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)
GENENCOR INTERNATIONAL, INC.
(Name of Subject Company (Issuer))
DANISCO A/S
DANISCO HOLDING USA INC.
DH
SUBSIDIARY INC.
A/S PSE 38 NR. 2024
(Name
of Filing Persons (Offeror, Affiliates of Offeror))
Common Stock, $0.01 Par Value
(Title
of Class of Securities)
368709101
(CUSIP Number)
Jørgen Rosenlund
Group General Counsel, Vice
President
Danisco A/S
Langebrogade 1
P.O. Box 17
DK-1001 Copenhagen K
011-45-3-266-2000
(Name, Address and Telephone
Number of Person Authorized
to Receive Notices and
Communications)
copy to:
Robert A. McTamaney, Esq.
Carter Ledyard & Milburn
LLP
2 Wall Street, New York, New York 10005
(212)
732-3200
CALCULATION OF FILING FEE
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| Transaction
Valuation* |
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Amount of Filing
Fee** |
| $672,563,604 |
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$79,572 |
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| *
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Estimated for purposes of calculating the filing fee only. This
calculation assumes the purchase of the 34,938,369 outstanding shares
of common stock of Genencor International, Inc. not owned of record by
Danisco A/S or its subsidiaries at the tender offer price of $19.25 per
share of common stock. |
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| ** |
The amount
of the filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and Fee Rate Advisory No. 6 for fiscal year 2005,
equals $117.70 per million dollars of transaction value. |
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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. |
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| Amount
Previously Paid: |
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$79,572 |
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Filing
Parties: |
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Danisco A/S, Danisco Holding USA
Inc., |
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DH Subsidiary
Inc. and A/S PSE 38 Nr. 2024 |
| Form or Registration
No. |
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SC TO |
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Date
Filed: |
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February 15,
2005 |
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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:
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third-party
tender offer subject to Rule
14d-1. |
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issuer tender offer subject
to Rule 13e-4. |
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going-private
transaction subject to Rule
13e-3. |
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amendment to Schedule 13D
under Rule 13d-2. |
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Check the following box
if the filing is a final amendment reporting the results of the tender
offer:
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| CUSIP
No. 368709101 |
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| 1 |
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NAME OF
REPORTING PERSON: Danisco A/S
I.R.S. IDENTIFICATION NO. OF ABOVE
PERSON (ENTITIES
ONLY): |
| 2 |
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CHECK THE
APPROPRIATE BOX IF A MEMBER OF A GROUP:(a)
[ ]
(b)
[ ] |
| 3 |
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SEC
USE ONLY |
| 4 |
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SOURCE OF FUNDS:
WC, BK |
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CHECK BOX IF
DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or
2(e):
[ ] |
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CITIZENSHIP
OR PLACE OF ORGANIZATION:
Denmark |
NUMBER
OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
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7 |
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SOLE
VOTING POWER: 25,000,000
Shares |
| 8 |
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SHARED VOTING POWER:
25,000,000 Shares |
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| 9 |
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SOLE
DISPOSITIVE POWER: 25,000,000
Shares |
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| 10 |
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SHARED DISPOSITIVE
POWER: 25,000,000
Shares |
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| 11 |
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AGGREGATE AMOUNT
BENEFICIALLY OWNED BY EACH REPORTING
PERSON: 50,000,000
Shares |
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CHECK BOX
IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ] |
| 13 |
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
83.4% |
| 14 |
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TYPE OF
REPORTING PERSON: CO |
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This Amendment Number 1
("Amendment No. 1") amends and supplements
(a) the Tender Offer Statement on Schedule TO (the
"Schedule TO") filed with the Securities and
Exchange Commission on February 15, 2005 by Danisco A/S
("Danisco"), Danisco Holding USA Inc., DH
Subsidiary Inc. ("Buyer") and A/S PSE 38 Nr.
2024 relating to the offer by Buyer to purchase all the outstanding
shares of common stock, par value $0.01 per share (the
"Shares"), of Genencor International, Inc., a
Delaware corporation (the "Issuer"), at a
purchase price of $19.25 per Share, net to the seller in cash, without
interest thereon upon the terms and subject to the conditions set forth
in the Offer to Purchase dated February 15, 2005 (the
"Offer to Purchase"), and in the related
Letter of Transmittal, copies of which were filed as Exhibits (a)(1)(i)
and (a)(1)(ii), respectively, to the Schedule TO, and (b) the Statement
on Schedule 13D filed by Danisco on February 7, 2005 as a result of the
Stock Purchase Agreement, dated January 27, 2005, among Danisco, Buyer,
Eastman Chemical Company and Eastman Chemical Company Investments,
Inc., relating to the purchase by Buyer of 25,000,000 Shares from
Eastman Chemical Company Investments, Inc.
This Amendment No. 1
is being filed on behalf of Buyer, Danisco, Danisco Holding USA Inc.,
and A/S PSE 38 nr. 2024. Capitalized terms used in this Amendment No. 1
and not defined herein have the meanings given thereto in the Offer to
Purchase.
Buyer is mailing to stockholders of the Issuer a
Supplement to the Offer to Purchase, dated March 9, 2005 (the
"Supplement"), which is being filed as
Exhibit (a)(1)(vix) hereto.
1
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| ITEM
1. |
SUMMARY TERM SHEET |
The
information set forth in the Offer to Purchase and the Supplement under
the captions "Summary Term Sheet" and
"Questions and Answers about the Tender
Offer" is incorporated herein by reference.
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| ITEM
2. |
SUBJECT COMPANY INFORMATION |
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| (a) |
The information set forth in the Offer to
Purchase and the Supplement under the caption "The Tender
Offer — Certain Information Concerning Genencor" is
incorporated herein by reference. |
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| ITEM
4. |
TERMS OF THE TRANSACTION |
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| (a) |
The information set forth in the Offer to
Purchase and the Supplement under the captions
"Introduction," "Special Factors
— The Merger; Plans for Genencor After the Offer and the Merger;
Certain Effects of the Offer and the Merger,"
"The Tender Offer — Terms of the
Offer," "The Tender Offer — Acceptance
for Payment and Payment for Shares," "The
Tender Offer — Procedure for Tendering Shares,"
"The Tender Offer — Withdrawal Rights"
and "The Tender Offer — Certain United States
Federal Income Tax Considerations" is incorporated herein
by reference. |
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| ITEM 5 |
PAST CONTACTS,
TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS |
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| (a) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Background of the Offer,"
"Special Factors — Security Ownership of Certain
Beneficial Owners," "Special Factors —
Related Party Transactions," "Special Factors
— Interests of Certain Persons in the Offer" and in
Annex A ("Directors and Executive Officers of the Bidder
Group") thereto is incorporated herein by reference. |
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| (b) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Background of the Offer,"
"Special Factors — Security Ownership of Certain
Beneficial Owners," "Special Factors —
Purpose and Structure of the Offer and the Merger; Reasons of Danisco
for the Offer and the Merger," "Special
Factors — Transactions and Arrangements Concerning the
Shares," and "Special Factors — Certain
Agreements Relating to the Offer and the Merger" is
incorporated herein by reference. |
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| ITEM
6 |
PURPOSE OF THIS TRANSACTION AND PLANS OR
PROPOSALS |
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| (a) |
The information set forth in the
Offer to Purchase and the Supplement under the captions
"Special Factors — Purpose and Structure of the
Offer and the Merger; Reasons of Danisco for the Offer and the
Merger," "Special Factors — Certain
Agreements Relating to the Offer and the Merger" and
"Special Factors — The Merger; Plans for Genencor
After the Offer and the Merger; Certain Effects of the Offer and the
Merger" is incorporated herein by reference. |
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| (c)(1)-(7) |
The information set forth in the Offer
to Purchase and the Supplement under the captions
"Introduction," "Special Factors
— Background of the Offer," "Special
Factors — Purpose and Structure of the Offer and the Merger;
Reasons of Danisco for the Offer and the Merger,"
"Special Factors — Certain Agreements Relating to
the Offer and the Merger," "Special Factors
— The Merger; Plans for Genencor after the Offer and the Merger;
Certain Effects of the Offer and Merger" and
"The Tender Offer — Certain Effects on the Market
for the Shares" is incorporated herein by
reference. |
2
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| ITEM 7 |
SOURCE AND AMOUNT
OF FUNDS AND OTHER CONSIDERATION |
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| (a) and
(b) |
The information set forth in the Offer to
Purchase and the Supplement under the caption "The Tender
Offer — Source and Amount of Funds" is incorporated
herein by reference. |
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| (d) |
The information set
forth in the Offer to Purchase and the Supplement under the caption
"The Tender Offer — Source and Amount of
Funds" is incorporated herein by reference. |
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| ITEM
8 |
INTEREST IN SECURITIES OF THE COMPANY |
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The information set forth in the Offer to
Purchase and the Supplement under the
"Introduction," "Special Factors
— Background of the Offer," "Special
Factors — Security Ownership of Certain Beneficial
Owners," "Special Factors —
Transactions and Arrangements Concerning the Shares,"
"Special Factors — Related Party
Transactions," "Special Factors —
Interests of Certain Persons in the Offer" and in Annex A
("Directors and Executive Officers of the Bidder
Group") thereto is incorporated herein by reference. |
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| ITEM 9 |
PERSONS/ASSETS RETAINED, EMPLOYED,
COMPENSATED OR USED |
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| (a) |
The information set
forth in the Offer to Purchase and the Supplement under the caption
"The Tender Offer — Fees and Expenses"
is incorporated herein by reference. |
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| ITEM
11 |
ADDITIONAL INFORMATION |
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| (a)(1) |
The information set forth in the Offer to
Purchase and the Supplement under the caption "Special
Factors — Certain Agreements Relating to the Offer and the
Merger" is incorporated herein by
reference. |
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| (a)(2)-(5) |
On March 9, 2005, the
plaintiffs and defendants in the Consolidated Delaware Action executed
a memorandum of understanding that, subject to Chancery Court approval,
will result in a dismissal with prejudice of all claims by the
plaintiffs in the Consolidated Delaware Action. The memorandum of
understanding provides for supplemental disclosures related to the
Offer and the Merger (all of which are included in the Supplement filed
herewith) requests that the Chancery Court certify (for settlement
purposes only) a class of plaintiffs consisting of all record holders
of Shares from January 26, 2005 through the effective time of the
Merger (the "Class"), and contains a release
of all claims by members of the Class asserted in the amended complaint
in the Consolidated Delaware Action and related to the Acquisition
Agreement, the Stock Purchase Agreement, the Tender Offer, the Merger,
or any public disclosures by the defendants related to the
foregoing. |
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| (a)(2)-(3) |
The information set forth
in the Offer to Purchase and the Supplement under the captions
"The Tender Offer — Acceptance for Payment and
Payment for Shares," "The Tender Offer
— Certain Conditions of the Offer," and
"The Tender Offer — Certain Legal
Matters" is incorporated herein by reference. |
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| (a)(4) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — The Merger; Plans for Genencor after the Offer and the
Merger; Certain Effects of the Offer and Merger" and
"The Tender Offer — Certain Legal
Matters" is incorporated herein by reference. |
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| (a)(5) |
The information set forth in the Offer to
Purchase and the Supplement under the caption "The Tender
Offer — Certain Legal Matters" is incorporated
herein by reference. |
3
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| ITEM 12 |
EXHIBITS. |
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| (a)(1)(xiv) |
Supplement to Offer to Purchase, dated
March 9, 2005. |
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| (a)(5)(vi) |
Consolidated Amended
Class Action Complaint of Ronald Zappolla, Mirfred Partners LLC and
Walter Sloboda against Genencor International, Inc., et al.,
Consolidated C.A. No. 1052-N, filed in the Court of Chancery of the
State of Delaware on February 24, 2005. |
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| (a)(5)(vii) |
Memorandum of Understanding dated
March 9, 2005 among counsel to the parties to the Consolidated Delaware
Action. |
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| ITEM 13 |
INFORMATION REQUIRED BY
SCHEDULE 13E-3 |
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| Item 2 |
Terms of the
Transaction |
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| (e) |
The information set forth in
the Offer to Purchase and the Supplement under the caption
"The Tender Offer — Certain Information Concerning
Genencor" is incorporated herein by reference. |
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| (f) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Certain Agreements Relating to the Offer and the
Merger," "Special Factors —
Transactions and Arrangements Concerning the Shares" and
"The Tender Offer — Certain Information Concerning
Genencor" is incorporated herein by reference. |
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| Item
4 |
Terms of the Transaction |
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| (c) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Position of the Bidder Group Regarding the Fairness of
the Offer and the Merger" and "Special
Factors — Certain Agreements Relating to the Offer and the
Merger" is incorporated herein by reference. |
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| (e) |
The information set forth in the Offer to
Purchase and the Supplement under the caption "The Tender
Offer — Fees and Expenses" is incorporated herein by
reference. |
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| Item 5 |
Past Contacts, Transactions,
Negotiations and Agreements |
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| (c) |
The
information set forth in the Offer to Purchase and the Supplement under
the captions "Special Factors — Background of the
Offer," "Special Factors — Purpose and
Structure of the Offer and the Merger; Reasons of Danisco for the Offer
and the Merger," "Special Factors —
Certain Agreements Relating to the Offer and the Merger"
and "Special Factors — Transactions and Arrangements
Concerning the Shares" is incorporated herein by
reference. |
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| (e) |
The information set forth in
the Offer to Purchase and the Supplement under the captions
"Special Factors - Certain Agreements Relating to the
Offer and the Merger" and "The Tender Offer -
Procedure for Tendering Shares" is incorporated herein by
reference. |
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| Item 6 |
Purposes of the Transaction
and Plans or Proposals |
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| (b) |
The information set
forth in the Offer to Purchase and the Supplement under the captions
"Special Factors — Purpose and Structure of the
Offer and the Merger; Reasons of Danisco for the Offer and the
Merger" and "Special Factors — The
Merger; Plans for Genencor After the Offer and the Merger; Certain
Effects of the Offer and the Merger" is incorporated
herein by reference. |
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| (c)(8) |
The information
set forth in the Offer to Purchase and the Supplement under the
captions "Special Factors — Purpose and Structure of
the Offer and the Merger; Reasons of Danisco for the Offer and the
Merger" and "Special Factors |
4
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— The Merger; Plans for Genencor After
the Offer and the Merger; Certain Effects of the Offer and the
Merger" is incorporated herein by reference. |
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| Item
7 |
Purposes, Alternatives, Reasons and Effects |
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| (a)-(c) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Background of the Offer,"
"Special Factors — Purpose and Structure of the
Offer and the Merger; Reasons of Danisco for the Offer and the
Merger" and "Special Factors — The
Merger; Plans for Genencor after the Offer and the Merger; Certain
Effects of the Offer and Merger" is incorporated herein by
reference. |
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| (e) |
The information set forth in the
Offer to Purchase and the Supplement under the captions
"Special Factors — The Merger; Plans for Genencor
After the Offer and the Merger; Certain Effects of the Offer and the
Merger," "Special Factors — Appraisal
Rights" and "Tender Offer — Certain
United States Federal Income Tax Considerations" is
incorporated herein by reference. |
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| Item
8 |
Fairness of the Transaction |
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| (a) and
(b) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Recommendation of the Special Committee; Fairness of
the Offer and the Merger" and "Special
Factors — Position of the Bidder Group Regarding the Fairness of
the Offer and the Merger" is incorporated herein by
reference. |
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| (c)-(e) |
The information set forth
in the Offer to Purchase and the Supplement under the captions
"Special Factors — Recommendation of the Special
Committee; Fairness of the Offer and the Merger,"
"Special Factors — Position of the Bidder Group
Regarding the Fairness of the Offer and the Merger" and
"The Tender Offer — Certain Conditions of the
Offer" is incorporated herein by reference. |
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| (f) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Background of the Offer" and
"Special Factors — Purpose and Structure of the
Offer and the Merger; Certain Effects of the Offer and the
Merger" is incorporated herein by reference. |
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| Item
9 |
Reports, Opinions, Appraisals and Negotiations |
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| (a)-(c) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Recommendation of the Special Committee; Fairness of
the Offer and the Merger", "Special Factors
— Position of the Bidder Group Regarding the Fairness of the
Offer and the Merger" and "Special Factors
— Reports, Opinions and Appraisals" is incorporated
herein by reference. |
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| Item 10 |
Source and Amount
of Funds and Other Consideration |
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The
information set forth in the Offer to Purchase and the Supplement under
the caption "The Tender Offer — Fees and
Expenses" is incorporated herein by reference. |
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| Item
12 |
The Solicitation or Recommendation |
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| (d) |
The information set forth in the Offer to
Purchase and the Supplement under the captions "Special
Factors — Certain Agreements Relating to the Offer and the
Merger," "Special Factors — Security
Ownership of Certain Beneficial Owners" and
"Special Factors — Interests of Certain Persons in
the Offer" is incorporated herein by
reference. |
5
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| (e) |
The information set
forth in the Offer to Purchase and the Supplement under the captions
"Special Factors — Recommendation of the Special
Committee; Fairness of the Offer and the Merger" and
"Special Factors — Position of the Bidder Group
Regarding the Fairness of the Offer and the Merger" is
incorporated herein by reference. |
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| Item
13 |
Financial Information |
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| (a) |
The information set forth in the Offer to
Purchase and the Supplement under the caption "The Tender
Offer — Certain Information Concerning Genencor" is
incorporated herein by reference. |
In addition to the
foregoing amendments, the last sentence of the second full paragraph on
page 17 of the Offer to Purchase as filed on EDGAR is amended and
restated as follows:
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In July 2004, the MDCC
approved amendments to the existing employment agreements of
Genencor's executive officers to, among other things, provide
that the executive officers would be eligible for a
"transaction bonus" under this new
transaction bonus pool. See "Special Factors —
Interests of Certain Persons in the Offer." |
(In the Offer to Purchase as filed on EDGAR, the
cross-reference at the end of this sentence was omitted and certain
text appeared in bold face, both of which were inadvertent
typographical errors. These errors did not appear in the printed copy
of the Offer to Purchase mailed to Genencor
stockholders.)
6
SIGNATURES
After
due inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is
true, complete and correct.
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DANISCO
A/S |
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By: /s/
Alf
Duch-Pedersen |
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______________________________________ |
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Name:
Alf
Duch-Pedersen |
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Title:
Chief Executive Officer |
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By: /s/
Søren
Bjerre-Nielsen |
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______________________________________ |
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Name:
Søren
Bjerre-Nielsen |
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Title:
Chief Executive Vice President, Chief Financial Officer |
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DANISCO HOLDING USA
INC. |
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By: /s/ Jørgen
Rosenlund |
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______________________________________ |
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Name:
Jørgen
Rosenlund |
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Title:
Vice President/Group General Counsel |
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DH SUBSIDIARY
INC. |
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By: /s/ Jørgen
Rosenlund |
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______________________________________ |
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Name:
Jørgen
Rosenlund |
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Title:
Vice President/Group General Counsel |
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A/S PSE 38 NR.
2024 |
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By: /s/ Alf
Duch-Pedersen |
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______________________________________ |
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Name:
Alf
Duch-Pedersen |
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Title:
Chief Executive
Officer |
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By: /s/
Søren
Bjerre-Nielsen |
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______________________________________ |
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Name:
Søren
Bjerre-Nielsen |
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Title:
Executive Vice President, Chief Financial
Officer |
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Date: March 9,
2005
INDEX
TO
EXHIBITS
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| Exhibit |
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Description |
| (a)(1)(xiv) |
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Supplement
to Offer to Purchase, dated March 9,
2005. |
| (a)(5)(vi) |
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Consolidated Amended Class
Action Complaint of Ronald Zappolla, Mirfred Partners LLC and Walter
Sloboda against Genencor International, Inc., et al., Consolidated C.A.
No. 1052-N, filed in the Court of Chancery of the State of Delaware on
February 24, 2005. |
| (a)(5)(vii) |
|
Memorandum of
Understanding dated March 9, 2005 among counsel to the parties to the
Consolidated Delaware
Action. |
|