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
(Amendment No. 2)
Onvia, Inc.
(Name of Subject Company (Issuer))
Project Olympus Merger Sub, Inc.
(Offeror)
a wholly owned
subsidiary of
Project Diamond Intermediate Holdings Corporation
(Names of Filing Persons (Parent of Offeror))
the parent company of
Deltek, Inc.
(Names of
Filing Persons (Other Person))
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COMMON STOCK, $0.0001 PAR VALUE
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68338T403
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(Title of Class of Securities)
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(CUSIP Number of Class of Securities)
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John K. Stipancich
Vice President and Secretary
Deltek, Inc.
2291 Wood
Oak Drive
Herndon, Virginia 20171
(703)
734-8606
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Joel
T. May
William J. Zawrotny
Jones Day
1420 Peachtree
Street, N.E., Suite 800
Atlanta, Georgia 30309-3053
(404)
521-3939
CALCULATION
OF FILING FEE
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Transaction Valuation
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Amount of Filing Fee
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$75,116,637*
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$9,352.03**
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*
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Estimated solely for purposes of calculating the filing fee pursuant to Rule
0-11(d)
under the Securities Exchange Act of 1934, as amended (the Exchange Act). The
Transaction Valuation was calculated on the basis of (a) 8,346,293 shares of common stock, $0.0001 par value per share, of Onvia, Inc. (the Shares), which is the estimated maximum number of Shares that may be acquired in this tender
offer (representing (i) 7,322,893 Shares issued and outstanding; (ii) up to 987,751 Shares issuable upon the exercise of outstanding stock options; (iii) up to 25,000 Shares issuable upon the vesting of outstanding restricted stock units;
and (iv) 10,649 Shares issuable on October 31, 2017 pursuant to Onvias 2000 Amended Employee Stock Purchase Plan, as amended), multiplied by (b) the offer price of $9.00 per Share. The foregoing share figures have been provided by
the issuer to the offerors and are as of October 16, 2017, the most recent practicable date.
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**
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The filing fee was calculated in accordance with Rule
0-11(d)
under the Exchange Act and Fee Rate Advisory No. 1 for Fiscal Year 2018, issued by the Securities and Exchange
Commission on August 24, 2017, by multiplying the Transaction Valuation by 0.0001245.
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☒
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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.
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Amount Previously Paid: $9,352.03
Form or
Registration No.: Schedule TO
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Filing Parties: Project Diamond Intermediate
Holdings Corporation and Deltek, Inc.
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Date Filed: October 19, 2017
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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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Check the appropriate boxes below to designate any transactions to which the statement relates:
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☒
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third-party tender offer subject to Rule
14d-1.
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☐
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issuer tender offer subject to Rule
13e-4.
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☐
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going-private transaction subject to Rule
13e-3.
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☐
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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: ☐
If applicable, check the
appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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☐
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Rule
13e-4(i)
(Cross-Border Issuer Tender Offer)
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☐
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Rule
14d-1(d)
(Cross-Border Third-Party Tender Offer)
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Explanatory Note
This Amendment (as defined below) is being filed to provide certain additional disclosures that are supplemental to those contained in the
Schedule TO (as defined below) and the Offer to Purchase (as defined below) in order to moot unmeritorious claims previously described under the subsection entitled Certain Litigation of Section 15 Certain Legal
Matters; Regulatory Approvals of the Offer to Purchase. This supplemental information should be read in conjunction with the Schedule TO and the Offer to Purchase. With respect to the litigation, the defendants deny that any additional
disclosure was or is required under any applicable rule, statute, regulation or law, but are providing these additional disclosures in order to alleviate the costs, risks and uncertainties inherent in such litigation.
* * *
This Amendment No. 2
(this
Amendment
) amends and supplements the Tender Offer Statement on Schedule TO filed on October 19, 2017 with the Securities and Exchange Commission (the
Schedule TO
). The Schedule TO relates to the
offer (the
Offer
) by Project Olympus Merger Sub, Inc., a Delaware corporation (
Purchaser
) and a wholly owned subsidiary of Project Diamond Intermediate Holdings Corporation, a Delaware corporation
(
Parent
) and the parent company of Deltek, Inc., a Delaware corporation (
Deltek
), to purchase any and all issued and outstanding shares of common stock, $0.0001 par value per share (the
Shares
), of Onvia, Inc., a Delaware corporation (
Onvia
), at a price of $9.00 per Share, net to the seller in cash, without interest thereon and subject to any applicable withholding taxes, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated October 19, 2017 (as it may be amended or supplemented from time to time, the
Offer to Purchase
) and in the related Letter of Transmittal (as it may be
amended or supplemented from time to time, the
Letter of Transmittal
), which, together with any amendments or supplements thereto, collectively constitute the
Offer
.
All information contained in the Offer to Purchase and the Letter of Transmittal, including all schedules thereto, is hereby incorporated by
reference in response to Items 1 through 9 and Item 11 in this Amendment. Except as otherwise indicated in this Amendment, the information set forth in the Schedule TO remains unchanged. Capitalized terms used and not otherwise defined herein have
the meanings ascribed to such terms in the Offer to Purchase or in the Schedule TO.
Item 5.
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Past Contacts, Transactions, Negotiations and Agreements.
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Section 10
Background of the Offer; Past Contacts, Transactions, Negotiations and Amendments of the Offer to Purchase is hereby amended and supplemented by deleting the eighteenth paragraph in its entirety and replacing it with the following
paragraph:
On September 29, 2017, on behalf of Parent and Deltek, Roper submitted to GCA a further revised
non-binding
indication of interest to acquire one hundred percent of the outstanding equity interests of Onvia at a price of $9.00 per share, without a financing condition, removing the $6 million closing cash
assumption, and subject to the completion of remaining diligence. This further revised
non-binding
indication of interest included an exclusivity provision, which, if accepted, required Onvia to negotiate
exclusively with Parent and Purchaser for a period of seven days from acceptance of the proposed financial terms for the transaction. Although Ropers initial
non-binding
indication of interest dated
August 25, 2017 contained a provision that contemplated meetings with key members of Onvias management in order to discuss post-closing employment arrangements, the further revised
non-binding
indication of interest did not contain this provision. During the negotiation of the transaction, Deltek did not have discussions with Onvia or its management team regarding the terms or conditions of future employment, with the understanding that
future employment would be evaluated after the transaction was completed. After the execution of the Merger Agreement, Deltek advised Messrs. Mann and Way that sometime after closing, it is likely that the positions of Chief Executive Officer and
Chief Financial Officer would be eliminated.
Item 11.
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Additional Information.
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The subsection entitled Certain Litigation of
Section 15 Certain Legal Matters; Regulatory Approvals of the Offer to Purchase is hereby amended and supplemented in its entirety to read as follows:
Certain Litigation.
On October 25, 2017, Chanie Dembitzer, a purported stockholder, filed a putative class action
lawsuit challenging aspects of the transactions contemplated by the Merger Agreement in King County Superior Court in the State of Washington. The complaint is captioned
Chanie Dembitzer v. Onvia, Inc., et al.
, Case
- 2 -
No. 17-2-27799-1
SEA. The complaint names as defendants Onvia, members
of the Onvia Board, Deltek, Parent, and Purchaser. The complaint alleges, among other things, that the Onvia Board violated fiduciary duties of care, loyalty, and good faith and that Deltek, Parent, and Purchaser aided and abetted the Onvia
Boards breaches of fiduciary duties. As relief, the complaint seeks, among other things, an injunction against the transactions contemplated by the Merger Agreement, rescission of the transactions contemplated by the Merger Agreement or
rescissory damages should the transactions contemplated by the Merger Agreement be consummated, and an award of attorneys and experts fees.
On October 27, 2017, Louis Scarantino, a purported stockholder, filed a putative class action lawsuit challenging aspects of the
transactions contemplated by the Merger Agreement in the United States District Court for the Western District of Washington in Seattle. The complaint is captioned
Louis Scarantino v. Onvia, Inc., et al.
, Case
No. 2:17-1601.
The complaint names as defendants Onvia, members of the Onvia Board, Parent, Purchaser, and Deltek. The complaint alleges, among other things, that the defendants violated provisions of the
Exchange Act by making untrue statements of material facts in the Schedule
14D-9
or failing to provide in the Schedule
14D-9
all material information needed by
stockholders to make an informed decision whether to tender their Shares. As relief, the complaint seeks, among other things, an injunction against the transactions contemplated by the Merger Agreement, rescission of the transactions contemplated by
the Merger Agreement or rescissory damages should the transactions contemplated by the Merger Agreement be consummated, and an award of attorneys and experts fees.
The defendants believe that the
Dembitzer
and
Scarantino
actions (collectively, the
Stockholder Actions
) are
without merit. However, to moot the plaintiffs unmeritorious claims and alleviate the costs, risks and uncertainties inherent in such litigation, Parent, Purchaser, and Deltek have determined to voluntarily supplement the Schedule TO and the
Offer to Purchase. Nothing in the supplemental disclosures shall be deemed an admission of the legal necessity or materiality under any applicable rule, statute, regulation or law of any of the disclosures set forth therein. To the contrary, the
defendants specifically deny all allegations in the Stockholder Actions that any additional disclosure was or is required.
Additional
lawsuits may be filed against Onvia, Parent, Purchaser, Deltek or any of their respective directors in connection with the Offer and the Merger. If additional similar complaints are filed, absent new or different allegations that are material,
Parent, Purchaser, and Deltek will not necessarily announce such additional filings.
- 3 -
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.
Dated: November 7, 2017
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DELTEK, INC.
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By:
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/s/ John K. Stipancich
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John K. Stipancich
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Vice President and Secretary
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PROJECT DIAMOND INTERMEDIATE HOLDINGS CORPORATION
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By:
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/s/ John K. Stipancich
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John K. Stipancich
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Vice President and Secretary
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PROJECT OLYMPUS MERGER SUB, INC.
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By:
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/s/ John K. Stipancich
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John K. Stipancich
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Vice President and Secretary
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