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
HERBALIFE NUTRITION LTD.
(Name of Subject Company (Issuer))
Herbalife Nutrition Ltd.
(Name of Filing Persons (Offeror))
Common Shares, par value $0.001 per share
(Title of Class of Securities)
G4412G101
(CUSIP Number of Class of Securities)
John G. DeSimone
Chief Financial Officer
Herbalife Nutrition Ltd.
P.O. Box 309GT
Ugland House, South Church Street
Grand Cayman, Cayman Islands
(213) 745-0500
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Jonathan K. Layne
James J. Moloney
Gibson, Dunn & Crutcher LLP
2029 Century Park East
Los Angeles, CA 90067
(310) 552-8500
Calculation of Filing Fee
| Transaction valuation* | Amount of filing fee** | |
| $600,000,000 | $74,700*** | |
| * | Estimated for purposes of calculating the amount of the filing fee only, this amount is based on the purchase of common shares, par value $0.001 per share, of the Issuer for a maximum aggregate tender offer price of $600,000,000. |
| ** | The amount of the filing fee, calculated in accordance with Rule 0-11(b) and Rule 1-11(d) of the Securities Exchange Act of 1934, as amended and Fee Rate Advisory #1 for Fiscal Year 2018 equals $124.50 per $1,000,000 of the aggregate value of the transaction. |
| *** | Amount Previously Paid: $74,700.00 Form or Registration No.: Schedule TO-I Date Filed: April 18, 2018 |
| ☐ | 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. |
| ☐ | 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 Amendment No. 1 to the Tender Offer Statement on Schedule TO (the “Amendment”) filed by Herbalife Nutrition Ltd., a Cayman Islands exempted company incorporated with limited liability (the “Company”), amends and supplements the Schedule TO filed by the Company with the Securities and Exchange Commission (the “SEC”) on April 18, 2018 (together with any amendments and supplements hereto, this “Schedule TO”). This Schedule TO relates to the offer by the Company to purchase common shares, par value $0.001 per share in the capital, of the Company (the “common shares”), for an aggregate cash purchase price of up to $600 million and at a price per share not greater than $108.00 nor less than $98.00 per share, net to the seller in cash, less any applicable tax withholding and without interest, and as adjusted for any stock split, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 18, 2018 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, collectively constitute the “Offer”), copies of which are annexed to and filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
The Schedule TO, and all the information set forth in the Offer to Purchase, to the extent incorporated by reference therein, is hereby amended and supplemented as set forth below. Every Item in the Schedule TO is automatically updated, to the extent such Item incorporates by reference any section of the Offer to Purchase that is amended and supplemented therein. All capitalized terms used but not otherwise defined in this Amendment have the meanings ascribed to such terms in the Offer to Purchase.
Items 1 through 11.
On April 24, 2018, the Company announced that shareholders approved the previously announced two-for-one stock split at its Annual General Meeting of Shareholders. The Company also issued a press release in connection with the foregoing, which is filed as Exhibit (a)(5)(A) to this Amendment and is hereby incorporated into the Schedule TO and the Offer to Purchase.
On April 27, 2018, the Company announced an extension of the Expiration Time of the Offer from 5:00 P.M., New York City time, Wednesday, May 16, 2018, to 5:00 P.M., New York City time, Thursday, May 24, 2018, unless the tender offer is further extended. The Company also issued a press release in connection with the foregoing, which is filed as Exhibit (a)(5)(B) to this Amendment and is hereby incorporated by reference into the Schedule TO and the Offer to Purchase.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following Exhibit:
| Exhibit | Description | |
| (a)(5)(A) | Press release issued by the Company, dated April 24, 2018. | |
| (a)(5)(B) | Press release issued by the Company, dated April 27, 2018. | |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| HERBALIFE NUTRITION LTD. | ||
| By: | /s/ JOHN G. DESIMONE | |
| Name: John G. DeSimone | ||
| Title: Chief Financial Officer | ||
Dated: April 27, 2018
EXHIBIT INDEX
| Exhibit | Description | |||
| (a)(1)(A) |
* |
Offer to Purchase, dated April 18, 2018. | ||
| (a)(1)(B) |
* |
Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9). | ||
| (a)(1)(C) |
* |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | ||
| (a)(1)(D) |
* |
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | ||
| (a)(1)(E) |
* |
Press release issued by the Company, dated April 18, 2018. | ||
| (a)(1)(F) |
* |
Notice to Participants in the Company’s Employee Stock Purchase Plan. | ||
| (a)(5)(A) |
Press release issued by the Company, dated April 24, 2018. | |||
| (a)(5)(B) |
Press release issued by the Company, dated April 27, 2018. | |||
| (b) |
Not applicable. | |||
| (d) |
# |
Agreement by and among the Company and Carl C. Icahn and his controlled affiliates, dated August 21, 2017. | ||
| (g) |
Not applicable. | |||
| (h) |
Not applicable. | |||
| * | Previously filed |
| # | Previously filed on August 21, 2017 as an Exhibit to the Company’s Tender Offer Statement on Schedule TO and incorporated herein by reference. |