- Amended Statement of Ownership: Solicitation (SC 14D9/A)
December 02 2010 - 5:15PM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9/A
Solicitation/Recommendation Statement under Section 14(d)(4) of the
Securities Exchange Act of 1934
(Amendment No. 1)
Isilon Systems, Inc.
(Name of Subject Company)
Isilon Systems, Inc.
(Name of Person(s) Filing Statement)
Common Stock, par value $0.00001 per share
(Title of Class of Securities)
46432L104
(CUSIP Number of Class of Securities)
Keenan M. Conder
Vice President, General Counsel and Corporate Secretary
Isilon Systems,
Inc.
3101 Western Avenue
Seattle, Washington 98121
(206) 315-7500
(Name, address and telephone number of person
authorized to receive notices and communications on
behalf of the
person(s) filing statement)
With copies to:
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Craig E. Sherman, Esq.
Wilson Sonsini Goodrich & Rosati
Professional
Corporation
701 Fifth Avenue
Suite 5100
Seattle, Washington 98104
(206) 883-2500
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Martin W. Korman, Esq.
Lawrence M. Chu, Esq.
Wilson Sonsini Goodrich &
Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
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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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This Amendment No. 1 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9
initially filed with the Securities and Exchange Commission (the SEC) on November 19, 2010 (as previously filed with the SEC, the Schedule 14D-9) by Isilon Systems, Inc., a Delaware corporation (the Company),
relating to the offer (the Offer) by Electron Merger Corporation, a Delaware corporation (Purchaser) and a wholly owned subsidiary of EMC Corporation, a Massachusetts corporation (Parent), as set forth in a Tender
Offer Statement filed by Parent and Purchaser on Schedule TO, dated November 19, 2010 (as previously filed with the SEC, the Schedule TO), to purchase all outstanding shares of common stock, par value $0.00001 per share (the
Shares) of the Company, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 19, 2010 and in the related Letter of Transmittal, copies of which are filed with the Schedule TO as Exhibits
(a)(1)(A) and (a)(1)(B). Any capitalized term used and not otherwise defined herein shall have the meaning ascribed to such term in the Schedule 14D-9.
All information in the Schedule 14D-9 is incorporated into this Amendment No. 1 by reference, except that such information is hereby amended to the extent specifically provided herein.
This Amendment No. 1 is being filed to reflect certain updates as reflected below.
Item 8.
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Additional Information.
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The fourteenth paragraph of Item 8 of the Schedule 14D-9 is hereby replaced in its entirety with the following two paragraphs:
Litigation
. Beginning on November 15, 2010, several putative class action lawsuits were filed purportedly on
behalf of a class of Isilons stockholders in King County Superior Court, Washington, captioned
Durand v. Isilon Systems, Inc., et al.
, Case No. 10-2-40094-0-SEA (the
Durand Complaint
),
Bushansky v. Isilon
Systems, Inc., et al
., Case No. 10-2-40842-8-SEA (the
Bushansky Complaint
),
Jones v. Isilon Systems, Inc., et al.
, Case No. 10-2-41201-8-SEA (the
Jones Complaint
), and
Hale v.
Ruckelshaus, et al
., Case No. 10-2-41098-8-SEA (the
Hale Complaint
). On November 30, 2010, another purported class action lawsuit on behalf of Isilons stockholders was filed in United States District Court for
the Western District of Washington, captioned
Laub v. Isilon Systems, Inc., et al
., Civ. A. No. 2:10-cv-01938 (the
Laub Complaint
and together with the Durand Complaint, the Bushansky Complaint, the Jones Complaint and
the Hale Complaint, the
Complaints
). The Complaints name Isilon and each of the members of Isilons board of directors as defendants. The Jones Complaint and the Laub Complaint name EMC as an additional defendant, and the
Bushansky Complaint and the Hale Complaint name EMC and Purchaser as additional defendants.
The Complaints allege, among
other things, that the board of directors breached fiduciary duties owed to Isilons stockholders by failing to take steps to maximize stockholder value or to engage in a fair sale process when approving the proposed merger with EMC. The
Complaints also allege that Isilon, EMC (where applicable) and Purchaser (where applicable) aided and abetted the members of Isilons board of directors in the alleged breach of their fiduciary duties, and that Isilons disclosure on
Schedule 14D-9 contains certain material omissions, rendering some statements therein misleading. The plaintiffs seek relief that includes, among other things, an injunction prohibiting the consummation of the proposed merger, a court order
declaring that the board of directors breached their fiduciary duties in entering into the merger agreement, rescission to the extent the merger terms have already been implemented, and the payment of plaintiffs attorneys fees and
costs. Isilon and EMC believe the lawsuits to be without merit and intend to defend against them vigorously. There can be no assurance, however, with regard to the outcome of these lawsuits.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment is true, complete and correct.
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ISILON SYSTEMS, INC.
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By:
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/s/ Keenan M. Conder
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Keenan M. Conder
Vice
President, General Counsel and Corporate Secretary
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Dated: December 2, 2010
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