8-K filed by X-Rite, Incorporated with the Securities and Exchange Commission on April 11, 2012). | |
| (d)(5) |
Confidentiality Agreement, dated as of January 29, 2012, by and between Danaher Corporation and X-Rite, Incorporated. | |
| (e) |
Not applicable. | |
| (f) |
Not applicable. | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
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