Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 5)
of the Securities Exchange Act of 1934
(Amendment No. 5)
OPENWAVE SYSTEMS INC.
(Name of Subject Company (Issuer))
OREO ACQUISITION CO., LLC
Harbinger Capital Partners Master Fund I, Ltd. and
Harbinger Capital Partners Special Situations Fund, L.P.
(Names of Filing Persons (Offeror))
Harbinger Capital Partners Special Situations Fund, L.P.
(Names of Filing Persons (Offeror))
Common Stock, par value $0.001 per share
(Title of Class of Securities)
(Title of Class of Securities)
683718308
(CUSIP Number of Class of Securities)
(CUSIP Number of Class of Securities)
William R. Lucas, Jr.
Senior Vice President and General Counsel
Harbinger Capital Partners Master Fund I, Ltd.
One Riverchase Parkway South
Birmingham, AL 35244
(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
Senior Vice President and General Counsel
Harbinger Capital Partners Master Fund I, Ltd.
One Riverchase Parkway South
Birmingham, AL 35244
(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)
Copy to:
M. Douglas Dunn, Esq.
Roland Hlawaty, Esq.
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
M. Douglas Dunn, Esq.
Roland Hlawaty, Esq.
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
CALCULATION OF FILING FEE
Transaction valuation* | Amount of Filing Fee** | ||||||
$335,233,348 | 10,291.66 | ||||||
* | Estimated solely for purposes of calculating the filing fee in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended. The transaction value is calculated by multiplying (x) 40,389,560 Shares (as defined below) of Openwave Systems Inc., by (y) the tender offer price of $8.30 per Share net to the seller in cash. | |
** | The amount of the filing fee is calculated in accordance with Rule 0-11(d) of the Exchange Act and the Fee Rate Advisory #6 for Fiscal Year 2007 issued by the U.S. Securities and Exchange Commission on February 15, 2007, and is derived by multiplying the transaction valuation by 0.00003070 | |
þ | 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: $10,291.66 | Filing Parties: Oreo Acquisition Co., LLC, Harbinger Capital | |
Date Filed: May 22, 2007 | Partners Master Fund I, Ltd. Harbinger Capital Partners Special | |
Form or Registration No.: Schedule TO | Situations Fund, L.P. |
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:
þ | third-party tender offer subject to Rule 14d-1. | |
o | issuer tender offer subject to Rule 13e-4. | |
o | going-private transaction subject to Rule 13e-3. | |
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:
TABLE OF CONTENTS
Item 12. Exhibits | ||||||||
SIGNATURE | ||||||||
INDEX TO EXHIBITS | ||||||||
EX-99.A.13: TRANSCRIPT OF CONFERENCE CALL |
Table of Contents
SCHEDULE TO
This Amendment No. 5 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (the “Statement”), originally filed with the Securities and Exchange Commission (the “SEC”) on May 22, 2007, Amendment No. 1 to the Statement, filed on May 25, 2007, Amendment No. 2 to the Statement, filed on June 6, 2007, Amendment No. 3 to the Statement, filed on June 7, 2007 and Amendment No. 4 to the Statement, filed on June 7, 2007, by Oreo Acquisition Co., LLC, a Delaware limited liability company (the “Purchaser”), Harbinger Capital Partners Master Fund I, Ltd., a Cayman Islands corporation (the “Harbinger Master Fund”) and Harbinger Capital Partners Special Situations Fund, L.P., a Delaware limited partnership (the “Harbinger Special Situations Fund” and together with Purchaser, the Harbinger Master Fund, and their affiliates, “Harbinger”). This Amendment relates to the offer (the “Offer”) by Purchaser to purchase 40,389,560 of the outstanding shares of common stock, par value $0.001 per share (the “Common Stock”) of Openwave Systems Inc. (“Openwave”) and the associated rights issued under the Poison Pill (defined in the Offer to Purchase) to purchase certain shares of Openwave preferred stock (the “Poison Pill Rights” and, together with the Common Stock, the “Shares”) (which, together with other Shares held by Harbinger, represent approximately 62% of the total outstanding Shares) at a price of $8.30 per Share, net to the seller in cash, without interest thereon, subject to proration and the other terms and conditions set forth in the Offer to Purchase, dated Tuesday, May 22, 2007 (including any amendments or supplements thereto, the “Offer to Purchase”) and in the related Letter of Transmittal (including any amendments or supplements thereto, the “Letter of Transmittal”), copies of which are filed as Exhibits (a)(1) and (a)(2) to the Statement, respectively.
The information set forth in the Offer to Purchase is hereby incorporated by reference in answer to Items 1 through 11 of the Statement, and is amended and supplemented by the information specifically provided in this Amendment and in the press release attached hereto as Exhibit (a)(12), which is hereby incorporated by reference.
The Expiration Time (as defined in the Offer to Purchase) is hereby extended to midnight New York City time on Thursday, June 21, 2007, unless otherwise extended. Accordingly, all references to “Expiration Time” in the Offer to Purchase shall mean midnight New York City time on Thursday, June 21, 2007, unless Purchaser, in its sole discretion, extends the period of time for which the Offer is open, in which case the term “Expiration Time” will mean the time at which the Offer, as so extended, will expire.
Harbinger hereby clarifies and confirms that, as provided in Section 13 of the Offer to Purchase, the $8.30 purchase price per Share set forth in the Offer to Purchase will be automatically reduced to the extent of the $1.20 per Share dividend declared by Openwave on June 4, 2007 and, accordingly, the net purchase price to be paid by Purchaser will be $7.10 per Share. As a result of this clarification, tendering stockholders who also held Shares on the Openwave dividend record date will receive $8.30 in total: a combination of the Offer price and the Openwave declared dividend. Harbinger hereby waives any rights that it may have to such dividend, pursuant to the second paragraph on page 4 of the Letter of Transmittal, in respect of any Shares that are accepted for payment in the Offer.
Item 12. Exhibits.
Item 12 is amended and supplemented by adding the following:
(a)(13) Transcript of conference call and webcast held on June 7, 2007.
Table of Contents
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.
OREO ACQUISITION CO., LLC | ||||||
By: | /s/ William R. Lucas | |||||
Name: | William R. Lucas | |||||
Title: | Vice President | |||||
HARBINGER CAPITAL PARTNERS MASTER FUND I., LTD. | ||||||
By: Harbinger Capital Partners Offshore Manager, | ||||||
L.L.C. | ||||||
By: HMC Investors, L.L.C., Managing Member | ||||||
By: | /s/ William R. Lucas | |||||
Name: | William R. Lucas | |||||
Title: | Vice President | |||||
HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. | ||||||
By: Harbinger Capital Partners Special Situations GP, LLC | ||||||
By: HMC — New York, Inc., Managing Member | ||||||
By: | /s/ William R. Lucas | |||||
Name: | William R. Lucas | |||||
Title: | Vice President |
Table of Contents
INDEX TO EXHIBITS
(a)(1) | Offer to Purchase, dated Tuesday, May 22, 2007.* | |
(a)(2) | Form of Letter of Transmittal.* | |
(a)(3) | Form of Notice of Guaranteed Delivery.* | |
(a)(4) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
(a)(5) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* | |
(a)(6) | Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* | |
(a)(7) | Form of Summary Advertisement as published on Tuesday, May 22, 2007 inThe Wall Street Journal.* | |
(a)(8) | Materials posted on Openwave Tender Offer Information Website.** | |
(a)(9) | Press Release, dated May 25, 2007, announcing launch of Openwave Tender Offer Information Website.** | |
(a)(10) | Press Release, dated June 6, 2007, announcing that Harbinger will host a conference call and webcast on June 7, 2007 concerning its tender offer for Openwave.*** | |
(a)(11) | Presentation in connection with conference call and webcast held on June 7, 2007.**** | |
(a)(12) | Press release, dated June 7, 2007, announcing extension of Harbinger’s Tender Offer for Openwave and clarification of the Offer price.***** | |
(a)(13) | Transcript of conference call and webcast held on June 7, 2007. | |
(d)(1) | Agreement and Plan of Merger, dated May 21, 2007, by and among Oreo Acquisition Co., LLC, BridgePort Networks, Inc., Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, L.P., Polaris Venture Partners IV, L.P., Polaris Venture Partners Entrepreneurs’ Fund IV, L.P., General Catalyst Group II, L.P., GC Entrepreneurs Fund II, L.P., Toronto Dominion Capital (U.S.A.), Inc., BCE, Inc., Michael Mulica, Edward Battle, Todd Carothers, Steven Blumenthal, Robert Day and Andre de Verteail* | |
(d)(2) | Agreement, dated May 21, 2007, by and among Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, L.P., Polaris Venture Partners IV, L.P., Polaris Venture Partners Entrepreneurs’ Fund IV, L.P., General Catalyst Group II, L.P., GC Entrepreneurs Fund II, L.P., Toronto Dominion Capital (U.S.A.), Inc., BCE, Inc., Michael Mulica, Edward Battle, Todd Carothers, Steven Blumenthal, Robert Day and Andre de Verteail* | |
* | Incorporated by reference to the Schedule TO filed with the Securities and Exchange Commission by Purchaser, Harbinger Master Fund and Harbinger Special Situations Fund on May 22, 2007 | |
** | Incorporated by reference to the Schedule TO filed with the Securities and Exchange Commission by Purchaser, Harbinger Master Fund and Harbinger Special Situations Fund on May 25, 2007 | |
*** | Incorporated by reference to the Schedule TO filed with the Securities and Exchange Commission by Purchaser, Harbinger Master Fund and Harbinger Special Situations Fund on June 6, 2007 | |
**** | Incorporated by reference to the Schedule TO filed with the Securities and Exchange Commission by Purchaser, Harbinger Master Fund and Harbinger Special Situations Fund on June 7, 2007 | |
***** | Incorporated by reference to the Schedule TO filed with the Securities and Exchange Commission by Purchaser, Harbinger Master Fund and Harbinger Special Situations Fund on June 7, 2007 |
4