UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE14D-100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Key Technology, Inc.
(Name of Subject Company (Issuer))
Cascade Merger Sub, Inc.
(Offeror)
Duravant LLC
(Parent of Offeror)
WARBURG PINCUS PRIVATE EQUITY XII, L.P.
WARBURG PINCUS PRIVATE EQUITYXII-B, L.P.
WARBURG PINCUS PRIVATE EQUITYXII-D, L.P.
WARBURG PINCUS PRIVATE EQUITYXII-E, L.P.
WP XII PARTNERS, L.P.
WARBURG PINCUS XII PARTNERS, L.P.
(Other Person)
(Names of Filing Persons (identifying status as Offeror, Issuer or Other Person))
Common stock, no par value
(Title of Class of Securities)
493143101
(CUSIP Number of Class of Securities)
Craig Reuther
Duravant LLC
3500 Lacey Road, Suite 290, Downers Grove, IL 60515
Tel: (630)635-3913
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of Filing Persons)
With a copy to:
James Langston
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** | |
| $172,933,132.50 | $21,530.18 |
| * | The calculation of the transaction value is determined by multiplying the offer price of $26.75 per share by 6,464,790 shares of common stock, no par value, of Key Technology, Inc. issued and outstanding (including 321,154 shares subject to service-based or performance-based vesting conditions). The calculation of the filing fee is based on information provided by Key Technology, Inc. as of February 7, 2018. |
| ** | The filing fee was calculated in accordance with Rule0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2018, issued August 24, 2017, by multiplying the transaction valuation by 0.0001245. |
| ☒ | Check box if any part of the fee is offset as provided byRule 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: $21,530.18 Form or Registration No: Schedule TO | Filing Party: Cascade Merger Sub, Inc. and Duravant LLC Date Filed: February 8, 2018 |
| ☐ | 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 toRule 14d-1.
☐ issuer tender offer subject toRule 13e-4.
☐ going-private transaction subject toRule 13e-3.
☐ amendment to Schedule 13D underRule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
This Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Cascade Merger Sub, Inc., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Duravant LLC, a Delaware limited liability company (“Duravant”), with the Securities and Exchange Commission on February 8, 2018 (together with any subsequent amendments and supplements thereto, including this Amendment, the “Schedule TO”). The Schedule TO relates to the tender offer by Purchaser for all of the outstanding shares of common stock, no par value (“Shares”), of Key Technology, Inc., an Oregon corporation (“Key Technology”), at a price per share of $26.75, net to the seller in cash, without interest and subject to any withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 8, 2018 (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, collectively constitute 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.
Capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.
Items 1 through 9 and Item 11.
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as set forth below:
The subsection of Section 16 of the Offer to Purchase titled “Litigation” is hereby amended and supplemented by deleting “None.” and replacing it with the following:
“On February 15, 2018, Adam Franchi filed a purported shareholder class action lawsuit concerning the Transactions against Key Technology, the directors of Key Technology, Duravant and Purchaser (which we refer to collectively as the “Defendants”) in the United States District Court for the Eastern District of Washington at Richland. In the case, captionedAdam Franchi v. Key Technology, Inc., et al., Case No.4:18-cv-5027, plaintiff alleges that Key Technology, the directors of Key Technology, Duravant and Purchaser violated federal securities laws by, among other things, failing to disclose certain material information in the Schedule14D-9 with respect to Key Technology’s financial projections, the valuation analyses performed by Baird and purported conflicts of interest of Key Technology’s officers and directors. The complaint seeks, among other things, injunctive relief preventing the consummation of the Transactions; rescission of the Transactions or an award of rescissory damages in the event they are consummated; the filing with the SEC of a Schedule14D-9 that does not contain any untrue statements of material fact and that states all material facts required in it or necessary to make the statements contained therein not misleading; a declaratory judgment that the Defendants violated
Sections 14(e), 14(d) and 20(a) of the Exchange Act, as well as Rule14a-9 promulgated thereunder; and an award of plaintiff’s costs for the action, including reasonable allowance for plaintiff’s attorneys’ and experts’ fees.
The outcome of this litigation cannot be predicted with certainty; however, the Defendants believe that the lawsuit is without merit. Additional lawsuits arising out of or relating to the Merger Agreement or the Transactions may be filed in the future. If additional similar complaints are filed, absent new or different allegations that are material, Duravant and the Purchaser will not necessarily announce such additional filings.”
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
| CASCADE MERGER SUB, INC. |
By: /s/ Craig Reuther |
| Name: Craig Reuther |
| Title: Vice President and Chief Financial Officer |
| DURAVANT LLC |
By: /s/ Craig Reuther |
| Name: Craig Reuther |
| Title: Chief Financial Officer |
| WARBURG PINCUS PRIVATE EQUITY XII, L.P. |
By: Warburg Pincus XII, L.P., its general partner
By: WP Global LLC, its general partner
By: Warburg Pincus Partners II, L.P., its managing member
By: Warburg Pincus Partners GP LLC, its general partner
By: Warburg Pincus & Co., its managing member
By: /s/ Robert B. Knauss |
| Name: Robert B. Knauss |
| Title: Partner |
| WARBURG PINCUS PRIVATE EQUITY XII-B, L.P. |
By: Warburg Pincus XII, L.P., its general partner
By: WP Global LLC, its general partner
By: Warburg Pincus Partners II, L.P., its managing member
By: Warburg Pincus Partners GP LLC, its general partner
By: Warburg Pincus & Co., its managing member
By: /s/ Robert B. Knauss |
| Name: Robert B. Knauss |
| Title: Partner |
| WARBURG PINCUS PRIVATE EQUITY XII-D, L.P. |
By: Warburg Pincus XII, L.P., its general partner
By: WP Global LLC, its general partner
By: Warburg Pincus Partners II, L.P., its managing member
By: Warburg Pincus Partners GP LLC, its general partner
By: Warburg Pincus & Co., its managing member
By: /s/ Robert B. Knauss |
| Name: Robert B. Knauss |
| Title: Partner |
| WARBURG PINCUS PRIVATE EQUITYXII-E, L.P. |
By: Warburg Pincus XII, L.P., its general partner
By: WP Global LLC, its general partner
By: Warburg Pincus Partners II, L.P., its managing member
By: Warburg Pincus Partners GP LLC, its general partner
By: Warburg Pincus & Co., its managing member
By: /s/ Robert B. Knauss |
| Name: Robert B. Knauss |
| Title: Partner |
| WP XII PARTNERS, L.P. |
By: Warburg Pincus XII, L.P., its general partner
By: WP Global LLC, its general partner
By: Warburg Pincus Partners II, L.P., its managing member
By: Warburg Pincus Partners GP LLC, its general partner
By: Warburg Pincus & Co., its managing member
By: /s/ Robert B. Knauss |
| Name: Robert B. Knauss |
| Title: Partner |
| WARBURG PINCUS XII PARTNERS, L.P. |
By: Warburg Pincus XII, L.P., its general partner
By: WP Global LLC, its general partner
By: Warburg Pincus Partners II, L.P., its managing member
By: Warburg Pincus Partners GP LLC, its general partner
By: Warburg Pincus & Co., its managing member
By: /s/ Robert B. Knauss |
| Name: Robert B. Knauss |
| Title: Partner |
Dated: February 23, 2018
EXHIBIT INDEX
Exhibit No. | Description | |
(a)(1)(A) | Offer to Purchase, dated February 8, 2018.* | |
(a)(1)(B) | Letter of Transmittal.* | |
(a)(1)(C) | Notice of Guaranteed Delivery.* | |
(a)(1)(D) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
(a)(1)(E) | Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
(a)(1)(F) | Summary Advertisement as published in The New York Times on February 8, 2018.* | |
(a)(1)(G) | Press Release, dated January 25, 2018 (incorporated by reference to Exhibit 99.1 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(H) | Letter from Duravant President & CEO to Duravant Employees, dated January 25, 2018 (incorporated by reference to Exhibit 99.2 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(I) | Letter from Duravant President & CEO to Key Technology Employees, dated January 25, 2018 (incorporated by reference to Exhibit 99.3 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(J) | Overview of Duravant Presentation to Key Technology Employees, dated January 25, 2018 (incorporated by reference to Exhibit 99.4 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(K) | Tweet from January 25, 2018 by Duravant (@Duravant) (incorporated by reference to Exhibit 99.5 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(L) | LinkedIn posting from January 25, 2018 by Duravant (incorporated by reference to Exhibit 99.6 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(M) | Facebook posting from January 25, 2018 by Duravant (incorporated by reference to Exhibit 99.7 to the ScheduleTO-C filed by Duravant LLC with the U.S. Securities and Exchange Commission on January 26, 2018).* | |
(a)(1)(N) | Press Release, dated February 8, 2018.* | |
(b)(1) | Amended and Restated Debt Commitment Letter, dated February 5, 2018, by and between Jefferies Finance LLC, Citigroup Global Markets, Inc., Credit Suisse AG, Credit Suisse Securities (USA) LLC, Antares Capital LP, Société Générale, SG Americas, LLC and Engineered Machinery Holdings, Inc.* | |
(d)(1) | Agreement and Plan of Merger, dated as of January 25, 2018 by and among Duravant LLC, Cascade Merger Sub, Inc. and Key Technology, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form8-K filed by Key Technology, Inc. on January 31, 2018).* | |
(d)(2) | Confidentiality Agreement, dated October 9, 2017 by and between Duravant LLC and Robert W. Baird & Co. Incorporated, acting as Key Technology, Inc.’s financial advisor.* | |
(d)(3) |
Exclusivity Agreement, delivered January 24, 2018 by and between Duravant LLC and Key Technology, Inc.* | |
(d)(4) | Tender and Support Agreement, dated January 25, 2018, by and among Duravant LLC, Cascade Merger Sub, Inc., Robert M. Averick, Leslie J. Schreyer, as Trustee under the Trust Agreement dated December 23, 1989 for the benefit of the issue of Jonathan D. Sackler, Piton Capital Partners LLC and M3C Holdings LLC.* | |
(g) | None. | |
(h) | None. | |
| * | Previously filed. |
