This Amendment No. 11, filed on behalf of Sagard Capital Partners, L.P., a Delaware limited partnership (“
Sagard
”), Sagard Capital Partners GP, Inc., a Delaware corporation (“
GP
”), and Sagard Capital Partners Management Corporation, a Delaware corporation (“
Manager
” and together with Sagard and GP, the “
Reporting Persons
”), amends and supplements the Schedule 13D (the “
Schedule 13D
”) filed by the Reporting Persons with the Securities and Exchange Commission (the “
SEC
”) on March 10, 2008, as heretofore amended, relating to the Common Stock, par value $0.10 per share (the “
Shares
”), of X-RITE, INCORPORATED, a Michigan corporation (the “
Issuer
”).
Item 4. Purpose of the Transaction.
Item 4 is hereby amended to include the following:
On April 10, 2012, the Issuer entered into an Agreement and Plan of Merger (the “
Merger Agreement
”), by and among Danaher Corporation, a Delaware corporation (“
Parent
”
), Termessos Acquisition Corp., a Michigan corporation and a wholly-owned subsidiary of Parent (“
Merger Sub
”), and the Issuer, pursuant to which, among other things, Merger Sub agreed to make a cash tender offer (the “
Tender Offer
”) to acquire all of the Issuer’s outstanding Issuer Common Stock at a purchase price of $5.55 per share, and, following completion of such Tender Offer, Merger Sub will be merged with and into the Issuer (the “
Merger
”) with the issuer surviving the Merger as the wholly-owned subsidiary of Parent, in each case on the terms and subject to the conditions set forth in the Merger Agreement. At the effective time of the Merger (the “
Effective Time
”), all remaining outstanding shares of Issuer Common Stock not tendered in the Tender Offer will be acquired for cash at $5.55 per share, on the terms and conditions set forth in the Merger Agreement. For a more detailed description of the Merger Agreement, please see the Current Report on Form 8-K filed by the Issuer on April 11, 2012.
In connection with the entry into the Merger Agreement by the parties thereto, Sagard entered into a Tender and Support Agreement with Parent and Merger Sub, (the “
Support Agreement
”). The Support Agreement provides that Sagard shall, among other things: (a) tender 7,917,898 shares of Issuer Common Stock beneficially owned by Sagard (the “
Subject Shares
”) to Merger Sub; (b) vote all Subject Shares (i) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereunder, and (ii) against (A) any action or agreement which would in any material respect impede, interfere with or prevent the Tender Offer or the Merger, (B) any Alternative Proposal (as defined in the Merger Agreement) or (C) any action, proposal, transaction or agreement that would reasonably be expected to result in the occurrence of any condition set forth in Annex I to the Merger Agreement or result in any breach of any covenant, representation or warranty or any other obligation or agreement of Sagard under the Support Agreement; (c) not transfer, sell, assign, gift, hedge, pledge or otherwise dispose of any shares of Issuer Common Stock or any right or interest therein or enter into any contract, option or other agreement, arrangement or understanding with respect to any such transfer of, Subject Shares or any right or interest therein; (d) not grant any proxy, power-of-attorney or other authorization with respect to the Subject Shares; and (e) not take or permit any other actions that would in any way restrict, limit or interfere with the performance of Sagard’s obligations under the Support Agreement.
In addition, pursuant to the Support Agreement, Sagard has agreed: (i) not to commence or join in, and agreed to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Issuer or any of their respective successors (x) challenging the validity of, or seeking to enjoin the operation of, any provision of the Support Agreement or (y) alleging breach of any fiduciary duty of any person in connection with the negotiation and entry into the Merger Agreement; and (ii) prior to the Acceptance Time (as defined in the Merger Agreement), to enter into irrevocable agreements to terminate the Key Stockholder Agreements (as defined in the Merger Agreement) to which it is a party, which termination shall be conditioned solely upon the occurrence of the closing of the Merger.
Pursuant to the Support Agreement, Sagard also agreed (A) not to, and not to authorize or permit any of its representatives to, directly or indirectly: (i) initiate, solicit, propose, knowingly encourage or knowingly facilitate the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Alternative Proposal; (ii) enter into any agreement with respect to any Alternative Proposal; (iii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any information or data concerning the Issuer or any of its subsidiaries to any person relating to, any Alternative Proposal or any proposal or offer that could reasonably be expected to lead to an Alternative Proposal; or (iv) tender any Subject Shares in connection with an Alternative Proposal; and (B) to, and cause its representatives to, immediately cease all discussions and negotiations with any person that may be ongoing with respect to any proposal that constitutes, or is reasonably expected to lead to, any Alternative Proposal.
The Support Agreement does not limit or otherwise affect the actions of Sagard or any affiliate, employee or designee of Sagard or any of its affiliates in its capacity, if applicable, as an officer or director of the Issuer.
The Support Agreement will automatically terminate upon the first to occur of: (i) the termination of the Merger Agreement in accordance with its terms; (ii) the Effective Time; (iii) the Tender Offer shall have terminated or the Expiration Date (as defined in the Merger Agreement) shall have occurred, in each case without acceptance for payment of the Subject Shares pursuant to the Tender Offer; (iv) the date of any material modification, waiver or amendment to any provision of the Merger Agreement or the terms of the Tender Offer that reduces the amount, changes the form or otherwise adversely affects the consideration payable to Sagard pursuant to the Merger Agreement as in effect as of the date of the Support Agreement; (v) any amendment, modification or waiver of the Minimum Condition (as defined in the Merger Agreement) such that Parent or Merger Sub would beneficially own less than a majority of the of the Issuer Common Stock then outstanding on a fully diluted basis after giving effect to the consummation of the Tender Offer; and (vi) the mutual written consent of the parties to the Support Agreement.
The foregoing description of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Support Agreement, a form of which is filed as Exhibit 1 hereto.
It is the present intention of Sagard to tender in the Tender Offer all of the Issuer Common Stock held by Sagard (or its affiliates) and, if applicable, vote or cause to be voted all such shares of Issuer Common Stock in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, assuming compliance in each case with the terms and conditions of the Merger Agreement. The Reporting Persons may, at any time, review and reconsider this intention and reserve the right to change this position
with respect to all or a portion of such shares, subject to those terms of the Support Agreement which restrict tendering and voting the Subject Shares
.
Items 5(a) - (e) are hereby amended and restated in their entirety as follows, in each case subject to the disclosure regarding the Support Agreement in Item 4 above:
(a) Each Reporting Person is deemed to beneficially own 13,518,665 Shares, which represents 15.7% of the outstanding Shares, based upon 86,281,412 Shares outstanding as of April 9, 2012, based on information provided by the Issuer to the Reporting Persons. Of such Shares, (i) Sagard is the record owner of 13,309,765 Shares and (ii) Manager beneficially owns an additional 5,589 Shares and options to acquire 203,311 Shares granted to Mr. Friedberg under the Issuer’s 2008 Omnibus Long Term Incentive Plan and 2011 Omnibus Long Term Incentive Plan, which are held for the benefit of Manager and are exercisable or vested within 60 days.
In accordance with Securities and Exchange Commission Release No. 34-39538 (January 12, 1998) (the “
Release
”), this filing reflects the securities beneficially owned by Power Corporation of Canada and certain of its subsidiaries, including Sagard. The filing does not reflect securities beneficially owned, if any, by any subsidiaries of Power Corporation of Canada whose ownership of securities is disaggregated from that of Power Corporation of Canada in accordance with the Release.