UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 1
SOUNDBITE COMMUNICATIONS, INC.
(Name of Subject Company)
SONAR MERGER SUB INC.,
GENESYS TELECOMMUNICATIONS LABORATORIES, INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(Title of Class of Securities)
836091108
(CUSIP Number of Class of Securities)
James M. Rene
Chief Legal Officer
Genesys
2001 Junipero Serra Blvd.
Daly City, California 94014
(650) 466-5000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Robert Schwenkel, Esq.
Brian Mangino, Esq.
Fried, Frank, Harris, Shriver & Jacobson
LLP
One New York Plaza
New York, New York 10004
Phone: (212) 859-8000
Fax: (212) 859-4000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$92,849,536.24
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$12,664.68
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*
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Estimated for purposes of calculating the filing fee only. The transaction value was calculated by adding the sum of (i) 16,552,544 outstanding shares of common
stock, par value $0.001 per share, of SoundBite Communications, Inc. multiplied by the offer price of $5.00 per share; (ii) 321,102 restricted stock units of SoundBite Communications, Inc. multiplied by the offer price of $5.00 per share; and
(iii) 3,212,616 shares of common stock, par value $0.001 per share, of SoundBite Communications, Inc., issuable pursuant to outstanding options with an exercise price less than $5.00 per share, multiplied by an amount equal to $5.00 minus the
weighted average exercise price for such options of $2.36 per share. The calculation of the filing fee is based on information provided by SoundBite Communications, Inc. as of June 1, 2013, the most recent practicable date.
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**
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The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, by multiplying the transaction
valuation by 0.0001364.
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x
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Check 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.
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Amount Previously Paid:
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$12,664.68
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Filing Party:
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Sonar Merger Sub Inc.
and
Genesys Telecommunications Laboratories, Inc
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Form or Registration No.:
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Schedule TO
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Date Filed:
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June 4, 2013
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¨
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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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Check the appropriate boxes below to designate any transactions to which the statement relates:
x
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third-party tender offer subject to Rule 14d-1.
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¨
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issuer tender offer subject to Rule 13e-4.
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¨
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going-private transaction subject to Rule 13e-3.
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¨
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender offer.
¨
This Amendment No. 1 to the Tender Offer Statement on Schedule TO (this
Amendment
) filed with the U.S. Securities and Exchange Commission (the
SEC
) on June 18, 2013, amends and supplements the Tender Offer Statement on Schedule TO filed on June 4, 2013 (as amended and
supplemented from time to time, the
Schedule TO
), relating to the offer by Offeror (as defined below) to purchase all of the outstanding shares of common stock par value $0.001 per share (each a
Share
and
collectively, the
Shares
), of SoundBite Communications, Inc., a Delaware corporation (
SoundBite
), at a purchase price of $5.00 per Share, net to the seller in cash without interest and less taxes required to be
withheld, upon the terms and subject to the conditions set forth in the Offer to Purchase dated June 4, 2013 (the
Offer to Purchase
) and the related Letter of Transmittal (the
Letter of Transmittal
), copies
of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B) (which, together with the Offer to Purchase, as each may be amended and supplemented from time to time, constitute the
Offer
). The Schedule TO (including
the Offer to Purchase) filed with the SEC by Sonar Merger Sub Inc., a Delaware corporation (
Offeror
) and a direct wholly-owned subsidiary of Genesys Telecommunications Laboratories, Inc., a California corporation
(
Genesys
), on June 4, 2013, as amended by this Amendment No. 1 and the Solicitation/Recommendation Statement on Schedule 14D-9 filed with the SEC by SoundBite on June 4, 2013, as amended or supplemented from time to
time, contain important information about the Offer, all of which should be read carefully by SoundBite stockholders before any decision is made with respect to the Offer. The Offer is made pursuant to the Agreement and Plan of Merger, dated as of
May 20, 2013 (as it may be amended from time to time, the
Merger Agreement
), by and among SoundBite, Genesys and Offeror.
Documentation relating to the Offer has been mailed to SoundBite stockholders and may be obtained at no charge at the website maintained by the SEC at www.sec.gov and may also be obtained at no charge by
directing a request by mail to AST Phoenix Advisors, the Information Agent for the Offer, at 6201 15th Avenue, Brooklyn, New York 11219, or by calling toll-free at (877) 478-5038.
All information set forth in the Offer to Purchase and the related Letter of Transmittal is incorporated by reference herein in response
to Item 11 of the Schedule TO, and is supplemented by the information specifically provided in this Amendment. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Offer to Purchase or in
the Schedule TO.
Section 16
Certain Legal Matters; Regulatory Approvals of the Offer to Purchase is hereby amended and supplemented by adding the following text as a new sub-section captioned
Legal Proceedings
after the sub-section captioned
Foreign Notices and Approvals
:
Legal Proceedings.
On June 17, 2013, Stephen Gravener, a purported stockholder of SoundBite, filed a putative class action complaint in
the Superior Court Department of the Trial Court of Middlesex County, Massachusetts, against the individual members of the SoundBite Board, Genesys and Offeror, captioned
Gravener v. SoundBite Communications, Inc., et al.
, Civil Action
No. 13-2273, challenging the proposed transaction (the
Gravener Action
). Plaintiff Graveners class action complaint generally alleges, among other things, that the individual members of the SoundBite Board breached
their fiduciary duties owed to the public stockholders of SoundBite by failing to maximize the consideration available to SoundBite stockholders, and that Genesys and Offeror aided and abetted such breaches of fiduciary duties. In addition, the
complaint alleges that the proposed transaction favors insiders of SoundBite to the detriment of SoundBites stockholders, and that certain provisions of the Merger Agreement improperly favor Offeror and impede a potential alternative
transaction. The complaint also alleges that the Schedule 14D-9 filed by SoundBite on June 4, 2013 omits certain material information. The complaint generally seeks, among other things, injunctive relief prohibiting the defendants from
consummating the proposed transaction, rescission, to the extent already implemented, of the proposed transaction and other forms of relief.
The summary and description is qualified in its entirety by reference to the class action complaint filed in the Gravener Action, which has been filed as Exhibit (a)(5)(C) to the Schedule TO and is
incorporated herein by reference.
Item 12.
Item 12 of the Schedule TO is amended and supplemented by adding the following exhibit:
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Exhibit
Number
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Document
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(a)(5)(C)
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Class Action Complaint, dated June 17, 2013 (Gravener v. SoundBite Communications, Inc., et al.) (incorporated by reference to Exhibit (a)(9) to the Schedule 14D-9/A filed by
SoundBite with the SEC on June 18, 2013).
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[Remainder of the page is intentionally left blank]
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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Dated: June 18, 2013
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SONAR MERGER SUB INC.
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By:
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/s/ James Budge
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Name: James Budge
Title: Chief
Financial Officer
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Dated: June 18, 2013
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GENESYS TELECOMMUNICATIONS LABORATORIES, INC.
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By:
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/s/ James Budge
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Name: James Budge
Title: Chief
Financial Officer
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EXHIBIT INDEX
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Exhibit
Number
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Document
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(a)(1)(A)
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Offer to Purchase, dated June 4, 2013.*
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(a)(1)(B)
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Form of Letter of Transmittal.*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees.*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and other Nominees.*
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(a)(1)(F)
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Form of Summary Advertisement as published in
The Wall Street Journal
on June 4, 2013.*
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(a)(5)(A)
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Joint Press Release, dated May 20, 2013, issued by Genesys and SoundBite (incorporated by reference to the Schedule TO-C filed by Genesys and Offeror with the SEC on May 20,
2013).*
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(a)(5)(B)
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Press Release, dated June 4, 2013, issued by Genesys.*
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(a)(5)(C)
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Class Action Complaint, dated June 17, 2013 (Gravener v. SoundBite Communications, Inc., et al.) (incorporated by reference to Exhibit (a)(9) to the Schedule 14D-9/A filed by
SoundBite with the SEC on June 18, 2013).
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(b)(1)
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Not applicable.
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(d)(1)
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Agreement and Plan of Merger, dated as of May 20, 2013, by and among Genesys, Offeror and SoundBite (incorporated by reference to Exhibit 2.1 to SoundBites Current Report on
Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013).*
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(d)(2)
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Tender and Support Agreement, dated as of May 20, 2013, Genesys, Offeror and Commonwealth Capital Ventures III, L.P. (incorporated by reference to Exhibit 2.2 to SoundBites
Current Report on Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013).*
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(d)(3)
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Tender and Support Agreement, dated as of May 20, 2013, Genesys, Offeror and CCV III Associates L.P. (incorporated by reference to Exhibit 2.3 to SoundBites Current Report on
Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013).*
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(d)(4)
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Tender and Support Agreement, dated as of May 20, 2013, Genesys, Offeror and North Bridge Venture Partners IV-A, L.P. (incorporated by reference to Exhibit 2.4 to SoundBites
Current Report on Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013).*
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(d)(5)
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Tender and Support Agreement, dated as of May 20, 2013, Genesys, Offeror and North Bridge Venture Partners IV-B, L.P. (incorporated by reference to Exhibit 2.5 to SoundBites
Current Report on Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013). *
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(d)(6)
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Tender and Support Agreement, dated as of May 20, 2013, Genesys, Offeror and James A. Milton. (incorporated by reference to Exhibit 2.6 to SoundBites Current Report on
Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013).*
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(d)(7)
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Tender and Support Agreement, dated as of May 20, 2013, Genesys, Offeror and Timothy R. Segall. (incorporated by reference to Exhibit 2.7 to SoundBites Current Report on
Form 8-K, File No. 001-33790, filed with the SEC on May 21, 2013).*
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(d)(8)
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Confidentiality Agreement, dated February 27, 2013, between SoundBite and Greeneden U.S. Holdings II, LLC.*
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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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