SC TO-T: Tender offer statement by Third Party
Published on October 15, 2009
Table of Contents
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement Under
Section 14(d)(1) or 13(e)(1) of
the Securities Exchange Act of
1934
AVOCENT CORPORATION
(Name of Subject
Company)
GLOBE ACQUISITION
CORPORATION
EMERSON ELECTRIC CO.
(Names of Filing Persons
Offeror)
Common Stock, Par Value $0.001
Per Share
(Title of Class of
Securities)
053893103
(Cusip Number of Class of
Securities)
Frank L. Steeves
Senior Vice President, Secretary
and General Counsel
Emerson Electric Co.
8000 West Florissant
Avenue
St. Louis,
Missouri
Telephone:
(314) 553-2000
(Name, Address and Telephone
Number of Person Authorized to Receive Notices
and Communications on Behalf of
Filing Persons)
Copies to:
Phillip R.
Mills, Esq.
Marc O.
Williams, Esq.
Davis Polk & Wardwell
LLP
450 Lexington Avenue
New York, New York
10017
Telephone:
(212) 450-4000
CALCULATION OF FILING
FEE
|
Transaction Valuation*
|
Amount of Filing Fee**
|
|
|
$1,112,035,440.60
|
$62,051.58 |
| * | Estimated for purposes of calculating the filing fee only. Calculated by adding (i) the product of (A) 44,305,575 shares of common stock of Avocent Corporation (Shares) outstanding as of October 1, 2009 and (B) $25.00, which is the per Share tender offer price, and (ii) the product of (A) 695,580, which is the number of Shares subject to in-the-money options outstanding as of October 1, 2009, and (B) 6.32, which is the difference between the $25.00 per Share tender offer price and $18.68, the average weighted exercise price of such options. | |
| ** | 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 .00005580. |
| o | 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. |
|
Amount Previously Paid:
|
Not applicable. |
Filing Party: |
Not applicable. |
|||
|
Form or Registration No.:
|
Not applicable. |
Date Filed: |
Not applicable. |
| 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
TABLE OF CONTENTS
Table of Contents
Items 1
through 9, and Item 11.
This Tender Offer Statement on Schedule TO (the
Schedule TO) relates to the offer by
Globe Acquisition Corporation, a Delaware corporation and a
wholly owned subsidiary of Emerson Electric Co., a Missouri
corporation, to purchase all outstanding shares of common stock,
par value $0.001 per share, of Avocent Corporation, a Delaware
corporation, at $25.00 per Share in cash, without interest, less
certain applicable taxes, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated
October 15, 2009 (the Offer to
Purchase), and in the related Letter of Transmittal,
copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), respectively (which, together with any amendments or
supplements thereto, collectively constitute the
Offer).
The information set forth in the Offer to Purchase, including
all schedules thereto, is hereby expressly incorporated herein
by reference in response to all of the items of this
Schedule TO, except as otherwise set forth below.
| Item 10. | Financial Statements. |
Not applicable.
| Item 12. | Exhibits. |
|
Exhibit No.
|
Description
|
|
|
(a)(1)
|
Offer to Purchase dated October 15, 2009. | |
|
(a)(2)
|
Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9). | |
|
(a)(3)
|
Notice of Guaranteed Delivery. | |
|
(a)(4)
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
|
(a)(5)
|
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
|
(a)(6)
|
Summary Advertisement dated October 15, 2009. | |
|
(a)(7)
|
Avocent Acquisition Talking Points | |
|
(a)(8)
|
Letter to Customers of LANDesk | |
|
(b)
|
Not applicable. | |
|
(c)
|
Not applicable. | |
|
(d)(1)
|
Agreement and Plan of Merger dated as of October 5, 2009 among Avocent Corporation, Emerson Electric Co. and Globe Acquisition Corporation (incorporated by reference to the Form 8-K filed by Emerson Electric Co. on October 9, 2009). | |
|
(d)(2)
|
Confidentiality Agreement dated June 16, 2009 between Avocent Corporation and Emerson Electric Co. | |
|
(d)(3)
|
Exclusivity Agreement dated September 17, 2009 between Avocent Corporation and Emerson Electric Co. | |
|
(e)
|
Not applicable. | |
|
(f)
|
Not applicable. | |
|
(g)
|
Not applicable. | |
|
(h)
|
Not applicable. |
Table of Contents
SIGNATURES
After due inquiry and to the best knowledge and belief of the
undersigned, each of the undersigned certify that the
information set forth in this statement is true, complete and
correct.
Date: October 15, 2009
GLOBE ACQUISITION CORPORATION
| By: |
/s/ Craig
W. Ashmore
|
Name: Craig W. Ashmore
Title: President
EMERSON ELECTRIC CO.
| By: |
/s/ David
N. Farr
|
Name: David N. Farr
Title: Chairman, Chief Executive
Officer and President
Table of Contents
EXHIBIT INDEX
|
Exhibit No.
|
Description
|
|||
| (a)(1) | Offer to Purchase dated October 15, 2009. | |||
| (a)(2) | Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9). | |||
| (a)(3) | Notice of Guaranteed Delivery. | |||
| (a)(4) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |||
| (a)(5) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |||
| (a)(6) | Summary Advertisement dated October 15, 2009. | |||
| (a)(7) | Avocent Acquisition Talking Points | |||
| (a)(8) | Letter to Customers of LANDesk | |||
| (d)(2) | Confidentiality Agreement dated June 16, 2009 between Avocent Corporation and Emerson Electric Co. | |||
| (d)(3) | Exclusivity Agreement dated September 17, 2009 between Avocent Corporation and Emerson Electric Co. | |||