sctoia20081126.htm
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. 1)*
_____________________________
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
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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 share 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.
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|
Amount
Previously Paid:
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$1,018
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Form
or Registration No.:
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Schedule
TO (005-59259)
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Filing
Party:
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EXFO
Electro-Optical Engineering Inc.
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Date
Filed:
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November
10, 2008
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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.
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o |
Amendment
to Schedule 13D under Rule 13d-2.
|
o |
Check the box if the filing is a
final amendment reporting the results of the tender
offer.
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This
Amendment No. 1 amends and supplements the Issuer Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission on
November 10, 2008 (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 (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. 1 is
intended to satisfy the reporting requirements of Rule 13e-4(c)(3) 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. 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.
Items 1
through 11 of the Schedule TO are hereby amended and supplemented by the
following:
The
introductory paragraph of the Offer to Purchase is hereby amended as
follows:
The phrase “, and tenders will not be
accepted from or on behalf of,” is deleted from the fourth sentence of the
introductory paragraph of the Offer to Purchase.
The words “or acceptance” are deleted
from the fourth sentence of the introductory paragraph of the Offer to
Purchase.
The
following text is inserted after “Prior Valuations” in the Table of Contents of
the Offer to Purchase and Circular:
“Accounting Treatment of the
Offer”
“Offer to
Purchase – Other Terms” is hereby amended as
follows:
The phrase “, and tenders will not be
accepted from or on behalf of,” is deleted from the fourth paragraph on page 15
of the Offer to Purchase.
The words “or acceptance” are deleted
from the fourth paragraph on page 15 of the Offer to Purchase.
“Offer
to Purchase – Conditions to the Offer” is hereby amended and supplemented as
follows:
The first sentence in the first
paragraph of this section is amended and restated as follows:
“Notwithstanding any provision of the
Offer, the Corporation shall not be required to accept for purchase, to purchase
or to pay for any Shares tendered, and may withdraw, terminate, cancel or amend
the Offer or may postpone the payment for Shares tendered, if, at any time prior
to the expiration of the Offer, any of the following events shall have occurred
(or shall have been determined by the Corporation, in its sole judgment, acting
reasonably, to have occurred):”
The condition of the Offer set forth in
(c)(v) of this section is amended and restated as follows:
“any significant decrease in the market
price of the Shares (defined as a decrease in excess of 10% of the market price
of the Shares on the TSX since the close of business on November 7,
2008),”
The condition of the Offer set forth in
(f) of this section is amended and restated as follows:
“the Corporation shall have determined,
in its sole judgment, acting reasonably, that the Purchase Price exceeds a price
equal to the fair market value of a Share (defined, solely for purposes of the
Offer, as 120% of the closing price of the Corporation’s Shares on the TSX on
the Expiration Date of the Offer), determined without reference to the
Offer.”
The following text is inserted after
the section “Issuer Bid Circular – Prior Valuations” on page 25 of the
Circular:
“Accounting Treatment of the
Offer
The accounting for the Corporation’s
purchase of Shares in the Offer will result in a reduction in the Corporation’s
share capital by an amount equal to the number of Shares purchased pursuant to
the Offer multiplied by the average per-Share amount. The difference
between the aggregate purchase price of the Shares and the average per-Share
amount of the Shares purchased pursuant to the Offer will be credited to
contributed surplus. In addition, all costs related to the Offer will
be charged to shareholders' equity. In the event the Offer is
cancelled or terminated, all costs related to the Offer will be charged to
earnings.”
Exhibit
Number Description
(a)(1)(i)*
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Offer
to Purchase, dated November 10, 2008 and the accompanying Issuer Bid
Circular.
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(a)(1)(ii)*
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Letter
of Transmittal.
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(a)(1)(iii)*
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Notice
of Guaranteed Delivery.
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(d)(i)
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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)).
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(d)(ii)
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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)).
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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: November
26, 2008
INDEX
TO EXHIBITS
Exhibit
Number Description
(a)(1)(i)*
|
Offer
to Purchase, dated November 10, 2008 and the accompanying Issuer Bid
Circular.
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(a)(1)(ii)*
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Letter
of Transmittal.
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(a)(1)(iii)*
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Notice
of Guaranteed Delivery.
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(d)(i)
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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)).
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(d)(ii)
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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)).
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