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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Fusion-IO, Inc. | NYSE:FIO | NYSE | Ordinary Share |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 11.23 | 0.00 | 01:00:00 |
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
FUSION-IO, INC.
(Names of Subject Company (Issuer))
FLIGHT MERGER SUB, INC.
(Name of Filing Persons (Offeror))
a wholly owned subsidiary of
SANDISK CORPORATION
(Name of Filing Persons (Parent of Offeror))
COMMON STOCK, $0.0002 PAR VALUE PER SHARE
(Title of Class of Securities)
36112J107
(CUSIP Number of Class of Securities)
Eric S. Whitaker, Esq.
Senior Vice President and Chief Legal Officer
SanDisk Corporation
951 SanDisk Drive
Milpitas, California 95035
(408) 801-1000
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)
with copies to:
Kenton J. King, Esq.
M. Amr Razzak, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite 1100
Palo Alto, CA 94301
(650) 470-4500
CALCULATION OF FILING FEE
Transaction valuation(1)
|
Amount of filing fee(2)
|
|
---|---|---|
$1,306,541,368.26 | $168,282.53 | |
Amount Previously Paid: N/A | Filing Party: N/A | |
Form or Registration No.: N/A |
Date Filed: N/A
|
Check the appropriate boxes below to designate any transactions to which the statement relates:
Check the following box if the filing is a final amendment reporting the results of the tender offer: o
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
This Tender Offer Statement on Schedule TO (this "Schedule TO") relates to the tender offer by Flight Merger Sub, Inc., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of SanDisk Corporation, a Delaware corporation ("Parent"), for all of the outstanding shares of common stock, par value $0.0002 per share (the "Shares"), of Fusion-io, Inc., a Delaware corporation ("Fusion-io"), at a price of $11.25 per share, net to the seller in cash, without interest thereon and less any applicable withholding taxes, upon the terms and conditions set forth in the offer to purchase dated June 24, 2014 (the "Offer to Purchase"), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the "Letter of Transmittal"), a copy of which is attached as Exhibit (a)(1)(B), which, together with any other related materials, as each may be amended or supplemented from time to time, collectively constitute the "Offer."
All the information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.
Regulation M-A Item 1001
The information set forth in the Offer to Purchase under the caption SUMMARY TERM SHEET is incorporated herein by reference.
Item 2.
Subject Company Information.
Regulation M-A Item 1002
(a) Name and Address . The name of the subject company and the address and telephone number of the subject company's principal executive offices are as follows:
Fusion-io, Inc.
2855 E. Cottonwood Parkway
Suite 100
Salt Lake City, UT 84121
(801) 424-5500
(b) Securities . This Schedule TO relates to the Offer by Purchaser to purchase all issued and outstanding Shares. As of the close of business on June 20, 2014 based on information provided by Fusion-io, there were 108,938,952 Shares issued and outstanding, 9,923,496 Shares authorized and reserved for issuance pursuant to outstanding options to purchase Shares and 3,837,105 Fusion-io restricted stock units outstanding. The information set forth on the cover page and in the INTRODUCTION of the Offer to Purchase is incorporated herein by reference.
(c) Trading Market and Price . The information set forth under the caption THE TENDER OFFERSection 6 ("Price Range of Shares; Dividends") of the Offer to Purchase is incorporated herein by reference.
Item 3.
Identity and Background of Filing Person.
Regulation M-A Item 1003
(a)-(c) Name and Address; Business and Background of Entities; and Business and Background of Natural Persons. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 8 ("Certain Information Concerning Parent and Purchaser") and Schedule I attached thereto.
Item 4.
Terms of the Transaction.
Regulation M-A Item 1004
(a) Material Terms . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 1 ("Terms of the Offer")
THE TENDER OFFERSection 3 ("Procedures for Accepting the Offer and Tendering Shares")
THE TENDER OFFERSection 4 ("Withdrawal Rights")
THE TENDER OFFERSection 5 ("Certain United States Federal Income Tax Consequences")
THE TENDER OFFERSection 11 ("The Merger Agreement; Other AgreementsMerger Agreement")
THE TENDER OFFERSection 15 ("Certain Conditions of the Offer")
Item 5.
Past Contacts, Transactions, Negotiations and Agreements.
Regulation M-A Item 1005
(a) Transactions . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 8 ("Certain Information Concerning Parent and Purchaser")
THE TENDER OFFERSection 10 ("Background of the Offer; Past Contacts or Negotiations with Fusion-io")
(b) Significant Corporate Events . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 8 ("Certain Information Concerning Parent and Purchaser")
THE TENDER OFFERSection 10 ("Background of the Offer; Past Contacts or Negotiations with Fusion-io")
THE TENDER OFFERSection 11 ("The Merger Agreement; Other Agreements")
THE TENDER OFFERSection 12 ("Purpose of the Offer; Plans for Fusion-io")
Item 6.
Purposes of the Transaction and Plans or Proposals.
Regulation M-A Item 1006
(a) Purposes . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFERSection 12 ("Purpose of the Offer; Plans for Fusion-io")
(c) (1)-(7) Plans . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 9 ("Source and Amount of Funds")
THE TENDER OFFERSection 10 ("Background of the Offer; Past Contacts or Negotiations with Fusion-io")
THE TENDER OFFERSection 11 ("The Merger Agreement; Other Agreements")
THE TENDER OFFERSection 12 ("Purpose of the Offer; Plans for Fusion-io")
2
THE
TENDER OFFERSection 13 ("Certain Effects of the Offer")
THE TENDER OFFERSection 14 ("Dividends and Distributions")
Item 7.
Source and Amount of Funds or Other Consideration.
Regulation M-A Item 1007
(a) Source of Funds . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 9 ("Source and Amount of Funds")
THE TENDER OFFERSection 11 ("The Merger Agreement; Other Agreements")
(b) Conditions . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 11 ("The Merger Agreement; Other Agreements")
THE TENDER OFFERSection 15 ("Certain Conditions of the Offer")
(d) Borrowed Funds . Not applicable.
The Merger Agreement is incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K, filed by Parent with the Securities and Exchange Commission on June 16, 2014.
Item 8.
Interest in Securities of the Subject Company.
Regulation M-A Item 1008
(a) Securities Ownership . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE
TENDER OFFERSection 8 ("Certain Information Concerning Parent and Purchaser") and Schedule I attached thereto.
THE TENDER OFFERSection 12 ("Purpose of the Offer; Plans for Fusion-io")
(b) Securities Transactions . Not applicable.
Item 9.
Persons/Assets, Retained, Employed, Compensated or Used.
Regulation M-A Item 1009
(a) Solicitations or Recommendations . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 3 ("Procedures for Accepting the Offer and Tendering Shares")
THE TENDER OFFERSection 18 ("Fees and Expenses")
Item 10.
Financial Statements.
Regulation M-A Item 1010
(a) Financial Information . Not applicable.
(b) Pro Forma Information . Not applicable.
3
Item 11.
Additional Information.
Regulation M-A Item 1011
(a) Agreements, Regulatory Requirements and Legal Proceedings . The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY
TERM SHEET
THE TENDER OFFERSection 10 ("Background of the Offer; Past Contacts or Negotiations with Fusion-io")
THE TENDER OFFERSection 11 ("The Merger Agreement; Other Agreements")
THE TENDER OFFERSection 12 ("Purpose of the Offer; Plans for Fusion-io")
THE TENDER OFFERSection 13 ("Certain Effects of the Offer")
THE TENDER OFFERSection 16 ("Certain Legal Matters; Regulatory Approvals")
(b) Not applicable .
(c) Other Material Information . The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference.
Regulation M-A Item 1016
Exhibit No. | Description | ||
---|---|---|---|
(a)(1)(A) | Offer to Purchase, dated June 24, 2014* | ||
|
(a)(1)(B) |
|
Form of Letter of Transmittal* |
|
(a)(1)(C) |
|
Form of Notice of Guaranteed Delivery* |
|
(a)(1)(D) |
|
Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* |
|
(a)(1)(E) |
|
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* |
|
(a)(1)(F) |
|
Summary Advertisement, as published in the New York Times on June 24, 2014* |
|
(a)(5)(A) |
|
Joint Press Release of Parent and Fusion-io, dated June 16, 2014, as originally filed as Exhibit 99.1 to the Current Report on Form 8-K filed by Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(B) |
|
Email to Parent employees from Sanjay Mehrotra, Purchaser's President and Chief Executive Officer, as originally filed as Exhibit 99.1 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(C) |
|
Email to Fusion-io employees from Sanjay Mehrotra, Parent's President and Chief Executive Officer, as originally filed as Exhibit 99.2 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(D) |
|
Edited transcript of Parent conference call on June 16, 2014, as originally filed as Exhibit 99.3 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
4
Exhibit No. | Description | ||
---|---|---|---|
(a)(5)(E) | Form of email from Parent to its customers, as originally filed as Exhibit 99.4 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. | ||
|
(a)(5)(F) |
|
Form of email from Parent to its partners, as originally filed as Exhibit 99.5 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(G) |
|
Parent Sales Q&A, as originally filed as Exhibit 99.6 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(H) |
|
Parent Sales Customer Presentation, as originally filed as Exhibit 99.7 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(I) |
|
Transcript of CNBC interview with Sanjay Mehrotra, Parent's President and Chief Executive Officer, dated June 16, 2014, as originally filed as Exhibit 99.8 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(b) |
|
Not applicable |
|
(d)(1) |
|
Agreement and Plan of Merger, dated June 16, 2014, by and among Parent, Purchaser and Fusion-io, as originally filed as Exhibit 2.1 to the Current Report on Form 8-K filed by Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(d)(2) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Shane Robison* |
|
(d)(3) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Lance L. Smith* |
|
(d)(4) |
|
Support Agreement, dated June 16, 2014, by and between Parent and David Sampson* |
|
(d)(5) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Scott D. Sandell* |
|
(d)(6) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Forest Baskett* |
|
(d)(7) |
|
Support Agreement, dated June 16, 2014, by and between Parent and H. Raymond Bingham* |
|
(d)(8) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Dana L. Evan* |
|
(d)(9) |
|
Support Agreement, dated June 16, 2014, by and between Parent and New Enterprise Associates 12, Limited Partnership* |
|
(d)(10) |
|
Nondisclosure Agreement, dated November 18, 2013, by and between Parent and Fusion-io* |
|
(d)(11) |
|
Exclusivity Agreement, dated May 23, 2014, by and between Parent and Fusion-io* |
|
(d)(12) |
|
Offer Letter, dated June 14, 2014, by and between Parent and Lance L. Smith* |
|
(g) |
|
Not applicable |
|
(h) |
|
Not applicable |
5
Item 13.
Information Required by Schedule 13E-3.
Not applicable.
6
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: June 24, 2014
|
FLIGHT MERGER SUB, INC. | |||
|
By: |
/s/ GARTH BOSSOW
|
||
|
SANDISK CORPORATION |
|||
|
By: |
/s/ ERIC S. WHITAKER
|
Exhibit No. | Description | ||
---|---|---|---|
(a)(1)(A) | Offer to Purchase, dated June 24, 2014* | ||
|
(a)(1)(B) |
|
Form of Letter of Transmittal* |
|
(a)(1)(C) |
|
Form of Notice of Guaranteed Delivery* |
|
(a)(1)(D) |
|
Form of Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* |
|
(a)(1)(E) |
|
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* |
|
(a)(1)(F) |
|
Summary Advertisement, as published in the New York Times on June 24, 2014* |
|
(a)(5)(A) |
|
Joint Press Release of Parent and Fusion-io, dated June 16, 2014, as originally filed as Exhibit 99.1 to the Current Report on Form 8-K filed by Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(B) |
|
Email to Parent employees from Sanjay Mehrotra, Purchaser's President and Chief Executive Officer, as originally filed as Exhibit 99.1 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(C) |
|
Email to Fusion-io employees from Sanjay Mehrotra, Parent's President and Chief Executive Officer, as originally filed as Exhibit 99.2 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(D) |
|
Edited transcript of Parent conference call on June 16, 2014, as originally filed as Exhibit 99.3 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(E) |
|
Form of email from Parent to its customers, as originally filed as Exhibit 99.4 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(F) |
|
Form of email from Parent to its partners, as originally filed as Exhibit 99.5 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(G) |
|
Parent Sales Q&A, as originally filed as Exhibit 99.6 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(H) |
|
Parent Sales Customer Presentation, as originally filed as Exhibit 99.7 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(a)(5)(I) |
|
Transcript of CNBC interview with Sanjay Mehrotra, Parent's President and Chief Executive Officer, dated June 16, 2014, as originally filed as Exhibit 99.8 to the Tender Offer Statement on Schedule TO-C filed by the Purchaser and Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. |
|
(b) |
|
Not applicable |
Exhibit No. | Description | ||
---|---|---|---|
(d)(1) | Agreement and Plan of Merger, dated June 16, 2014, by and among Parent, Purchaser and Fusion-io, as originally filed as Exhibit 2.1 to the Current Report on Form 8-K filed by Parent with the Securities and Exchange Commission on June 16, 2014, which is incorporated by reference herein. | ||
|
(d)(2) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Shane Robison* |
|
(d)(3) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Lance L. Smith* |
|
(d)(4) |
|
Support Agreement, dated June 16, 2014, by and between Parent and David Sampson* |
|
(d)(5) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Scott D. Sandell* |
|
(d)(6) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Forest Baskett* |
|
(d)(7) |
|
Support Agreement, dated June 16, 2014, by and between Parent and H. Raymond Bingham* |
|
(d)(8) |
|
Support Agreement, dated June 16, 2014, by and between Parent and Dana L. Evan* |
|
(d)(9) |
|
Support Agreement, dated June 16, 2014, by and between Parent and New Enterprise Associates 12, Limited Partnership* |
|
(d)(10) |
|
Nondisclosure Agreement, dated November 18, 2013, by and between Parent and Fusion-io* |
|
(d)(11) |
|
Exclusivity Agreement, dated May 23, 2014, by and between Parent and Fusion-io* |
|
(d)(12) |
|
Offer Letter, dated June 14, 2014, by and between Parent and Lance L. Smith* |
|
(g) |
|
Not applicable |
|
(h) |
|
Not applicable |
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