Amendment to Tender-Offer Statement – Issuer Tender Offer — Sch. TO Filing Table of Contents
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1: SC TO-I/A Amendment to Schedule To-I HTML 22K
2: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 21K
Delayed-Release ‘CORRESP’ — Comment-Response or Other Letter to the SEC
Mellissa Campbell Duru
Attorney Advisor
Office of Mergers and Acquisitions
United States Securities and Exchange Commission
Division of Corporation Finance
100 F Street, N.E.
Washington, D.C. 20549-3628
We are responding to the Staff’s comment letter dated February 10, 2009 regarding the review
of the above-referenced filings of Avery Dennison Corporation (“Avery Dennison” or the “Company”).
We have set forth below our responses to the inquiries raised in the letter. For ease of
reference, we have included the Staff’s comments in their entirety in bold and italicized text
preceding each of our responses.
Schedule TO-I
Offer to Purchase
Extension, Termination or Amendment, page 25
1.
You disclose that you may assert the conditions to your offer or waive them, in whole
or in part, “at any time and from time to time.” You also disclose the right to “terminate
or withdraw, in [your] sole discretion, the offer if the conditions to the offer are not
met on or after the expiration date.” These statements may suggest that you may
waive or amend the terms and conditions after expiration of the offer. Please revise the
disclosure to make clear that any changes will be made before the expiration of the offer
and that all conditions to the offer, other than those dependent upon receipt of necessary
government approvals, must be satisfied or waived before the expiration of the offer.
We respectfully provide our response below, in disclosure format, as it appears in our
Schedule TO-I/A filed concurrently herewith (please note that deleted words are stricken through
and added words are reflected in bold):
Item 4. Terms of the Transaction.
Item 4(a) of the Schedule TO is amended by the following:
(1)
The information set forth in the offer to exchange under the caption
“Description of the Offer—Expiration Date,” second paragraph, shall be replaced in
full with the following:
“In addition, we may terminate the offer if any condition to the offer is not
satisfied on or prior to after the expiration date. Any extension, amendment,
waiver or decrease or change will not result in the reinstatement of any
withdrawal rights if those rights had previously expired, except as specifically
provided above.”
(2)
The information set forth in the offer to exchange under the caption
“Description of the Offer—Extension, Termination or Amendment,” first paragraph, shall
be replaced in full with the following:
“Avery Dennison has the right to terminate or withdraw, in its sole discretion,
the offer if the conditions to the offer are not met on or prior to after the
expiration date. Avery Dennison reserves the right, subject to applicable law, to
(i) waive any and all of the conditions to the offer on or prior to the expiration
date and (ii) amend the terms of the offer. In any such event, the Corporate
HiMEDS Units previously tendered pursuant to the offer will be promptly returned
to the tendering holders.”
(3)
The information set forth in the offer to exchange under the caption
“Description of the Offer—Conditions to the Offer,” tenth paragraph, shall be replaced
in full with the following:
“These conditions are for our benefit and may be asserted by us or may be
waived by us, including any action or inaction by us giving rise to any condition,
in whole or in part, at any time on or prior to the expiration date and from time
to time, in our sole discretion. In addition, we may terminate the offer if any
condition is not satisfied on or prior to after the expiration date. Under the
offer, if any of these events occur, subject to the termination rights described
above, we may (i) return Corporate HiMEDS Units tendered thereunder to you, (ii)
extend the offer, subject to the withdrawal rights described in “—Withdrawal of
Tenders” herein, and retain all Corporate HiMEDS Units tendered thereunder until
the expiration of such extended offer or (iii) amend the offer in any respect by
giving oral or written notice of such
Although the Staff’s comments do not specifically address proposed amendments (1) and (2) to
Item 4(a) above, the Company respectfully submits that such amendments are appropriate in light of,
and comport with, the Staff’s comments.
Conditions to the Offer, page 31
2.
You disclose that you “have structured the offer with the intent of avoiding de-listing
of the Corporate HiMEDS Units and do not plan to take any action following the offer to
cause the de-listing of the Corporate HiMEDS Units from the New York Stock Exchange or to
terminate the registration thereof as long as any Corporate HiMEDS Units are outstanding
following the completion of the offer.” We refer you to Rule 13e-3. The rule is
applicable to any transaction or series of transactions of the type specified in Rule
13e-3(a)(3)(i) that has a “reasonable likelihood or a purpose, either directly or
indirectly,” of causing, any class of securities listed on a national securities exchange
to not be listed on a national securities exchange. Given that the tender offer is for 95%
of outstanding HiMEDS units, it would appear that it there is a reasonable likelihood that
the offer could cause the delisting of the units from the New York Stock Exchange. In this
regard, while we note that you have conditioned the offer on no conclusion being reached
with the New York Stock Exchange that acceptance of units would result in the delisting of
the units, we similarly note that this condition is subject to waiver at your sole
discretion, prior to expiration of the offer. Supplementally confirm in your response
letter that if you waive condition No. 6, you will extend the offer and file a Schedule
13E-3.
The Company acknowledges the Staff’s comment and confirms that if it waives condition No. 6,
it will extend the offer and file a Schedule 13E-3. However, the Company respectfully submits
that, based on the structure of the offer, there is not a reasonable likelihood that the offer
could cause the delisting of the Corporate HiMEDS Units from the New York Stock Exchange.
The Corporate HiMEDS Units were initially listed in November 2007 pursuant to the
requirements of section 703.19 of the New York Stock Exchange’s Listed Company Manual (“LCM”). The
continued listing requirements for the Corporate HiMEDS Units are found in
802.01D of
the LCM under the paragraph captioned “Specialized Securities,” which
provides:
Specialized Securities—
Para. 703 contains listing standards for certain types of specialized securities: Warrants
(703.12); Foreign Currency Warrants and Currency Index Warrants (703.15); Stock Index
Warrants (703.17); Contingent Value Rights (703.18); Other Securities (703.19);
Equity-Linked Debt Securities (703.21) and Equity Index-Linked Securities, Commodity-Linked
and Currency-Linked Securities (703.22).
Delisting will be considered when:
•
Number of publicly-held shares is less than 100,000;
•
Number of holders is less than 100 . . . ;
•
Aggregate market value of shares outstanding is less than $1,000,000 . . . .
Prior to the commencement of the offer, there were 8,800,000 publicly-held Corporate HiMEDS
Units, with a stated amount of $50.00 per unit and a trading price of approximately $28.00 per
unit. Assuming 8,360,000, or 95%, of the publicly-held Corporate HiMEDS Units are validly tendered
and accepted in the offer, there would be 440,000 publicly-held Corporate HiMEDS Units with an
aggregate stated amount of $22,000,000 and an aggregate market value of approximately $12,320,000.
This number of publicly-held Corporate HiMEDS Units and aggregate market value would exceed the LCM
requirement of 100,000 publicly-held shares and $1,000,000 aggregate market value, respectively.
In addition, the Company respectfully submits that there will likely be well in excess of 440,000
publicly-held Corporate HiMEDS Units and $12,320,000 in aggregate market value after the
consummation of the offer given that the rate of participation in the offer is likely to be less
than 100%.
Moreover, prior to the commencement of the offer, communications with D. F. King & Co., Inc.,
the information agent and exchange agent for the offer, revealed that there were in excess of 2,800
beneficial holders of the Corporate HiMEDS Units. Assuming that the valid tender and acceptance of
8,360,000, or 95%, of the publicly-held Corporate HiMEDS units resulted in a 95% reduction in the
number of beneficial holders, there would be 140 beneficial holders remaining. This number of
beneficial holders would exceed the LCM requirement of 100 holders. In addition, the Company
respectfully submits that there will likely be well in excess of 140 beneficial holders remaining
after the consummation of the offer given that the rate of participation in the offer is likely to
be less than 100%.
As the LCM states, the New York Stock Exchange is not limited by the criteria set forth above.
Rather, it may make an appraisal of, and determine on an individual basis, the suitability for
continued listing of an issue in the light of all pertinent facts whenever it deems such action
appropriate, even though a security fails to meet any enumerated criteria. In its discussion with
the New York Stock Exchange prior to the commencement of the offer, the Company received informal
confirmation that its understanding of the foregoing was accurate.
For these reasons, we respectfully submit that, based on the structure of the offer, there is
not a reasonable likelihood that the offer could cause the delisting of the Corporate HiMEDS Units
from the New York Stock Exchange.
* * * *
In addition, the Company hereby acknowledges that (i) it is responsible for the adequacy and
accuracy of the disclosure in the filing, (ii) the Staff’s comments or changes to disclosure in
response to Staff comments do not foreclose the Commission from taking any action with respect to
the filing, and (iii) the Company may not assert Staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities laws of the United States.
If you have further questions or comments, please do not hesitate to contact the undersigned
at (626) 304-2000.
