SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
(Rule
13e-4)
(Amendment No.
1)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
UniTek
Global Services, Inc.
(Name
of Subject Company (Issuer) and Filing Person (Offeror))
Certain
Options to Purchase Common Stock, Par Value $0.00002 Per
Share
(Title
of Class of Securities)
(CUSIP
Number of Class of Securities)
(Underlying
Common Stock)
General
Counsel
UniTek
Global Services, Inc.
1777
Sentry Parkway West
Gwynedd
Hall, Suite 302
Blue
Bell, Pennsylvania 19422
(267)
464-1700
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing person)
Copy
to:
Justin W.
Chairman, Esq.
Morgan
Lewis & Bockius LLP
1701
Market Street
Philadelphia,
PA 19103
(215)
963-5000
CALCULATION
OF FILING FEE
|
Transaction
valuation*
|
Amount
of filing fee**
|
|
$7,216,170
|
$514.51
|
|
*
|
The
“transaction valuation” was calculated solely for purposes of determining
the filing fee. This amount assumes that all outstanding
options eligible for tender, covering a total of 637,324 shares of
common stock of UniTek Global Services, Inc., will be exchanged pursuant
to this offer. The aggregate value of such options was
calculated based on the Black-Scholes option pricing
model.
|
|
**
|
$71.30
per $1,000,000 of the aggregate offering pursuant to Rule 0-11 of the
Securities Exchange Act of 1934, as
amended.
|
|
x
|
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:
|
$514.51
|
|
Form
or Registration No.:
|
Schedule
TO
|
|
Filing
party:
|
UniTek
Global Services, Inc.
|
|
Date
filed:
|
December
9, 2010
|
|
¨
|
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.
|
|
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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.
|
Check the following box if the filing
is a final amendment reporting the results of the tender
offer.
The
filing of this Schedule TO shall not be construed as an admission by UniTek
Global Services, Inc. that the Offer (as defined below) constitutes an issuer
tender offer for purposes of the Securities Exchange Act of 1934 and the rules
promulgated thereunder.
This
Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO
(the “Original Schedule TO”) filed with the Securities and Exchange Commission
on December 9, 2010, relating to an offer by UniTek Global Services, Inc., a
Delaware corporation (the “Company”), to exchange (the “Exchange Offer”)
Eligible Options (as defined in the Original Schedule TO) to purchase shares of
Common Stock of the Company. The Exchange Offer is made on the terms
and subject to the conditions set forth in the Offer to Exchange Outstanding
Options for Common Stock as filed with the Original Schedule TO (the “Original
Offer to Exchange”), as amended in the form attached to this Amendment No. 1
(the “Amended Offer to Exchange”), and the Letter of Transmittal dated December
9, 2010, filed as an exhibit to the Original Schedule TO, which, as amended or
supplemented from time to time, together constitute the offer.
This
Amendment No. 1 is intended to satisfy the reporting requirements of Rule
13e-4(c)(2) promulgated under the Securities Exchange Act of 1934, as amended.
Copies of the Original Offer to Exchange and the Letter of Transmittal were
previously filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B),
respectively. The Letter of Transmittal is not being
amended.
The
information in the Original Offer to Exchange, the Amended Offer to Exchange and
the Letter of Transmittal, including all schedules and annexes thereto, is
incorporated in this Amendment No. 1 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 1.
SUMMARY TERM SHEET.
The
information set forth under “Summary Term Sheet” in the Amended Offer to
Exchange Certain Outstanding Options, dated December 28, 2010 (the “Offer
Document”), attached hereto as Exhibit (a)(1)(C), is incorporated herein by
reference.
ITEM 2.
SUBJECT COMPANY INFORMATION.
(a)
Name and Address.
The name of
the issuer is UniTek Global Services, Inc., a Delaware corporation (the
“Company” or “UniTek”); the address of its principal executive offices is 1777
Sentry Parkway West, Gwynedd Hall, Suite 302, Blue Bell, Pennsylvania 19422; and
its telephone number is (267) 464-1700. The information set forth in the Offer
Document under Section 10 (“Information Concerning UniTek”) is incorporated
herein by reference. UniTek changed its name from Berliner
Communications, Inc. to UniTek on June 4, 2010 following the merger of the two
companies. In connection with this name change UniTek changed its symbol from
BERL to UGLB, effective June 6, 2010. Effective November 11, 2010, shares of the
Company’s common stock are quoted on the NASDAQ Global Market under the symbol
“UNTK.”
(b)
Securities.
This Tender Offer
Statement on Schedule TO relates to an offer by the Company to exchange
outstanding Eligible Options (as defined below) held by current employees and
directors to purchase shares of the Company’s common stock (par value $0.00002
per share) that are currently outstanding under the following stock option
plans:
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(1)
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Berliner
Communications, Inc. 1999 Securities Plan (the “1999
Plan”);
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(2)
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UniTek
Holdings, Inc. 2007 Equity Incentive Plan (the “2007 Plan”);
and
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(3)
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Berliner
Communications, Inc. 2009 Omnibus Equity and Incentive Compensation Plan
(the “2009 Plan”).
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Such
plans will sometimes be hereinafter referred to collectively as the “Stock
Plans.”
An outstanding stock option will be
considered an “Eligible Option” if it falls within one of the following three
“groups:” (i) non-Homerun Portion (as defined below) stock options that were
granted under the 2007 Plan and are vested as of December 31, 2010 (“Group 1”),
(ii) non-Homerun Portion stock options that are unvested as of December 31, 2010
and any Homerun Portion stock options (whether vested or unvested) that were
granted under the 2007 Plan (“Group 2”) and (iii) vested and unvested stock
options granted under the 1999 Plan and 2009 Plan (“Group
3”). The “Homerun Portion” of a 2007 Plan stock option grant is
the 40% portion of each such stock option grant, whether vested or unvested,
that becomes exercisable (at its then current exercise price) if and when the
Fair Market Value (as defined below) of the Company’s common stock is at least
$168.00 per share (as adjusted for the reverse stock splits as described in
Question 11 of the “Summary Term Sheet” or otherwise in accordance with the
terms of the 2009 Plan). The “Fair Market Value” per share of the Company’s
common stock on any date means the closing selling price per share of the
Company’s common stock on such date as quoted on the applicable stock
exchange.
Each tendered Eligible Option accepted
by the Company will be cancelled in exchange for either a grant of Restricted
Stock Units or a Replacement Option, depending on whether such tendered Eligible
Option is in Group 1, Group 2 or Group 3. In exchange for each
tendered Eligible Option in Group 1 and Group 3, the holder will be granted a
Replacement Option (as defined in the Offer Document attached hereto as Exhibit
(a)(1)) under the 2009 Plan. In exchange for the tender of all Eligible Options
in Group 2, the holder will receive a grant of Restricted Stock Units (as
defined in the Offer Document attached hereto as Exhibit (a)(1)) under the 2009
Plan. The Restricted Stock Units will represent the right to receive
one share of the Company’s common stock for each vested Restricted Stock
Unit.
The Replacement Options and Restricted
Stock Units will be granted upon the terms and subject to the conditions
described in the Offer Document and the related Letter of Transmittal attached
hereto as Exhibit (a)(2) (the “Letter of Transmittal,” and, together with the
Offer Document, as they may be amended or supplemented from time to time, the
“Offer”). As of December 9, 2010, Eligible Options to purchase
633,687 shares of the Company’s common stock were outstanding under the Stock
Plans.
The Company filed a Definitive
Information Statement on Schedule 14C on November 18, 2010 to give notice of the
approval by the board of directors and the holders of a substantial majority of
the Company’s shares of common stock and Series B Preferred Stock (on an
as-converted basis with the common stock), voting together as one class, of a
reverse stock split of the Company’s common stock at a ratio of one-for-two (the
“Planned Reverse Split”), subject only to the consummation of the Company’s
registered public offering of shares of its common stock pursuant to its
Registration Statement on Form S-1 (Commission File No. 18854) (the
“Offering”). The Offering was consummated on November 16,
2010. The Planned Reverse Split was effected on December 21,
2010. The Planned Reverse Split is separate from, and in addition to,
the Company's one-for-28 reverse stock split, which was effective as of November
9, 2010 (the “Prior Reverse Split”).
In the event of a reverse stock
split, the terms of the Stock Plans provide that awards granted under the Stock
Plans will be proportionately adjusted by the board the
directors. Among other things, this adjustment applies to the number
of shares subject to an award and the exercise price of the award. As
a result, the Eligible Options, including the exercise price for each Eligible
Option, were adjusted based on the one-for-28 ratio of the Prior Reverse Split
and the one-for-two ratio of the Planned Reverse Split. The Offer has
no impact on this adjustment and the adjustment to the Eligible Options will
occur whether or not you agree to tender your Eligible Options.
In addition to the adjustment to the
number of shares and exercise price as set forth in the Stock Plans, the board
of directors is permitted under the 2007 Plan to adjust the terms and conditions
of outstanding grants to recognize certain unusual and nonrecurring events, such
as the Prior Reverse Split and the Planned Reverse Split. Based on
this authority, the board of directors has proportionately adjusted the preset
stock price exercise target for all outstanding Homerun Portion stock options to
reflect the Prior Reverse Split and the Planned Reverse Split, with the latter
to be effective upon the effective date of the Planned Reverse
Split. As a result, if you do not tender your Eligible Options, the
preset stock price exercise target of your Homerun Portion stock options will
remain $168.00 per share, subject to further adjustment for future changes to
the capitalization of the Company in accordance with the 2007 Plan.
For the purpose of clarity,
throughout the Summary Term Sheet and the Offer Document, all references to (i)
the number of shares of common stock underlying the Eligible Options and the
Replacement Options, (ii) the exercise prices of the Eligible Options and the
Replacement Options, (iii) the preset stock price exercise target of the Homerun
Portion stock options, and (iv) the per-share numbers related to the Restricted
Stock Units, are shown on a pro forma basis to reflect the effect of the Prior
Reverse Split and give effect to the Planned Reverse
Split.
The following information set forth in
the Offer Document is incorporated herein by reference: the introductory pages,
the “Summary Term Sheet,” Section 1 (“Eligible Employees and Eligible Directors;
Eligible Options; Replacement Options; Restricted Stock Units; Expiration
Date”), Section 3 (“Status of Eligible Options Not Exchanged”), Section 6
(“Acceptance of Options for Exchange and Grant of Replacement Options or
Restricted Stock Units”) and Section 9 (“Source and Amount of Consideration;
Terms of Replacement Options or Restricted Stock Units”).
(c)
Trading Market and Price.
The
information set forth in Section 8 of the Offer Document (“Price Range of Common
Stock Underlying the Options”) is incorporated herein by reference.
ITEM 4.
TERMS OF THE TRANSACTION.
(a)
Material Terms.
The following
information set forth in the Offer Document is incorporated herein by reference:
introductory pages, the “Summary Term Sheet,” Section 1 (“Eligible Employees and
Eligible Directors; Eligible Options; Replacement Options; Restricted Stock
Units; Expiration Date”), Section 3 (“Status of Eligible Options Not
Exchanged”), Section 4 (“Procedures for Exchanging Options”), Section 5
(“Withdrawal Rights”), Section 6 (“Acceptance of Options for Exchange and Grant
of Replacement Options or Restricted Stock Units”), Section 7 (“Conditions of
the Offer”), Section 9 (“Source and Amount of Consideration; Terms of
Replacement Options or Restricted Stock Units”), Section 12 (“Status of the
Options Exchanged By Us in the Offer; Accounting Consequences of the Offer”),
Section 13 (“Legal Matters; Regulatory Approvals”), Section 14 (“ Material
Income Tax Consequences”), and Section 15 (“Extension of Offer; Termination;
Amendment”).
(b)
Purchases.
The information
set forth in the introduction to the Offer Document (“Summary Term Sheet”) and
in Section 11 of the Offer Document (“Interests of Directors and
Officers; Transactions and Arrangements Concerning the Options; Material
Agreements with Directors and Officers”) is incorporated herein by
reference.
ITEM
10. FINANCIAL STATEMENTS.
(a)
Financial
Information.
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(1)
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Selected
consolidated summary financial data are set forth in Annex A to the
Amended Offer to Exchange and are incorporated herein by
reference.
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(2)
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The
information set forth in Section 10 of the Offer Document (“Information
Concerning UniTek”) and Section 17 (“Additional Information”) is
incorporated herein by reference.
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(3)
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The
information set forth in Item 8 (“Financial Statements and Supplementary
Data”) of the Company’s Annual Report on Form 10-K for the year ended June
30, 2009 filed with the SEC on September 28, 2009 is hereby incorporated
by reference.
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(4)
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The
information set forth in Item 8 (“Financial Statements and Supplementary
Data”) of the Company’s Transition Report on Form 10-K for the six months
ended December 31, 2009 filed with the SEC on March 31, 2010 is hereby
incorporated by reference.
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(5)
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The
information set forth in Item 9.01 (“Financial Statements and Exhibits”)
of the Company’s Current Report on Form 8-K/A filed with the SEC on April
12, 2010 is hereby incorporated by
reference.
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(6)
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The
information set forth in Item 1 (“Financial Statements”) of the Company’s
Quarterly Report on Form 10-Q for the fiscal quarter ended July 3, 2010
filed with the SEC on August 17, 2010 is hereby incorporated by
reference.
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(7)
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The
information set forth in Item 9.01 (“Financial Statements and Exhibits”)
of the Company’s Current Report on Form 8-K filed with the SEC on August
13, 2010 is hereby incorporated by
reference.
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(8)
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The
information set forth in Item 1 (“Financial Statements”) of the Company’s
Quarterly Report on Form 10-Q for the fiscal quarter ended October 2, 2010
filed with the SEC on November 16, 2010 is hereby incorporated by
reference.
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(9)
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As
of October 2, 2010 (the date of the most recent balance sheet presented),
the Company’s book value per share was
$4.86.
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(b)
Pro Forma Information.
Not
applicable.
A copy of
these reports may be obtained, without charge, by writing to: UniTek Global
Services, Inc., 1777 Sentry Parkway West, Gwynedd Hall, Suite 302, Blue Bell, PA
19422, Attention: Corporate Secretary, and is also available on our web page at
www.unitekgs.com
.
ITEM 12.
EXHIBITS.
(a)
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(1)(A)
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Offer
Document, dated December 9, 2010, and Letter of
Transmittal.*
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(1)(B)
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Letter
of Transmittal.*
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(1)(C)
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Amended
Offer Document, dated December 28,
2010.
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(1)(D)
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Transmittal
Cover Letter, dated December 28,
2010.
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(5)
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UniTek
Global Services, Inc. Quarterly Report on Form 10-Q for the fiscal quarter
ended April 3, 2010 filed with the SEC on May 18, 2010 is incorporated
herein by reference.
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UniTek
Global Services, Inc. Quarterly Report on Form 10-Q for the fiscal quarter ended
July 3, 2010 filed with the SEC on August 17, 2010 is incorporated herein by
reference.
UniTek
Global Services, Inc. Quarterly Report on Form 10-Q for the fiscal quarter ended
October 2, 2010 filed with the SEC on November 16, 2010 is incorporated herein
by reference.
UniTek
Global Services, Inc. Annual Report on Form 10-K for the fiscal year ended June
30, 2009, filed with the SEC on September 28, 2009 is incorporated herein by
reference.
UniTek
Global Services, Inc. Transition Report on Form 10-K for the six months ended
December 31, 2009, filed with the SEC on March 31, 2010 is incorporated herein
by reference.
Current
Reports on Form 8-K filed with the SEC on January 27, 2010 (as amended April 12,
2010), February 2, 2010, April 2, 2010, June 4, 2010, July 12, 2010, July 22,
2010, August 13, 2010, September 14, 2010, September 24, 2010, October 4, 2010,
November 15, 2010, November 22, 2010, December 8, 2010, December 14, 2010
and December 21, 2010, each of which is incorporated herein by
reference.
(b) Not
applicable.
(d)
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(1)
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Berliner
Communications, Inc. 1999 Securities Plan (Incorporated herein by
reference from Company’s Registration Statement on Form S-8 filed on July
30, 2007).
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(2)
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Berliner
Communications, Inc. 2009 Omnibus Equity and Incentive Compensation Plan
(Incorporated herein by reference from Appendix A to the Company’s Proxy
Statement filed on October 27,
2009).
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(3)
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UniTek
Holdings, Inc. 2007 Equity Incentive Plan (Incorporated herein by
reference from Company’s Current Report on Form 8-K filed on January 27,
2010).
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(4)
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Form
of Phantom Share Award Agreement.
*
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(5)
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Form
of Stock Option Agreement. *
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(6)
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Registration
Rights Agreement dated as of January 27, 2010 by and between Berliner
Communications, Inc. and those holders of capital stock of Berliner listed
on Exhibit A thereto (Incorporated herein by reference from Company’s
Current Report on Form 8-K filed on January 27,
2010).
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(7)
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Amendment
No. 1 to Registration Rights Agreement, dated as of July 16, 2010
(Incorporated herein by reference from Company’s Current Report on Form
8-K filed on July 22, 2010).
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(g) Not
applicable.
(h) Not
applicable.
ITEM 13.
INFORMATION REQUIRED BY SCHEDULE 13E-3.
(a) Not
applicable.
SIGNATURE
After due
inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this Amendment No. 1 to Schedule TO is true,
complete and correct.
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UniTek
Global Services, Inc.
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/s/ Kyle M. Hall
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Kyle
M. Hall
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General
Counsel
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Date:
December 28, 2010
Index
to Exhibits
See Item
12
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