Sun Microsystems, Inc. - Tender offer statement by Issuer (SC TO-I)
16 Novembro 2007 - 8:28PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
TO
(Rule
13e-4)
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
SUN
MICROSYSTEMS, INC.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
Options
to purchase shares of common stock, par value $0.001 per share
(Title of class of securities)
866810-20-43
(CUSIP
number of class of securities)
(Underlying common stock)
Michael
A. Dillon
Executive Vice President, General Counsel and Corporate Secretary
Sun Microsystems, Inc.
4150
Network Circle
Santa
Clara, CA 95054
(650) 960-1300
(Name, address and telephone number of person authorized to receive
notices
and communications on behalf of filing person)
With copies to:
Joseph
G. Connolly, Jr.
Julie
A. Bell
Hogan
& Hartson L.L.P.
555
Thirteenth Street NW
Washington
DC 20004
(202)
637-5600
CALCULATION
OF FILING FEE
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Transaction valuation*
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Amount of filing fee**
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$452,575
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$13.89
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*
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The transaction
valuation set forth above is as of November 14, 2007, based on the
Black-Scholes option valuation model, and assumes that all eligible existing
options to purchase 88,737 shares of common stock, par value $0.001 per
share, of Sun Microsystems, Inc. will be amended pursuant to this offer,
which may not occur.
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**
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The amount of the
filing fee, calculated in accordance with Rule 0-11 under the Securities
Exchange Act of 1934, as amended, equals $30.70 per $1,000,000 of transaction
valuation. The transaction valuation set forth above was calculated for the
sole purpose of determining the filing fee, and should not be used or relied
upon for any other purpose.
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o
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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.
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Amount Previously Paid:
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Not applicable.
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Form or Registration
No.:
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Not applicable.
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Filing party:
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Not applicable.
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Date filed:
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Not applicable.
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o
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Check the box if the filing relates solely to
preliminary communications made before the commencement of a tender offer.
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Check the appropriate
boxes below to designate any transactions to which the statement relates:
o
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third party tender
offer subject to Rule 14d-1.
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x
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issuer tender offer
subject to Rule 13e-4.
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o
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going-private
transaction subject to Rule 13e-3.
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o
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amendment
to Schedule 13D under Rule 13d-2.
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Check
the following box if the filing is a final amendment reporting the results of
the tender offer.
o
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Item 1. Summary Term Sheet.
The
information set forth under Summary Term Sheet in the Offer to Amend, dated
November 16, 2007, attached as Exhibit (a)(1) (the Offer to Amend), is
incorporated herein by reference.
Item
2. Subject Company Information.
(a)
Name and
Address
. The name of the issuer is Sun Microsystems,
Inc., a Delaware corporation (Sun or the Company). The address of its principal executive
offices is 4150 Network Circle, Santa Clara, CA 95054, and its telephone number
is (650) 960-1300. The information set forth in the Offer to Amend under
Section 10Information Concerning Sun is incorporated herein by
reference.
(b)
Securities
.
This Tender Offer Statement on Schedule TO relates to an offer
by the Company to amend outstanding Eligible Options (as defined in the Offer
to Amend) held by individuals subject to taxation in the United States, so that
they may avoid potential adverse tax consequences under the Internal Revenue
Code Section 409A. Each eligible participant may elect to amend each of his
or her Eligible Options by either (i) increasing the exercise price per share
of the Companys common stock, par value $0.001 per share (Sun common stock),
purchasable thereunder to the fair market value of the underlying common stock
on the grant measurement date (as defined in the Offer to Amend), or (ii)
revising the exercise period of the Eligible Option such that the option will
only be exercisable during calendar year 2008 (beginning January 1, 2008
through December 31, 2008), all upon the terms and subject to the conditions
set forth in the Offer to Amend and the related form of Letter of Transmittal
attached as Exhibit (a)(3) (the Letter of Transmittal and, together with the
Offer to Amend, as they may be amended or supplemented from time to time, the Offer).
The Offer is currently set to expire at 12:00 midnight, Eastern Time, on
December 14, 2007 but may be extended (the Expiration Date). As of November 14, 2007, Eligible Options to
purchase 84,041 shares of Sun common stock were outstanding.
The following information set forth in the
Offer to Amend is incorporated herein by reference:
on the introductory pages and under Summary
Term Sheet;
Section 1Eligible Participants;
Eligible Options; Amendment; Expiration Date; Additional Considerations;
Section 3Status of Eligible Options
Not Amended;
Section 6Acceptance of Eligible
Options for Amendment; and
Section 9Source and
Amount of Consideration; Terms of Amended Eligible Options; Terms of the Plans.
(c)
Trading and
Market Price
. The information set forth in the Offer to
Amend under Section 8Price Range of Sun Common Stock Underlying the
Options is incorporated herein by reference.
Item 3. Identity and Background
of Filing Person.
(a)
Name and
Address
. The Company is the filing person. The
information set forth under Item 2(a) above is incorporated herein by
reference. The information set forth in
Schedule I
to the Offer to
Amend (Information Concerning the Directors and Executive Officers of Sun
Microsystems, Inc.) is incorporated herein by reference.
2
Item 4. Terms of the Transaction.
(a)
Material
Terms
. The following information set forth in the Offer
to Amend is incorporated herein by reference:
on the introductory pages and under Summary
Term Sheet;
Section 1Eligible Participants;
Eligible Options; Amendment; Expiration Date; Additional Considerations;
Section 2Purpose of the Offer;
Section 3Status of Eligible Options
Not Amended;
Section 4Procedures for Accepting the
Offer to Amend Eligible Options;
Section 5Withdrawal Rights;
Section 6Acceptance of Eligible
Options for Amendment;
Section 7Conditions of the Offer;
Section 9Source and Amount of
Consideration; Terms of Amended Eligible Options; Terms of the Plan;
Section 12Accounting Consequences of
the Offer;
Section 13Legal Matters; Regulatory
Approvals;
Section 14Material U.S. Federal Income
Tax Consequences;
Section 15Extension of the Offer;
Termination; Amendment; and
Section 18Miscellaneous.
(b)
Purchases
. The
information set forth in the Offer to Amend under Section 11Interests of
Directors and Officers; Transactions and Arrangements Concerning the Options;
and Material Agreements with Directors and Officers is incorporated herein by
reference.
Item 5. Past Contracts, Transactions, Negotiations
and Arrangements.
(a)
Agreements Involving the Subject Companys Securities
. The
information set forth in the Offer to Amend under Section 11Interests of
Directors and Officers; Transactions and Arrangements Concerning the Options;
and Material Agreements with Directors and Officers is incorporated herein by
reference. The stock plans, pursuant to which the Eligible Options have been
granted, are incorporated herein by reference as Exhibits (d)(1)-(d)(3),
respectively, and contain information regarding the subject securities:
Sun Microsystems, Inc. Equity Compensation
Acquisition Plan;
Pirus Networks, Inc. 2000 Stock Option Plan;
and
Waveset Technologies, Inc. Amended and
Restated 2000 Stock Plan.
3
Item 6. Purposes of the
Transactions and Plans or Proposals.
(a)
Purposes.
The information set forth in the Offer
to Amend under Section 2Purpose of the Offer is incorporated herein by
reference.
(b)
Use
of Securities Acquired
. The information set forth in the
Offer to Amend under Section 6Acceptance of Eligible Options for
Amendment and Section 12Accounting Consequences of the Offer is
incorporated herein by reference.
(c)
Plans
. The information set
forth in the Offer to Amend under Section 1Eligible Participants;
Eligible Options; Amendment; Expiration Date; Additional Considerations is
incorporated herein by reference.
Item 7. Source and Amount of
Funds or Other Consideration.
(a)
Source of
Funds
. The information set forth in the Offer to Amend
under Section 9Source and Amount of Consideration; Terms of Amended
Eligible Options; Terms of the Plan and Section 16Fees and Expenses is
incorporated herein by reference.
(b)
Conditions
. The
information set forth in the Offer to Amend under Section 7Conditions of
the Offer is incorporated herein by reference.
(c)
Borrowed
Funds
. Not applicable.
Item 8. Interest in Securities of
the Subject Company.
(a)
Securities
Ownership
. The information set forth in the Offer to
Amend under Section 11Interests of Directors and Officers; Transactions
and Arrangements Concerning the Options; and Material Agreements with Directors
and Officers is incorporated herein by reference.
(b)
Securities
Transactions
. The information set forth in the Offer to
Amend under Section 11Interests of Directors and Officers; Transactions
and Arrangements Concerning the Options; and Material Agreements with Directors
and Officers is incorporated herein by reference.
Item 9. Persons/Assets, Retained, Employed,
Compensated or Used.
(a)
Solicitations
or Recommendations
. Not applicable.
Item 10. Financial Statements.
(a)
Financial
Information
. The information set forth in the Offer to
Amend under Section 10Information Concerning Sun and Section 17Additional
Information is incorporated herein by reference. Item 8Financial Statements and
Supplementary Data of the Companys Annual Report on Form 10-K for its fiscal
year ended June 30, 2007, filed with the Securities and Exchange Commission
(the SEC) on August 29, 2007, Part 1Financial Information of the Companys
Quarterly Report on Form 10-Q for its first fiscal quarter ended September 30,
2007, filed with the SEC on November 7, 2007, and the Company's Current Report
on Form 8-K, filed with the SEC on November 9, 2007, are each also incorporated
herein by reference.
(b)
Pro Forma
Information
. Not applicable.
(c)
Summary Information
. The
information set forth in the Offer to Amend under Section 10Information
Concerning Sun is incorporated herein by reference.
4
Item 11. Additional Information.
(a)
Agreements,
Regulatory Requirements and Legal Proceedings
. The
information set forth in the Offer to Amend under Section 11Interests of
Directors and Officers; Transactions and Arrangements Concerning the Options;
and Material Agreements with Directors and Officers and Section 13Legal
Matters; Regulatory Approvals is incorporated herein by reference.
(b)
Other
Material Information
. Not applicable.
Item 12. Exhibits.
Exhibit
No.
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Description
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(a)(1)
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Offer to Amend, dated November 16, 2007.
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(a)(2)
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Cover memo, dated November 16, 2007.
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(a)(3)
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Letter of Transmittal.
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(a)(4)
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Withdrawal Form.
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(a)(5)
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Form of Reminder of Expiration Date.
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(a)(6)
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Form of Notice of Amendment of Eligible Options.
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(a)(7)
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The Companys Annual Report on Form 10-K for the fiscal year
ended June 30, 2007, filed with the Securities and Exchange Commission (the
SEC) on August 29, 2007 (incorporated herein by reference).
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(a)(8)
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The Companys Quarterly Report on Form 10-Q for the first fiscal quarter
ended September 30, 2007, filed with the SEC on November 7, 2007
(incorporated by reference).
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(a)(9)
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The Company's Current Report on Form 8-K, filed with the SEC on
November 9, 2007 (incorporated by reference).
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(b)
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Not applicable.
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(d)(1)
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Sun Microsystems, Inc. Equity Compensation Acquisition Plan
(incorporated herein by reference to Exhibit 10.1 to the Companys Quarterly
Report on Form 10-Q filed with the SEC on May 9, 2007).
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(d)(2)
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Pirus Networks, Inc. 2000 Stock Option Plan (incorporated herein by
reference to Exhibit 4.1 to Suns Form S-8 filed with the SEC on
November 20, 2002).
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(d)(3)
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Waveset Technologies, Inc. Amended and Restated 2000 Stock Plan
(incorporated herein by reference to Exhibit 4.1 to Suns Form S-8 filed
with the SEC on January 16, 2004).
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(g)
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Not applicable.
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(h)
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Not
applicable.
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Item 13. Information Required by Schedule 13E-3.
(a) Not applicable.
5
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
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SUN MICROSYSTEMS, INC.
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By:
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/s/
Craig D. Norris
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Craig
D. Norris
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Vice
President, Corporate Law
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Date:
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November
16, 2007
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6
INDEX OF EXHIBITS
Exhibit No.
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Description
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(a)(1)
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Offer
to Amend, dated November 16, 2007.
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(a)(2)
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Cover
Memo, dated November 16, 2007.
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(a)(3)
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Letter
of Transmittal.
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(a)(4)
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Withdrawal
Form.
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(a)(5)
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Form
of Reminder of Expiration Date.
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(a)(6)
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Form
of Notice of Amendment of Eligible Options.
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(a)(7)
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The
Companys Annual Report on Form 10-K for the fiscal year ended June 30,
2007, filed with the Securities and Exchange Commission (the SEC) on August
29, 2007 (incorporated herein by reference).
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(a)(8)
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The
Companys Quarterly Report on Form 10-Q for the first fiscal quarter ended
September 30, 2007, filed with the SEC on November 7, 2007 (incorporated by
reference).
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(a)(9)
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The
Company's Current Report on Form 8-K, filed with the SEC on November 9, 2007
(incorporated by reference).
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(b)
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Not
applicable.
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(d)(1)
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Sun
Microsystems, Inc. Equity Compensation Acquisition Plan (incorporated herein
by reference to Exhibit 10.1 to the Companys Quarterly Report on Form
10-Q filed with the SEC on May 9, 2007).
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(d)(2)
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Pirus
Networks, Inc. 2000 Stock Option Plan (incorporated herein by reference to
Exhibit 4.1 to Suns Form S-8 filed with the SEC on November 20, 2002).
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(d)(3)
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Waveset
Technologies, Inc. Amended and Restated 2000 Stock Plan (incorporated herein
by reference to Exhibit 4.1 to Suns Form S-8 filed with the SEC on
January 16, 2004).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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7
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