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
World Energy Solutions, Inc.
(Name of Subject Company)
Wolf Merger Sub Corporation(Offeror)
A Wholly Owned Subsidiary of
EnerNOC, Inc.
(Parent of Offeror)
(Names of Filing Persons (identifying status as offeror, issuer or other person))
Common Stock, Par Value $0.0001 Per Share
(Title of Class of Securities)
98145W208
(CUSIP Number of Class of Securities)
Matthew J. Cushing
General Counsel & Vice President
ENERNOC, INC.
One Marina Park Drive, Suite 400
Boston, MA 02210
(617) 224-9900
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Miguel J. Vega
Cooley LLP
500 Boylston Street, 14th Floor
Boston, MA 02116
(617) 937-2300
CALCULATION OF FILING FEE
| Transaction Valuation* | Amount of Filing Fee** | |
| $73,701,936.00 | $8,564.16 | |
| * | Estimated solely for purposes of calculating the filing fee. The transaction value calculation does not take into account the effect of any cash received or deemed received by World Energy Solutions, Inc. (“World Energy”) in connection with the exercise of any outstanding equity awards. The transaction valuation was determined by multiplying (a) $5.50, the tender offer price, by (b) the sum of (i) 12,713,158, the number of issued and outstanding shares of common stock of World Energy, (ii) 637,649, the number of shares of World Energy common stock subject to issuance pursuant to outstanding options to purchase shares of World Energy common stock, and (iii) 49,545, the number of shares of World Energy common stock subject to issuance pursuant to outstanding warrants to purchase shares of World Energy common stock. The foregoing share figures have been provided by World Energy and are as of November 3, 2014, the most recent practicable date. |
| ** | The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2015, issued August 29, 2014, by multiplying the transaction valuation by 0.0001162. |
| ¨ | 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. |
| Amount Previously Paid: Not applicable. | Filing Party: Not applicable. | |
| Form or Registration No.: Not applicable | Date Filed: Not applicable. |
| ¨ | 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:
| x | 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.¨
This Tender Offer Statement on Schedule TO (together with any amendments and supplements hereto, this “Schedule TO”) relates to the offer by Wolf Merger Sub Corporation, a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of EnerNOC, Inc., a Delaware corporation (“Parent”), to purchase all outstanding shares of common stock, par value $0.0001 per share (the “Shares”) of World Energy Solutions, Inc., a Delaware corporation (the “Target”), at $5.50 per Share, net in cash, without interest (less any required withholding taxes), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 19, 2014 (together with any amendments and supplements thereto, the “Offer to Purchase”), and in the related letter of transmittal, copies of which are attached hereto as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.
The information set forth in the Offer to Purchase, including all schedules thereto, is hereby expressly incorporated in this Schedule TO by reference in response to Items 1 through 9 and Item 11 of this Schedule TO and is supplemented by the information specifically provided for in this Schedule TO.
| Item 1. | Summary Term Sheet. |
Regulation M-A Item 1001
The information set forth in the section of the Offer to Purchase entitled “Summary Term Sheet” is incorporated herein by reference.
| Item 2. | Subject Company Information. |
Regulation M-A Item 1002(a) through (c)
(a) The name of the subject company and the issuer of the securities to which this Schedule TO relates is World Energy Solutions, Inc. World Energy Solutions, Inc.’s principal executive offices are located at 100 Front Street, Worcester, Massachusetts 01608. Its telephone number at such address is 508-459-8100.
(b) The information set forth in the section of the Offer to Purchase entitled “Introduction” is incorporated herein by reference.
(c) The Shares are traded on The NASDAQ Capital Market under the symbol “XWES.” The information set forth in Section 6 — “Price Range of Shares; Dividends” of the Offer to Purchase is incorporated herein by reference.
| Item 3. | Identity and Background of Filing Person. |
Regulation M-A Item 1003(a) through (c)
(a)-(c) This Schedule TO is filed by Parent and Merger Sub. The information set forth in Section 9 — “Certain Information Concerning Merger Sub and Parent” in the Offer to Purchase and in Schedule I of the Offer to Purchase is incorporated herein by reference.
| Item 4. | Terms of the Transaction. |
Regulation M-A Item 1004(a)
For purposes of subsection (a)(1)(i)-(viii), (x) and (xii), the information set forth in the Offer to Purchase under the following captions is incorporated by reference in this Schedule TO:
Introduction
Section 1 — “Terms of the Offer”
Section 2 — “Acceptance for Payment and Payment for Shares”
Section 3 — “Procedures for Tendering Shares”
Section 4 —“Withdrawal Rights”
Section 5 — “Certain U.S. Federal Income Tax Considerations”
Section 7 — “Certain Other Effects”
Section 15 — “Conditions of the Offer”
| Subsections | (a)(1)(ix) and (xi) are not applicable. |
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For purposes of subsections (a)(2)(i)-(iii) and (vii) the information set forth in the Offer to Purchase under the following captions is incorporated by reference in this Schedule TO:
Introduction
Section 1 — “Terms of the Offer”
Section 5 — “Certain U.S. Federal Income Tax Considerations”
Section 7 — “Certain Other Effects”
Section 11 — “Background of the Offer; Contacts with the Target”
Section 12 — “Purpose of the Offer and Plans for the Target”
Section 13 — “The Transaction Documents”
Subsections (a)(2)(iv), (v) and (vi) are not applicable.
| Item 5. | Past Contacts, Transactions, Negotiations and Agreements. |
Regulation M-A Item 1005(a), (b) and (d)
The information set forth in the Offer to Purchase under the following captions is incorporated by reference in this Schedule TO:
Introduction
Section 9 — “Certain Information Concerning Merger Sub and Parent”
Section 11 — “Background of the Offer; Contacts with the Target”
Section 12 — “Purpose of the Offer and Plans for the Target”
Section 13 — “The Transaction Documents”
| Item 6. | Purposes of the Transaction and Plans or Proposals. |
Regulation M-A Item 1006(a) and (c)(1) through (7)
For purposes of subsections (a), (c)(1) and (c)(5) through (7), the information set forth in the Offer to Purchase under the following captions is incorporated by reference in this Schedule TO:
Introduction
Section 6 — “Price Range of Shares; Dividends”
Section 7 — “Certain Other Effects”
Section 12 — “Purpose of the Offer and Plans for the Target”
Section 13 — “The Transaction Documents”
Section 14 — “Dividends and Distributions”
Subsection (c)(2), (c)(3) and (c)(4) are not applicable.
| Item 7. | Source and Amount of Funds or Other Consideration. |
Regulation M-A Item 1007(a), (b) and (d)
The information set forth in Section 10 — “Source and Amount of Funds” of the Offer to Purchase is incorporated herein by reference in this Schedule TO.
| Item 8. | Interest in Securities of the Subject Company. |
Regulation M-A Item 1008
The information set forth in Section 9 — “Certain Information Concerning Merger Sub and Parent” of the Offer to Purchase is incorporated herein by reference in this Schedule TO.
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| Item 9. | Persons/Assets Retained, Employed, Compensated or Used. |
Regulation M-A Item 1009(a)
The information set forth in the Section 17 — “Fees and Expenses” of the Offer to Purchase is incorporated by reference in this Schedule TO.
| Item 10. | Financial Statements. |
Regulation M-A Item 1010(a) and (b)
Not applicable.
| Item 11. | Additional Information. |
Regulation M-A Item 1011(a) and (c)
(a)(1) Except as disclosed in Items 1 through 10 above, there are no present or proposed material agreements, arrangements, understandings or relationships between (i) the Parent, the Merger Sub, or any of their respective executive officers, directors, controlling persons or subsidiaries and (ii) the Target or any of its executive officers, directors, controlling persons or subsidiaries.
(a)(2)-(5) The information set forth in Section 7 — “Certain Other Effects” and Section 16 — “Certain Legal Matters; Regulatory Approvals.”
For purposes of subsection (c) the information set forth in the Offer to Purchase and Letter of Transmittal is incorporated herein by reference.
| Item 12. | Exhibits. |
Exhibit No. | Description | |||
| (a)(1)(i) | Offer to Purchase, dated as of November 19, 2014
| |||
| (a)(1)(ii) | Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9)
| |||
| (a)(1)(iii) | Form of Notice of Guaranteed Delivery
| |||
| (a)(1)(iv) | Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
| |||
| (a)(1)(v) | Form of Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
| |||
| (a)(1)(vi) | Summary Advertisement, as published inThe New York Times on November 19, 2014
| |||
| (a)(5)(i) | Press Release issued by Parent, dated November 4, 2014 (incorporated by reference to the Pre-Commencement Communication on Schedule TO filed by Parent on November 4, 2014)
| |||
| (a)(5)(ii) | Press Release issued by the Target (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Target on November 5, 2014).
| |||
| (b) | Not applicable
| |||
| (c) | Not applicable
| |||
| (d)(1) | Agreement and Plan of Merger, dated as of November 4, 2014, among the Target, Parent and Merger Sub (incorporated by reference to the Current Report on Form 8-K filed by the Target on November 5, 2014).
| |||
| (d)(2) | Form of Tender and Support Agreement, dated as of November 4, 2014, among Parent, Merger Sub and certain stockholders of the Target (incorporated by reference to the Current Report on Form 8-K filed by the Target on November 5, 2014).
| |||
| (d)(3) | Non-Disclosure Agreement, dated as of April 15, 2014, between Parent and the Target, as amended.
| |||
| (e) | Not applicable | |||
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(f) |
|
Not applicable
| |
| (g) | Not applicable
| |||
| (h) | Not applicable |
| Item 13. | Information Required by Schedule 13E-3. |
Not applicable.
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SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Date: November 19, 2014
| Wolf Merger Sub Corporation,a Delaware corporation | ||
| By: | /S/ David Brewster | |
| Name: David Brewster | ||
| Title: President | ||
| EnerNOC, Inc.,a Delaware corporation | ||
| By: | /S/ Neil Moses | |
| Name: Neil Moses | ||
Title: Chief Operating Officer & Chief Financial Officer | ||
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