- Amended tender offer statement by Third Party (SC TO-T/A)
2009年10月6日 - 10:00PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 2)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR
13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
OMNITURE, INC.
(Name of Subject Company (Issuer))
SNOWBIRD ACQUISITION CORPORATION
ADOBE SYSTEMS INCORPORATED
(Name of Filing
Persons (Offerors))
Common Stock, par value $0.001 per share
|
|
68212S109
|
(Titles of classes of securities)
|
|
(CUSIP number of class of securities)
|
Karen Cottle
Senior Vice President, General
Counsel & Corporate Secretary
Adobe Systems Incorporated
345 Park Avenue
San
Jose, CA 95110-2704
Tel:
408-563-6000
(Name, address and
telephone number of person authorized to receive notices and communications on
behalf of the filing person)
Copies
to:
Peter F.
Kerman
Glenn G.
Nash
Latham &
Watkins LLP
140 Scott
Drive
Menlo
Park, California 94025
Tel:
650-328-4600
CALCULATION
OF FILING FEE
Transaction
Valuation*
|
|
Amount
of Filing Fee**
|
$1,790,228,933.00
|
|
$99,894.77
|
*
Estimated for purposes of calculating the
filing fee only. This amount assumes the purchase of up to 83,266,462 shares of
common stock, par value $0.001 per share, of Omniture at a purchase price of
$21.50 per share. Such number of shares consists of (i) 77,306,452 shares
of common stock issued and outstanding as of September 21, 2009, and (ii) 5,960,010
shares of common stock that are expected to be issuable before the expiration
of the Offer under vested options, restricted stock units and other rights to
acquire Omniture shares.
**
The amount of the filing
fee, calculated in accordance with Rule 0-11 of the Securities Exchange
Act of 1934, as amended (the Exchange Act), equals 0.00005580 of the
transaction valuation.
x
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: $99,894.77
|
|
Filing
Party: Adobe Systems Incorporated and Snowbird Acquisition Corporation
|
|
|
|
Form or
Registration No. Schedule TO
|
|
Date
Filed: September 24, 2009
|
o
Check the box if the filing relates solely to
preliminary communications made before the commencement of a tender offer.
Check
the appropriate boxes below to designate any transactions to which the
statement relates:
x
third-party tender offer subject to Rule 14d-1.
o
issuer tender
offer subject to Rule 13e-4.
o
going-private
transaction subject to Rule 13e-3.
o
amendment to
Schedule 13D under Rule 13d-2.
Check
the following box if the filing is a final amendment reporting the results of
the tender offer:
o
This Amendment No. 2 (this Amendment)
amends and supplements the Tender Offer Statement on Schedule TO originally
filed with the Securities and Exchange Commission on September 24, 2009,
as amended (the Schedule TO and together with the Amendment, the Statement),
by Snowbird Acquisition Corporation, a Delaware corporation (the Purchaser)
and a wholly owned subsidiary of Adobe Systems Incorporated, a Delaware
corporation (Adobe), relating to the offer (the Offer) by the Purchaser to
purchase all of the issued and outstanding shares of common stock, par value
$0.001 per share (the Shares), of Omniture, Inc., a Delaware corporation
(Omniture), at a purchase price of $21.50 per Share, net to the seller in
cash, without interest but subject to any applicable tax withholding, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated September 24,
2009 (the Offer to Purchase), and in the related Letter of Transmittal (Letter
of Transmittal), copies of which are filed with the Schedule TO as Exhibits
(a)(1)(A) and (a)(1)(B).
Capitalized terms used and not otherwise defined in this Amendment shall
have the meaning assigned to such terms in the Offer to Purchase or in the
Statement.
The information in the Offer to Purchase and
the Letter of Transmittal is incorporated into this Amendment by reference to
all of the applicable items in the Schedule TO, except that such information is
hereby amended and supplemented to the extent provided herein.
Item 11.
Additional Information.
Item 11 of the Statement is amended and
supplemented by adding the following text to the end of existing
subsection (a)(2) and (a)(3).
On September 18, 2009 Adobe, the parent
company of the Purchaser, and on September 21, 2009 Omniture, each filed a
Notification and Report Form for Certain Mergers and Acquisitions under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), in connection with the
Offer and the Merger with the Antitrust Division of the Department of Justice
and the Federal Trade Commission. On October 5,
2009, Adobe was notified that the Antitrust Division of the Department of
Justice and the Federal Trade Commission have granted early termination of the
required waiting period under the HSR Act with respect to the Offer and the
Merger. Accordingly, the condition to
the Offer that any waiting period or clearance, consent or approval under the
HSR Act shall have expired, been terminated or be obtained has been
satisfied.
The Offer continues to be conditioned upon
the other conditions described in Section 14Conditions to the Offer of
the Offer to Purchase, including, among other things, the satisfaction of the
Minimum Condition.
Item 12.
Exhibits.
Item 12 of the Statement is amended and
supplemented by adding the following:
(a)(5)(D) Press Release issued by Adobe on October 6,
2009.
2
SIGNATURES
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.
|
|
SNOWBIRD
ACQUISITION CORPORATION
|
|
|
|
|
|
By:
|
/s/
Mark Garrett
|
|
|
|
Name:
Mark Garrett
|
|
|
|
Title:
President and Treasurer
|
|
|
|
|
|
|
|
|
ADOBE
SYSTEMS INCORPORATED
|
|
|
|
|
|
By:
|
/s/
Shantanu Narayen
|
|
|
|
Name:
Shantanu Narayen
|
|
|
|
Title:
President and Chief Executive Officer
|
|
|
|
Date:
October 6, 2009
|
|
|
3
INDEX TO EXHIBITS
(a)(1)(A)
|
|
Offer to Purchase,
dated September 24, 2009.*+
|
|
|
|
(a)(1)(B)
|
|
Letter of
Transmittal.*+
|
|
|
|
(a)(1)(C)
|
|
Notice of Guaranteed
Delivery.*+
|
|
|
|
(a)(1)(D)
|
|
Letter to Brokers,
Dealers, Banks, Trust Companies and other Nominees.*+
|
|
|
|
(a)(1)(E)
|
|
Letter to Clients for
use by Brokers, Dealers, Banks, Trust Companies and other Nominees.*+
|
|
|
|
(a)(5)(A)
|
|
Press Release issued by
Adobe on September 15, 2009 (incorporated by reference to the
Schedule TO-C filed by Adobe with the SEC on September 15, 2009).
|
|
|
|
(a)(5)(B)
|
|
Summary Advertisement
published on September 24, 2009.*
|
|
|
|
(a)(5)(C)
|
|
Press Release issued by
Adobe on September 24, 2009.*
|
|
|
|
(a)(5)(D)
|
|
Press Release issued by
Adobe on October 6, 2009.
|
|
|
|
(b)(1)
|
|
Credit Agreement, dated
as of February 16, 2007, among Adobe and Certain Subsidiaries as
Borrowers; BNP Paribas, Keybank National Association, and UBS Loan
Finance LLC as Co-Documentation Agents; JPMorgan Chase Bank, N.A. as
Syndication Agent; Bank of America, N.A. as Administrative Agent and Swing
Line Lender; the Other Lenders Party Thereto; and Banc of America
Securities LLC and J.P. Morgan Securities Inc. as Joint Lead
Arrangers and Joint Book Managers (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K filed by Adobe with
the SEC on August 16, 2007).
|
|
|
|
(b)(2)
|
|
Amendment to Credit
Agreement, dated as of August 13, 2007, among Adobe, as Borrower; each
Lender from time to time party to the Credit Agreement; and Bank of America,
N.A. as Administrative Agent (incorporated by reference to Exhibit 10.2
to the Current Report on Form 8-K filed by Adobe with the SEC on
August 16, 2007).
|
|
|
|
(b)(3)
|
|
Second Amendment to
Credit Agreement, dated as of February 26, 2008, among Adobe, as
Borrower; each Lender from time to time party to the Credit Agreement; and
Bank of America, N.A. as Administrative Agent (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K filed by Adobe with
the SEC on February 29, 2008).
|
|
|
|
(d)(1)
|
|
Agreement and Plan of
Merger, dated as of September 15, 2009, among Adobe, Purchaser and
Omniture (incorporated by reference to Exhibit 2.1 to the Current Report
on Form 8-K filed by Adobe with the SEC on September 15, 2009).
|
|
|
|
(d)(2)
|
|
Tender and Support
Agreement, dated as of September 15, 2009, among Adobe, Puchaser, and
each of Joshua G. James, Gregory S. Butterfield, Dana L. Evan, D. Fraser
Bullock, Mark P. Gorenberg, John R. Pestana, Cocolalla, LLC, Jennifer
Bullock, Hummer Winblad Venture Partners V, L.P., Scale Venture Partners
II, L.P. and Erutinmo, LLC.*
|
|
|
|
(d)(3)
|
|
Confidentiality
Agreement, dated August 2, 2009, by and between Omniture and Adobe.*
|
|
|
|
(d)(3)(A)
|
|
Exclusivity Agreement,
dated September 9, 2009, by and between Adobe and Omniture.*
|
|
|
|
(d)(4)
|
|
Employment Agreement,
dated as of September 15, 2009, by and between Joshua G. James and
Adobe.*
|
|
|
|
(d)(5)
|
|
Offer Letter, dated
September 14, 2009, by and between Chris Harrington and Adobe.*
|
4
(d)(6)
|
|
Offer Letter, dated
September 14, 2009, by and between Brett Error and Adobe.*
|
|
|
|
(d)(7)
|
|
Offer Letter, dated
September 14, 2009, by and between John Mellor and Adobe.*
|
|
|
|
(d)(8)
|
|
Offer Letter, dated
September 14, 2009, by and between Mike Herring and Adobe.*
|
|
|
|
(d)(9)
|
|
Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by Joshua G.
James in favor of Adobe.*
|
|
|
|
(d)(10)
|
|
Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by Chris
Harrington in favor of Adobe.*
|
|
|
|
(d)(11)
|
|
Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by Brett Error in
favor of Adobe.*
|
|
|
|
(d)(12)
|
|
Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by John Mellor in
favor of Adobe.*
|
|
|
|
(g)
|
|
Not applicable.
|
|
|
|
(h)
|
|
Not applicable.
|
* Previously filed as
exhibits to the Schedule TO on September 24, 2009.
+ Previously mailed to
holders and beneficial owners of the Shares on September 24, 2009.
5
Omniture (MM) (NASDAQ:OMTR)
過去 株価チャート
から 8 2024 まで 9 2024
Omniture (MM) (NASDAQ:OMTR)
過去 株価チャート
から 9 2023 まで 9 2024