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
MARIADB PLC
(Name of Subject Company (Issuer))
MERIDIAN BIDCO LLC
(Offeror)
a wholly-owned subsidiary of
MERIDIAN TOPCO LLC
(Affiliate of Offeror)
a wholly-owned subsidiary of
K5 PRIVATE INVESTORS, L.P.
(Affiliate of Offeror)
whose general partner is
K5 CAPITAL ADVISORS, L.P.
(Affiliate of Offeror)
whose general partner is
K1 INVESTMENT MANAGEMENT, LLC
(Affiliate of Offeror)
(Name of Filing Persons (identifying status as offeror, issuer or other person))
Ordinary Shares, Par Value $0.01 Per Share
(Title of Class of Securities)
G5920M100
(CUSIP Number of Class of Securities)
Jordan D. Wappler
K1 Investment Management, LLC
875 Manhattan Beach Blvd.
Manhattan Beach, CA 90266
(800) 310-2870
(Name, address and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Jennifer L. Lee
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
|
☒ |
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 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 Tender Offer Statement on Schedule TO relates solely to preliminary communications made
before the commencement of a planned tender offer by Meridian BidCo LLC, a Delaware limited liability company (“BidCo”) and an indirect wholly-owned subsidiary of K1 Investment Management, LLC, a Delaware limited liability company (“K1” or the
“Parent”), for all of the outstanding ordinary shares of MariaDB plc, an Irish public limited corporation (“MariaDB” or the “Company”), pursuant to the Parent’s announced firm intention to make an offer in accordance with Rule 2.7 of the Irish
Takeover Rules, dated as of April 24, 2024 (the “K1 Proposal”).
In connection with the proposed acquisition of the Company, Parent will cause BidCo to
commence a tender offer for all of the outstanding ordinary shares of the Company (the “Offer”). The Offer has not yet commenced. This filing is for informational purposes only, is not a recommendation and is neither an offer to purchase nor a
solicitation of an offer to sell ordinary shares of the Company or any other securities. This filing is also not a substitute for the tender offer materials that Parent and BidCo will file with the United States Securities and Exchange Commission
(the “SEC”) upon commencement of the tender offer. A solicitation and offer to buy outstanding ordinary shares of the Company will only be made pursuant to the tender offer materials that Parent and BidCo will file with the SEC. At the time the Offer
is commenced, Parent and BidCo will file with the SEC a Tender Offer Statement on Schedule TO and a Transaction Statement on Schedule 13E-3 (“Schedule 13E-3”), and the Company will file with the SEC a solicitation/recommendation statement on Schedule
14D-9 (the “Solicitation/Recommendation Statement”).
THE COMPANY’S SHAREHOLDERS ARE URGED TO READ THE TENDER OFFER STATEMENT (INCLUDING AN OFFER
DOCUMENT, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS), THE SOLICITATION / RECOMMENDATION STATEMENT AND THE SCHEDULE 13E-3 WHEN SUCH DOCUMENTS BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT SHOULD
BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER.
When filed, the Company’s shareholders and other investors can obtain the Tender Offer
Statement, the Solicitation/Recommendation Statement, the Schedule 13E-3 and other filed documents for free at the SEC’s website at www.sec.gov. Copies of the documents filed with the SEC will be available free of charge on K1's website at
www.k1.com/meridian-offer-update. The information contained in, or that can be accessed through, K1’s website is not a part of, or incorporated by reference in, this filing.
Cautionary Notice Regarding Forward-Looking Statements
This filing (including any information incorporated by reference in this filing), oral
statements made regarding the Offer, and other information published by the Company, BidCo, the Parent or any member of the group that includes the Parent and all of its affiliates (the “K1 Group”) contain statements which are, or may be deemed to
be, “forward looking statements.” Such forward looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and on numerous assumptions regarding the business strategies and the environment in
which any member of the K1 Group (including, after closing of the Offer, the Company and all of its subsidiaries (the “MariaDB Group”) shall operate in the future and are subject to risks and uncertainties that could cause actual results to differ
materially from those expressed or implied by those statements. The forward-looking statements contained in this filing relate to K1, any member of the K1 Group’s (including, after closing of the Offer, any member of the MariaDB Group) future
prospects, developments and business strategies, the expected timing and scope of the Offer and other statements other than historical facts. In some cases, these forward-looking statements can be identified by the use of forward-looking terminology,
including the terms “believes,” “estimates,” “will look to,” “would look to,” “plans,” “prepares,” “anticipates,” “expects,” “is expected to,” “is subject to,” “intends,” “may,” “will,” “shall” or “should” or their negatives or other variations or
comparable terminology. By their nature, forward looking statements involve risk and uncertainty because they relate to events and depend on circumstances that shall occur in the future. These events and circumstances include changes in global,
political, economic, business, competitive, and market conditions and regulatory forces, future exchange and interest rates, changes in tax rates and future business combinations or disposals. If any one or more of these risks or uncertainties
materialises or if any one or more of the assumptions prove incorrect, actual results may differ materially from those expected, estimated or projected. Such forward looking statements should therefore be construed in the light of such factors.
Neither K1, BidCo nor any member of the K1 Group, nor any of their respective associates or
directors, officers or advisers, provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this filing shall actually occur. Given these risks and uncertainties,
shareholders should not place any reliance on forward looking statements. The forward-looking statements speak only as of the date of this filing. All subsequent oral or written forward looking statements attributable to any member of the K1 Group,
or any of their respective associates, directors, officers, employees or advisers, are expressly qualified in their entirety by the cautionary statement above. K1 and the K1 Group expressly disclaim any obligation to update such statements other than
as required by law or by the rules of any competent regulatory authority, whether as a result of new information, future events or otherwise.
Item 12. Exhibits
3
Exhibit 99.1
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION (IN WHOLE OR IN PART) IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION.
THIS IS AN ANNOUNCEMENT UNDER RULE 2.9 OF THE IRISH TAKEOVER PANEL ACT, 1997, TAKEOVER RULES 2022 (THE “IRISH TAKEOVER RULES”).
FOR IMMEDIATE RELEASE
20 May 2024
RECOMMENDED CASH OFFER
by
MERIDIAN BIDCO LLC (an Affiliate of
K1 INVESTMENT MANAGEMENT, LLC,
as general partner of K5 CAPITAL ADVISORS, L.P.,
as general partner of K5 PRIVATE INVESTORS, L.P.)
for
MARIADB plc
BIDCO, K1 AND K5 NOW HAVE IRREVOCABLE SHAREHOLDER SUPPORT IN RESPECT OF 68.51% OF MARIADB SHARES
On 24 April 2024, K1 Investment Management, LLC (“K1”)
made an announcement pursuant to Rule 2.7 of the Irish Takeover Rules (the “Rule 2.7 Announcement”) of a firm intention by Meridian Bidco LLC (“Bidco”), a newly formed Affiliate of K1, as manager of K5 Private Investors, L.P. (“K5”), to make an offer to acquire the entire issued and to be issued share capital of MariaDB plc (“MariaDB”)
(the “Offer”).
The terms and conditions of the Offer are set out in the Rule 2.7 Announcement and will be set out in full in the Offer Document.
Capitalised terms used in this announcement (the “Announcement”),
unless otherwise defined, shall have the meanings given to them in the Rule 2.7 Announcement.
Additional Irrevocable Undertakings
K1, K5 and Bidco announce that they have received further irrevocable undertakings each dated 17 May 2024 to accept the Offer, or (where Bidco and/or the
K1 Group elects to switch to a scheme of arrangement with respect to MariaDB plc under the Companies Act 2014) the scheme of arrangement under the Companies Act 2014, from each of the below listed parties in respect of, in aggregate, 12,376,128
MariaDB Shares, representing in aggregate approximately 17.93% of the existing issued share capital of MariaDB as at 16 May 2024.
These undertakings continue to be binding in the event of a competing offer for MariaDB.
Further details of these irrevocable undertakings (including the circumstances in which they may lapse and cease to be binding) is set out below:
|
Shareholder
|
Number of
MariaDB Shares
as at 16 May 2024
to which the
irrevocable
undertaking
relates
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Approximate % of
the existing
issued share
capital of
MariaDB as at
16 May 2024
|
Election for Cash
Offer or Unlisted
Unit Alternative
|
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Highbar Partners II LP
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1,650,981
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2.39%
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Cash Offer
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Highbar Partners Fund LP
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33,964
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0.05%
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Cash Offer
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Highbar Entrepreneur Partners II LP
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12,883
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0.02%
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Cash Offer
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Vinland Long Bias Fund Ltd.
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343,252
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0.50%
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Cash Offer
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Vinland Macro Fund Ltd.
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117,600
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0.17%
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Cash Offer
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Vinland Macro High Vol Fund Ltd.
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591,780
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0.86%
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Cash Offer
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Finnish Investment LTD
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2,108,352
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3.05%
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Cash Offer
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Carola Sevlius
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267,272
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0.39%
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No election made
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Fantasy Talent International Limited
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620,541
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0.90%
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Unlisted Unit Alternative
|
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Vista Associates Corporation
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589,131
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0.85%
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Unlisted Unit Alternative
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North Land Global Limited
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1,426,480
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2.07%
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Unlisted Unit Alternative
|
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Star Advantage Global Limited
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620,541
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0.90%
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Unlisted Unit Alternative
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Realmplus Limited
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1,241,081
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1.80%
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No election made
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Andreas Bechtolsheim
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1,423,522
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2.06%
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Cash Offer
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Lombard International Assurances SA
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923,158
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1.34%
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No election made
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Kaj Arnö
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298,353
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0.43%
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No election made
|
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David Axmark
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107,237
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0.16%
|
No election made
|
|
TOTAL
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12,376,128
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17.93%
|
|
Each of the above mentioned irrevocable undertakings shall lapse and cease to have any effect on and from the earliest of the following occurrences:
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•
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Bidco and/or the K1 Group publicly announces that it does not intend to make or proceed with the Offer and no new, revised or replacement offer
or scheme is announced in accordance with Rule 2.7 of the Irish Takeover Rules, either at the same time or within two days of such announcement; or
|
|
•
|
the Offer lapses, closes or is withdrawn (which, for the avoidance of doubt, will not be deemed to have occurred only by reason of Bidco and/or
the K1 Group electing to switch to a scheme of arrangement with respect to MariaDB under the Companies Act 2014); or
|
|
•
|
the Offer becomes or is declared unconditional in all respects or (where Bidco and/or the K1 Group elects to switch to a scheme of arrangement
with respect to MariaDB under the Companies Act 2014), the scheme of arrangement under the Companies Act 2014 becomes effective.
|
Total Irrevocable Support
Therefore, in aggregate K1, K5 and Bidco have now received irrevocable undertakings to accept the Offer, or (where Bidco and/or the K1 Group elects to
switch to a scheme of arrangement with respect to MariaDB plc under the Companies Act 2014) the scheme of arrangement under the Companies Act 2014, in respect of, in aggregate 47,288,825 MariaDB Shares and representing approximately 68.51% of the
existing issued share capital of MariaDB as at 16 May 2024. Further details of the irrevocable undertakings procured by Bidco, K5 and K1 prior to this Announcement are set out in the Rule 2.7 Announcement.
Enquiries
|
Lazard (Financial Advisor to K1 and Bidco)
Adrian Duchini, Keiran Wilson, Charles White
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Tel: +44 20 7187 2000
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| |
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| |
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Haven Tower Group (Public Relations Advisor to K1)
Donald Cutler, Brandon Blackwell
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Tel: +1 424 317 4850
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Important Notices
The K1 Responsible Persons (being the investment committee of K1), the Bidco Officers and the Topco Officers accept responsibility for the information
contained in this Announcement. To the best of the knowledge and belief of the K1 Responsible Persons, the Bidco Officers, the Topco Officers, (who have taken all reasonable care to ensure that such is the case) the information contained in this
Announcement for which they have accepted responsibility is in accordance with the facts and does not omit anything likely to affect the import of such information.
Lazard Frères & Co. LLC, together with its affiliate Lazard & Co., Limited (which is authorised and regulated in the United Kingdom by the
Financial Conduct Authority) (“Lazard”), is acting exclusively as financial adviser to K1 and Bidco and no one else in connection with the Offer
and will not be responsible to anyone other than K1 and Bidco for providing the protections afforded to clients of Lazard nor for providing advice in relation to the Offer or any other matters referred to in this Announcement. Neither Lazard nor any
of its affiliates owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Lazard in connection with this
Announcement, any statement contained herein or otherwise.
Disclosure requirements of the Irish Takeover Rules
Under Rule 8.3(b) of the Irish Takeover Rules, if any person is, or becomes, ‘interested’ (directly or indirectly) in 1% or more of any class of
‘relevant securities’ of MariaDB, all ‘dealings’ in any ‘relevant securities’ of MariaDB or any securities exchange offeror (including by means of an option in respect of, or a derivative referenced to, any such ‘relevant securities’) must be
publicly disclosed by not later than 3:30 pm (U.S. Eastern Time) on the ‘business day’ following the date of the relevant transaction. This requirement will continue until the ‘offer period’ ends. If two or more persons cooperate on the basis of
any agreement either express or tacit, either oral or written, to acquire an ‘interest’ in ‘relevant securities’ of MariaDB, they will be deemed to be a single person for the purpose of Rule 8.3 of the Irish Takeover Rules.
Dealing Disclosures must also be made by any offeror and by any persons acting in concert with them in accordance with Rule 8.2 of the Irish Takeover
Rules.
In general, interests in securities arise when a person has long economic exposure, whether conditional or absolute, to changes in the price of the
securities. In particular, a person will be treated as having an ‘interest’ by virtue of the ownership or control of securities, or by virtue of any option in respect of, or derivative referenced to, securities. Terms in quotation marks are defined
in the Irish Takeover Rules, which can be found on the Irish Takeover Panel’s website.
Details of the offeree company in respect of whose relevant securities Dealing Disclosures must be made can be found in the Disclosure Table on the Irish
Takeover Panel’s website at www.irishtakeoverpanel.ie, including details of the number of relevant securities in issue, when the offer period commenced and when any offeror was first identified. If you are in any doubt as to whether or not you are
required to disclose a ’dealing’ under Rule 8, please consult the Irish Takeover Panel’s website at www.irishtakeoverpanel.ie or contact the Irish Takeover Panel at telephone number +353 1 678 9020.
Further Information
This Announcement is for information purposes only and is not intended to, and does not, constitute an offer to sell or invitation to purchase any
securities, or the solicitation of any vote or approval in any jurisdiction pursuant to the Offer or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. In particular,
this Announcement is not an offer of securities for sale into the United States. No offer of securities shall be made in the United States absent registration under the Securities Act of 1933, as amended, or pursuant to an exemption from, or in a
transaction not subject to, such registration requirements. The release, publication or distribution of this Announcement in certain jurisdictions may be restricted by law and therefore persons in such jurisdictions into which this Announcement is
released, published or distributed should inform themselves about and observe such restrictions.
This Announcement has been prepared for the purpose of complying with the laws of Ireland and the Irish Takeover Rules and the information disclosed may
not be the same as that which would have been disclosed if this Announcement had been prepared in accordance with the laws of jurisdictions outside of Ireland.
Overseas Shareholders
The laws of certain jurisdictions may affect the availability of the Offer (including the Unlisted Unit Alternative) to persons who are not resident in
Ireland. Persons who are not resident in Ireland, or who are subject to laws of any jurisdiction other than Ireland, should inform themselves about, and observe, any applicable legal or regulatory requirements. Any failure to comply with any
applicable legal or regulatory requirements may constitute a violation of the laws and/or regulations of any such jurisdiction. To the fullest extent permitted by applicable Law, the companies and persons involved in the Offer (including the Unlisted
Unit Alternative) disclaim any responsibility and liability for the violation of such restrictions by any person.
Unless otherwise determined by Bidco or K1 or required by the Irish Takeover Rules, and permitted by applicable law and regulation, the Offer (including
the Unlisted Unit Alternative) will not be made available, directly or indirectly, in any Restricted Jurisdiction, and the Offer will not be capable of acceptance from within a Restricted Jurisdiction where to do so would violate the laws in that
jurisdiction.
The release, publication or distribution of this Announcement in or into certain jurisdictions may be restricted by the laws of those jurisdictions.
Accordingly, copies of this Announcement and all other documents relating to the Offer (including the Unlisted Unit Alternative) are not being, and must not be, released, published, mailed or otherwise forwarded, distributed or sent in, into or from
any Restricted Jurisdiction. Persons receiving such documents (including, without limitation, nominees, trustees and custodians) should observe these restrictions. Failure to do so may constitute a violation of the securities laws of any such
jurisdiction. To the fullest extent permitted by applicable Law, K1, the K1 Group and Bidco disclaims any responsibility or liability for the violations of any such restrictions by any person. MariaDB Shareholders who are in any doubt regarding such
matters should consult an appropriate independent professional adviser in the relevant jurisdiction without delay.
Further details in relation to overseas shareholders shall be contained in the Offer Document.
If you are a resident of the United States, please read the following:
This Announcement is not intended to, and does not, constitute or form part of any offer (including the Offer), invitation or the solicitation of an offer
to purchase, otherwise acquire, subscribe for, tender, exchange, sell or otherwise dispose of, any securities, or the solicitation of any vote or approval in any jurisdiction, nor will there be any acquisition or disposition of the securities
referred to in this Announcement in any jurisdiction in contravention of applicable Law or regulation.
This Announcement is not a substitute for the Offer Document and the Form of Acceptance or any other document that Bidco may file with the SEC in
connection with the Offer, if any. A solicitation and an offer to buy MariaDB Shares will be made pursuant to a Tender Offer Statement on Schedule TO that Bidco intends to file with the SEC. At the time the tender offer is commenced, MariaDB will
file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the tender offer. MARIADB SHAREHOLDERS ARE URGED TO READ ANY SUCH DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE OFFER. SUCH DOCUMENTS SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. Investors and MariaDB Shareholders will be able to obtain free copies of these materials
(if and when available) and other documents containing important information about MariaDB and the Offer once such documents are filed with the SEC through the website maintained by the SEC at http://www.sec.gov.
The Offer, if made, will be made in the United States pursuant to the Exchange Act and otherwise in accordance with the requirements of the Irish Takeover
Rules. Accordingly, the Offer will be subject to disclosure and other procedural requirements, including with respect to withdrawal rights, offer timetable, settlement procedures and timing of payments that may be different from those typically
applicable under U.S. domestic tender offer procedures and law. In addition, the Offer Document and any other documents relating to the Offer have been or will be prepared in accordance with the Irish Takeover Rules and Irish disclosure requirements, format and style, all of which may differ from those in the United States.
MariaDB is incorporated under the laws of Ireland. Some of the directors on the MariaDB Board at the date of this Announcement are resident in a country
other than the United States. As a result, it may not be possible for United States holders of MariaDB Shares to effect service of process within the United States upon MariaDB or some of the directors of MariaDB or to enforce against any of them
judgements of the United States predicated upon the civil liability provisions of the federal securities laws of the United States. It may not be possible to sue MariaDB or its officers or director(s) in a non-US court for violations of US securities
laws. In addition, US holders of MariaDB Shares should be aware that, if K1 and Bidco elect to proceed pursuant to a scheme of arrangement (as described herein), the federal securities laws of the United States may not be applicable.
Publication on website
This Announcement, together with all information incorporated into this document by reference to another source, subject to certain restrictions relating
to persons resident in Restricted Jurisdictions, will be made available on K1’s website (https://k1.com/meridian-offer-update/). Neither the
content of any such website nor the content of any other website accessible from hyperlinks on such website is incorporated into, or forms part of, this Announcement.
Rounding
Certain figures included in this Announcement have been subjected to rounding adjustments. Accordingly, any figures shown for the same category presented
in different tables may vary slightly and figures shown as totals in certain tables may not be an arithmetic aggregation of the figures that precede them.
MariaDB (NYSE:MRDB)
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