Amended Tender Offer Statement by Third Party (sc To-t/a)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO

(RULE 14D-100)

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

(Amendment No. 6)

 

 

NIMBLE STORAGE, INC.

(Name of Subject Company)

NEBRASKA MERGER SUB, INC.

(Offeror)

HEWLETT PACKARD ENTERPRISE COMPANY

(Names of Filing Persons)

 

 

COMMON STOCK, PAR VALUE $0.001 PER SHARE

(Title of Class of Securities)

65440R101

(CUSIP Number of Class of Securities)

John Schultz, Esq.

Executive Vice President, General Counsel and Corporate Secretary

Hewlett Packard Enterprise Company

3000 Hanover Street

Palo Alto, California 94304

[phone]

(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing persons)

 

 

with copies to:

Andrew R. Brownstein, Esq.

Benjamin M. Roth, Esq.

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

[phone]

 

 

CALCULATION OF FILING FEE

 

Transaction Valuation*		Amount of Filing Fee**
$1,249,940,209.12		$144,868.07

*

Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by adding the sum of (i) 91,930,574 shares of common stock, par value $0.001 per share (the “Shares”), of Nimble Storage, Inc., a Delaware corporation (“Nimble Storage”), outstanding (including 14,533 Shares subject to outstanding restricted stock awards) multiplied by the offer price of $12.50 per Share, (ii) 6,511,236 Shares issuable pursuant to outstanding Nimble Storage stock options with an exercise price less than the offer price of $12.50 per Share, multiplied by $9.17, which is the offer price of $12.50 per Share minus the weighted average exercise price for such options of $3.33 per Share, (iii) 1,500,000 Shares issuable pursuant to outstanding unvested service-based restricted stock units, which is an estimate of the maximum number of restricted stock units expected to vest after March 10, 2017 and prior to the consummation of the offer, multiplied by the offer price of $12.50 per Share and (iv) 1,788,000 Shares, which is the maximum number of Shares issuable pursuant to outstanding repurchase rights under the Employee Stock Purchase Plan, multiplied by the offer price of $12.50 per Share. The calculation of the filing fee is based on information provided by Nimble Storage as of March 10, 2017.

**	The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2017, issued August 31, 2016, by multiplying the Transaction Valuation by 0.00011590.

 

☒	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:		$144,868.07		Filing Party:		Nebraska Merger Sub, Inc. and Hewlett Packard Enterprise Company
Form or Registration No.:		Schedule TO		Date Filed:		March 17, 2017

 

☐	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.

☐

issuer tender offer subject to Rule 13e-4.

☐

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. 6 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Hewlett Packard Enterprise Company, a Delaware corporation (“Parent”), and Nebraska Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a wholly owned subsidiary of Parent, with the Securities and Exchange Commission on March 17, 2017 (together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the tender offer by Merger Sub for all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Nimble Storage, Inc., a Delaware corporation (“Nimble Storage”), at a price of $12.50 per share, net to the seller in cash, without interest thereon (the “Offer Price”) and less any applicable withholding taxes, upon the terms and conditions set forth in the offer to purchase dated March 17, 2017 (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, 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, including Schedule I thereto, is incorporated by reference herein in response to Items 1 through 9 and Item 11 of the Schedule TO, and is supplemented by the information specifically provided in this Amendment.

Capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.

Items 1 through 9; Item 11.

Items 1 through 9 and 11 of the Schedule TO are hereby amended and supplemented as follows:

The Offer and all withdrawal rights thereunder expired at the end of the day, 12:00 midnight, New York City time, on April 13, 2017. The Depositary for the Offer has advised Parent and Merger Sub that, as of the expiration of the Offer, an aggregate of 75,566,796 Shares were validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 80.8% of the Shares then outstanding. Merger Sub accepted for payment all Shares that were validly tendered and not validly withdrawn pursuant to the Offer, and payment of the Offer Price for such shares will be promptly made by the Depositary.

On the morning of April 17, 2017, the business day immediately following completion of the Offer, Parent and Merger Sub expect to consummate the merger of Merger Sub with and into Nimble Storage, with Nimble Storage continuing as the Surviving Corporation, pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the DGCL. In the Merger, each Share outstanding immediately prior to the effective time of the Merger (other than Shares held (i) by Nimble Storage as treasury stock or by Parent or Merger Sub, which Shares will be canceled and will cease to exist, (ii) by any wholly owned subsidiary of Nimble Storage or any wholly owned subsidiary of Parent (other than Merger Sub), which Shares will be converted into such number of shares of common stock of the Surviving Corporation so as to maintain relative ownership percentages or (iii) by any Nimble Storage stockholders who validly exercise appraisal rights under Delaware law with respect to such Shares) will be automatically canceled and converted into the right to receive the Offer Price, without interest thereon and less any applicable withholding taxes.

Upon completion of the Merger, Nimble Storage will become a wholly owned subsidiary of Parent. Following the Merger, all Shares will be delisted from the New York Stock Exchange.

A copy of the press release issued by Parent on April 14, 2017 announcing the completion of the Offer and the expected closing of the Merger is filed as Exhibit (a)(1)(I) hereto and is incorporated herein by reference.

Item 12.  Exhibits.

Regulation M-A Item 1016

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:

 

Exhibit No.		Description
(a)(1)(I)		Press Release of Hewlett Packard Enterprise Company, dated April 14, 2017.

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SIGNATURES

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: April 14, 2017

 

NEBRASKA MERGER SUB, INC.
By:		/s/ Rishi Varma
		Name: Rishi Varma
		Title: President and Secretary

 

HEWLETT PACKARD ENTERPRISE COMPANY
By:		/s/ Rishi Varma
		Name: Rishi Varma
		Title: Senior Vice President, Deputy General Counsel and Assistant Secretary

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EXHIBIT INDEX

 

Exhibit No.		Description
(a)(1)(A)		Offer to Purchase, dated March 17, 2017.*
(a)(1)(B)		Letter of Transmittal.*
(a)(1)(C)		Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
(a)(1)(D)		Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
(a)(1)(E)		Press Release of Hewlett Packard Enterprise Company, dated March 7, 2017 (incorporated by reference to Exhibit 99.3 to the Current Report on Form 8-K filed by Hewlett Packard Enterprise Company with the Securities and Exchange Commission on March 7, 2017).*
(a)(1)(F)		Blog Post by Antonio Neri, Executive Vice President and General Manager of the Enterprise Group, Hewlett Packard Enterprise Company, dated March 7, 2017 (incorporated by reference to Exhibit 99.4 to the Current Report on Form 8-K filed by Hewlett Packard Enterprise Company with the Securities and Exchange Commission on March 7, 2017).*
(a)(1)(G)		Investor Presentation of Hewlett Packard Enterprise Company, dated March 7, 2017 (incorporated by reference to Exhibit 99.5 to the Current Report on Form 8-K filed by Hewlett Packard Enterprise Company with the Securities and Exchange Commission on March 7, 2017).*
(a)(1)(H)		Summary Advertisement as published in The New York Times on March 17, 2017.*
(a)(1)(I)		Press Release of Hewlett Packard Enterprise Company, dated April 14, 2017.
(a)(5)(A)		Class Action Complaint as filed March 21, 2017 ( Huston v. Nimble Storage Inc., et. al ., Case No. 3:17-cv-1533) (incorporated by reference to Exhibit (a)(5)(I) to Amendment No. 1 to the Schedule 14D-9 filed by Nimble Storage, Inc. with the Securities and Exchange Commission on March 23, 2017).*
(a)(5)(B)		Class Action Complaint as filed March 22, 2017 ( Parshall v. Nimble Storage Inc., et. al ., Case No. 3:17-cv-01538) (incorporated by reference to Exhibit (a)(5)(J) to Amendment No. 1 to the Schedule 14D-9 filed by Nimble Storage, Inc. with the Securities and Exchange Commission on March 23, 2017).*
(a)(5)(C)		Class Action Complaint as filed March 24, 2017 ( Ettel v. Nimble Storage Inc., et. al. , Case No. 5:17-cv-01599) (incorporated by reference to Exhibit (a)(5)(K) to Amendment No. 2 to the Schedule 14D-9 filed by Nimble Storage, Inc. with the Securities and Exchange Commission on March 27, 2017).*
(a)(5)(D)		Summons and Class Action Complaint as filed March 29, 2017 ( Delman v. Hewlett Packard Enterprise Company, et al. , Index. No. 54198/2017).*
(b)		None.
(d)(1)		Agreement and Plan of Merger, dated as of March 6, 2017, by and among Hewlett Packard Enterprise Company, Nimble Storage, Inc. and Nebraska Merger Sub, Inc. (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Hewlett Packard Enterprise Company with the Securities and Exchange Commission on March 7, 2017).
(d)(2)		Tender and Support Agreement, dated as of March 6, 2017, by and among Hewlett Packard Enterprise Company, Nebraska Merger Sub, Inc. and each of the persons set forth on Schedule A thereto (incorporated by reference to Exhibit 99.2 to the Current Report on Form 8-K filed by Hewlett Packard Enterprise Company with the Securities and Exchange Commission on March 7, 2017).
(g)		None.
(h)		None.

 

*	Previously filed.