Amended Statement of Ownership: Solicitation (sc 14d9/a)
May 03 2016 - 6:02AM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
(Amendment No. 2)
ALLIANCE FIBER OPTIC PRODUCTS, INC.
(Name of Subject Company)
ALLIANCE FIBER OPTIC PRODUCTS, INC.
(Name of Persons Filing Statement)
Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
018680306
(CUSIP Number of Class of Securities)
Peter C. Chang
Chief Executive Officer
Alliance Fiber Optic Products, Inc.
275 Gibraltar Drive
Sunnyvale, California 94089
(408) 736-6900
(Name, address, and telephone numbers of person authorized to receive notices and communications
on behalf of the persons filing statement)
Copies to:
Jorge del Calvo
Gabriella A. Lombardi
Matthew K. Desharnais
Pillsbury Winthrop Shaw Pittman LLP
2550 Hanover Street
Palo Alto, California 94304
(650) 233-4500
o
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
This Amendment No. 2 (this Amendment No. 2) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (
as it may be amended or supplemented from time to time, and the exhibits thereto, the Schedule 14D-9) of Alliance Fiber Optic Products, Inc. (AFOP or the Company) originally filed with the Securities and Exchange Commission (the SEC) on April 21, 2016. The Schedule 14D-9 relates to a tender offer by Apricot Merger Company, a Delaware corporation (Purchaser) and a wholly-owned subsidiary of Corning Incorporated, a New York corporation (Corning or Parent), to purchase all of the issued and outstanding common stock of AFOP, and the related rights to purchase shares of Series A Preferred Stock of the Company distributed to the holders of the common stock of AFOP pursuant to the Amended and Restated Rights Agreement, dated March 10, 2011, between AFOP and American Stock Transfer & Trust Company, LLC, as rights agent (each a Share and collectively, the Shares) at a per Share purchase price of $18.50, net to the seller in cash, without interest and subject to any required withholding taxes (the Offer Price), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated April 21, 2016 (as amended or supplemented from time to time, the Offer to Purchase), and in the related Letter of Transmittal (as amended or supplemented from time to time, the Letter of Transmittal, which, together with the Offer to Purchase, constitute the Offer). The Offer is described in a Tender Offer Statement on Schedule TO (as amended or supplemented from time to time, and together with the exhibits thereto, the Schedule TO), filed by Purchaser and Parent with the SEC on April 21, 2016. Copies of the Offer to Purchase and form of Letter of Transmittal are filed as Exhibits (a)(1)(A) and (a)(1)(B) to the Schedule 14D-9, respectively, and are incorporated herein by reference.
Except to the extent specifically provided in this Amendment No. 2, the information set forth in the Schedule 14D-9 remains unchanged
and is incorporated herein by reference as relevant to the items in this Amendment No. 2. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule 14D-9.
Item 8.
Additional Information
Item 8. Additional Information
Certain Litigation
is hereby amended and restated to read in its entirety as follows:
Certain Litigation
Following the announcement that the Company had entered into the Merger Agreement with Parent and Purchaser on April 7, 2016, on April 22, 2016, a complaint captioned
Stephen Bushansky v. Alliance Fiber Optic Products, Inc
.,
et al.
, Case No. 16-CV-294245 was filed in the Superior Court of California, County of Santa Clara naming as defendants AFOP, the Company Board, Corning and Purchaser. This action purports to be a class action brought by a stockholder alleging, among other things, that the members of the Company Board breached their fiduciary duties by approving the Merger Agreement, and that AFOP, Corning and Purchaser aided and abetted these alleged breaches of fiduciary duty. The complaint seeks, among other things, either to enjoin the proposed transactions or to rescind the transactions in the event the transactions are consummated.
On April 27, 2016, a complaint captioned
Rudy Luck v. Alliance Fiber Optic Products, Inc., et al.
, Case No. 16-CV-294413 was filed in the Superior Court of California, County of Santa Clara naming as defendants AFOP, the Company Board, Corning and Purchaser. Similar to the Bushansky action referenced above, this action purports to be a class action brought by a stockholder alleging, among other things, that the members of the Company Board breached their fiduciary duties by approving the Merger Agreement, and that Corning and Purchaser aided and abetted these alleged breaches of fiduciary duty. The complaint seeks, among other things, either to enjoin the proposed transactions or to rescind the transactions in the event the transactions are consummated.
The outcome of the above litigation cannot be predicted with certainty; however, AFOP, Corning and Purchaser believe the lawsuits are without merit and intend to vigorously defend against them. A preliminary injunction could delay or jeopardize the completion of the transactions, and an adverse judgment granting permanent injunctive relief could indefinitely enjoin completion of the transactions.
2
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.
Date: May 2, 2016
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Alliance Fiber Optic Products, Inc.
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By:
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/s/ Anita K. Ho
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Anita K. Ho
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Acting Chief Financial Officer
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