UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(RULE 14D–100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 4)
IMPERIAL SUGAR COMPANY
(Name of Subject Company)
LOUIS DREYFUS COMMODITIES SUBSIDIARY INC.
a wholly-owned Subsidiary of
LD COMMODITIES SUGAR HOLDINGS LLC
a wholly-owned Subsidiary of
LOUIS DREYFUS COMMODITIES LLC
(Names of Filing Persons (Offerors))
COMMON STOCK, WITHOUT PAR VALUE
(Title of Class of Securities)
453096208
(Cusip Number of Class of Securities)
Cornelius J. Grealy
Chief Legal Officer
Louis Dreyfus Commodities LLC
40 Danbury Road
P.O. Box 810
Wilton, CT 06897-0810
(203) 761-2351
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
With a copy to:
Roger W. Wells
McGrath North Mullin & Kratz, PC LLO
First National Tower, Suite 3700
1601 Dodge Street
Omaha, NE 68102
(402) 341-3070
CALCULATION OF FILING FEE
| ||
| Transaction Valuation* | Amount of Filing Fee** | |
$79,215,044 | $9,079 | |
| ||
| * | Estimated solely for purposes of calculating the filing fee. The transaction value was determined by multiplying (a) $6.35, the tender offer price, by (b) the sum of (i) 12,241,530, the issued and outstanding shares of Imperial Sugar common stock, (ii) 45,574, the number of shares of Imperial Sugar common stock issuable by Imperial Sugar upon the exercise of outstanding stock options pursuant to Imperial Sugar’s stock plans and (iii) 187,706, the number of shares of Imperial Sugar common stock issuable by Imperial Sugar upon the vesting of restricted stock awards pursuant to Imperial Sugar’s stock plans. The foregoing share figures have been provided by the issuer to the offerors and are as of May 8, 2012, the most recent practicable date. |
| ** | The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #3 for fiscal year 2012, issued September 29, 2011, by multiplying the transaction value by .0001146. |
| x | Check 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: $9,079 | Filing Party: Louis Dreyfus Commodities Subsidiary Inc., LD Commodities Sugar Holdings LLC and Louis Dreyfus Commodities LLC | |
Form or Registration No.: Schedule TO | Date Filed: May 11, 2012 |
| ¨ | 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 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (together with any subsequent amendments and supplements thereto, the “Schedule TO”) filed by Louis Dreyfus Commodities Subsidiary Inc., a Texas corporation (“Purchaser”), a wholly-owned subsidiary of LD Commodities Sugar Holdings LLC, a Delaware limited liability company, a wholly-owned subsidiary of Louis Dreyfus Commodities LLC, a Delaware limited liability company. This Schedule TO relates to the offer by the Purchaser to purchase all outstanding shares of common stock, without par value per share (together with the associated preferred share purchase rights, the “Shares”), of Imperial Sugar Company, a Texas corporation, at $6.35 per Share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 11, 2012 (the “Offer to Purchase”), and in the related Letter of Transmittal for Shares, dated May 11, 2012, and Letter of Transmittal for Restricted Shares, dated May 11, 2012, copies of which are attached as Exhibits (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) to the Schedule TO respectively (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).
All information contained in the Offer to Purchase and the accompanying Letter of Transmittal for Shares and Letter of Transmittal for Restricted Shares, including all schedules thereto, as previously amended, is hereby incorporated herein by reference in response to Items 1 through 9 and Item 11 and Item 12 in this Schedule TO.
Item 1. Terms of the Offer
Item 1 of the Schedule TO is hereby amended and supplemented as follows::
“On June 11, 2012, the Purchaser extended the Expiration Date of the Offer until 11:59 p.m., New York City time, on June 15, 2012. The Offer had previously been scheduled to expire at 9:00 a.m., New York City time, on June 11, 2012. The Depositary for the Offer has advised that, as of 7:00 a.m. New York City time, on June 11, 2012, 8,022,231 Shares were validly tendered and not withdrawn, which represent approximately 64.3% of the outstanding Shares. Certain of the Shares were tendered pursuant to notices of guaranteed delivery. The press release announcing the extension of the Offer is filed as Exhibit (a)(i)(ix) hereto, and is incorporated herein by reference.”
Item 11. Additional Information
(a) The Section — “Certain Legal matters: Regulatory Approvals — Litigation”, as previously amended, is amended as to amend and restate the last three paragraphs as follows:
“On May 18, 2012, a putative shareholder direct and derivative lawsuit captioned Zaks v. Gaffney, et al., Cause No. 12-DCV-198238, was filed in the District Court of Fort Bend County, Texas. The petition names as defendants the members of the Imperial Sugar Board, as well as LDCSH and Purchaser. Imperial Sugar was named as a nominal defendant. The plaintiff brought this action directly on behalf of shareholders of Imperial Sugar and derivatively on behalf of Imperial Sugar against the members of the Imperial Sugar Board for alleged breaches of fiduciary duties in connection with the Offer and Merger. The petition alleges, among other things, that the members of the Imperial Sugar Board breached their fiduciary duties of care, loyalty, good faith, independence and candor. The petition also alleges that Imperial Sugar, LDCSH and Purchaser aided and abetted such purported breaches of fiduciary duties. The petition seeks, among other things, to enjoin the defendants, and anyone acting in concert with them, from consummating the Offer and Merger and an award of attorneys’ fees and other fees and costs, in addition to other relief. The Imperial Sugar Defendants filed a second amended plea to the jurisdiction and motion to dismiss Zaks on May 29, 2012. LDCSH and Purchaser filed a joinder on May 29, 2012. A hearing has been set for June 8, 2012. On June 7, 2012, the lawsuit was non-suited (i.e., withdrawn) without prejudice in the District Court of Fort Bend County, Texas.
On May 31, 2012, a putative shareholder derivative and direct lawsuit captioned Batchelder v. Sheptor, et al., Case No. 4:12-CV-01648, was filed in the United States District Court for the Southern District of Texas (Houston Division). The complaint names as defendants the members of the Imperial Sugar Board, as well as LDCLLC, LDCSH and Purchaser. Imperial Sugar was named as a nominal defendant for purposes of the derivative claims. The plaintiff brought this action derivatively on behalf of Imperial Sugar against the members of the Imperial Sugar Board for alleged breaches of fiduciary duties in connection with the Offer and Merger. The complaint alleges, among other things, that the members of the Imperial Sugar Board breached their fiduciary duties of care, loyalty, candor, independence and good faith. The complaint also alleges that Imperial Sugar, LDCLLC, LDCSH and Purchaser aided and abetted such purported breaches of fiduciary duties. The complaint also includes a direct claim by the plaintiff individually against the individual defendants under Sections 14(d)(4) and 14(e) of the Securities Exchange Act of 1934, as amended, for alleged misrepresentations and omissions in the Schedule 14D-9. The complaint seeks, among other things, to enjoin the Offer and Merger, an award of damages and an award of attorneys’ fees and other fees and costs, in addition to other relief. On June 5, 2012, defendants Imperial Sugar and the members of the Imperial Sugar Board filed a motion to dismiss the complaint. On June 5, 2012, the plaintiff filed a motion for a temporary restraining order based on his federal securities law claim. On June 7, 2012, the court held a hearing on the motion for a temporary restraining order and denied the motion from the bench.
LDCLLC, LDCSH and Purchaser believe the plaintiff’s allegations in the above lawsuits lack merit and intend to contest them vigorously; however, there can be no assurance that LDCLLC, LDCSH and Purchaser will be successful in their defense.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| (a)(1)(ix) | Press Release issued by Louis Dreyfus Commodities LLC dated June 11, 2012 |
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: June 11, 2012 | Louis Dreyfus Commodities Subsidiary Inc. | |||||
By: | /s/ Jan-Mikael Morn | |||||
Name: | Jan-Mikael Morn | |||||
Title: | President | |||||
LD Commodities Sugar Holdings LLC | ||||||
By: | /s/ Jan-Mikael Morn | |||||
Name: | Jan-Mikael Morn | |||||
Title: | Vice President | |||||
Louis Dreyfus Commodities LLC | ||||||
By: | /s/ Jan-Mikael Morn | |||||
Name: | Jan-Mikael Morn | |||||
Title: | President & Chief Executive Officer | |||||
EXHIBIT INDEX
| Index No. | ||
| (a)(1)(i) | Offer to Purchase dated May 11, 2012.* | |
| (a)(1)(ii) | Form of Letter of Transmittal for Shares (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).* | |
| (a)(1)(iii) | Form of Letter of Transmittal for Restricted Shares (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).* | |
| (a)(1)(iv) | Form of Notice of Guaranteed Delivery.* | |
| (a)(1)(v) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(vi) | Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(vii) | Joint Press Release issued by Louis Dreyfus Commodities LLC and Imperial Sugar Company dated May 1, 2012 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Imperial Sugar Company with the Securities and Exchange Commission on May 1, 2012). | |
| (a)(1)(viii) | Joint Press Release issued by Louis Dreyfus Commodities LLC and Imperial Sugar Company dated May 11, 2012.* | |
| (a)(1)(ix) | Press Release issued by Louis Dreyfus Commodities LLC dated June 11, 2012. | |
| (a)(2) | The Solicitation/Recommendation Statement on Schedule 14D-9 of Imperial Sugar Company filed May 11, 2012, incorporated herein by reference.* | |
| (b) | Not applicable. | |
| (d)(1) | Agreement and Plan of Merger, dated as of May 1, 2012, by and among LD Commodities Sugar Holdings LLC, Louis Dreyfus Commodities Subsidiary Inc. and Imperial Sugar Company.* | |
| (d)(2) | Form of Tender and Voting Agreement, among LD Commodities Sugar Holdings LLC, Louis Dreyfus Commodities Subsidiary Inc. and certain stockholders of Imperial Sugar.* | |
| (d)(3) | Confidentiality Letter Agreement, dated July 22, 2011, between Louis Dreyfus Commodities LLC and Imperial Sugar Company.* | |
| (d)(4) | Amendment to Confidentiality Letter Agreement, dated April 16, 2012 between Louis Dreyfus Commodities LLC and Imperial Sugar Company.* | |
| (d)(5) | Amendment to Confidentiality Letter Agreement dated April 26, 2012 between Louis Dreyfus Commodities LLC and Imperial Sugar Company.* | |
| (d)(6) | Exclusivity Letter Agreement dated April 13, 2012 between Louis Dreyfus Commodities LLC and Imperial Sugar Company.* | |
| (d)(7) | Amendment to Exclusivity Letter Agreement dated April 29, 2012 between Louis Dreyfus Commodities LLC and Imperial Sugar Company.* | |
| (d)(8) | Guarantee between Louis Dreyfus Commodities LLC and Imperial Sugar Company dated May 1, 2012 (incorporated by reference to Exhibit 2.2 to Current Report on Form 8-K filed by Imperial Sugar Company with the Securities and Exchange Commission on May 1, 2012).* | |
| (g) | Not applicable. | |
| (h) | Not applicable. | |
| * | Previously filed. |
