- Amended tender offer statement by Issuer (SC TO-I/A)
19 December 2008 - 3:30AM
Edgar (US Regulatory)
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
(Amendment
No. 4)*
_____________________________
EXFO
ELECTRO-OPTICAL ENGINEERING INC.
(Name of
Subject Company)
EXFO
ELECTRO-OPTICAL ENGINEERING INC. (Issuer)
(Names of
Filing Persons (identifying status as offeror, issuer or other
person))
_____________________________
Subordinate
Voting Shares without par value
(Title of Class of
Securities)
_____________________________
302043 10
4
(CUSIP Number of Class of
Securities)
_____________________________
Benoit
Ringuette
EXFO
Electro-Optical Engineering Inc.
400
Godin Avenue
Quebec
City, Quebec, Canada
G1M
2K2
(418)
683-0211
(Name,
address and telephone number of person authorized to
receive
notices and communications on behalf of filing persons)
with
copies to:
Peter
Villani
Fasken
Martineau DuMoulin LLP
The
Stock Exchange Tower
P.O.
Box 242
Suite
3700, 800 Victoria Square
Montreal,
Quebec, Canada
H4Z
1E9
(514)
397-7400
|
|
Edwin
S. Maynard
Paul,
Weiss, Rifkind, Wharton & Garrison LLP
1285
Avenue of the Americas
New
York, New York
10019-6064
(212)
373-3000
|
CALCULATION
OF FILING FEE:
*
|
Estimated
solely for the purpose of calculating the amount of the filing
fee. This amount is based upon the offer to purchase for not
more than Cdn$30,000,000 a combined aggregate of up to 8,823,529
subordinate voting shares of EXFO Electro-Optical Engineering Inc. at a
price of Cdn$3.40 per share (which is the minimum purchase price under the
tender offer) in cash and is calculated based on the inverse of the noon
buying rate of Canadian dollars in the city of New York on November 5,
2008 as certified for customs purposes by the Federal Reserve Bank of New
York (Cdn$1 = US$0.8628).
|
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:
|
$1,018
|
|
Form
or Registration No.:
|
Schedule
TO (005-59259)
|
|
Filing
Party:
|
EXFO
Electro-Optical Engineering Inc.
|
|
Date
Filed:
|
November
10, 2008
|
o
|
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:
|
o
|
Third-party
tender offer subject to Rule 14d-1.
|
þ
|
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.
|
þ
|
Check the box if the filing is a
final amendment reporting the results of the tender
offer.
|
This
Amendment No. 4 amends and supplements the Issuer Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission on
November 10, 2008, as amended and supplemented by Amendment No. 1 to Schedule TO
filed on November 26, 2008 and Amendment No. 2 to Schedule TO filed on December
9, 2008 (collectively, as amended and supplemented, the “Schedule TO”) by EXFO
Electro-Optical Engineering Inc., a corporation existing under the laws of
Canada (“EXFO”) in connection with its offer to purchase up to an aggregate
amount of Cdn$30,000,000 of its subordinate voting shares at a price of not less
than Cdn$3.40 and not more than Cdn$3.90 per subordinate voting share, in cash
(subject to applicable withholding taxes, if any) without interest, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
November 10, 2008, as amended (the “Offer to Purchase”), the accompanying Issuer
Bid Circular (the “Circular”), and the related Letter of Transmittal and Notice
of Guaranteed Delivery (together with the Offer to Purchase and the Circular,
which, collectively, as amended or supplemented from time to time, constitute
the “Tender Offer”). This Amendment No. 4 is intended to satisfy the
reporting requirements of Rule 13e-4(c)(4) promulgated under the Securities
Exchange Act of 1934, as amended.
The
information contained in the Offer to Purchase and the Circular is incorporated
in this Amendment No. 4 by reference in response 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.
Item 11
of the Schedule TO, which incorporates by reference the information contained in
the Offer to Purchase and Circular, a copy of which was filed with the Schedule
TO as Exhibit (a)(1)(i), is hereby amended and supplemented to add the following
paragraph at the end thereof:
“On
December 18, 2008, EXFO issued a press release announcing the final results of
the Offer, which, as previously reported, expired at 5:00 p.m., Eastern time, on
Tuesday, December 16, 2008. A copy of this press release is filed as
exhibit (a)(5)(iii) to Schedule TO and is incorporated herein by
reference.”
Item 12
of the Schedule TO is hereby amended and supplemented by adding the following
exhibit:
Exhibit
Number
Description
(a)(5)(iii)
|
Press
Release issued by EXFO Electro-Optical Engineering Inc. on December 18,
2008.
|
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.
EXFO
ELECTRO-OPTICAL ENGINEERING INC.
By:
/s/
Germain Lamonde
Name: Germain
Lamonde
Title: President
and Chief Executive Officer
Dated: December
18, 2008
INDEX
TO EXHIBITS
Exhibit
Number
Description
(a)(1)(i)*
|
Offer
to Purchase, dated November 10, 2008, and the accompanying Issuer Bid
Circular.
|
(a)(1)(ii)*
|
Letter
of Transmittal.
|
(a)(1)(iii)*
|
Notice
of Guaranteed Delivery.
|
(a)(5)(i)
**
|
Press
Release issued by EXFO Electro-Optical Engineering Inc. on December 9,
2008.
|
(a)(5)(ii)
***
|
Press
Release issued by EXFO Electro-Optical Engineering Inc. on December 17,
2008.
|
(a)(5)(iii)
†
|
Press
Release issued by EXFO Electro-Optical Engineering Inc. on December 18,
2008.
|
(d)(i)
|
Long
Term Incentive Plan, dated May 25, 2000, as amended in October 2004
(effective January 12, 2005) (incorporated by reference to Exhibit 4.35 of
EXFO’s Annual Report on Form 20-F for the fiscal year ended August 31,
2005 (File No. 000-30895)).
|
(d)(ii)
|
Deferred
Share Unit Plan, effective January 12, 2005 (incorporated by reference to
Exhibit 4.36 of EXFO’s Annual Report on Form 20-F for the fiscal year
ended August 31, 2005 (File No.
000-30895)).
|
* Previously
filed with the Schedule TO on November 10, 2008.
** Previously
filed with the Schedule TO on December 9, 2008.
*** Previously
filed with the Schedule TO on December 17, 2008.
†
Filed
herewith.
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