UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1)
or 13(e)(1) of the Securities Exchange Act of 1934
SHORETEL, INC.
(Name of Subject Company (Issuer))
SHELBY ACQUISITION CORPORATION
(Offeror)
a wholly-owned subsidiary of
MITEL US HOLDINGS, INC.
(Parent)
a wholly-owned subsidiary of
MITEL NETWORKS CORPORATION (Mitel)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
COMMON STOCK, $0.001 PAR VALUE
(Title of Class of Securities)
825211105
(CUSIP Number of Class of Securities)
Gregory Hiscock
Mitel Networks Corporation
350 Legget Drive,
Ottawa, Ontario
Canada
(613) 592-2122
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
With a copy to:
Adam M. Givertz
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
(212) 373- 3224
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount Of Filing Fee** | |
| $562,143,442.50 | $65,152.42 |
| * | Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) 69,034,351 shares of common stock, par value $0.001 per share (the “Shares”), of ShoreTel, Inc. (“ShoreTel”), a Delaware corporation, outstanding multiplied by the offer price of $7.50 per share; (ii) 1,682,716 Shares reserved for issuance upon the settlement of ShoreTel restricted stock unit awards (“RSUs”) that have vested or are anticipated to vest prior to the completion of the transaction multiplied by the offer price of $7.50 per Share; and (iii) 4,235,392 Shares issuable pursuant to options (“Options”) that have vested or are anticipated to vest prior to the completion of the transaction with an exercise price less than the offer price of $7.50 per Share, multiplied by the offer price of $7.50 per share. The foregoing share figures have been provided by ShoreTel to the Offeror and are as of August 15, 2017, the most recent practicable date. |
| ** | The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Advisory Rate #1 for fiscal year 2017, issued August 31, 2016, is calculated by multiplying the Transaction Valuation by 0.0001159. |
| ☐ | 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: | $65,152.42 | Filing Party: | Mitel Networks Corporation | |||
| Form or Registration No.: | Schedule TO | Date Filed: | August 17, 2017 |
| ☐ | 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:
| ☒ | 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: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Mitel Networks Corporation (“Mitel”), a Canadian corporation, and relates to the tender offer by Shelby Acquisition Corporation (the “Offeror”), a Delaware corporation and a wholly-owned subsidiary of Mitel US Holdings, Inc. (“Parent”), a Delaware corporation and a wholly-owned subsidiary of Mitel, with the Securities and Exchange Commission (the “SEC”) on August 17, 2017 and as amended pursuant to Amendment No. 1 thereto filed with the SEC by Mitel on August 29, 2017 (together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer by the Offeror to purchase all of the issued and outstanding Shares at a purchase price of $7.50 per Share, net to the seller in cash, net of applicable withholding taxes and without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 17, 2017, a copy of which is attached as Exhibit (a)(1)(A) to the Schedule TO (the “Offer to Purchase”), and in the related Letter of Transmittal, a copy of which is attached as Exhibit (a)(1)(B) to the Schedule TO (the “Letter of Transmittal” which, together with the Offer to Purchase, as each may be amended or supplemented from time to time in accordance with the Merger Agreement, collectively constitute the “Offer”).
All 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 the Schedule TO and is supplemented by the information specifically provided in the Schedule TO. Except as otherwise set forth below, the information set forth in the Schedule TO remains unchanged. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Schedule TO.
This Amendment is being filed to amend and supplement the Schedule TO as reflected below.
Items 1 through 9 and Item 11.
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:
| (a) | Section 10—“Background of the Offer; Contacts with ShoreTel”—of the Offer to Purchase is hereby amended and supplemented by amending and restating the last sentence of the fourth paragraph on page 30 to read as follows: |
“With respect to the other issues, ShoreTel agreed that all Unvested Company Options and Unvested Company RSUs would be canceled for no consideration (in each case, after giving effect to any vesting that occurs as a result of the Transactions pursuant to a Contract (as defined in the Merger Agreement) or Company Benefit Plan (as defined in the Merger Agreement) in effect on the date of the Merger Agreement or as set forth on Section 2.3 of the Company Disclosure Letter (as defined in the Merger Agreement)); the Company Termination Fee would be $24.5 million; the expense reimbursement provision would be capped at $6.0 million and payable only on a failure to meet the Minimum Condition by the termination date, or on termination by Mitel as a result of a breach by ShoreTel; the termination date for the Merger Agreement would be 120 days after the date of the Merger Agreement; and only the directors and executive officers of ShoreTel would execute Support Agreements.”
| (b) | The subsection entitled “CPUC Approval” of Section 15—“Certain Legal Matters; Regulatory Approvals”—of the Offer to Purchase is hereby amended and supplemented by adding the following paragraph after the third paragraph thereof: |
“On August 30, 2017, the Advice Letter became effective and the approval of the CPUC was deemed to have been received. Accordingly, the condition to the Offer relating to the CPUC Approval has been satisfied.”
| (c) | The subsection entitled “Certain Litigation” of Section 15—“Certain Legal Matters; Regulatory Approvals”—of the Offer to Purchase is hereby amended and supplemented by adding the following paragraphs after the second paragraph thereof: |
“On August 31, 2017, Gianfranca De Angelis, a purported stockholder of ShoreTel, filed a putative stockholder class action complaint in the United States District Court in the Northern District of California against ShoreTel and the individual members of the ShoreTel Board, captioned De Angelis v. ShoreTel, Inc., et al., Case No. 3:17-cv-05091-WHO (the “De Angelis Complaint”). The De Angelis Complaint asserts that defendants violated Sections 14(e), 14(d)(4), and 20(a) of the Exchange Act by making untrue statements of material fact and omitting certain material facts related to the Transactions in the Schedule 14D-9. The De Angelis Complaint seeks, among other things, an order enjoining defendants from consummating the Transactions, money damages and an award of attorneys’ and experts’ fees. Mitel and ShoreTel believe that the lawsuit is without merit and, if the lawsuit is pursued, will vigorously defend themselves.
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The foregoing description of the De Angelis Complaint does not purport to be complete and is qualified in its entirety by the full text of the De Angelis Complaint, a copy of which has been filed as Exhibit (a)(5)(G) to the Schedule TO and which is incorporated herein by reference.”
| (d) | The subsection entitled “Certain Litigation” of Section 15—“Certain Legal Matters; Regulatory Approvals”—of the Offer to Purchase is hereby amended and supplemented by adding the following paragraph at the end of the subsection: |
“Mitel and ShoreTel believe that the claims asserted in the pending actions in the United States District Court for the Northern District of California (Scarantino v. ShoreTel, Inc., et al., Case No. 4:17-cv-04857-YGR, Frydman v. ShoreTel, Inc., et al., Case No. 5:17-cv-4865-BLF, Mozee v. ShoreTel, Inc., et al., Case No. 4:17-cv-04888-HSG, Simonson v. ShoreTel, Inc., et al., Case No. 3:17-cv-04931-WHA, Herrera v. ShoreTel, Inc., et al., Case No. 3:17-cv-04988-WHO, and De Angelis v. ShoreTel, Inc., et al., Case No. 3:17-cv-05091-WHO, which are referred to collectively as the “Actions”) are without merit and deny the allegations in each of those Actions. However, in order to alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to its shareholders, ShoreTel has provided certain additional disclosures set forth in Amendment No. 2 to the Schedule 14D-9 (the “Supplemental Disclosures”). Counsel for plaintiffs in each of the Actions have confirmed that the Supplemental Disclosures will moot their claims and that they will accordingly dismiss those Actions with prejudice as to the named plaintiffs, and without prejudice as to other shareholders. The Supplemental Disclosures should not be regarded as an indication that any of Mitel, Parent, the Offeror, ShoreTel or their respective affiliates, officers, directors or other representatives, or any recipient of this information, considered or now considers the information contained in the Supplemental Disclosures, in whole or in part, to be material. Rather, Mitel and ShoreTel believe that the Schedule 14D-9 disclosed all material information, and deny that any additional disclosures are or were required under any federal or state law.”
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Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
| (a)(5)(G) |
Class Action Complaint dated August 31, 2017 (De Angelis v. ShoreTel, Inc., et al., Case No. 3:17-cv-05091-WHO). | |
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SIGNATURES
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.
| SHELBY ACQUISITION CORPORATION | ||
| By: | /s/ Greg Hiscock | |
| Name: Greg Hiscock | ||
| Title: Secretary & Director | ||
| MITEL US HOLDINGS, INC. | ||
| By: | /s/ Greg Hiscock | |
| Name: Greg Hiscock | ||
| Title: Secretary & Director | ||
| MITEL NETWORKS CORPORATION | ||
| By: | /s/ Greg Hiscock | |
| Name: Greg Hiscock | ||
| Title: General Counsel & Corporate Secretary | ||
Dated: September 8, 2017
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EXHIBIT INDEX
| (a)(1)(A) |
Offer to Purchase, dated August 17, 2017.* | |
| (a)(1)(B) |
Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).* | |
| (a)(1)(C) |
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(D) |
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
| (a)(1)(E) |
Text of Summary Advertisement, as published in The New York Times on August 17, 2017.* | |
| (a)(2) |
Not applicable. | |
| (a)(3) |
Not applicable. | |
| (a)(4) |
Not applicable. | |
| (a)(5)(A) |
Press Release, dated July 27, 2017 (incorporated by reference to Exhibit 99.1 to Mitel’s Current Report on Form 8-K, filed on July 28, 2017). | |
| (a)(5)(B) |
Class Action Complaint dated August 21, 2017 (Scarantino v. ShoreTel, Inc., et al., Case No. 4:17-cv-04857-YGR).** | |
| (a)(5)(C) |
Class Action Complaint dated August 22, 2017 (Frydman v. ShoreTel, Inc., et. al., Case No. 5:17-cv-4865-BLF).** | |
| (a)(5)(D) |
Class Action Complaint dated August 23, 2017 (Mozee v. ShoreTel, Inc., et. al., Case No. 4:17-cv-04888-HSG).** | |
| (a)(5)(E) |
Class Action Complaint dated August 24, 2017 (Simonson v. ShoreTel, Inc., et. al., Case No. 3:17-cv-04931-WHA).** | |
| (a)(5)(F) |
Class Action Complaint dated August 28, 2017 (Herrera v. ShoreTel, Inc., et. al., Case No. 3:17-cv-04988-WHO).** | |
| (a)(5)(G) |
Class Action Complaint dated August 31, 2017 (De Angelis v. ShoreTel, Inc., et al., Case No. 3:17-cv-05091-WHO).*** | |
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| (b)(1) |
Debt Commitment Letter, dated as of July 26, 2017, by and among Mitel, Parent, Bank of Montreal, N.A., BMO Capital Markets Corp., Citizens Bank, N.A., HSBC Bank Canada and Canadian Imperial Bank of Commerce. (incorporated by reference to Exhibit 10.2 to Mitel’s Current Report on Form 8-K, filed on July 28, 2017). | |
| (b)(2) |
Credit Agreement, dated March 9, 2017, among Mitel and Parent as the borrowers, the lenders named therein, Citizens Bank, N.A., as the administrative agent, swingline lender and issuing lender, Citizens Bank, N.A., BMO Capital Markets, Canadian Imperial Bank of Commerce and HSBC Bank Canada, as joint lead arrangers and joint bookrunners, Bank of Montreal, Canadian Imperial Bank of Commerce and HSBC Bank Canada as co-syndication agents, Bank of America, N.A., Export Development Canada and KeyBank National Association as co-documentation agents (incorporated by reference to Exhibit 10.1 to Mitel’s Current Report on Form 8-K, filed on March 15, 2017). | |
| (d)(1) |
Agreement and Plan of Merger, dated as of July 26, 2017, by and among Parent, Offeror, ShoreTel and, solely with respect to the matters set forth in Section 1.1(i), Section 5.8, Section 5.10, Section 8.15(a) and Section 8.17 thereof, Mitel (incorporated by reference to Exhibit 2.1 to Mitel’s Current Report on Form 8-K, filed on July 28, 2017). | |
| (d)(2) |
Form of Tender Support Agreement, dated as of July 26, 2017, by and among Parent, the Offeror and each of the persons set forth on Schedule A thereto (incorporated by reference to Exhibit 10.1 to Mitel’s Current Report on Form 8-K, filed on July 28, 2017). | |
| (d)(3) |
Confidentiality Agreement, dated as of June 16, 2017, by and between Mitel and ShoreTel.* | |
| (g) |
Not applicable. | |
| (h) |
Not applicable. | |
| * | Previously filed with the Tender Offer Statement on Schedule TO with the Securities and Exchange Commission on August 17, 2017. |
| ** | Previously filed with Amendment No. 1 to the Tender Offer Statement on Schedule TO with the Securities and Exchange Commission on August 29, 2017. |
| *** | Filed herewith. |
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