UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 2)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
MARTEK BIOSCIENCES CORPORATION
(Name of Subject Company (Issuer))
KONINKLIJKE DSM N.V.
GREENBACK ACQUISITION CORPORATION
(Name of Filing Persons (Offerors))
Common Stock, $0.10 Par Value Per Share
(Title of Class of Securities)
572901106
(CUSIP Number of Class of Securities)
Hugh C. Welsh
President and General Counsel
DSM North America
45 Waterview Boulevard
Parsippany, NJ 07054
(973) 257-8300
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
William A. Groll
David Leinwand
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
|---|---|---|
| $1,146,313,287 | $133,086.97 | |
| Amount Previously Paid: | $133,086.97 | Filing Party: | Koninklijke DSM N.V., Greenback Acquisition Corporation | ||||
| Form or Registration No.: | Schedule TO | Date Filed: | January 13, 2011 |
Check the appropriate boxes below to designate any transactions to which the statement relates:
Check the following box if the filing is a final amendment reporting the results of the tender offer: o
This Amendment No. 2 (this "Amendment") amends and supplements the Tender Offer Statement on Schedule TO (as amended, the "Schedule TO") originally filed on January 13, 2011 in connection with the offer by Greenback Acquisition Corporation, a Delaware corporation ("Purchaser") and an indirect wholly-owned subsidiary of Koninklijke DSM N.V., a corporation organized in the Netherlands ("DSM"), to purchase all outstanding shares of common stock, par value $0.10 (the "Shares"), of Martek Biosciences Corporation, a Delaware corporation ("Martek"), at a price of $31.50 per Share, net to the seller in cash, without interest thereon and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated January 13, 2011 (the "Offer to Purchase"), which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(A), and in the related Letter of Transmittal, which is annexed to and filed with the Schedule TO as Exhibit (a)(1)(B), which, together with any amendments or supplements thereto, collectively constitute the "Offer."
All capitalized terms used in this Amendment No. 2 without definition have the meanings ascribed to them in the Schedule TO.
Item 11. Additional Information.
Item 11 is hereby amended and supplemented by adding the following paragraph to Section 15—"Certain Legal Matters—Antitrust Compliance" of the Offer to Purchase:
On February 1, 2011, DSM issued a press release, the full text of which is filed as Exhibit (a)(5)(H) to this Amendment and is incorporated by reference herein, announcing the expiration of the mandatory waiting period under the HSR Act with respect to the Offer. This condition of the Offer is thus satisfied.
Item 11 is hereby amended and supplemented by adding the following paragraph to Section 15—"Certain Legal Matters—Litigation" of the Offer to Purchase:
On January 28, 2011, a third putative class action lawsuit was commenced against Martek, its board of directors, DSM and Purchaser in the Circuit Court for Howard County, State of Maryland. The lawsuit is captionedCharles Cortellini v. Martek Biosciences Corporation, et al.. In the lawsuit, plaintiff alleges, among other things, that (1) Martek's directors breached their fiduciary duties in connection with the transaction by, among other things, carrying out a defective sale process that resulted in an unfair price to stockholders and agreeing to certain onerous and preclusive deal protection provisions, (2) Martek's directors breached their fiduciary duties of disclosure in connection with the transaction because Martek's Solicitation/Recommendation Statement on Schedule 14D-9 is materially misleading and incomplete and (3) DSM aided and abetted the alleged breaches of fiduciary duties by Martek's directors. Plaintiff purports to bring the lawsuit on behalf of the public stockholders of Martek and seeks equitable relief to enjoin consummation of the Offer and the Merger, rescission of the Offer and the Merger and/or rescissory damages, and fees and costs, among other relief. DSM believes that the lawsuit is without merit.
| (a)(5)(H) | Press Release issued by DSM on February 1, 2011 |
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After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.
Dated: February 1, 2011
| KONINKLIJKE DSM N.V. | ||||||
By: | /s/ HUGH C. WELSH | |||||
| Name: | Hugh C. Welsh | |||||
| Title: | President and General Counsel, DSM North America | |||||
GREENBACK ACQUISITION CORPORATION | ||||||
By: | /s/ HUGH C. WELSH | |||||
| Name: | Hugh C. Welsh | |||||
| Title: | Secretary and Director | |||||
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| (a)(5)(H) | Press Release issued by DSM on February 1, 2011 |
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