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. 2)
AVX CORPORATION
(Name of Subject Company)
ARCH MERGER
SUB INC.
(Offeror)
A Wholly Owned Subsidiary of
KYOCERA
CORPORATION
(Parent of Offeror)
(Names of Filing Persons—Offeror)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
002444107
(CUSIP Number of Class of Securities)
Shoichi Aoki
Kyocera Corporation
6, Takeda Tobadono-cho
Fushimi-ku, Kyoto 612-8501, Japan
Telephone: +81-75-604-3500
(Name, Address and Telephone Number
of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
George R. Bason, Jr., Esq.
Michael Davis, Esq.
Kenneth J. Lebrun, Esq.
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$1,046,106,509.85
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$135,784.63
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*
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Estimated solely for purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”).
The Transaction Valuation was calculated by adding (i) the product of (A) 47,416,825, which is the total number of shares of common
stock of AVX Corporation outstanding (“Shares”) not beneficially owned by Kyocera Corporation (calculated as
the difference between 169,216,825, the total number of outstanding Shares, and 121,800,000, the number of Shares beneficially
owned by Kyocera Corporation as of the date hereof) and (B) $21.75, which is the per Share tender offer price, (ii) the product
of (A) 621,360, which is the number of Shares issuable upon the exercise of “in-the-money” options to purchase the
Shares, and (B) $8.51, which is the difference between $21.75, which is the per Share tender offer price, and $13.24, which is
the weighted average per share exercise price of such options, and (iii) the product of (A) 436,910, which is the total number
of Shares subject to restricted stock units, and (B) $21.75, which is the per Share tender offer price. The calculation of the
Transaction Valuation is based on information provided by AVX Corporation as of February 13, 2020, the most recent practicable
date.
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**
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The amount of the filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and Fee Rate Advisory # 1 for
Fiscal Year 2020 issued by the Securities and Exchange Commission (the “Commission”), by multiplying the Transaction
Valuation by 0.0001298.
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☒
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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.
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Amount Previously Paid:
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$135,784.63
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Filing Party:
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Kyocera Corporation
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Form or Registration No.:
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Schedule TO
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Date Filed:
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March 2, 2020
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☐
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below
to designate any transactions to which the statement relates:
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☒
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third-party tender offer subject to Rule 14d-1.
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☐
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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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☐
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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. ☒
This Amendment No. 2 to the Tender Offer
Statement on Schedule TO amends and supplements the Schedule TO filed with the Commission on March 2, 2020, as amended by Amendment
No. 1 filed with the Commission on March 16, 2020 (the “Schedule TO”), and relates to the offer by Arch Merger
Sub Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Kyocera Corporation (“Parent”),
a joint stock corporation incorporated under the laws of Japan, to purchase any and all outstanding shares of common stock,
par value $0.01 per share (the “Shares”), of AVX Corporation (“AVX”), a Delaware corporation,
that Parent does not already own for $21.75 per Share, net to the seller in cash, without interest and subject to deduction for
any required withholding taxes and upon the terms and subject to the conditions set forth in the Offer to Purchase, dated
March 2, 2020 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and in the
related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”
and which, together with the Offer to Purchase, constitutes the “Offer”), copies of which are incorporated by
reference to Exhibits (a)(1)(i) and (a)(1)(ii), respectively, of the Schedule TO.
The information set forth in the Offer
to Purchase, including all schedules thereto, is hereby expressly incorporated herein by reference in response to all of the items
of this Schedule TO, including, without limitation, all of the information required by Schedule 13E-3 that is not included in or
covered by the items in Schedule TO, and is supplemented by the information specifically provided herein, except as otherwise set
forth below. Capitalized terms used but not defined herein have the applicable meanings ascribed to them in the Schedule TO or
the Offer to Purchase.
Items 1 through 9, Item 11 and Item 13.
Items 1 through 9, Item 11 and Item 13 of
the Schedule TO are hereby amended and supplemented as follows:
The Offer and withdrawal rights
expired at one minute after 11:59 p.m., New York City time, at the end of the day on Friday, March 27, 2020. The Depositary
for the Offer has indicated that a total of 31,763,490.559 Shares were validly tendered and not validly withdrawn pursuant to
the Offer as of the Expiration Date, representing approximately 67.0% of the outstanding Shares not already owned by
Parent. In addition, Notices of Guaranteed Delivery have been delivered for 2,548,489 Shares, representing approximately
5.4% of the outstanding Shares not already owned by Parent. All Shares that were validly tendered and not withdrawn
pursuant to the Offer have been accepted for payment by Purchaser.
On March 30, 2020, Parent completed its
acquisition of AVX pursuant to the terms of the Merger Agreement. On such date, Purchaser merged with and into AVX in accordance
with Section 251(h) of the Delaware General Corporation Law (the “DGCL”), with AVX continuing as the surviving
corporation and a wholly owned subsidiary of Parent. Pursuant to the Merger Agreement, at the effective time of the Merger, each
outstanding Share (other than Shares held by AVX, any of its subsidiaries, Parent, Purchaser or any subsidiary of Parent, or any
stockholders who have properly exercised their appraisal rights under Section 262 of the DGCL) was converted into the right to
receive $21.75 per Share, net to the seller in cash, without interest and subject to deduction for any required withholding taxes
(which is the same amount per Share paid in the Offer). Instructions outlining the steps to be taken to obtain the Merger Consideration
will be mailed to AVX stockholders who did not tender their Shares in the Offer.
Promptly
following consummation of the Merger, Parent intends to cause all Shares to be delisted from the New York Stock Exchange and deregistered
under the Exchange Act.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended
and supplemented with the following:
(a)(5)(iv) Press Release issued by Kyocera
Corporation on March 30, 2020
SIGNATURES
After due inquiry and to the best knowledge
and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete
and correct.
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Date: March 30, 2020
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ARCH MERGER SUB INC.
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By:
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/s/ Junichi Jinno
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Name:
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Junichi Jinno
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Title:
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President
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KYOCERA CORPORATION
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By:
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/s/ Shoichi Aoki
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Name:
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Shoichi Aoki
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Title:
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Director,
Managing Executive Officer and
General Manager of Corporate
Management Control Group
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EXHIBIT
INDEX
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Exhibit No.
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Description
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(a)(1)(i)*
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Offer to Purchase, dated as of March 2, 2020.
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(a)(1)(ii)*
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Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9).
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(a)(1)(iii)*
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Notice of Guaranteed Delivery.
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(a)(1)(iv)*
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(v)*
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(vi)*
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Summary Advertisement as published in the Wall Street Journal on March 2, 2020.
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(a)(5)(i)*
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Press release issued by Kyocera Corporation on February 21, 2020 (incorporated by reference to Exhibit 99.1 of the Tender Offer Statement on Schedule TO of Kyocera Corporation filed with the Commission on February 21, 2020).
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(a)(5)(ii)*
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Outline of Q&A on the Acquisition of the Remaining
Shares of AVX Corporation, dated as of February 21, 2020 (incorporated by reference to Exhibit 99.2 of the Tender Offer Statement
on Schedule TO of Kyocera Corporation filed with the Commission on February 21, 2020).
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(a)(5)(iii)*
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Press release issued by Kyocera Corporation on March 2, 2020.
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(a)(5)(iv)
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Press release issued by Kyocera Corporation on March 30, 2020.
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(b)
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Not applicable.
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(c)*
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Valuation Analysis, dated as of February 19, 2020, delivered by Daiwa Securities Co. Ltd. and Daiwa Corporate Advisory LLC to the board of directors of Kyocera Corporation.
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(d)(1)*
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Agreement and Plan of Merger, dated as of February 21, 2020, by and among AVX Corporation, Kyocera Corporation and Arch Merger Sub Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K of AVX Corporation filed with the Commission on February 21, 2020).
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(d)(2)*
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Products Supply and Distribution Agreement by and
between Kyocera Corporation and AVX Corporation (incorporated by reference to Exhibit 10.4 to the Annual Report on Form 10-K of
AVX Corporation for the year ended March 31, 2000).
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(d)(3)*
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Machinery and Equipment Purchase Agreement by and
between Kyocera Corporation and AVX Corporation (incorporated by reference to Exhibit 10.14 to the Annual Report on Form 10-K of
AVX Corporation for the year ended March 31, 2005).
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(d)(4)*
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Materials Supply Agreement by and between Kyocera
Corporation and AVX Corporation (incorporated by reference to Exhibit 10.15 to the Annual Report on Form 10-K of AVX Corporation
for the year ended March 31, 2005).
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(d)(5)*
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Disclosure and Option to License Agreement by and
between Kyocera Corporation and AVX Corporation (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of
AVX Corporation filed with the Commission on March 25, 2008).
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(d)(6)*
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Technology Disclosure Agreement by and between AVX
Corporation and Kyocera Corporation (incorporated by reference to Exhibit 10.1 of the Quarterly Report on Form 10-Q of AVX Corporation
for the period ended December 31, 2016).
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(f)*
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Section 262 of the Delaware General Corporation Law (included as Schedule II to the Offer to Purchase filed herewith as Exhibit (a)(1)(i)).
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(g)
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Not applicable.
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(h)
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Not applicable.
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