- Amended tender offer statement by Third Party (SC TO-T/A)
October 23 2009 - 9:18AM
Edgar (US Regulatory)
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Amendment No. 4)
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
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68212S109
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(Titles of classes of securities)
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(CUSIP number of class of securities)
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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*
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Amount of Filing Fee**
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$1,790,228,933.00
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$99,894.77
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*
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
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Filing
Party: Adobe Systems Incorporated and
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Snowbird
Acquisition Corporation
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Form or
Registration No. Schedule TO
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Date
Filed: September 24, 2009
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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:
x
This Amendment No. 4 (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 this 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.
Items 1, 4 and 11 of the Statement are
amended and supplemented to include the following:
The Offer expired at 12:00 midnight, New
York City, New York time, on October 22, 2009. The Purchaser has been advised by the
depositary that 68,125,532 Shares were validly tendered and not withdrawn prior
to the expiration of the Offer, representing approximately 86.68% of the Shares
outstanding as of October 22, 2009.
The depositary also has advised the Purchaser that it has received
commitments to tender approximately 3,031,464 additional shares pursuant to the
Offers guaranteed delivery procedure. On
October 23, 2009, the Purchaser accepted for payment all validly tendered
and not withdrawn Shares (including certain Shares tendered to the depositary
pursuant to the Offers guaranteed delivery procedure) in accordance with the
terms and conditions of the Offer and applicable law.
Adobe expects to complete the acquisition of
Omniture on October 23, 2009 through the merger of the Purchaser with and
into Omniture in accordance with applicable provisions of Delaware law that
authorize the completion of the merger without a vote or meeting of
stockholders of Omniture. Pursuant to
the terms of the
Agreement
and Plan of Merger by and among Adobe, the Purchaser and Omniture, dated as of September 15,
2009 (the Merger Agreement),
all remaining publicly held
Shares (other than Shares held by holders who properly exercise their appraisal
rights under applicable Delaware law) will be acquired for $21.50 per share,
net to the holder in cash, without interest but subject to any applicable tax
withholding, in the merger.
In order to accomplish the merger as a short
form merger under Delaware law, on October 23, 2009, the Purchaser will
exercise its top-up option pursuant to the Merger Agreement, which permits
the Purchaser to purchase additional shares of Omniture common stock directly
from Omniture for $21.50 per share, the same dollar amount per share paid in
the Offer.
On October 23, 2009, Adobe issued a press release announcing the
expiration of the Offer. The press release
is contained in Exhibit (a)(5)(E) to this Schedule TO and the
information set forth in the press release is incorporated herein by reference.
Item 12.
Exhibits.
Item 12 of the Schedule TO is amended and supplemented to include the
following:
(a)(5)(E) Press Release issued on October 23,
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.
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SNOWBIRD
ACQUISITION CORPORATION
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By:
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/s/
Mark Garrett
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Name:
Mark Garrett
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Title:
President and Treasurer
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ADOBE
SYSTEMS INCORPORATED
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By:
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/s/
Shantanu Narayen
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Name:
Shantanu Narayen
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Title:
President and Chief Executive Officer
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Date:
October 23, 2009
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3
INDEX TO
EXHIBITS
(a)(1)(A)
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Offer
to Purchase, dated as of September 24, 2009.*+
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(a)(1)(B)
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Letter
of Transmittal.*+
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(a)(1)(C)
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Notice
of Guaranteed Delivery.*+
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(a)(1)(D)
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Letter
to Brokers, Dealers, Banks, Trust Companies and other Nominees.*+
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(a)(1)(E)
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Letter
to Clients for use by Brokers, Dealers, Banks, Trust Companies and other
Nominees.*+
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(a)(5)(A)
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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).
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(a)(5)(B)
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Summary Advertisement
published on September 24, 2009.*
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(a)(5)(C)
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Press Release issued by
Adobe on September 24, 2009.*
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(a)(5)(D)
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Press Release issued by
Adobe on October 6, 2009.**
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(a)(5)(E)
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Press Release issued by
Adobe on October 23, 2009.
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(b)(1)
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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).
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(b)(2)
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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).
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(b)(3)
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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).
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(d)(1)
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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)
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(d)(2)
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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
.*
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(d)(3)
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Confidentiality Agreement,
dated August 2, 2009, by and between Omniture and Adobe
.*
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(d)(3)(A)
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Exclusivity Agreement,
dated September 9, 2009, by and between Adobe and Omniture.*
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(d)(4)
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Employment Agreement,
dated as of September 15, 2009, by and between Joshua G. James and Adobe
.*
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(d)(5)
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Offer Letter, dated
September 14, 2009, by and between Chris Harrington and Adobe
.*
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(d)(6)
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Offer Letter, dated
September 14, 2009, by and between Brett Error and Adobe
.*
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(d)(7)
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Offer Letter, dated
September 14, 2009, by and between John Mellor and Adobe.*
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(d)(8)
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Offer Letter, dated
September 14, 2009, by and between Mike Herring and Adobe.*
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(d)(9)
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Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by Joshua G.
James in favor of Adobe.*
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(d)(10)
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Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by Chris
Harrington in favor of Adobe.*
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(d)(11)
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Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by Brett Error in
favor of Adobe.*
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(d)(12)
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Non-Competition and
Non-Solicitation Agreement, dated September 15, 2009, by John Mellor in
favor of Adobe.*
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(g)
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Not applicable.
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(h)
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Not applicable.
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* Previously filed as exhibits to the Schedule TO filed with
the SEC on September 24, 2009.
** Previously filed as an exhibit to Amendment No. 2 to the
Schedule TO filed with the SEC on October 6, 2009.
+ Previously mailed to the holders and beneficial owners of the
Shares, commenced as of September 24, 2009 and completed as of
September 25, 2009.
5
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