SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(RULE 14d-101)
(Amendment No. 10)
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(D)(4) OF THE SECURITIES
EXCHANGE ACT OF 1934
SYNGENTA AG
(Name of Subject Company)
SYNGENTA AG
(Name of Person(s) Filing Statement)
Common shares, nominal value CHF 0.10
per share (“Common Shares”)
American Depositary Shares (“ADSs”), each representing one-fifth of a Common
Share of Syngenta AG, nominal value CHF 0.10 per share
(Title of Class of Securities)
CH0011037469 (Common Shares)
87160A100 (ADSs)
(CUSIP Number of Class of Securities)
Christoph Mäder
Group General Counsel
Syngenta International AG
P.O. Box
CH-4002 Basel, Switzerland
+41 61 323 1111
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and
Communications on Behalf of the Person(s) Filing Statement)
With copies to:
Louis L. Goldberg
H. Oliver Smith
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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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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This Amendment No. 10 to Schedule 14D-9
(this “
Amendment
”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 originally
filed with the United States Securities and Exchange Commission (the “
SEC
”) on March 23, 2016 (together with
the Exhibits and Annexes thereto and as amended or supplemented hereby and from time to time, the “
Schedule 14D-9
”)
by Syngenta AG, a Swiss corporation (
Aktiengesellschaft
) with registered office in Basel, Switzerland (the “
Company
”).
The Schedule 14D-9 relates to a tender offer by CNAC Saturn (NL) B.V. (the “
Offeror
”), a private company with
limited liability (B.V. or “
Besloten Vennootschap met beperkte aansprakelijkheid
”) organized under the laws
of The Netherlands, that is an indirect wholly-owned subsidiary of China National Chemical Corporation, a state-owned enterprise
organized under the laws of the People’s Republic of China (“
ChemChina
”), to purchase (i) up to 100% of
the issued and outstanding publicly held registered shares (
Namenaktien
), with a nominal value of 0.10 Swiss francs per
share, of the Company (collectively the “
Common Shares
” and each a “
Common Share
”) that are
held by residents in the United States (“
U.S.
”), including holders who are “U.S. holders” (as that
term is defined under instruction 2 to paragraphs (c) and (d) of Rule 14d-1 under the U.S. Securities Exchange Act of 1934, as
amended), and (ii) up to 100% of the outstanding American Depositary Shares of the Company, issued by The Bank of New York Mellon
acting as depositary, each representing one-fifth of a Common Share, of the Company (collectively the “
ADSs
”
and each an “
ADS
”) from all holders, wherever located, for $465.00 per Common Share, and $93.00 per ADS, in
each case, in cash, without interest, payable in U.S. dollars, and less the amount of any fees, expenses and withholding taxes
that may be applicable (including, in the case of ADSs, a fee of $0.05 per ADS for the cancellation of tendered ADSs), upon the
terms and subject to the conditions set forth in the U.S. Offer to Purchase, dated March 23, 2016, and in the related Common Share
Acceptance Letter or the ADS Letter of Transmittal, as applicable, contained in the Tender Offer Statement on Schedule TO, dated
March 23, 2016 filed by ChemChina and the Offeror with the SEC on March 23, 2016, as amended or supplemented from time to time.
Capitalized terms used, but not otherwise
defined, in this Amendment shall have the meanings ascribed to them in the Schedule 14D-9.
ITEM 3. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
Section (b) “
Arrangements with
Current Executive Officers and Directors of the Company
” of Item 3 of the Schedule 14D-9 is hereby amended and supplemented
by adding the following paragraphs immediately following the paragraph under the heading “
Executive Officers.”
:
“On September 7, 2016, the Company
announced that Mr. Ramsay will retire at the end of September 2016, and that Mr. Ramsay’s successor as the Company’s
Chief Financial Officer will be Mark Patrick.
On September 8, 2016, the Company announced
that Mr. Seabrook will leave the Company and that his successor as Head Corporate Affairs will be Mark Titterington. The Company
also announced that Laure Roberts was appointed Head Human Resources, succeeding Caroline Luscombe who left the Company at the
end of June 2016.
On September 20, 2016, the Company announced
that Mr. Pisk will retire at the end of October 2016.
On September 20, 2016, the Company announced
the appointment of Jeff Rowe to the new role of President Global Seeds and North America. The terms of Mr. Rowe’s employment
arrangements are summarized below under the heading “
Employment Agreements
”. The Company also announced that
Mr. Parr was appointed President Global Crop Protection and EAME, LATAM and APAC.”
Section (b) “
Arrangements with
Current Executive Officers and Directors of the Company
” of Item 3 of the Schedule 14D-9 is hereby amended and supplemented
by amending and restating the sections entitled “
Employment Agreements.
”, “
Notice Periods.
”
and “
Change of Control Provisions.
” immediately following the paragraph under the heading “
Company
Executive Officer Agreements with the Company.
”:
“Employment Agreements.
On April 24, 2015, the Company entered
into new employment agreements with each Company Executive Officer (each an “
Employment Agreement
”) as a result
of changes in Swiss law. Each Employment Agreement is for an indefinite term and can only be terminated in the manner described
below in the section entitled “
Notice Periods
”. Each Employment Agreement includes (i) a description of the
applicable Company Executive Officer’s duties; (ii) the annual base compensation of the applicable Company Executive Officer;
(iii) the applicable Company
Executive
Officer’s participation in the incentive plans; (iv) a fixed allowance payable to the applicable Company Executive Officer;
(v) certain fringe, pension and welfare benefits payable to the applicable Company Executive Officer; and (vi) restrictive covenants,
including one-year non-competition and non-solicitation covenants, an indefinite confidentiality covenant and an obligation to
assign intellectual property rights.
On November 18, 2015, the Company entered
into a supplemental agreement with Mr. Ramsay (the “
Supplemental Agreement
”) following Mr. Ramsay’s appointment
as Interim Chief Executive Officer and leader of the Company’s Executive Committee. The Supplemental Agreement provides that
his recall or resignation as Interim Chief Executive Officer shall be deemed notice of termination with a one-month notice period
to the end of the following month, after which his Employment Agreement continues to apply. As a result, Mr. Ramsay is entitled
to an approximately one-month notice period under the Supplemental Agreement, after which his Employment Agreement, which provides
for an approximately 12-month notice period, continues to apply.
Effective as of June 1, 2016, the Company
and Erik Fyrwald entered into an employment agreement (the “
CEO Employment Agreement
”) pursuant to which Mr.
Fyrwald will serve as the Company’s Chief Executive Officer. The CEO Employment Agreement is for an indefinite term and can
only be terminated in the manner described in the section below entitled “
Notice Periods
”. The CEO Employment
Agreement includes a description of the applicable duties and sets forth the terms of Mr. Fyrwald’s employment with the Company,
including terms relating to (i) annual base compensation; (ii) participation in the variable incentive compensation plans; (iii)
additional compensation in respect to forfeited equity awards and 2016 bonus with Mr. Fyrwald’s former employer, which,
in the case of the additional compensation in respect of forfeited equity awards (which are unvested), will vest and become payable
upon a termination of Mr. Fyrwald’s employment without cause, due to Mr. Fyrwald’s death or disability or other termination
other than by reason of breach of the CEO Employment Agreement; (iv) a fixed annual allowance to cover certain expenses; (v) certain
fringe, pension and welfare benefits; and (vi) restrictive covenants, including one-year non-competition and non-solicitation covenants,
an indefinite confidentiality covenant and an obligation to assign intellectual property rights.
Effective as of September 16, 2016, the
Company and Jeff Rowe entered into an employment agreement (the “
Rowe Employment Agreement
”) pursuant to which
Mr. Rowe will serve as President North America and Head Global Seeds. The Rowe Employment Agreement is for an indefinite term and
can only be terminated in the manner described in the section below entitled “
Notice Periods
”. The Rowe Employment
Agreement provides that Mr. Rowe will initially be located in Minnetonka, Minnesota. At a date determined by Mr. Rowe, but no later
than October 1, 2019, Mr. Rowe will relocate to Basel, Switzerland. The Rowe Employment Agreement includes a description of the
applicable duties and sets forth the terms of Mr. Rowe’s employment with the Company, including terms relating to (i)
annual base compensation; (ii) participation in the variable incentive compensation plans; (iii) additional compensation in respect
to forfeited equity awards and 2016 bonus with Mr. Rowe’s former employer; (iv) a fixed annual allowance to cover certain
expenses; (v) certain fringe, pension and welfare benefits; (vi) certain relocation benefits; and (vii) restrictive covenants,
including one-year non-competition and non-solicitation covenants, an indefinite confidentiality covenant and an obligation to
assign intellectual property rights.
Effective as of October 1, 2016, the Company
and Mark Patrick entered into an employment agreement (the “
Patrick Employment Agreement
”) pursuant to which
Mr. Patrick will serve as Chief Financial Officer of the Company. The Patrick Employment Agreement is for an indefinite term and
can only be terminated in the manner described in the section below entitled “
Notice Periods
”. The Patrick Employment
Agreement includes a description of the applicable duties and sets forth the terms of Mr. Patrick’s employment with
the Company, including terms relating to (i) annual base compensation; (ii) participation in the variable incentive compensation
plans; (iii) a fixed annual allowance to cover certain expenses; (iv) certain fringe, pension and welfare benefits; and (v) restrictive
covenants, including one-year non-competition and non-solicitation covenants, an indefinite confidentiality covenant and an obligation
to assign intellectual property rights.
Notice Periods
. The CEO Employment
Agreement, the Rowe Employment Agreement, the Patrick Employment Agreement and each of the Employment Agreements is for an indefinite
duration and can only be terminated (i) by either party by giving 12 months’ written notice to the other party to the end
of one calendar month of intent to terminate or (ii) by retirement.
The CEO Employment Agreement, the Rowe
Employment Agreement, the Patrick Employment Agreement and each of the Employment Agreements provides that, in the event of (i)
Mr. Fyrwald’s, Mr. Rowe’s, Mr. Patrick’s or the applicable Company Executive Officer’s retirement, (ii)
the termination of Mr. Fyrwald’s, Mr. Rowe’s, Mr.
Patrick’s
or the applicable Company Executive Officer’s employment other than by reason of breach of the CEO Agreement, the Rowe
Employment Agreement, the Patrick Employment Agreement or the applicable Company Executive Officer’s
Employment Agreement, as applicable, or (iii) any other lawful termination of Mr. Fyrwald’s, Mr. Rowe’s, Mr.
Patrick’s or the applicable Company Executive Officer’s employment by the Company, by Mr. Fyrwald, Mr. Rowe,
Mr. Patrick or by the applicable Company Executive Officer, as applicable, the Company shall pay for the period up to the end
of employment to Mr. Fyrwald, Mr. Rowe, Mr. Patrick or the applicable Company Executive Officer or his or her legal
representatives or designees, (A) a proportionate base salary and (B) a proportionate target short-term incentive award;
provided, however, that as per the applicable short-term incentive plan, similar short-term incentives are granted to other
Company Executive Officers for the relevant year and the same period of time.
Change of Control Provisions
. The
CEO Employment Agreement, the Rowe Employment Agreement, the Patrick Employment Agreement and each of the Employment Agreements
provides that in the event of a change in control of the Company, all options, RSUs, shares, share awards and matching shares granted
under the LTIP and the DSP will vest and be granted, respectively, and any blocking periods will be waived, and that the provisions
of the Company’s Executive Long-Term Incentive Plan (“
Executive LTI Plan
”) will control the result of
a change in control on all awards issued under the Executive LTI Plan.
Apart from the vesting of equity and equity-based
compensation as described in this section and in the Section entitled “
Employment Agreements
”, the CEO Employment
Agreement, the Rowe Employment Agreement, the Patrick Employment Agreement and each of the Employment Agreements do not provide
specific benefits if Mr. Fyrwald’s, Mr. Rowe’s, Mr. Patrick’s or the applicable Company Executive Officer’s
employment is terminated during or after a change in control.”
ITEM 9. EXHIBITS.
The following is hereby added to the list
of Exhibits, following Exhibit No. (e)(18) “Contract of Employment between Syngenta International AG and Erik Fyrwald effective
as of June 1, 2016”.
Exhibit
No.
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Description
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(e)(19)
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Contract of Employment between Syngenta International AG and
Jeff Rowe effective as of September 16, 2016.*
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(e)(20)
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Contract of Employment between Syngenta International AG and Mark Patrick effective as of October 1, 2016.*
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_________________
* Filed
herewith.
SIGNATURE
After due inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this Amendment is true, complete and correct.
SYNGENTA AG
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By:
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/s/
Erik Fyrwald
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Name:
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Erik Fyrwald
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Title:
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Chief Executive Officer
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Dated:
October 3, 2016
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