UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

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

(Amendment No. 3)

 

 

Comverge, Inc.

(Name of Subject Company (Issuer))

 

 

Peak Merger Corp.

(Name of Filing Person - Offeror)

Peak Holding Corp.

(Name of Filing Person - Offeror)

H.I.G. Bayside Debt & LBO Fund II, L.P.

H.I.G. Bayside Advisors II, LLC

H.I.G.-GPII, Inc.

Sami W. Mnaymneh

Anthony A. Tamer

(Name of Filing Persons - Other)

 

 

COMMON STOCK, $0.001 PAR VALUE PER SHARE

(Title of Class of Securities)

 

 

205859101

(CUSIP Number of Class of Securities)

 

 

Brian Schwartz

Richard H. Siegel, Esq.

1450 Brickell Avenue

31st Floor

Miami, Florida 33131

(305) 379-2322

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications

on Behalf of Filing Persons)

 

 

Copy to:

 

James S. Rowe, Esq.

Michael H. Weed, P.C.

Kirkland & Ellis LLP

300 North LaSalle

Chicago, IL 60654

Telephone: (312) 862-2000

CALCULATION OF FILING FEE

 

Transaction Valuation(1)

 

Amount of Filing Fee(2)

$48,257,741.73

  $5,530.34

 

(1) Estimated for purposes of calculating the filing fee only. The calculation assumes the purchase of 27,511,443 shares of Comverge, Inc. common stock. The transaction value also includes the aggregate offer price for 112,169 shares issuable pursuant to outstanding options with an exercise price less than $1.75 per share, which is calculated by multiplying the number of shares underlying such outstanding options by an amount equal to $1.75 minus the weighted average exercise price of such options.
(2) Calculated in accordance with Rule 0-11 under the Securities and Exchange Act of 1934, as amended, and Fee Rate Advisory #3 for fiscal year 2012, issued September 27, 2011, by multiplying the transaction value by 0.0001146
þ 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.
¨ Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

Amount Previously Paid: $5,530.34

  Filing Party: Peak Merger Corp.

Form or Registration No.: Schedule TO

  Date Filed: April 11, 2012

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

þ Third-party offer subject to Rule 14d-1.

¨ Issuer tender offer subject to Rule 13e-4.

¨ Going-private transactions subject to Rule 13e-3.

¨ 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: ¨

This Amendment No. 3 amends and supplements the Tender Offer Statement on Schedule TO (which, together with any amendments and supplements thereto, collectively constitute this “Schedule TO”) relating to the tender offer by Peak Merger Corp., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Peak Holding Corp., a Delaware corporation (“Parent”), to purchase all of the outstanding shares of common stock (the “Shares”), par value $0.001 per share of Comverge, Inc., a Delaware corporation (“Comverge”), at a price of $1.75 per share, net to the seller in cash without interest and less any required withholding taxes, if any, upon the terms and conditions set forth in the offer to purchase dated April 11, 2012 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, together with any amendments or supplements, collectively constitute the “Offer.”

All of the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided for in this Schedule TO.

Items 1 through 9 and 11

Items 1 through 9 and 11 of the Schedule TO, which incorporates by reference the information contained in the Offer to Purchase, is hereby revised as follows:

On May 9, 2012, Purchaser extended the expiration of the Offer until 5:00 p.m., New York City time, on May 9, 2012. The Offer had previously been scheduled to expire at midnight, New York City time, at the end of the day on May 8, 2012. The depositary for the Offer has advised that, at midnight, New York City time, at the end of the day on May 8, 2012, a total of 13,664,455 Shares (including Shares that had been tendered pursuant to notices of guaranteed delivery), which represent approximately 49.5% of the outstanding Shares, had been tendered and not withdrawn.

The press release announcing the extension of the Offer is attached hereto as Exhibit (a)(1)(I) and is incorporated herein by reference.

Item 12. Exhibits

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:

 

Exhibit No.

  

Description

(a)(1)(I)    Press Release issued by H.I.G. Capital, LLC on May 9, 2012

 

1

SIGNATURES

After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: May 9, 2012

 

 

PEAK MERGER CORP.
By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Attorney in Fact

 

PEAK HOLDING CORP.
By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Attorney in Fact

 

H.I.G. BAYSIDE DEBT & LBO FUND II, L.P.

 

By: H.I.G. Bayside Advisors II, LLC

Its: General Partner

 

By: H.I.G.-GPII, Inc.

Its: Manager

By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Vice President and General Counsel

 

 

H.I.G. BAYSIDE ADVISORS II, LLC

 

By: H.I.G.-GPII, Inc.

Its: Manager

By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Vice President and General Counsel

.

 

H.I.G.-GPII, INC.
By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Vice President and General Counsel

 

SAMI W. MNAYMNEH
By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Attorney in Fact

 

ANTHONY A. TAMER

By:   /s/ Richard H. Siegel
Name:   Richard H. Siegel
Title:   Attorney in Fact

 

2

Exhibit Index

 

Exhibit No.

  

Description

(a)(1)(A)    Offer to Purchase, dated April 11, 2012*
(a)(1)(B)    Form of Letter of Transmittal*
(a)(1)(C)    Form of Notice of Guaranteed Delivery*
(a)(1)(D)    Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
(a)(1)(E)    Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*
(a)(1)(F)    Form of Summary Advertisement as published on April 11, 2012 in the New York Times*
(a)(1)(G)    Press Release issued by Comverge, Inc. on March 26, 2012 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Comverge, Inc. with the Securities and Exchange Commission on March 26, 2012)*
(a)(1)(H)    Joint Press Release issued by H.I.G. Capital, LLC and Comverge, Inc. on April 11, 2012 (incorporated by reference to Exhibit (a)(8) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(1)(I)    Press Release issued by H.I.G. Capital, LLC on May 9, 2012
(a)(5)(A)    Complaint filed March 29, 2012, in the Superior Court of Gwinnett County in the State of Georgia, captioned Stourbridge Investments LLC v. Dreyer et al. (incorporated by reference to Exhibit (a)(12) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(B)    Complaint filed March 29, 2012 in the Court of Chancery of the State of Delaware, captioned Schultz v. Young et al. (incorporated by reference to Exhibit (a)(13) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(C)    Complaint filed March 30, 2012 in the Court of Chancery of the State of Delaware, captioned Somlinga v. Dreyer et al. (incorporated by reference to Exhibit (a)(14) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(D)    Complaint filed April 2, 2012 in the Court of Chancery of the State of Delaware, captioned Cohen v. Young et al. (incorporated by reference to Exhibit (a)(17) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(E)    Complaint filed April 3, 2012 in the Superior Court of Gwinnett County in the State of Georgia, captioned Cunningham v. Comverge, Inc. et al. (incorporated by reference to Exhibit (a)(18) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(F)    Complaint filed April 4, 2012 in the Court of Chancery of the State of Delaware, captioned Walker v. Comverge, Inc. et al. (incorporated by reference to Exhibit (a)(15) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(G)    Complaint filed April 4, 2012 in the Court of Chancery of the State of Delaware, captioned Kanakamedala v. Young? et al. (incorporated by reference to Exhibit (a)(16) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(a)(5)(H)    Verified Consolidated Amended Class Complaint filed April 18, 2012 in the Court of Chancery of the State of Delaware, captioned In re Comverge, Inc. Shareholders Litigation*
(a)(5)(I)    Verified Class Action Complaint filed April 18, 2012 in the Court of Chancery of the State of Delaware, captioned Cunningham v. Comverge, Inc. et al.*
(b)    Not applicable
(d)(1)    Agreement and Plan of Merger, dated as of March 26, 2012, among Comverge, Inc., Peak Merger Corp. and Peak Holding Corp. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Comverge, Inc. with the Securities and Exchange Commission on March 26, 2012)*

 

3

Exhibit No.

  

Description

(d)(2)    Amendment No. 1 dated April 5, 2012 to the Agreement and Plan of Merger, dated as March 26, 2012, among Comverge, Inc., Peak Merger Corp. and Peak Holding Corp. (incorporated by reference to Exhibit (e)(2) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(d)(3)    Note Purchase and Security Agreement, dated as of March 26, 2012 by and among Comverge, Inc., Peak Holding Corp., and the other parties named therein (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Comverge, Inc. with the Securities and Exchange Commission on March 26, 2012)*
(d)(4)    Amendment No. 1 dated April 18, 2012 to the Note Purchase Agreement and Security Agreement, dated as of March 26, 2012, by and among Comverge, Inc., Peak Holding Corp., and the other parties named therein*
(d)(5)    Loan and Security Agreement, dated as of November 5, 2010, by and among Comverge, Inc., its subsidiaries and Partners for Growth III, L.P. (incorporated by reference to Exhibit 10.47 to the Annual Report on Form 10-K filed by Comverge, Inc. with the Securities and Exchange Commission on March 9, 2011)*
(d)(6)    Assignment and Assumption Agreement, dated as of February 24, 2012, by and between Partners for Growth III, L.P. and Grace Bay Holdings II, LLC (incorporated by reference to Exhibit 99.2 to the Schedule 13D filed by Grace Bay Holdings II, LLC, Bayside Capital, Inc., Sami Mnaymneh and Anthony Tamer on February 27, 2012)*
(d)(7)    Forbearance Agreement, dated as of March 26, 2012 by and among Comverge, Inc., Grace Bay Holdings II, LLC, and the other parties named therein (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by Comverge, Inc. with the Securities and Exchange Commission on March 26, 2012)*
(d)(8)    Forbearance Agreement, dated as of March 26, 2012 by and among Comverge, Inc., Peak Holding Corp., and the other parties named therein (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed by Comverge, Inc. with the Securities and Exchange Commission on March 26, 2012)*
(d)(9)    Non-Disclosure Agreement, dated as of November 15, 2011, by and between Comverge, Inc. and H.I.G. Middle Market LLC.*
(d)(10)    Exclusivity Agreement, dated as of January 26, 2012, by and between Comverge, Inc. and H.I.G. Middle Market LLC.*
(d)(11)    Modification, dated April 3, 2012, to the Loan and Security Agreement dated as of November 5, 2010, between Comverge, Inc. and Grace Bay Holdings II, LLC (incorporated by reference to Exhibit (e)(7) of the Schedule 14D-9 filed by Comverge, Inc. with the Securities and Exchange Commission on April 12, 2012)*
(d)(12)    Modification, dated April 18, 2012, to the Loan and Security Agreement dated as of November 5, 2010, between Comverge, Inc. and Grace Bay Holdings II, LLC*
(g)    Not applicable
(h)    Not applicable

 

* Previously filed.

 

4

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