sctovi
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
FINISAR CORPORATION
(Name of Subject Company (Issuer) and Filing Person (Offeror))
21/2% Convertible Subordinated Notes due 2010
21/2% Convertible Senior Subordinated Notes due 2010
(Title of Class of Securities)
31787AAF8
31787AAG6 & 31787AAH4
(CUSIP Number of Class of Securities)
JERRY S. RAWLS
Chairman of the Board
EITAN GERTEL
Chief Executive Officer
Finisar Corporation
1389 Moffett Park Drive
Sunnyvale, California 94089
(408) 548-1000
(Name, address and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
With copies to:
| |
|
|
|
|
| STEPHEN K. WORKMAN
|
|
DENNIS C. SULLIVAN, ESQ.
|
|
JOHN A. FORE, ESQ. |
| Senior Vice President, Finance and
|
|
DLA Piper LLP (US)
|
|
Wilson Sonsini Goodrich & Rosati |
| Chief Financial Officer
|
|
2000 University Avenue
|
|
Professional Corporation |
| Finisar Corporation
|
|
East Palo Alto, CA 94303-2248
|
|
600 Page Mill Road |
| 1389 Moffett Park Drive
|
|
(650) 833-2000
|
|
Palo Alto, CA 94304 |
| Sunnyvale, California 94089
|
|
|
|
(650) 493-9300 |
| (408) 548-1000 |
|
|
|
|
CALCULATION OF FILING FEE
| |
|
|
|
|
|
| |
| |
Transaction Valuation* |
|
|
Amount of Filing Fee** |
|
| |
$95,000,000
|
|
|
$5,301 |
|
| |
| * |
|
The transaction value is estimated solely for purposes of calculating the filing fee. This
amount is based on the purchase of an aggregate of $95,000,000 principal amount of the
outstanding 21/2% Convertible Subordinated Notes due 2010 and 21/2% Convertible Senior
Subordinated Notes due 2010 (together, the “Notes”), at the maximum purchase price, as
described herein. |
| ** |
|
$55.80 per million dollars of transaction value, in accordance with Rule 0-11(b) and Fee Rate
Advisory No. 5 for fiscal year 2009. |
| o |
|
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. |
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 this statement relates:
| |
|
|
o third-party tender offer subject to Rule 14d-1
|
|
o going-private transaction subject to Rule 13e-3 |
þ issuer tender offer subject to Rule 13e-4
|
|
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
If applicable, check the appropriate box(es) below to designate the appropriate rule
provision(s) relied upon:
| o |
|
Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| |
| o |
|
Rule 14d-1(d) (Cross-Border Third Party Tender Offer) |
TABLE OF CONTENTS
INTRODUCTORY STATEMENT
This Tender Offer Statement on Schedule TO (this “Schedule TO”) is being filed by Finisar
Corporation, a Delaware corporation (the “Company”), pursuant to Rule 13e-4 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), in connection with the offer by the Company
to exchange, in separate concurrent offers (each, an “Exchange Offer” and together, the “Exchange
Offers”) shares of the Company’s common stock, par value
$0.001 per share (the “Common Stock”), and
cash for:
(i) an aggregate of up to $37,500,000 principal amount of the Company’s outstanding 21/2%
Convertible Subordinated Notes due 2010 (the “Sub Notes”);
and
(ii) an aggregate of up to
$57,500,000 principal amount of the Company’s outstanding 21/2% Convertible
Senior Subordinated Notes
due 2010 (the “Senior Sub Notes,” and together with the Sub
Notes, the “Notes”);
upon the terms and
subject to the conditions set forth in the Company’s offer to exchange, dated July 9, 2009 (the
“Offer to Exchange”), and in the accompanying Letter of Transmittal and the other related offering
materials (which Offer to Exchange and related offering materials, as amended or
supplemented from time to time, collectively constitute the
“Exchange Offer Documents”). For each $1,000 principal
amount of Notes validly tendered and not withdrawn in each Exchange
Offer, the holders of such Notes will receive consideration with a
value not greater than $750 nor less than $700 (the “Exchange
Consideration”). Accrued and
unpaid interest up to, but not including, the settlement date, on Notes validly tendered and not
withdrawn will be paid in cash.
The Exchange Offers shall commence on Thursday, July 9, 2009 and shall expire at 5:00 p.m.,
New York City time, on Thursday, August 6, 2009, unless extended or earlier terminated by the
Company.
The Exchange Offers are being made upon the terms and subject to the conditions set forth in
the Offer to Exchange and in the related Letter of Transmittal, copies of which are attached to
this Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively. This Schedule TO is intended
to satisfy the reporting requirements of Rule 13e-4(c)(2) under the Exchange Act.
All of the information set forth in the Offer to Exchange and the related Letter of
Transmittal is hereby expressly incorporated by reference in answer to all items in this Schedule
TO, and as more particularly set forth below:
Item 1. Summary Term Sheet.
The information set forth under the caption “Summary Term Sheet” in the Offer to Exchange is
incorporated herein by reference.
Item 2. Subject Company Information.
(a) Name and Address. The name of the issuer is Finisar Corporation. The address of the
Company’s principal executive offices is 1389 Moffett Park Drive, Sunnyvale, California 94089. The
Company’s telephone number is (408) 548-1000.
(b) Securities. The subject class of securities are the Notes. The information set forth
under the caption “The Exchange Offers—Description of the Notes; Comparison of the Notes and the
Common Stock; Description of Capital Stock” in the Offer to Exchange is incorporated herein by
reference. As of the date hereof, there was $50 million total aggregate principal
amount of the Sub Notes outstanding, and $92 million total aggregate principal amount
of the Senior Sub Notes outstanding.
(c) Trading Market and Price. The information set forth under the caption “The Exchange
Offers—Market and Trading Information” in the Offer to Exchange is incorporated herein by
reference. The Notes are not listed on any national or regional securities exchange or authorized
to be quoted on any inter-dealer quotation system of any national securities association.
2
Item 3. Identity and Background of Filing Person.
(a) Name and Address. The Company is the filing person. The business address and business
telephone number of the Company are set forth under Item 2(a) above and incorporated herein by
reference. Pursuant to General Instruction C to Schedule TO, the information set forth under the
caption “The Exchange Offers—Interests of Directors and Executive Officers; Transactions and
Arrangements Concerning the Notes” in the Offer to Exchange is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) Material Terms. The information set forth under the captions “Summary Term Sheet” and
“The Exchange Offers—Description of the Notes; Comparison of the Notes and the Common Stock;
Description of Capital Stock”, “—Terms of the Exchange
Offers”, “—Amendment; Extension; Waiver;
Termination”, “—Conditions of the Exchange Offers” and “—Certain U.S. Federal Income Tax
Considerations” in the Offer to Exchange is incorporated herein by reference.
(b) Purchases. To the knowledge of the Company, except as described below, the Company will
not purchase any Notes from any of its executive officers, directors or affiliates. The
information set forth under the caption “The Exchange Offers—Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning the Notes” in the Offer to Exchange is
incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(e) Agreements Involving the Issuer’s Securities. The information set forth under the
captions “The Exchange Offers—Description of the Notes; Comparison of the Notes and the Common
Stock; Description of Capital Stock”, “—Interests of Directors and Executive Officers; Transaction
and Arrangements Concerning the Notes” and “—The Financial Advisor, Information Agent and
Depositary” and the documents and information referred to under the caption “Incorporation of
Documents by Reference” in the Offer to Exchange is incorporated herein by reference. The Company
has entered into the following agreements in connection with the Notes:
(1) Indenture, dated as of October 15, 2003, by and between the Company and U.S. Bank National
Association, as Trustee, relating to the 21/2% Convertible Subordinated Notes due 2010 (incorporated
by reference to Exhibit 4.4 to the Company’s Quarterly Report on Form 10-Q filed with the
Securities and Exchange Commission (“SEC”) on December 10, 2003);
(2) Indenture, dated as of October 12, 2006, by and between the Company and U.S. Bank National
Association, as Trustee, relating to the 21/2% Convertible Senior Subordinated Notes due 2010
(incorporated herein by reference to Exhibit 4.1 to the Company’s current report on Form 8-K filed
with the SEC on October 17, 2006);
(3) Registration Rights Agreement, dated October 15, 2003, between the Company and the initial
purchasers of the Company’s 21/2% Convertible Subordinated Notes due 2010 (incorporated herein by
reference to Exhibit 10.19 to the Company’s quarterly report on Form 10-Q filed with the SEC on
December 10, 2003);
(4) Registration Rights Agreement, dated October 12, 2006, between the Company and the initial
purchasers of the Company’s 21/2% Convertible Senior Subordinated Notes due 2010 (incorporated herein
by reference to Exhibit 10.37 to the Company’s current report on Form 8-K filed with the SEC on
October 17, 2006); and
(5) Form of Exchange Agreements, dated October 6, 2006, by and between the Company and certain
holders of the 21/2% Convertible Subordinated Notes due 2010 (incorporated herein by reference to
Exhibit 10.36 to the Company’s current report on Form 8-K filed with the SEC on October 17, 2006).
3
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes. The information set forth under the captions “Summary Term Sheet” and “The
Exchange Offers—Purpose of the Exchange Offers; Certain Information about the Company—Purpose of
the Exchange Offers” in the Offer to Exchange is incorporated herein by reference.
(b) Use of Securities Acquired. Any Notes accepted for exchange by the Company pursuant to
the Exchange Offers will be canceled.
(c) Plans. The information set forth under the caption “The Exchange Offers—Source and
Amount of Exchange Consideration” and “The Exchange Offers—Purpose of the Exchange Offers; Certain
Information about the Company” in the Offer to Exchange is incorporated herein by reference.
Item 7. Source and Amount of Funds or Other Consideration.
(a) Source
of Funds. The information set forth under the caption “The Exchange Offers—Source
and Amount of Exchange Consideration” in the Offer to Exchange is incorporated herein by reference.
(b) Conditions. The information set forth under the captions “Summary Term Sheet” and “The
Exchange Offers—Conditions of the Exchange Offers” in the Offer to Exchange is incorporated herein
by reference.
(d) Borrowed
Funds. The information set forth under the caption “The Exchange Offers—Source
and Amount of Exchange Consideration” and “The Exchange
Offers—Purpose of the Exchange Offers;
Certain Information about the Company—Recent Developments” in the Offer to Exchange is
incorporated herein by reference.
Item 8. Interest in Securities of the Subject Company.
(a) Securities Ownership. To the knowledge of the Company, neither the Company, nor any of
its executive officers, directors or affiliates, has any beneficial interest in the Notes. The
information set forth under the caption “The Exchange Offers—Interests of Directors and Executive
Officers; Transactions and Arrangements Concerning the Notes” in the Offer to Exchange is
incorporated herein by reference.
(b) Securities Transactions. To the knowledge of the Company, during the 60 days preceding
the date of this Schedule TO, none of the Company’s executive officers, directors or affiliates
have engaged in any transactions in the Notes. The information set forth under the caption “The
Exchange Offers—Interests of Directors and Executive Officers; Transaction and Arrangements
Concerning the Notes” in the Offer to Exchange is incorporated herein by reference.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or Recommendations. The information set forth under the captions “The
Exchange Offers—Solicitation” and “The Exchange Offers—Fees and Expenses” in the Offer to Exchange
is incorporated herein by reference. No persons have been directly or indirectly employed,
retained or otherwise compensated to make solicitations or recommendations in connection with the
offer, other than certain employees of the Company, none of whom will receive any special or
additional compensation in connection with the offer beyond their normal compensation. See the
information set forth on pages ii-iii of the Offer to Exchange.
Item 10. Financial Statements.
(a) Financial Information.
(1) and (2) The information set forth under Item 8, Consolidated Financial Statements and
Supplementary Data in the Company’s annual report on Form 10-K for the fiscal year ended April 30,
2009, filed with the SEC on July 9, 2009, and in Item 8.01, Other Events in the Company’s current
report on Form 8-K, filed
4
with the SEC on July 9, 2009, is incorporated herein by reference. The Company’s annual
report on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K may also be
accessed electronically on the SEC’s website at http://www.sec.gov.
(3) The following table sets forth information regarding the Company’s ratio of earnings to
fixed charges for each of the periods presented. Earnings available to cover fixed charges consist
of income (loss) from continuing operations before provision for income taxes and cumulative effect
of change in accounting principle plus fixed charges. Fixed charges consist of interest expense and
that portion of rental payments under operating leases that is representative of the interest
factor. Our earnings, as so defined, were insufficient to cover fixed charges in each of the fiscal
years ended April 30, 2008 and 2009. Because of these deficiencies, the ratio information is not
applicable for any of those periods. The extent to which earnings were insufficient to cover fixed
charges for each of those periods is shown below. Amounts shown are in millions.
| |
|
|
|
|
|
|
|
|
| |
|
Fiscal Year |
| |
|
Ended April 30, |
| |
|
2008 |
|
2009 |
Ratio of earnings to fixed charges |
|
|
N/A |
|
|
|
N/A |
|
Deficiency of earnings available to cover fixed
charges |
|
$ |
(72,325) |
|
|
$ |
(261,770) |
|
(4) The information set forth in the Offer to Exchange under the caption “Summary Term
Sheet—Book Value” is incorporated herein by reference.
(b) Pro Forma Information. The information under the caption “Unaudited Pro Forma Financial
Data” in the Offer to Exchange is incorporated by reference herein.
Item 11. Additional Information.
(a) Agreements, Regulatory Requirements and Legal Proceedings. The information set forth
under the caption “The Exchange Offers—Certain Legal Matters; Regulatory Approvals” in the Offer to
Exchange is incorporated herein by reference.
(b) Other Material Information.
(1) The
information set forth under the captions “Risk Factors”, “The Exchange Offers—Certain
Significant Considerations”, “—Conditions of the
Exchange Offers”, “—Certain U.S. Federal Income
Tax Considerations” and “—Certain Securities Laws Considerations” in the Offer to Exchange is
incorporated herein by reference.
(2) The documents and information referred to under the caption “Incorporation of Documents by
Reference” in the Offer to Exchange are incorporated herein by reference.
Item 12. Exhibits.
| |
|
|
| Exhibit No. |
|
Description |
(a)(1)(i)
|
|
Offer to Exchange, dated July 9, 2009. |
|
|
|
(a)(1)(ii)
|
|
Letter of Transmittal (including Substitute Form W-9 and Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9). |
|
|
|
(a)(1)(iii)
|
|
Notice of Guaranteed Delivery. |
|
|
|
(a)(1)(iv)
|
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees. |
|
|
|
(a)(1)(v)
|
|
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and other Nominees. |
|
|
|
(a)(5)
|
|
Press Release, dated July 9, 2009. |
5
| |
|
|
| Exhibit No. |
|
Description |
(b)
|
|
Letter from Silicon Valley Bank, dated July 8, 2009. |
|
|
|
(d)(i)
|
|
Indenture, dated as of October 15, 2003, by and between the Company and U.S.
Bank National Association, as Trustee, relating to the 21/2% Convertible
Subordinated Notes due 2010 (incorporated by reference to Exhibit 4.4 to the
Company’s Quarterly Report on Form 10-Q filed with the SEC on December 10,
2003). |
|
|
|
(d)(ii)
|
|
Indenture, dated as of October 12, 2006, by and between the Company and U.S.
Bank National Association, as Trustee, relating to the 21/2% Convertible Senior
Subordinated Notes due 2010 (incorporated herein by reference to Exhibit 4.1 to
the Company’s current report on Form 8-K filed with the SEC on October 17,
2006). |
|
|
|
(d)(iii)
|
|
Registration Rights Agreement, dated October 15, 2003, between the Company and
the initial purchasers of the Company’s 21/2% Convertible Subordinated Notes due
2010 (incorporated herein by reference to Exhibit 10.19 to the Company’s
quarterly report on Form 10-Q filed with the SEC on December 10, 2003). |
|
|
|
(d)(iv)
|
|
Registration Rights Agreement, dated October 12, 2006, between the Company and
the initial purchasers of the Company’s 21/2% Convertible Senior Subordinated
Notes due 2010 (incorporated herein by reference to Exhibit 10.37 to the
Company’s current report on Form 8-K filed with the SEC on October 17, 2006). |
|
|
|
(d)(v)
|
|
Form of Exchange Agreements, dated October 6, 2006, by and between the Company
and certain holders of the 21/2% Convertible Subordinated Notes due 2010
(incorporated herein by reference to Exhibit 10.36 to the Company’s current
report on Form 8-K filed with the SEC on October 17, 2006). |
Item 13. Information Required by Schedule 13E-3.
Not applicable.
6
SIGNATURE
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.
FINISAR CORPORATION
By: /s/ Jerry S. Rawls
Name: Jerry S. Rawls
Title: Chairman of the Board
Dated: July 9, 2009
7
EXHIBIT INDEX
| |
|
|
| Exhibit No. |
|
Description |
(a)(1)(i)
|
|
Offer to Exchange, dated July 9, 2009. |
|
|
|
(a)(1)(ii)
|
|
Letter of Transmittal (including Substitute Form W-9 and
Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9). |
|
|
|
(a)(1)(iii)
|
|
Notice of Guaranteed Delivery. |
|
|
|
(a)(1)(iv)
|
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and other Nominees. |
|
|
|
(a)(1)(v)
|
|
Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and other Nominees. |
|
|
|
(a)(5)
|
|
Press Release, dated July 9, 2009. |
|
|
|
(b)
|
|
Letter from Silicon Valley Bank, dated July 8, 2009. |
|
|
|
(d)(i)
|
|
Indenture, dated as of October 15, 2003, by and between the
Company and U.S. Bank National Association, as Trustee,
relating to the 21/2% Convertible Subordinated Notes due 2010
(incorporated by reference to Exhibit 4.4 to the Company’s
Quarterly Report on Form 10-Q filed with the SEC on December
10, 2003). |
|
|
|
(d)(ii)
|
|
Indenture, dated as of October 12, 2006, by and between the
Company and U.S. Bank National Association, as Trustee,
relating to the 21/2% Convertible Senior Subordinated Notes due
2010 (incorporated herein by reference to Exhibit 4.1 to the
Company’s current report on Form 8-K filed with the SEC on
October 17, 2006). |
|
|
|
(d)(iii)
|
|
Registration Rights Agreement, dated October 15, 2003, between
the Company and the initial purchasers of the Company’s 21/2%
Convertible Subordinated Notes due 2010 (incorporated herein
by reference to Exhibit 10.19 to the Company’s quarterly
report on Form 10-Q filed with the SEC on December 10, 2003). |
|
|
|
(d)(iv)
|
|
Registration Rights Agreement, dated October 12, 2006, between
the Company and the initial purchasers of the Company’s 21/2%
Convertible Senior Subordinated Notes due 2010 (incorporated
herein by reference to Exhibit 10.37 to the Company’s current
report on Form 8-K filed with the SEC on October 17, 2006). |
|
|
|
(d)(v)
|
|
Form of Exchange Agreements, dated October 6, 2006, by and
between the Company and certain holders relating to the 21/2%
Convertible Subordinated Notes due 2010 (incorporated herein
by reference to Exhibit 10.36 to the Company’s current report
on Form 8-K filed with the SEC on October 17, 2006). |