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
METROLOGIC INSTRUMENTS, INC.
(Name of Subject Company (Issuer) and Name of Filing Person (Offeror))
Options to Purchase Common Stock, Par Value $0.01 Per Share (Title of Class of Securities)
Not Applicable
(CUSIP Number of Class of Securities)
C. Harry Knowles
Interim Chief Executive Officer
90 Coles Road
Blackwood, NJ 08012
(856) 228-8100
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Justin P. Klein, Esq. Ballard Spahr Andrews & Ingersoll, LLP 1735 Market Street Philadelphia, PA 19103 Tel: (215) 665-8500 | Larry W. Sonsini, Esq. John A. Fore, Esq. Robert T. Ishii, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 Tel: (650) 493-9300 |
CALCULATION OF FILING FEE
| Transaction Valuation | Amount of Filing Fee | |||
$5,325,366* | $ | 570 | * | |
| * | Calculated solely for the purpose of estimating the filing fee. This amount is based upon the aggregate purchase price payable for options to purchase shares of Common Stock being solicited in this offer. |
| x | 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: $39,497
Form or Registration No.: Schedule 14A
Filing Party: Metrologic Instruments, Inc.
Date Filed: October 5, 2006
| ¨ | 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.
x 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 Amendment No. 2 amends and supplements the Tender Offer Statement on Schedule TO (the “Schedule TO”) filed by Metrologic Instruments, Inc., a New Jersey corporation (“Metrologic” or the “Company”), with the Securities and Exchange Commission (the “SEC”) on November 21, 2006, as amended and supplemented by Amendment No. 1 to the Schedule TO filed by the Company on November 29, 2006, relating to the offer by the Company to purchase outstanding options to purchase shares of its Common Stock, par value $0.01 per share, on the terms and subject to the conditions described in the Offer to Purchase from Eligible Employees All Outstanding Eligible Options to Purchase Common Stock for Cash dated November 21, 2006 (the “Offer to Purchase”). This Amendment No. 2 is made to update disclosure regarding litigation in the Schedule TO and the Offer to Purchase.
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Item 11. Other Information
On December 8, 2006, an action, titled Gerber v. Knowles, et. al. was filed in the United States District Court for the District of Delaware against Metrologic Instruments, Inc. (the “Company”), all of the members of the Company’s Board of Directors, Francisco Partners, II, LP, FP-Metrologic, LLC, Meteor Holding Corporation, Meteor Merger Corporation, Elliott Associates, LP, and Elliott International, LP.
The Gerber complaint alleges that the defendants violated Rule 14a-9 of the Securities Exchange Act by omitting material facts in the preliminary proxy statement filed on October 5, 2006 as supplemented by the definitive proxy statement filed on November 29, 2006 and further alleges that certain of the defendants breached their fiduciary duties in entering into the merger and that other defendants aided and abetted the alleged breaches. Other than the claim for violation of Rule 14a-9, the complaint contains similar allegations to those in the complaints filed against the Company and certain other defendants in the Superior Court of New Jersey described in the Company’s Current Reports on Form 8-K filed on September 21, 2006, September 29, 2006 and November 8, 2006. The Gerber complaint seeks class certification and certain forms of equitable relief, including enjoining the consummation of the merger, or damages.
The plaintiff also filed a motion for a temporary restraining order, requesting the court to prohibit the defendants from soliciting proxies and shareholder support for the merger, to prohibit the defendants from distributing false and misleading information and to order the defendants to issue corrective disclosures.
The defendants believe that the allegations of the Gerber complaint are without merit and intend to vigorously contest the action. There can be no assurance, however, that the defendants will be successful in the defense of the action.
On December 14, 2006, the United States District Court for the District of Delaware granted the defendants’ motion to transfer venue and ordered the transfer of the action to the United States District Court for the District of New Jersey.
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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.
| METROLOGIC INSTRUMENTS, INC. |
/S/ C. HARRY KNOWLES |
| C. Harry Knowles |
| Chairman and Interim Chief Executive Officer |
Date: December 15, 2006
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INDEX TO EXHIBITS
| Exhibit Number | Description | |
| (a)(1)(A) | Offer to Purchase from Eligible Employees All Outstanding Eligible Options to Purchase Common Stock for Cash, dated November 21, 2006* | |
| (a)(1)(B) | Election Form* | |
| (a)(1)(C) | Withdrawal Form* | |
| (a)(1)(D) | Letter to Eligible Employees, dated November 21, 2006* | |
| (a)(1)(E) | Form of Confirmation E-Mails* | |
| (a)(1)(F) | Form of Reminder E-Mails* | |
| (a)(2) | Not applicable | |
| (a)(3) | Not applicable | |
| (a)(4) | Not applicable | |
| (a)(5) | Not applicable | |
| (b) | Debt Commitment Letter by and between Meteor Holding Corporation and Morgan Stanley Senior Funding, Inc. dated September 12, 2006 (incorporated herein by reference to Exhibit 99.4 to the Schedule 13D filed on September 22, 2006 by Meteor Holding Corporation, FP-Metrologic, LLC, Francisco Partners II, L.P., Francisco Partners Parallel Fund II, L.P., Francisco Partners GP II, L.P. and Francisco Partners GP II Management, LLC)* | |
| (d)(1) | Metrologic Instruments, Inc. 1994 Incentive Plan (incorporated herein by reference to Exhibit 99 to the Registrant’s Registration Statement on Form S-8 (Reg. No. 33-89376))* | |
| (d)(2) | First Amendment to Metrologic Instruments, Inc. 1994 Incentive Plan dated July 1, 1997 (incorporated herein by reference to Exhibit 10 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 1997)* | |
| (d)(3) | Metrologic Instruments, Inc. 2004 Equity Incentive Plan (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 dated December 3, 2004)* | |
| (d)(4) | Definitive Proxy Statement on Schedule 14A (incorporated herein by reference, filed with the Securities and Exchange Commission on November 28, 2006) | |
| (d)(5) | Agreement and Plan of Merger, dated as of September 12, 2006, between Metrologic Instruments, Inc., Meteor Holding Corporation and Meteor Merger Corporation (incorporated herein by reference to Annex A to the Proxy Statement)* | |
| (d)(6) | Contribution and Voting Agreement, dated as of September 12, 2006, among Meteor Holding Corporation, C. Harry Knowles, Janet H. Knowles and certain related family trusts and charitable entities (incorporated herein by reference to Annex C-1 to the Proxy Statement)* | |
| (d)(7) | Contribution and Voting Agreement, dated as of September 12, 2006, among Meteor Holding Corporation, Elliott Associates, L.P. and Elliott International, L.P. (incorporated herein by reference to Annex C-2 to the Proxy Statement)* | |
| (g) | Not applicable | |
| (h) | Not applicable | |
* Previously filed
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