- Amended tender offer statement by Issuer (SC TO-I/A)
06 March 2012 - 10:06PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Amendment No. 3
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of
the
Securities Exchange Act of 1934
Affymetrix, Inc.
(Name of Issuer)
Affymetrix, Inc.
(Names of Filing Persons Offeror)
3.50% Senior
Convertible Notes due 2038
(Title of Class of Securities)
00826TAG3
(CUSIP Number of Class of Securities)
John F. Runkel, Jr.
Executive Vice President and General Counsel
3420 Central Expressway
Santa Clara, California 95051
Telephone: (408) 731-5000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing
Persons)
Copies to:
William M. Kelly
Sarah K. Solum
Davis Polk & Wardwell LLP
1600 El Camino Real
Menlo Park, California 94025
Telephone: (650) 752-2000
CALCULATION OF
FILING FEE
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Transaction Valuation(1)
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Amount of Filing Fee(2)(3)
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$95,469,000
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$10,940.75
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(1)
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Estimated for purposes of calculating the filing fee only, in accordance with Rule 0-11(b)(1) under the Securities Exchange Act of 1934, as amended (the Exchange
Act), the transaction value was calculated assuming that $95,469,000 aggregate principal amount of the outstanding 3.50% Senior Convertible Notes due 2038 are being purchased at the maximum price of $1,000 per $1,000 principal amount of the
Notes.
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(2)
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The filing fee was calculated at a rate of $114.60 per $1,000,000 of the transaction value. It was calculated by multiplying the transaction valuation amount by
.00011460.
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¨
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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.
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Amount Previously Paid:
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Filing Party:
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Form or Registration No.:
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Date Filed:
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¨
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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¨
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third-party tender offer subject to Rule 14d-1.
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x
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issuer tender offer subject to Rule 13e-4.
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¨
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going-private transaction subject to Rule 13e-3.
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¨
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final amendment reporting the results of the tender
offer.
x
This Amendment No. 3 (this Amendment No. 3) amends and supplements the
Tender Offer Statement on Schedule TO (the Schedule TO), filed with the Securities and Exchange Commission (the SEC) on February 3, 2012, as amended, by Affymetrix, Inc., a Delaware corporation (the Company),
and relates to the offer (the Offer) by the Company to purchase for cash any and all of its outstanding 3.50% Senior Convertible Notes due 2038 (the Notes) upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated February 3, 2012 (as it may be amended or supplemented from time to time, the Offer to Purchase), and in the related Letter of Transmittal (as it may be amended or supplemented from time to time, the
Letter of Transmittal and, together with the Offer to Purchase, the Offer Documents).
The information
in the Schedule TO, including the Offer to Purchase and the related Letter of Transmittal, is incorporated in this Amendment No. 3 by reference to all of the applicable items in the Schedule TO, except that such information is hereby amended
and supplemented to the extent specifically provided herein.
Items 1, 4, 7 and 11.
Items 1, 4(a), 7 and 11(c) of the Schedule TO are hereby amended and supplemented by adding the following:
The Offer expired at 12:00 midnight, New York City Time, on Friday, March 2, 2012 (the Expiration Date). As of the
Expiration Date, $91,614,000 in aggregate principal amount of the Notes, representing approximately 96% of the outstanding Notes, were validly tendered and not validly withdrawn pursuant to the Offer. The Company has accepted for purchase all of the
Notes that were validly tendered and not validly withdrawn at or prior the Expiration Date.
As previously announced, the
purchase price per $1,000 principal amount of Notes validly tendered and accepted for purchase pursuant to the Offer was $1,000. Holders also received accrued and unpaid interest from the last interest payment date applicable to their Notes to, but
not including, the settlement date (the Accrued Interest) for Notes that were validly tendered and accepted for purchase. The Company settled the Offer on March 5, 2012 and paid to the Holders aggregate consideration of
$92,059,345.83, including the Accrued Interest.
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.
Date: March 5, 2012
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A
FFYMETRIX
, I
NC
.
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By:
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/
S
/
J
OHN
F. R
UNKEL
,
J
R
.
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Name:
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John F. Runkel, Jr.
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Title:
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Executive Vice President and General Counsel
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EXHIBIT INDEX
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Exhibit
No.
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Description
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(a)(1)(A)*
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Offer to Purchase dated February 3, 2012.
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(a)(1)(B)*
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Letter of Transmittal.
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(a)(1)(C)*
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Notice Announcing Extension of Offer.
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(a)(5)(A)
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The Companys Current Report on Form 8-K filed on January 25, 2012.
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(b)
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Not applicable.
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(d)(1)
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Indenture dated as of November 16, 2007, between the Company and the Bank of New York Trust Company, N.A. as Trustee (including Form of Senior Convertible Note due 2038)
(incorporated by reference to the Companys Current Report on Form 8-K as filed on November 19, 2007).
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(d)(2)*
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Letter Agreement dated as of January 21, 2012 between the Company and Tang Capital Partners, LP.
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(d)(3)
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1993 Stock Plan, as amended (incorporated by reference to the Companys Registration Statement on Form S-1 (File No. 333-3648), as amended).
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(d)(4)
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1996 Nonemployee Directors Stock Option Plan (incorporated by reference to the Companys Registration Statement on Form S-1 (File No. 333-3648), as amended).
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(d)(5)
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1998 Stock Incentive Plan (incorporated by reference to the Companys Annual Report on Form 10-K as filed on March 31, 1999).
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(d)(6)
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Form of Officer and Director Indemnification Agreement (incorporated by reference to the Companys Annual Report on Form 10-K as filed on March 31, 1999).
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(d)(7)
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Amendment No. 1 to the 1996 Nonemployee Directors Stock Option Plan of the Company (incorporated by reference to the Companys Registration Statement on Form S-3 as filed on
July 12, 1999, as amended).
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(d)(8)
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Amended and Restated 1996 Non-Employee Directors Stock Plan (incorporated by reference to the Companys Quarterly Report on Form 10-Q as filed on May 15,
2001).
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(d)(9)
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Affymetrix, Inc. Amended and Restated 2000 Equity Incentive Plan, as adopted effective March 9, 2000 and amended through May 14, 2010 (incorporated by reference to the
Companys Registration Statement on Form S-8 as filed on May 17, 2010).
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(d)(10)
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Form of Non-Qualified Stock Option Agreement under the Affymetrix, Inc. Amended and Restated 1996 Non-Employee Directors Stock Plan (incorporated by reference to the Companys
Quarterly Report on Form 10-Q as filed on November 9, 2004).
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(d)(11)
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Form of Stock Option Agreement under the Affymetrix, Inc. Amended and Restated 2000 Equity Incentive Plan (incorporated by reference to the Companys Annual Report on Form 10-K
as filed on March 2, 2009).
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(d)(12)
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Form of Restricted Stock Agreement under the Affymetrix, Inc. Amended and Restated 2000 Equity Incentive Plan (incorporated by reference to the Companys Annual Report on Form
10-K as filed on March 2, 2009).
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(d)(13)
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Offer Letter from the Company to Kevin M. King dated December 18, 2006 (incorporated by reference to the Companys Current Report on Form 8-K as filed on December 19,
2006).
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(d)(14)
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Offer Letter from the Company to John F. (Rick) Runkel dated October 6, 2008 (incorporated by reference to the Companys Quarterly Report on Form 10-Q as filed on November 7,
2008).
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(d)(15)
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Offer Letter from the Company to Andrew J. Last, Ph.D. dated November 2, 2009 (incorporated by reference to the Companys Annual Report on Form 10-K as filed on March 1,
2010).
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(d)(16)
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Offer Letter from the Company to Timothy C. Barabe dated March 9, 2010 (incorporated by reference to the Companys Quarterly Report on Form 10-Q as filed on May 6,
2010).
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(d)(17)
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Executive Severance Policy dated May 14, 2010 (incorporated by reference to the Companys Current Report on Form 8-K as filed on May 18, 2010).
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(d)(18)
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Offer Letter from the Company to Frank Witney dated May 26, 2011 (incorporated by reference to the Companys Current Report on Form 8-K filed on August 4,
2011).
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(d)(19)
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Separation Agreement between the Company and Kevin M. King dated May 31, 2011 (incorporated by reference to the Companys Current Report on Form 8-K filed on August 4,
2011).
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(g)
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Not applicable.
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(h)
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Not applicable.
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