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
(AMENDMENT NO. 3)
SCHEDULE 13E-3
RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e)
OF THE SECURITIES EXCHANGE OF 1934
OPTICNET, INC.
(NAME OF SUBJECT COMPANY (ISSUER))
OPTO ACQUISITION SUB, INC. (OFFEROR)
BEI TECHNOLOGIES, INC. (PARENT OF OFFEROR)
(NAMES OF FILING PERSONS)
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(TITLE OF CLASS OF SECURITIES)
683868 10 3
(CUSIP NUMBER OF CLASS OF SECURITIES)
ROBERT R. CORR
VICE PRESIDENT AND CONTROLLER
BEI TECHNOLOGIES, INC.
ONE POST STREET, SUITE 2500
SAN FRANCISCO, CALIFORNIA 94104
TEL: (415) 956-4477
(NAME, ADDRESS, AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF FILING PERSONS)
WITH COPIES TO:
CHRISTOPHER A. WESTOVER, ESQ.
VIRGINIA C. EDWARDS, ESQ.
JASON S. THRONE, ESQ.
COOLEY GODWARD LLP
ONE MARITIME PLAZA, FLOOR 20
SAN FRANCISCO, CA 94111
TEL: (415) 693-2000
FAX: (415) 951-3699
CALCULATION OF FILING FEE
TRANSACTION VALUATION(1) AMOUNT OF FILING FEE(2)
- ---------------------------- -----------------------
$ 242,180 $ 19.59
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as
amended, based on the product of (i) $0.04 (i.e. the tender offer price)
and (ii) 6,054,491, the estimated number of shares of OpticNet common
stock to be acquired in this tender offer and the merger.
(2) The amount of the filing fee, calculated in accordance with Rule
0-11(a)(2) under the Securities Exchange Act of 1934, as amended, equals
0.00809% of the transaction valuation.
[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: $19.59 Filing Party: Opto Acquisition Sub, Inc.
Form or Registration No.: SC TO-T Date Filed: August 18, 2003
[ ] Check the box if the filing relates 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.
[X] 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: [ ]
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This Amendment No. 3 (this "Amendment"), filed in response to comments
raised by the staff of the Securities and Exchange Commission's Division of
Corporation Finance, amends and supplements the Tender Offer Statement and
Schedule 13e-3 Transaction Statement filed under cover of Schedule TO on August
18, 2003, as amended by Amendment No. 1 filed on September 12, 2003 and by
Amendment No. 2 filed on October 10, 2003 (as amended, the "Schedule TO"), by
Opto Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of BEI Technologies, Inc., a Delaware corporation
("BEI"). The Schedule TO relates to the offer by the Purchaser to purchase all
the outstanding shares of common stock, par value $0.0001 per share, of
OpticNet, Inc., a Delaware corporation, at a purchase price of $0.04 per share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated August 18, 2003, and
in the Letter of Transmittal (which, together with any amendments and
supplements thereto, collectively constitute the "Offer"), each as amended. A
copy of the amended Offer to Purchase is filed with this Amendment as Exhibit
(a)(1)(ii) hereto. The information set forth in the Offer to Purchase, including
Schedule I thereto, is hereby incorporated by reference in response to all items
of the Schedule TO, including, without limitation, all of the information
required by Schedule 13e-3 that is not included in or covered by the items in
Schedule TO and is supplemented by the information specifically provided herein.
ITEMS 1-9, ITEM 11 AND ITEM 13.
The information set forth in the Offer to Purchase, including Schedule I
thereto, and the Letter of Transmittal, are hereby incorporated by reference in
answer to Items 1-9, 11 and 13 of this Schedule TO.
ITEM 10. FINANCIAL STATEMENTS
Not Applicable.
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ITEM 12. EXHIBITS
(a)(1) Offer to Purchase, dated August 18, 2003. (i)
(a)(1)(i) Offer to Purchase, dated October 10, 2003. (i)
(a)(1)(ii) Offer to Purchase, dated November 5, 2003.
(a)(2) Form of Letter of Transmittal. (i)
(a)(3) Form of Notice of Guaranteed Delivery. (i)
(a)(4) Form of Letter to Clients for use by Brokers, Dealers, (i)
Banks, Trust Companies and Other Nominees.
(a)(5) Guidelines for Certification of Taxpayer Identification (i)
Number on Substitute Form W-9. (i)
(a)(6) Joint Press Release issued by BEI Technologies, Inc. and
OpticNet, Inc. on July 1, 2003. (ii)
(a)(7) Text of Press Release issued by BEI Technologies, Inc. on
September 12, 2003. (i)
(a)(8) Press Release issued by BEI Technologies, Inc. on April 23,
2003. (iii)
(a)(9) Disclosure concerning the intent to acquire OpticNet common
stock contained in Note 5 to BEI's financial statements for
the period ended March 29, 2003. (iv)
(a)(10) Item 4 (The Solicitation or Recommendation) of OpticNet's
Amendment No. 1 to Schedule 14D-9. (v)
(a)(11) Text of Press Release issued by BEI Technologies, Inc. on
October 10, 2003. (i)
(a)(12) Text of Press Release issued by BEI Technologies, Inc. on
November 5, 2003.
(b) Not applicable.
(c)(1) Opinion of American Appraisal Associates dated July 1, 2003. (i)
(c)(2) OpticNet, Inc. Internal Technology Fair Market Valuation by
American Appraisal Associates as of November 15, 2002. (i)
(d)(1) Agreement and Plan of Merger, dated as of July 1, 2003, by
and among BEI Technologies, Inc., Opto Acquisition Sub, Inc.
and OpticNet, Inc. (i)
(f)(1) Appraisal Rights and Dissenters' Rights. (i)
(g) Not applicable.
(h) Not applicable.
(i) Previously filed.
(ii) Incorporated by reference to Schedule TO-C filed by BEI on July 1, 2003.
(iii) Incorporated by reference to the Current Report on Form 8-K filed by BEI
on April 23, 2003.
(iv) Incorporated by reference to the Quarterly Report on Form 10-Q filed by
BEI on May 1, 2003.
(v) Incorporated by reference to the above-reference Item 4 in Amendment No. 2
to Schedule 14D-9 filed by OpticNet, Inc. on November 5, 2003.
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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.
OPTO ACQUISITION SUB, INC.
By: /s/ ROBERT R. CORR
-----------------------------------
Name: Robert R. Corr
Title:Treasurer and Secretary
BEI TECHNOLOGIES, INC.
By: /s/ ROBERT R. CORR
-----------------------------------
Name: Robert R. Corr
Title:Treasurer, Controller and Secretary
Dated: November 5, 2003
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INDEX TO EXHIBITS
EXHIBIT NO. DOCUMENT
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(a)(1) Offer to Purchase, dated August 18, 2003. (i)
(a)(1)(i) Offer to Purchase, dated October 10, 2003. (i)
(a)(1)(ii) Offer to Purchase, dated November 5, 2003.
(a)(2) Form of Letter of Transmittal. (i)
(a)(3) Form of Notice of Guaranteed Delivery. (i)
(a)(4) Form of Letter to Clients for use by Brokers, Dealers,
Banks, Trust Companies and Other Nominees. (i)
(a)(5) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9. (i)
(a)(6) Joint Press Release issued by BEI Technologies, Inc. and
OpticNet, Inc. on July 1, 2003. (ii)
(a)(7) Text of Press Release issued by BEI Technologies, Inc. on
September 12, 2003. (i)
(a)(8) Press Release issued by BEI Technologies, Inc. on April
23, 2003. (iii)
(a)(9) Disclosure concerning the intent to acquire OpticNet
common stock contained in Note 5 to BEI's financial
statements for the period ended March 29, 2003. (iv)
(a)(10) Item 4 (The Solicitation or Recommendation) of OpticNet's
Amendment No. 1 to Schedule 14D-9. (v)
(a)(11) Text of Press Release issued by BEI Technologies, Inc. on
October 10, 2003. (i)
(a)(12) Text of Press Release issued by BEI Technologies, Inc. on
November 5, 2003.
(b) Not applicable.
(c)(1) Opinion of American Appraisal Associates dated July 1,
2003. (i)
(c)(2) OpticNet, Inc. Internal Technology Fair Market Valuation
by American Appraisal Associates as of November 15, 2002. (i)
(d)(1) Agreement and Plan of Merger, dated as of July 1, 2003, by
and among BEI Technologies, Inc., Opto Acquisition Sub,
Inc. and OpticNet, Inc. (i)
(f)(1) Appraisal Rights and Dissenters' Rights. (i)
(g) Not applicable.
(h) Not applicable.
(i) Previously filed.
(ii) Incorporated by reference to Schedule TO-C filed by BEI on July 1, 2003.
(iii) Incorporated by reference to the Current Report on Form 8-K filed by BEI
on April 23, 2003.
(iv) Incorporated by reference to the Quarterly Report on Form 10-Q filed by
BEI on May 1, 2003.
(v) Incorporated by reference to the above-reference Item 4 in Amendment No. 2
to Schedule 14D-9 filed by OpticNet, Inc. on November 5, 2003.
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