Packeteer Inc - Current report filing (8-K)
04 Juni 2008 - 12:01PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
May 30, 2008
PACKETEER, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-34017
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77-0420107
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(State or other jurisdiction
of incorporation)
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(Commission File No.)
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(I.R.S. Employer
Identification No.)
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10201 NORTH DE ANZA BLVD.
CUPERTINO, CALIFORNIA 95014
Registrants telephone number, including area code: (408) 873-4400
(Address and telephone number of registrants principal executive offices)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 5.01.
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Changes in Control of Registrant.
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On April 20, 2008, the Company entered into an Agreement and Plan of Merger (the Agreement)
with Blue Coat Systems, Inc., a Delaware corporation (Blue Coat), and Cooper Acquisition, Inc.
(Merger Subsidiary), a Delaware corporation and a wholly owned subsidiary of Blue Coat. Pursuant
to the Agreement, Blue Coat caused Merger Subsidiary to commence a tender offer for all of the
outstanding shares of the Companys common stock, par value $0.001 (the Shares), for $7.10 per
Share (the Offer Price), subject to the satisfaction or waiver of the conditions disclosed in the
Offer to Purchase on Schedule TO (as amended and supplemented from time to time, the Offer to
Purchase) filed by Blue Coat and Merger Subsidiary with the Securities and Exchange Commission
(the SEC) on May 1, 2008 (the Offer).
The initial period of the Offer expired at 5:00 p.m., New York City time, on Friday, May 30,
2008. According to Computershare Trust Company, N.A., the depositary for the Offer, as of 5:00
p.m., New York City time, on Friday, May 30, 2008, 29,694,108 Shares were tendered pursuant to the
Offer and not withdrawn (including 3,695,205 Shares which were tendered pursuant to the guaranteed
delivery procedures set forth in the Offer to Purchase). Merger Subsidiary has accepted for
payment all Shares that were validly tendered and not withdrawn. Such Shares, together with the
3,559,117 Shares Blue Coat purchased on April 20, 2008 for $7.10 per Share from The Liverpool
Limited Partnership and Elliott International, L.P. for an aggregate of approximately $25 million
(the First Purchase), represent approximately 89.6% of all outstanding Shares.
Based on the Offer Price and the percentage of outstanding shares tendered and accepted by
Merger Subsidiary for payment, the aggregate value of the Shares purchased by Merger Subsidiary in
connection with the Offer is approximately $236 million. A portion of the funds used by Merger
Subsidiary to purchase the Shares pursuant to the Offer were from Blue Coats available cash and
cash equivalents, and the remainder was received by Blue Coat from its sale and issuance of Zero
Coupon Convertible Senior Notes due 2013 (the Notes) in the principal aggregate amount of $80
million and warrants to purchase an aggregate of 385,356 shares of Blue Coats common stock at an
exercise price of $20.76 per share to Manchester Securities Corp. and Francisco Partners II, L.P.
in a private placement and pursuant to the terms of a note and purchase agreement. Blue Coat filed
the final form of Note with the SEC as Exhibit 4.01 to its Current Report on Form 8-K filed on June
3, 2008.
On June 2, 2008, Blue Coat and Merger Subsidiary announced the results of the Offer and
commencement of a subsequent offering period for all remaining untendered Shares, which will expire
at 5:00 p.m., New York City time, on Thursday, June 5, 2007, unless Merger Subsidiary extends the
subsequent offering period. During the subsequent offering period, holders of Shares who did not
previously tender their Shares into the Offer may do so for a purchase price of $7.10 per Share,
net to the holder in cash, without interest thereon, less any required withholding taxes, and
subject to the terms and subject to the conditions described in Amendment No. 5 to the Tender Offer
Statement on Schedule TO filed by Blue Coat and Merger Subsidiary with the SEC on June 2, 2008.
The Agreement also provides that following the consummation of the Offer, including the
subsequent offering period described above, Merger Subsidiary will be merged with and into the
Company (the Merger), with the Company as the surviving corporation in the Merger. Blue Coat
expects to acquire the remaining outstanding shares of the Companys common stock pursuant to the
Merger promptly following the expiration of the subsequent offering period, assuming Merger
Subsidiary has acquired at least 90% of the outstanding common stock. All stockholders who did not
tender their shares pursuant to the Offer, including in the subsequent offering period (other than
stockholders who validly perfect appraisal rights under Delaware law), will receive $7.10 in cash,
without interest thereon, for each Share held at the time of the Merger.
Pursuant to the Agreement, upon acceptance of Shares for payment Blue Coat was entitled to
designate a number of directors to the Companys Board of Directors reflecting Blue Coats
percentage beneficial ownership of the outstanding Company Shares. On June 1, 2008, resignations
of each director of the Company, other than Craig Elliott, were accepted. At the same time, the
number of authorized directors was reduced to three and Brian M. NeSmith and Keith Geeslin, each
proposed by Blue Coat, were appointed as directors of the Company. Pursuant to the Agreement, the
directors of Merger Subsidiary immediately prior to the effective time of the Merger will become
the directors of the Company at the effective time of the Merger.
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To the knowledge of the Company, except as set forth herein, there are no arrangements,
including any pledge by any person of securities of the Company, the operation of which may at a
subsequent date result in a further change in control of the Company.
IMPORTANT NOTICE:
This Current Report on Form 8-K is for informational purposes only and is not an offer to buy or
the solicitation of an offer to sell any of the Companys equity securities (Shares). The
solicitation of offers to buy Shares has and will be made by Blue Coat and Merger Subsidiary only
pursuant to the Offer to Purchase, the letter of transmittal and related documents filed with the
SEC, mailed to record holders of the Shares and made available for distribution to beneficial
owners of the Shares. Stockholders should read those materials carefully because they contain
important information, including the various terms of, and conditions to, the Offer and the
subsequent offering period. Stockholders can obtain the offer to purchase, the letter of
transmittal and related documents without charge from the SECs website at www.sec.gov.
Stockholders are urged to read carefully those materials prior to making any decisions with respect
to the Offer and the subsequent offering period.
The Company has and will file a solicitation/recommendation statement with the SEC in connection
with the Offer and the subsequent offering period and, if required, will file a proxy statement or
information statement with the SEC in connection with the second-step merger (the Merger)
following the Offer. The holders of Shares are strongly advised to read these documents if and
when they become available because they will contain important information about the Offer and the
Merger. The Companys stockholders can obtain a free copy of the solicitation/recommendation
statement and the proxy statement or information statement as well as other filings containing
information about the Company, the Offer, the subsequent offering period and the Merger, if and
when available, without charge, at the SECs Website at www.sec.gov. In addition, copies of the
solicitation/recommendation statement, the proxy statement or information statement and other
filings containing information about the Company, the Offer and the Merger may be obtained, if and
when available, without charge, by directing a request to Packeteer, Inc., Attention: Chief
Financial Officer, 10201 North De Anza Blvd., Cupertino, California 95014, Telephone No. (408)
873-4400.
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Item 5.02
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Departure of Directors or Principal Officers; Election of Directors; Appointment of
Principal Officers.
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Pursuant to the Agreement, each director of the Company, other than Craig Elliott, has
resigned from the Board of Directors of the Company effective as of June 1, 2008. On June 1, 2008,
the Board of Directors of the Company reduced the authorized number of directors to three and
appointed Brian M. NeSmith and Keith Geeslin as directors of the Company. Such individuals were
designated for appointment as directors by Blue Coat pursuant to the Agreement as described in Item
5.01 above, and their appointment provides Blue Coat with majority representation on the Board of
Directors of the Company.
Mr. NeSmith has served as President, Chief Executive Officer and a director of Blue Coat since
March 1999. From December 1997 to March 1999, Mr. NeSmith served as Vice President of Nokia IP,
Inc., a security router company, which acquired Ipsilon Networks, Inc., an IP switching company,
where Mr. NeSmith served as Chief Executive Officer from May 1995 to December 1997. From October
1987 to April 1995, Mr. NeSmith held several positions at Newbridge Networks Corporation, a
networking equipment manufacturer, including Vice President and General Manager of the VIVID group.
Mr. NeSmith holds a B.S. in Electrical Engineering from the Massachusetts Institute of Technology.
Mr. Geeslin has served as a director of Blue Coat since June 2006. Mr. Geeslin has been a
partner at Francisco Partners, a private equity firm, since January 2004. Prior to joining
Francisco Partners, Mr. Geeslin spent 19 years with the Sprout Group. Mr. Geeslin joined Sprout in
1984, became a General Partner in 1988, and became Sprouts Managing Partner in 2000. Earlier in
his career, he was the general manager of a division of Tymshare, Inc., a provider of public
computer and network services, and held various positions at its Tymnet subsidiary from 1980 to
1984. He was also previously a staff member of the U.S. Senate Commerce Committee. Mr. Geeslin
serves on the board of directors of CommVault Systems, Inc., Hypercom Corporation and Synaptics
Incorporated. Mr. Geeslin holds a B.S. in Electrical Engineering and an M.S. in Engineering and
Economic Systems, both from Stanford University, as well as an M.A. in Philosophy, Politics and
Economics from Oxford University.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Packeteer, Inc.
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Date: June 3, 2008
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By:
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/s/ Dave Côté
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Name:
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Dave Côté
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Title:
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President and Chief Executive Officer
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