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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3
TO
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
MORTON INTERNATIONAL, INC.
(Name of Subject Company)
MORTON INTERNATIONAL, INC.
(Name of Person Filing Statement)
COMMON STOCK, PAR VALUE $1.00 PER SHARE
(AND ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of Securities)
619335102
(Cusip Number of Class of Securities)
Raymond P. Buschmann
Vice President for Legal Affairs,
General Counsel and Secretary
Morton International, Inc.
100 North Riverside Plaza
Chicago, Illinois 60606-1596
(312) 807-2000
(Name, Address and Telephone Number of Person
Authorized to Receive Notice and Communications
On Behalf of the Person Filing Statement)
WITH COPIES TO:
Eric S. Robinson
Andrew J. Nussbaum
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
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This Amendment No. 3 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 of Morton International,
Inc., an Indiana corporation (the "Company"), filed with the Securities and
Exchange Commission on February 5, 1999, as amended (the "Schedule 14D-9"), with
respect to the tender offer made by Morton Acquisition Corp. (formerly known as
Gershwin Acquisition Corp.) ("Purchaser"), an Indiana corporation and a
wholly-owned subsidiary of Rohm and Haas Company, a Delaware corporation ("Rohm
and Haas" or "Parent"), to purchase up to 80,916,766 shares (representing 67% of
the issued and outstanding shares as of January 29, 1999) of Common Stock, par
value $1.00 per share, of the Company (the "Shares") and the associated
preferred share purchase rights issued pursuant to the Rights Agreement, dated
as of April 24, 1997, between the Company and First Chicago Trust Company of New
York, as Rights Agent, as amended by Amendment No. 1, dated as of January 31,
1999, at a purchase price of $37.125 per Share, net to the seller in cash,
without interest, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated February 5, 1999, as amended, of Purchaser and Rohm and
Haas and in the related Letter of Transmittal.
ITEM 3. IDENTITY AND BACKGROUND
Item 3(b)(i) of the Schedule 14D-9 is hereby amended and supplemented as
follows:
The information set forth in the Paragraph of Item 3(b)(i) titled
"Conditions to the Offer" is hereby restated in its entirety as set forth below
in order to conform to the executed copy of the Agreement and Plan of Merger,
dated as of January 31, 1999, among Rohm and Haas, Purchaser and the Company
(the "Merger Agreement"):
"Conditions to the Offer. Notwithstanding any other provision of the Offer
and subject to the terms of the Merger Agreement, Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including Rule 14e-1(c) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (relating to Purchaser's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for any Shares tendered pursuant to the Offer, and
may postpone the acceptance for payment or, subject to the restriction referred
to above, payment for any Shares tendered pursuant to the Offer, and may amend
or, not prior to April 2, 1999 (subject to extension by Purchaser to not later
than April 17, 1999 if Parent reasonably believes that the HSR Condition will be
satisfied and the EU Approval will be obtained by such date (the "Final
Expiration Date")), terminate the Offer (whether or not any Shares have
theretofore been purchased or paid for) if, prior to the expiration of the
Offer, (i) a number of shares of Company Common Stock which, together with any
Shares owned by Parent or Purchaser, constitutes at least a majority of the
voting power (determined on a fully-diluted basis), on the date of purchase, of
all the securities of the Company entitled to vote generally in the election of
directors or on a merger shall not have been validly tendered and not properly
withdrawn prior to the expiration of the Offer (the "Minimum Condition") or (ii)
at any time on or
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after the date of the Merger Agreement and prior to the acceptance for payment
of Shares, any of the following conditions occurs or has occurred and continues
to exist:
(a) there shall have been instituted and pending any suit, action,
investigation or proceeding brought by any governmental authority before
any federal or state court or any order or preliminary or permanent
injunction shall have been entered in any action or proceeding before any
federal or state court or governmental, administrative or regulatory
authority or agency, or any other action shall have been taken, or
statute, rule, regulation, legislation, judgment or order enacted,
entered, enforced, promulgated, amended, issued or deemed applicable to
Parent, Purchaser, the Company or any subsidiary or affiliate of Purchaser
or the Company or the Offer or the Merger, by any legislative body, court,
government or governmental, administrative or regulatory authority or
agency which would reasonably be expected to have the effect of: (i)
making illegal, materially delaying or otherwise restraining or
prohibiting or making materially more costly the making of the Offer, the
acceptance for payment of, or payment for, some of or all the Shares by
Purchaser or any of its affiliates, the consummation of the Merger or
materially delaying the Merger; (ii) prohibiting or materially limiting
the ownership or operation by the Company or any of its subsidiaries or
Parent, Purchaser or any of Parent's affiliates of all or any material
portion of the business or assets of the Company and its subsidiaries,
taken as a whole, or Parent and any of its subsidiaries, taken as a whole,
or compelling Parent, Purchaser or any of Parent's subsidiaries to dispose
of or hold separate all or any material portion of the business or assets
of the Company and any of its subsidiaries, taken as a whole, or Parent
and its subsidiaries, taken as a whole, as a result of the transactions
contemplated by the Offer or the Merger Agreement; (iii) imposing or
confirming material limitations on the ability of Parent, Purchaser or any
of Parent's affiliates effectively to acquire or hold or to exercise full
rights of ownership of Shares, including but not limited to the right to
vote any Shares acquired or owned by Parent or Purchaser or any of its
affiliates on all matters properly presented to the shareholders of the
Company, including but not limited to the adoption and approval of the
Merger Agreement and the Merger or the right to vote any shares of capital
stock of any subsidiary directly or indirectly owned by the Company; or
(iv) requiring divestiture by Parent or Purchaser or any of their
affiliates of any Shares, except, in the case of clauses (i) through (iv),
where such events are consistent with or result from Parent's and the
Company's obligations under Section 6.9 of the Merger Agreement ("Further
Action; Reasonable Best Efforts");
(b) any of the representations and warranties of the Company set
forth in the Merger Agreement that are qualified as to Material Adverse
Effect shall not be true and correct, or any such representations and
warranties that are not so qualified shall not be true and correct in any
material respect, in each case as if such representations and warranties
were made at the time of such determination (other than to the extent such
representations and warranties are made as of a
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specified date, in which case, such representations and warranties shall
not be so true and correct as of such date);
(c) the Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by it under the
Merger Agreement;
(d) the Merger Agreement shall have been terminated in accordance
with its terms or the Offer shall have been amended or terminated with the
consent of the Company; or
(e) (i) any waiting periods under the HSR Act shall not have expired
or been terminated and the EU Approval shall not have been received, in
each case to the extent applicable to the purchase of Shares pursuant to
the Offer; and (ii) any applicable waiting periods applicable to the
purchase of Shares pursuant to the Offer under any laws or regulations of
any foreign jurisdiction in which either the Company or Parent (directly
or through subsidiaries, in each case) has material assets or conducts
material operations, shall not have expired or been terminated, or any
regulatory approval applicable to the purchase of Shares pursuant to the
Offer shall not have been obtained, other than such failures to obtain,
expire, terminate or receive as would not have a material adverse effect
on Parent or the Company
which, in the reasonable judgment of Purchaser with respect to each and every
matter referred to above and regardless of the circumstances (including any
action or inaction by Purchaser or any of its affiliates but subject to the
terms of the Merger Agreement) giving rise to any such condition, makes it
inadvisable to proceed with the Offer or with such acceptance for payment of or
payment for Shares or to proceed with the Merger.
The foregoing conditions are for the benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion (subject to the terms of the Merger
Agreement). The failure by Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right, the waiver of
any such right with respect to particular facts and other circumstances shall
not be deemed a waiver with respect to any other facts and circumstances, and
each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time."
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ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding
thereto the following information:
On February 18, 1999, Rohm and Haas filed a Notification and Report Form
with respect to the Offer and the Merger under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), with the Antitrust Division of the United States Department of Justice
and the United States Federal Trade Commission. The waiting period under the HSR
Act will expire at 11:59 p.m., New York City time, on March 5, 1999, unless
earlier terminated or extended.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 of the Schedule 14D-9 is hereby amended and supplemented to reflect
a different filing from which Exhibit 1 to the Schedule 14D-9 is incorporated by
reference into the Schedule 14D-9, as set forth below:
EXHIBIT
NUMBER DESCRIPTION
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1 Agreement and Plan of Merger, dated as of January 31, 1999,
among Rohm and Haas Company, Morton Acquisition Corp.
(formerly known as Gershwin Acquisition Corp.) and Morton
International, Inc. (incorporated by reference to Exhibit
(c)(1) to the Tender Offer Statement on Schedule 14D-1, dated
February 5, 1999, as amended by Amendment No. 1 thereto,
dated February 11, 1999, filed by Rohm and Haas Company and
Morton Acquisition Corp. relating to the Common Stock of
Morton International, Inc.)
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SIGNATURE
After reasonable 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.
MORTON INTERNATIONAL, INC.
By: /s/ Raymond P. Buschmann
Name: Raymond P. Buschmann
Title: Vice President, General Counsel
and Secretary
Dated: February 18, 1999
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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1 Agreement and Plan of Merger, dated as of January 31, 1999,
among Rohm and Haas Company, Morton Acquisition Corp.
(formerly known as Gershwin Acquisition Corp.) and Morton
International, Inc. (incorporated by reference to Exhibit
(c)(1) to the Tender Offer Statement on Schedule 14D-1, dated
February 5, 1999, as amended by Amendment No. 1 thereto,
dated February 11, 1999, filed by Rohm and Haas Company and
Morton Acquisition Corp. relating to the Common Stock of
Morton International, Inc.)
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