Amended Tender Offer Statement by Third Party (sc To-t/a)
September 09 2015 - 3:33PM
Edgar (US Regulatory)
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)
IKANOS
COMMUNICATIONS, INC.
(Name of Subject Company)
King Acquisition Co.
(Name of Offeror)
a
Wholly-owned Subsidiary of
Qualcomm Atheros, Inc.
(Parent of Offeror)
an
Indirect Wholly-Owned Subsidiary of
QUALCOMM Incorporated
(Name of Offerors)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
45173E204
(CUSIP Number
of Class of Securities)
Donald J. Rosenberg
Executive Vice President, General Counsel and Corporate Secretary
Qualcomm Incorporated
5775 Morehouse Dr.
San
Diego, California 92121
(858) 587-1121
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Rama
Padmanabhan
Cooley LLP
4401 Eastgate Mall
San
Diego, California 92121
(858) 550-6000
CALCULATION
OF FILING FEE
|
|
|
Transaction Valuation* |
|
Amount of Filing Fee** |
$50,694,332 |
|
$5,890.69 |
|
* |
Estimated solely for purposes of calculating the filing fee. The transaction valuation was calculated by adding (i) 17,228,613 outstanding shares of common stock, par value $0.001 per share (the Shares)
of Ikanos Communications, Inc. (Ikanos), multiplied by the offer price of $2.75 per Share, (ii) 39,800 Shares issuable pursuant to outstanding options with an exercise price less than the offer price of $2.75 per Share, multiplied
by $0.86, which is the offer price of $2.75 per Share minus the weighted average exercise price for such options of $1.89 per Share, (iii) 1,116,448 restricted stock units multiplied by the offer price of $2.75 per Share and (iv) 76,795
Shares estimated to be subject to outstanding purchase rights under Ikanos Amended and Restated 2004 Employee Stock Purchase Plan multiplied by the offer price of $2.75 per Share. The calculation of the filing fee is based on information provided by
Ikanos as of August 5, 2015. |
** |
The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2015, issued August 29, 2014, by multiplying the
transaction valuation by 0.0001162. |
x |
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: $5,890.69 |
|
Filing Party: QUALCOMM Incorporated, Qualcomm Atheros, Inc., and King |
Form or Registration No.: Schedule TO |
|
Acquisition Co. Date Filed: August 19,
2015 |
¨ |
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. |
|
¨ |
issuer tender offer subject to Rule 13e-4. |
|
¨ |
going-private transaction 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 to the Tender Offer Statement on Schedule TO amends and supplements the Tender Offer
Statement on Schedule TO filed with the Securities Exchange Commission on August 19, 2015 (as amended and together with any subsequent amendments and supplements thereto, the Schedule TO) by King Acquisition Co., a Delaware
corporation (Purchaser) and a wholly-owned subsidiary of Qualcomm Atheros, Inc., a Delaware corporation (Parent). The Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, par value
$0.001 per share (the Shares) of Ikanos Communications, Inc., a Delaware corporation (Ikanos), at $2.75 per Share, net in cash, without interest (less any applicable withholding taxes), upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated August 19, 2015 (as it may be amended or supplemented from time to time, the Offer to Purchase), and in the related letter of transmittal, copies of which are attached to the
Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.
All capitalized terms used in this Amendment No. 3 and not otherwise defined have
the respective meanings ascribed to them in the Schedule TO.
Amendments to the Schedule TO
Item 12. Exhibits.
Item 12 of the Schedule TO
is hereby amended and supplemented by adding the following exhibit:
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Exhibit No. |
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Description |
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(a)(5)(v) |
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Slide Deck used in connection with a meeting with Ikanos employees |
Amendments to the Offer to Purchase
Section 16. Certain Legal Matters; Regulatory Approvals
Section 16 Certain Legal Matters; Regulatory Approvals Legal Proceedings of the Offer to Purchase is amended and restated in
its entirety as follows:
Between August 25 and September 2, 2015, two putative class action lawsuits were filed in the
Superior Court of California, County of Alameda (captioned Weichel v. Banatao, Case No. RG15783287 (filed Aug. 25, 2015), and Tsai v. Banatao, Case No. RG15784408 (filed Sep. 2, 2015)) by purported Ikanos stockholders against the members of the
Ikanos Board, Ikanos, Qualcomm Atheros, Inc., and King Acquisition Co. The complaints generally allege that the Ikanos directors breached their fiduciary duties to Ikanoss minority stockholders in connection with the proposed Merger by one or
more of the following: (i) agreeing to an unfair and/or inadequate Offer Price; (ii) ignoring various conflicts of interest present on the Ikanos Board; (iii) accepting unreasonable deal protection measures in the Merger Agreement
that dissuades other potential bidders from making competing offers; and (iv) providing Ikanos stockholders inadequate or misleading information in the Schedule 14D-9. The Tsai complaint also alleges that Qualcomm aided and abetted the alleged
breaches of fiduciary duty by the Ikanos directors. The complaints seek certification of a class, injunctive relief, including enjoining the Merger, and an award of unspecified attorneys fees and other costs and fees, in addition to other
relief. The complaints also request that the Court rescind and set aside the Merger or provide rescissory damages in the event it is consummated prior to entry of the Courts final judgment.
The outcome of this litigation cannot be predicted with certainty. A preliminary injunction could delay or jeopardize the completion of the Merger, and an
adverse judgment granting permanent injunctive relief could indefinitely enjoin completion of the Merger.
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement
is true, complete and correct.
Date: September 9, 2015
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King Acquisition Co. |
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By: |
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/s/ Daniel D. Vrechek |
Name: |
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Daniel D. Vrechek |
Title: |
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Secretary and Vice President |
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Qualcomm Atheros, Inc. |
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By: |
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/s/ Daniel D. Vrechek |
Name: |
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Daniel D. Vrechek |
Title: |
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Secretary, Vice President and
General Counsel |
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QUALCOMM Incorporated |
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By: |
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/s/ Adam Schwenker |
Name: |
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Adam Schwenker |
Title: |
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Assistant Secretary, Vice President
and Legal Counsel |
EXHIBIT INDEX
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Exhibit
No. |
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Description |
|
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(a)(1)(i)* |
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Offer to Purchase, dated as of August 19, 2015 |
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(a)(1)(ii)* |
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Form of Letter of Transmittal (including Internal Revenue Service Form W-9) |
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(a)(1)(iii)* |
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Form of Notice of Guaranteed Delivery |
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(a)(1)(iv)* |
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees |
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(a)(1)(v)* |
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Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees |
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(a)(1)(vi)* |
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Summary Advertisement, as published in The New York Times on August 19, 2015 |
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(a)(5)(i) |
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Press Release issued by QUALCOMM Incorporated, dated August 6, 2015 (incorporated by reference to the Schedule TO-C filed by QUALCOMM Incorporated on August 6, 2015) |
|
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(a)(5)(ii) |
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Slide Deck used in connection with a meeting with Ikanos employees (incorporated by reference to the Schedule TO-C filed by QUALCOMM Incorporated on August 7, 2015) |
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(a)(5)(iii) |
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Slide Deck used in connection with a meeting with Ikanos employees (incorporated by reference to the Schedule TO-C filed by QUALCOMM Incorporated on August 17, 2015) |
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(a)(5)(iv)* |
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FAQs made available to Ikanos employees |
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(a)(5)(v) |
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Slide Deck used in connection with a meeting with Ikanos employees |
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(d)(1) |
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Agreement and Plan of Merger, dated as of August 5, 2015, among Ikanos, Parent and Purchaser (incorporated by reference to the Current Report on Form 8-K/A filed by Ikanos on August 19, 2015) |
|
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(d)(2) |
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Form of Tender and Support Agreement, dated as of August 5, 2015, among Parent, Purchaser and certain stockholders of Ikanos (incorporated by reference to the Current Report on Form 8-K filed by Ikanos on August 6, 2015) |
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(d)(3)* |
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Confidentiality Agreement, dated as of February 23, 2015, between QUALCOMM Incorporated and Ikanos |
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(d)(4)* |
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Exclusivity Agreement, dated as of June 22, 2015, between Qualcomm Technologies, Inc. and Ikanos |
Employment with Qualcomm Exhibit (a)(5)(v) |
2 About the Tender Offer This communication is neither an offer to purchase nor a solicitation of an offer to sell any shares of common stock of
Ikanos or any other securities. Qualcomm has filed a tender offer statement on Schedule TO with the United States
Securities and Exchange Commission (SEC) and a Solicitation/Recommendation
Statement on Schedule 14D-9 has been
filed with the SEC by Ikanos. The offer to purchase shares of Ikanos common stock will only be made pursuant to the offer to purchase, the letter of transmittal and related documents filed as a part of the Schedule TO. INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ BOTH THE TENDER OFFER STATEMENT, AS FILED AND AS IT
MAY BE AMENDED FROM TIME TO TIME, AND THE SOLICITATION/ RECOMMENDATION
STATEMENT, AS FILED AND AS MAY BE AMENDED FROM TIME TO TIME, BECAUSE THEY
CONTAIN IMPORTANT INFORMATION REGARDING THE OFFER. Investors and security
holders may obtain a free copy of these statements and other documents filed with the SEC at the website maintained by the SEC at www.sec.gov or by directing such requests to D.F. King & Co., Inc., the
Information Agent for the offer, at 877-478-5044.
|
3 Safe Harbor This communication contains forward-looking statements. Any statements contained herein which do not
describe historical facts, including but not limited to, statements regarding: the
proposed transaction between Qualcomm and Ikanos; the expected timetable
for completing the transaction; strategic and other potential benefits of
the transaction; and any other statements about Qualcomm managements future expectations, beliefs, goals, plans, or prospects, are forward-looking statements which involve risks and
uncertainties that could cause actual results to differ materially from those discussed
in such forward- looking statements. Such risks and uncertainties
include: the possibility that certain closing conditions to the
transaction will not be satisfied; that required regulatory approvals for the transaction may not be obtained in a timely manner, if at all; the ability to timely consummate the transaction and possibility that the
transaction will not be completed; the ability of Qualcomm to successfully integrate
Ikanos operations and employees; the anticipated benefits of the
transaction may not be realized; and those additional factors discussed
in Qualcomms most recent Quarterly and Annual Reports on Forms 10-Q and 10-K filed with the SEC. Investors are urged not to place undue reliance on these forward-looking statements, which speak
only as of the date of this communication. Qualcomm undertakes no obligation to revise
or update any forward-looking statements in order to reflect any
event or circumstance that may arise after the date of this
communication. |
4 Welcome letters 1 Total Rewards at Qualcomm 2 Next steps 3 Agenda XXXXXXX |
5 Our opportunity Enables complete and integrated hardware and software solutions for carrier customers Builds on Qualcomm Atheros leadership in Wi-Fi, small cells, Ethernet and PLC
technologies Enhances our strategy for IoE and small cells Accelerating leadership in the multi-mode smart home gateway + |
7 Todays offer package Whats included Your Qualcomm title and employing entity Your base compensation Your eligibility for Qualcomms Total Rewards Review cycle Benefit programs for you and your family Your eligibility for an RSU award Your HR contact |
8 Total rewards @ Qualcomm |
9 Elements of Total Rewards at Qualcomm Take charge of your Health Balance your Life Cash incentive program Stock awards Regular performance reviews Wellness challenges and events ESPP Life insurance Fitness centers or reimbursements Time off Social events Employee driven Community & charitable activities Manage your Wealth Achieve your professional goals |
10 Compensation Overview Key components of our compensation program Salary Established by country based on local labor market data Takes into account individual performance and salary as compared to market Rewards past performance Bonus program Qualcomms discretionary cash bonus program is designed to: Reward individual employee contributions In alignment with the achievement of company financial objectives Stock program Provides ownership in Qualcomm Fosters long-term commitment and sharing in Qualcomms success |
11 1/3 vests 3 years from grant date 1/3 vests 3 years from grant date 1/3 vests 2 years from grant date 1/3 vests 2 years from grant date Restricted stock units (RSU) The promise to receive a share of stock after a vesting period No cash investment by employees Full market value of Qualcomm stock Current vest schedule is 3 year annual The vested shares can be sold at any time Characteristics 1/3 vests 1 year from grant date 1/3 vests 1 year from grant date |
12 RSU grant dates Qualcomm only grants new hire RSUs four times a year New hire grants will be awarded according to the following schedule Hire date Qualcomm grant date May 1 July 31 Aug 20 Aug 1 Oct 31 Nov 20 Nov 1 Jan 31 Feb 20 Feb 1 April 30 May 20 |
13 Benefits overview U.S. |
14 Health coverage Medical United Healthcare (UHC) PPO or Kaiser EPO (in California) Prescription Drug coverage provided by Caremark for UHC PPO No employee premiums for employee OR dependent coverage Dental Delta Dental No employee premiums for employee OR dependent coverage Vision VSP - Nominal employee premiums for dependent vision Calendar year 2015 |
15 Medical Qualified Deductible Health Plan United Healthcare (UHC) PPO with Caremark Rx or Kaiser EPO (in California) Deductibles are $1500 EE Only | $2750 EE + Children | $3450 EE + SP or EE + Family
No employee premiums for employee OR dependent coverage Working spouse charge HSA Administered by ConnectYourCare Qualcomm funded deductible in 2016 (partial funding in 2017) + wellness incentive Dental & Vision No changes to dental and vision in 2016 Health coverage Calendar year 2016 |
16 Flexible Spending Accounts (FSA) 2015 Health Care: $2,550 annual max Dependent Day Care: $5,000 annual max, per household (continues in 2016) Expenses on current FSA should be incurred prior to close More information will be provided on reimbursement window 2016 Limited Purpose Health Care: $2,550 annual max (subject to IRS updates) Reimburse eligible dental & vision expenses only until meeting medical deductible |
17 Life and accidental death and dismemberment Salaried (exempt) employees: 3x salary Hourly (non-exempt) employees: 2x salary Voluntary Life Employee: may purchase from $50k up to an additional $1 Million Spouse: may purchase from $50k up to an additional $500k Children: $5k or $10k Guaranteed issue of $250k |
18 Disability Short-term disability Provides temporary income replacement for up to 180 days (tax-free in CA) Long-term disability Salaried (exempt) employees: 60% to $15,000/month (tax-free) Hourly (non-exempt) employees: 60% to $5,000/month (tax-free) |
19 Employee Stock Purchase Plans (ESPP) Employees can purchase Qualcomm stock at 15% discount Two six-month offering periods per year Elective payroll deduction Next eligible offering period is February 1, 2016 |
20 401(k) Immediately eligible to participate in Qualcomm plan Generous company match 100% of first $1,500 50% of next $1,500 33% on the following $7,500 10% thereafter 2-year vesting schedule for company match Ikanos service date will be grandfathered for determining vesting date Core line-up of high performing mutual funds available as well as Fidelity BrokerageLink You will be able to roll over your current 401(k) to the Qualcomm plan Maximize Your Match If you contribute $18,000 at Qualcomm, the company matches a total of $5,475! |
21 Time off benefits Holidays 10 company-designated holidays, and 1 employee-designated holiday per year
Sick Salaried (exempt) employees accrue 0.044 hours per hour worked Hourly (non-exempt) employees accrue 0.044 hours per hour worked Vacation Vacation accrual rate based on Salaried/Hourly status and years of service Ikanos service date will be grandfathered for determining accrual rate Accrued and unused vacation days will be carried over |
22 Vacation accrual rates Salaried (exempt & OEP) employees Years of service Annual accrual Accrual per pay period Maximum accrual 0 to 5 years 15 days 4.62 hours 240 hours 5 to 10 years 20 days 6.15 hours 320 hours 10+ years 25 days 7.69 hours 400 hours Hourly (non-exempt) employees Years of service Annual accrual Accrual per pay period Maximum accrual 0 to 5 years 10 days 3.08 hours 160 hours 5 to 10 years 15 days 4.62 hours 240 hours 10+ years 20 days 6.15 hours 320 hours |
23 Other benefits QLiving Work/life programs Vendor discount programs (Passport Card) Back-up childcare, child and elder care resources and referral (Bright Horizons)
Best Doctors - Expert physician consultation and referral, free of charge MDLive Telemedicine appointments with no copays Employee Assistance Plan Charitable contribution match Adoption assistance Health club membership reimbursement or on-site fitness centers Commuter subsidy Wireless device subsidy |
24 Learning and development Learning Center Robust education tuition assistance program ($5,250 for AA/BA, certificate programs, and continuing education $10,125 for post-grad) Customized engineering development programs Management, leadership and professional skills programs Career development tools and resources Library and Information Services Virtual access to thousands of engineering resources including IEEE Xplore, ACM Digital Library, Standards, and teardown Research and analysis delivery from an expert team of researchers. |
26 Next steps Youll meet with an HR representative Well distribute your welcome packages Please return a signed copy of the welcome letter, indicating whether you accept
the new terms by September 15, 2015 We look forward to you becoming part of Qualcomm! |
27 Resources and information Questions Please email the HR contact listed in your welcome letter Integration website Visit Welcome.qualcomm.com for information about Qualcomm, our culture and FAQs |
29 For more information, visit us at: www.qualcomm.com & www.qualcomm.com/blog © 2013-2015 Qualcomm Technologies, Inc. and/or its affiliated companies. All Rights Reserved.
Qualcomm is a trademark of Qualcomm Incorporated, registered in the United States and
other countries. All trademarks of Qualcomm Incorporated are used with
permission. Other products and brand names may be trademarks or registered trademarks of their respective owners. References in this presentation to Qualcomm may mean Qualcomm Incorporated, Qualcomm Technologies, Inc., and/or other subsidiaries or
business units within the Qualcomm corporate structure, as
applicable. Qualcomm Incorporated includes Qualcomms licensing
business, QTL, and the vast majority of its patent portfolio. Qualcomm Technologies, Inc., a wholly-owned subsidiary of Qualcomm Incorporated, operates, along with its subsidiaries, substantially all of Qualcomms engineering,
research and development functions, and substantially all of its product
and services businesses, including its semiconductor business. Thank
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