SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, DC 20549
_____________________
SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES
EXCHANGE ACT OF 1934
_____________________
Avery Dennison Corporation
(Name of Subject Company (Issuer) and Filing Person (Offeror))
HiMEDS Units, in the form
of Corporate HiMEDS Units, stated amount of $50.00 per unit
(Title of Class
of Securities)
053611307
(CUSIP
Number of Class of Securities)
_________________
Susan C. Miller, Esq.
Senior Vice President, General Counsel and Secretary
Avery Dennison Corporation
150 North Orange Grove Boulevard
Pasadena, California 91103
(626) 304-2000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and
Communications on Behalf of Filing Person)
_____________________
Copies to:
J. Scott Hodgkins, Esq.
Wesley C. Holmes, Esq.
Latham &
Watkins LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
(213) 485-1234
CALCULATION OF FILING
FEE
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| Transaction
Valuation* |
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Amount of
Filing Fee** |
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| $235,334,000
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$9,248.63
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* This valuation assumes the exchange of
8,360,000 Corporate HiMEDS Units of Avery Dennison Corporation (“Avery Dennison”), stated amount $50.00 per unit, for cash and shares of common stock of Avery
Dennison, par value $1.00 per share. Estimated for purposes of calculating the amount
of the filing fee only, this amount is based on the average of the high and low
prices of Avery Dennison Corporate HiMEDS Units of $28.15 as of February 2,
2009, as reported on the New York Stock Exchange.
** The amount of the filing
fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of
1934, as amended, at a rate of $39.30 per $1,000,000 of the 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. |
| Amount Previously
Paid: Not applicable. |
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Filing Party:
Not applicable. |
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| Form or Registration
No.: Not applicable. |
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Date Filed:
Not applicable. |
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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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o
Third-party
tender offer subject to Rule 14d-1. |
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þ
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: o |
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If applicable, check the appropriate box(es) below to designate the appropriate rule
provision(s) relied upon: |
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Rule 13e-4(i)
(Cross-Border Tender Offer) |
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Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer) |
INTRODUCTION
This Issuer
Tender Offer Statement on Schedule TO (this “Schedule TO”) is being filed
by Avery Dennison Corporation, a Delaware corporation (“Avery Dennison”),
pursuant to Section 13(e)-4 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), in connection with an offer by Avery Dennison to exchange
up to 8,360,000, or 95%, of its HiMEDS Units, stated amount $50.00 per
unit (the “HiMEDS Units”), in the form of Corporate HiMEDS Units (the
“Corporate HiMEDS Units”), comprised of (i) a purchase contract obligating
the holder to purchase from Avery Dennison shares of Avery Dennison’s common
stock, par value $1.00 per share (the “common stock”) and (ii) a 1/20
or 5.0% undivided beneficial interest in a $1,000 aggregate principal amount 5.350%
senior note due November 15, 2020 (the “HiMEDS senior notes”), for 0.9756
shares of common stock and $6.50 in cash (which includes the accrued and unpaid
contract adjustment payments with respect to the purchase contracts and the accrued
and unpaid interest with respect to the HiMEDS senior notes) per Corporate HiMEDS
Unit (the “offer consideration”). Avery Dennison is not offering to exchange
any Treasury HiMEDS Units in the offer.
The offer is made upon the terms and
subject to the conditions described in the offer to exchange, dated February 3,
2009 (the “offer to exchange”), and the related letter of transmittal.
The offer to exchange and the related letter of transmittal are filed as exhibits
(a)(1)(A) and (a)(1)(B), respectively, hereto.
The information set forth in the
offer to exchange and the related letter of transmittal is hereby expressly
incorporated herein by reference in response to all applicable items required in
this Schedule TO. This Schedule TO is being filed in satisfaction of the reporting
requirements of Rule 13e-4(c)(2) promulgated under the Exchange Act.
| Item 1.
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Summary Term Sheet. |
The information
set forth under the caption “Summary of the Offer” in the offer to exchange
is incorporated herein by reference.
| Item 2.
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Subject Company Information. |
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(a)
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The name of
the subject company is Avery Dennison Corporation, a Delaware corporation, and the
address of its principal executive office is 150 North Orange Grove Boulevard, Pasadena,
California 91103. The telephone number of its principal executive office is (626)
304-2000. |
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(b)
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The subject
securities are Avery Dennison’s HiMEDS Units in the form of Corporate HiMEDS
Units. As of the date hereof, there are 8,800,000 Corporate HiMEDS Units outstanding.
The information set forth in the offer to exchange under the caption “Summary
of the Offer” is incorporated herein by reference. |
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(c)
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The information
set forth in the offer to exchange under the caption “Description of the Offer — Market and Trading Information” is incorporated herein by reference.
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| Item 3.
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Identity and Background of Filing Person. |
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(a)
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The filing
person is the subject company, Avery Dennison Corporation. The information set forth
under Item 2(a) above is incorporated herein by reference. |
As required
by General Instruction C to Schedule TO, the following persons are directors and
executive officers of Avery Dennison. No single person or group of persons controls
Avery Dennison.
| Name
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Position
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| Kent Kresa
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Director and
Chairman of the Board |
| Peter K. Barker
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Director
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| Rolf Börjesson
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Director
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| John T. Cardis
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Director
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| Richard M.
Ferry |
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Director
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| Ken C. Hicks
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Director
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| Peter W. Mullin
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Director
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| David E.I.
Pyott |
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Director
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| Patrick T.
Siewert |
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Director
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| Julia A. Stewart
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Director
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| Dean A. Scarborough
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President,
Chief Executive Officer and Director |
| Daniel R.
O’Bryant |
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Executive
Vice President, Finance and Chief Financial Officer |
| Diane B. Dixon
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Senior Vice
President, Corporate Communications and Advertising |
| Anne Hill
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Senior Vice
President, Chief Human Resources Officer |
| Robert M.
Malchione |
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Senior Vice
President, Corporate Strategy and Technology |
| Susan C. Miller
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Senior Vice
President, General Counsel and Secretary |
| Mitchell R.
Butier |
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Vice President,
Global Finance and Chief Accounting Officer |
| Karyn E. Rodriguez
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Vice President
and Treasurer |
| Timothy G.
Bond |
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Group Vice
President, Office Products |
| Timothy S.
Clyde |
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Group Vice
President, Specialty Materials and Converting |
| Terrence L.
Hemmelgarn |
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Group Vice
President, Retail Information Services |
| Donald A.
Nolan |
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Group Vice
President, Roll Materials |
The address
and telephone number of each director and executive officer of Avery Dennison listed
above is: c/o Avery Dennison Corporation, 150 North Orange Grove Boulevard, Pasadena,
California 91103, and each such person’s telephone number is (626) 304-2000.
| Item 4. |
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Terms of the Transaction. |
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(a)
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The information
set forth in the offer to exchange under the captions “Summary of the Offer,” “Description of the Offer,” “Comparison of Rights of Holders
of Corporate HiMEDS Units and Holders of Avery Dennison Common Stock,” “Description
of Avery Dennison Common Stock” and “Certain U.S. Federal Income Tax Consequences,” as well as the information set forth in the related letter of transmittal,
are incorporated herein by reference. |
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(b)
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To the knowledge
of Avery Dennison, based on reasonable inquiry, no Corporate HiMEDS Units are owned
by any officer, director or affiliate of Avery Dennison, and therefore no Corporate
HiMEDS Units will be purchased from any officer, director or affiliate of Avery
Dennison. The information set forth under the caption “Interests of Directors
and Officers” in the offer to exchange is incorporated herein by reference.
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| Item 5.
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Past Contracts, Transactions, Negotiations and Agreements.
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(e)
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Avery Dennison
is party to the following agreements (each of which is filed as an exhibit to this
Schedule TO) in connection with the HiMEDS Units: |
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1)
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Underwriting
Agreement, dated November 14, 2007, among Avery Dennison and J.P. Morgan Securities
Inc. and Citigroup Global Markets Inc., as representatives of the several underwriters
listed on Schedule 1 thereto. |
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2)
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Purchase Contract
and Pledge Agreement, dated November 20, 2007, between Avery Dennison and The Bank
of New York Trust Company, N.A., as Purchase Contract Agent, and The Bank of New
York Trust Company, N.A., as Collateral Agent, Custodial Agent and Securities Intermediary.
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3)
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Form of Corporate
HiMEDS Unit Certificate and Treasury HiMEDS Unit Certificate. |
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4)
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First Supplemental
Indenture dated November 20, 2007 between Avery Dennison and The Bank of New York
Trust Company, N.A., as Trustee. |
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5)
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Form of 5.350%
HiMEDS senior note due November 15, 2020 of Avery Dennison. |
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6)
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Form of Remarketing
Agreement. |
The information
set forth in the offer to exchange under the captions “Incorporation by Reference;
Additional Information,” “Comparison of Rights of Holders of Corporate
HiMEDS Units and Holders of Avery Dennison Common Stock,” and “Description
of Avery Dennison Common Stock” is incorporated herein by reference. The information
set forth under (i) Item 8, Financial Statements and Supplementary Data, in Avery
Dennison’s Annual Report on Form 10-K for the fiscal year ended December 29,
2007 and (ii) Item 2, Management’s Discussion and Analysis of Financial Condition
and Results of Operations, and Item 3, Quantitative and Qualitative Disclosures
about Market Risk, in Avery Dennison’s Quarterly Report on Form 10-Q for the
quarterly period ended September 27, 2008 is incorporated herein by reference and
can also be accessed electronically on the Securities and Exchange Commission’s
website at http://www.sec.gov.
| Item 6.
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Purposes of the Transaction and Plans or Proposals.
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(a)
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The information
set forth in the offer to exchange under the captions “Background and Purpose
of the Offer” and “Recent Developments” is incorporated herein by
reference. |
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(b)
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The information
set forth in the offer to exchange under the caption “Use of Proceeds”
is incorporated herein by reference. |
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(c)
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The information
set forth in the offer to exchange under the caption “Recent Developments”
is incorporated herein by reference. |
| Item 7.
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Source and Amount of Funds or Other Consideration.
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(a)
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The information
set forth in the offer to exchange under the captions “Summary of the Offer” and “Description of the Offer—Terms of the Offer” is incorporated
herein by reference. Avery Dennison is funding the cash portion of the offer consideration
by issuing commercial paper backed by its $1 billion First Amended and Restated Revolving
Credit Agreement, dated as of August 10, 2007, as amended January 23, 2009, among
Avery Dennison, Citicorp USA, Inc., as Administrative Agent, Bank of America, N.A.,
as Syndication Agent, the Other Banks party thereunder, and Citigroup Global Markets
Inc. and Banc of Americas Securities LLC, as Lead Arrangers (the “Revolving
Credit Agreement”). Avery Dennison would require $54,340,000 in cash and 8,156,016
shares of common stock to purchase the maximum amount of Corporate HiMEDS Units
sought in the offer. |
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(b)
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The information
set forth in the offer to exchange under the caption “Description of the Offer — Conditions to the Offer” is incorporated herein by reference. To the
extent Avery Dennison is unable to place its commercial paper in amounts sufficient
to pay the cash portion of the offer consideration set forth under Item 7(a), it
intends to borrow under the Revolving Credit Agreement. Avery Dennison currently
has no other alternative financing arrangements or alternative financing plans.
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(d)
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(1) The information
set forth under Item 7(a) above is incorporated herein by reference. The parties
to the Revolving Credit Agreement are set forth in Item 7(a). Avery Dennison’s
commercial paper bears an annual rate of 0.90%. Borrowings under the Revolving Credit
Agreement bear an annual rate, at Avery Dennison’s option, of either (i) between
LIBOR plus 1.800% and LIBOR plus 3.500%, depending on Avery Dennison’s debt
ratings by either Standard & Poor’s (“S&P”) or Moody’s
Investors Service (“Moody’s”), or (ii) the higher of (A) the federal
funds rate plus 0.50% or (B) the prime rate, plus between 0.800% and 2.500%,
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depending
on Avery Dennison’s debt ratings by either S&P or Moody’s. Borrowings
available under the Revolving Credit Agreement are currently at an annul rate of
2.51%. The Revolving Credit Agreement is unsecured and matures on August 10, 2012.
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(2) Avery
Dennison plans to repay its commercial paper borrowings with cash generated in the
normal course of business but may repay a portion of, or all, such borrowings by
drawing against the Revolving Credit Agreement. Avery Dennison currently has no
plans or arrangements to refinance, other than in the normal course of business,
any funds drawn from the Revolving Credit Agreement that are to be used in the transaction.
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| Item 8.
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Interest in Securities of the Subject Company. |
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(a)
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None of Avery
Dennison or any of its directors or executive officers owns any Corporate HiMEDS
Units. The information set forth in the offer to exchange under the caption “Interests
of Directors and Officers” is incorporated herein by reference. |
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(b)
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The information
set forth in the offer to exchange under the caption “Interests of Directors
and Officers” is incorporated herein by reference. |
| Item 9.
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Persons/Assets, Retained, Employed, Compensated or Used.
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For information
regarding the Exchange Agent and the Information Agent, see the information set
forth in the offer to exchange under the caption “Exchange Agent and Information
Agent,” which is incorporated herein by reference. No persons have been directly
or indirectly employed, retained or otherwise compensated to make solicitations
or recommendations in connection with the offer, other than certain employees of
Avery Dennison, none of whom will receive any special or additional compensation
in connection with the offer beyond their normal compensation. See the information
set forth in the offer to exchange under the caption “Notice to Investors”
and “Description of the Offer—Terms of the Offer,” which is incorporated
herein by reference.
| Item 10.
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Financial Statements. |
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(a)
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The information
set forth in the offer to exchange under the captions “Selected Historical
Consolidated Financial Data” and “Incorporation by Reference; Additional
Information” is incorporated herein by reference. The information set forth
under (i) Item 8, Financial Statements and Supplementary Data, in Avery Dennison’s Annual Report on Form 10-K for the fiscal year ended December 29, 2007 and
(ii) Item 1, Financial Statements, and Exhibit 12, Avery Dennison Corporation and
Subsidiaries Computation of Ratios of Earnings to Fixed Charges, in Avery Dennison’s Quarterly Report on Form 10-Q for the quarterly period ended September 27,
2008 is incorporated herein by reference and can also be accessed electronically
on the Securities and Exchange Commission’s website at http://www.sec.gov.
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(b)
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The information
set forth in the offer to exchange under the caption “Capitalization”
is incorporated herein by reference. |
| Item 11.
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Additional Information. |
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(a)
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The information
set forth in the offer to exchange under the captions “Recent Developments,” “Description of the Offer—Conditions to the Offer” is incorporated
herein by reference. |
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(b)
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The information
set forth in the offer to exchange and the related letter of transmittal is
incorporated herein by reference. |
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| Item 12.
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Exhibits. |
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| (a)(1)(A)*
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Offer to Exchange,
dated February 3, 2009. |
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| (a)(1)(B)*
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Form of Letter
of Transmittal. |
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| (a)(5)(A)*
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News Release,
dated February 3, 2009. |
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| (a)(5)(B)*
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Form Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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| (a)(5)(C)*
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Form of Letter
to Clients. |
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| (a)(5)(D)*
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Form of Notice
of Guaranteed Delivery. |
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| (b)(1)
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First Amended
and Restated Revolving Credit Agreement, dated August 10, 2007, among Avery Dennison,
Citicorp USA, Inc., as Administrative Agent, Bank of America, N.A., as Syndication
Agent, the Other Banks party thereunder, and Citigroup Global Markets Inc. and Banc
of America Securities LLC, as Lead Arrangers, incorporated herein by reference to
Exhibit 10.2.2 filed with Avery Dennison’s Quarterly Report on Form 10-Q filed
with the SEC on November 7, 2007. |
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| (b)(2)
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Second Amendment
to First Amended and Restated Revolving Credit Agreement, dated January 23, 2009,
among Avery Dennison Corporation, Citicorp USA, Inc., as Administrative Agent, and
the other Banks party thereunder, incorporated herein by reference to Exhibit 99.3
filed with Avery Dennison’s Current Report on Form 8-K filed with the SEC on
January 27, 2009. |
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| (d)(1)
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Underwriting
Agreement, dated November 14, 2007, among Avery Dennison and J.P. Morgan Securities
Inc. and Citigroup Global Markets Inc., as representatives of the several underwriters
listed on Schedule 1 thereto, incorporated herein by reference to Exhibit 1.1 filed
with Avery Dennison’s Current Report on Form 8-K filed with the SEC on November
20, 2007. |
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| (d)(2)
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Purchase Contract
and Pledge Agreement, dated November 20, 2007, between Avery Dennison and The Bank
of New York Trust Company, N.A., as Purchase Contract Agent, and The Bank of New
York Trust Company, N.A., as Collateral Agent, Custodial Agent and Securities Intermediary,
incorporated herein by reference to Exhibit 4.1 filed with Avery Dennison’s
Current Report on Form 8-K filed with the SEC on November 20, 2007. |
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| (d)(3)
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Form of Corporate
HiMEDS Unit Certificate, incorporated herein by reference to Exhibits 4.5 filed
with Avery Dennison’s Current Report on Form 8-K filed with the SEC on November
20, 2007. |
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| (d)(4)
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Form of Treasury
HiMEDS Unit Certificate, incorporated herein by reference to Exhibits 4.2 filed
with Avery Dennison’s Current Report on Form 8-K filed with the SEC on November
20, 2007. |
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| (d)(5)
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First Supplemental
Indenture dated November 20, 2007 between Avery Dennison and The Bank of New York
Trust Company, N.A., as Trustee, incorporated herein by reference to Exhibit 4.3
filed with Avery Dennison’s Current Report on Form 8-K filed with the SEC on
November 20, 2007. |
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| (d)(6)
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Form of 5.350%
Senior Notes due November 15, 2020 of Avery Dennison, incorporated herein by reference
to Exhibit 4.7 filed with Avery Dennison’s Current Report on Form 8-K filed
with the SEC on November 20, 2007. |
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| (d)(7)
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Form of Remarketing
Agreement, incorporated herein by reference to Exhibit 4.4 filed with Avery Dennison’s Current Report on Form 8-K filed with the SEC on November 20, 2007.
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| _________________
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| * Filed herewith.
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| Item 13.
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Additional Information Required by Schedule 13E-3.
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Not applicable.
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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.
| Date: February
3, 2009 |
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AVERY DENNISON CORPORATION |
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By:
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/s/ Karyn
E. Rodriguez |
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Name:
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Karyn E. Rodriguez
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Title: |
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Vice President
and Treasurer |
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