sctovi
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE TO
(Rule 13e-4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934
McAfee, Inc.
(Name of Subject Company (Issuer) and Name of Filing Person (Offeror))
Options to Purchase Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
579064106
(CUSIP Number of Class of Securities)
(Underlying Options to Purchase Common Stock)
Mark
D. Cochran
Executive Vice President and General Counsel
McAfee, Inc.
3965 Freedom Circle
Santa Clara, CA 95054
(408) 346-3832
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Jeffrey D. Saper, Esq.
Robert G. Day, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Tel: (650) 493-9300
CALCULATION OF FILING FEE
| |
|
|
|
|
|
| |
| |
Transaction Valuation* |
|
|
Amount of Filing Fee** |
|
| |
$11,637,396 |
|
|
$457.35 |
|
| |
|
|
|
| * |
|
Estimated solely for the purposes of calculating the Amount of Filing Fee. The calculation of the Transaction Valuation assumes
that all options to purchase the Issuer’s common stock that are eligible for the offer will be tendered pursuant to this offer.
These options have an aggregate value of $11,637,396 as of
December 28, 2007, calculated based on a Black-Scholes-Merton option
pricing model. |
| |
| ** |
|
The Amount of Filing Fee calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals
$39.30 for each $1,000,000 of the value of the transaction. |
| o |
|
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:
|
|
Not applicable |
|
|
|
Form or Registration No.:
|
|
Not applicable |
| |
|
|
Filing Party:
|
|
Not applicable |
|
|
|
Date Filed:
|
|
Not applicable |
| 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. |
Check the following box if the filing fee is a final amendment reporting the results of the tender offer:o
TABLE OF CONTENTS
SCHEDULE TO
This Tender Offer Statement on Schedule TO relates to an offer (the “Offer”) by McAfee, Inc.,
a Delaware corporation (“McAfee” or the “Company”), to amend certain outstanding options and
receive a cash payment as set forth under the Offer to Amend the Exercise Price of Certain Options
dated January 4, 2008 (the “Offer to Amend”), which is filed as Exhibit (a)(1)(A) hereto and
incorporated herein by reference.
This Offer is being made upon the terms and subject to the conditions set forth in the Offer
to Amend, which, as may be amended or supplemented from time to time, constitutes the Offer, and
which is filed as Exhibit (a)(1)(A) hereto. This Tender Offer Statement on Schedule TO is intended
to satisfy the reporting requirements of Section 13(e) of the Securities Exchange Act of 1934, as
amended.
Item 1. Summary Term Sheet.
The information set forth under “Summary Term Sheet and Questions and Answers” in the Offer to
Amend is incorporated herein by reference.
Item 2. Subject Company Information.
(a) Name and address.
The name of the issuer is McAfee, Inc., a company organized under the laws of the State of
Delaware, and the address of its principal executive office is 3965 Freedom Circle, Santa Clara,
California 95054. McAfee’s telephone number is (408) 346-3832. The information set forth in the
Offer to Amend under Section 10, “Information concerning the Company,” is incorporated herein by
reference.
(b) Securities.
This Tender Offer Statement on Schedule TO relates to an offer by McAfee to holders of certain
outstanding options to purchase its common stock granted under the McAfee, Inc. 1997 Stock
Incentive Plan or the Networks Associates, Inc. 2000 Nonstatutory Stock Option Plan (together, the
“Stock Plans”), to amend certain of their outstanding options to purchase McAfee common stock and
receive a cash payment as set forth in the Offer to Amend and upon the terms and subject to the
conditions described in (i) the Offer to Amend attached hereto as Exhibit (a)(1)(A), (ii) the
communication to all eligible employees from the Stock Administration Department, dated January 2,
2008, attached hereto as Exhibit (a)(1)(B) and (iii) the Election Form attached hereto as Exhibit
(a)(1)(C).
As
of January 3, 2008, there were options to purchase 1,118,361 shares of McAfee common stock
outstanding and eligible to participate in this Offer.
(c) Trading market and price.
The information with respect to the Company’s common stock set forth in the Offer to Amend
under Section 8, “Price range of shares underlying the options,” is incorporated herein by
reference.
Item 3. Identity and Background of Filing Person.
(a) Name and address.
The filing person is the issuer. The information set forth under Item 2(a) above is
incorporated herein by reference.
The information set forth on Schedule A to
the Offer to Amend is incorporated herein by reference.
Item 4. Terms of the Transaction.
(a) Material terms.
The information set forth in the Offer to Amend under “Summary Term Sheet and Questions and
Answers,” “Eligibility” (Section 1), “Number of options and amount of consideration; expiration
date” (Section 2), “Procedures for electing to participate in this offer” (Section 4), “Withdrawal
rights and change of election” (Section 5), “Acceptance of options for amendment, issuance of cash
payments, and amended options” (Section 6), “Conditions of the offer” (Section 7), “Source and
amount of consideration; terms of amended options” (Section 9), “Status of options amended by us in
the offer; accounting consequences of the offer” (Section 12), “Legal matters; regulatory
approvals” (Section 13), “Material United States federal income tax consequences” (Section 14),
“Extension of offer; termination; amendment” (Section 15), and “Guide to Tax Issues in Canada”
(Schedule C) is incorporated herein by reference.
(b) Purchases.
None of McAfee’s executive officers or the members of McAfee’s Board of Directors may
participate in the Offer. The information set forth in the Offer to Amend under Section 11,
“Interests of directors and executive officers; transactions and arrangements concerning the
options,” is incorporated herein by reference.
Item 5. Past Contracts, Transactions, Negotiations and Arrangements.
(e) Agreements involving the subject company’s securities.
The information set forth in the Offer to Amend under Section 9, “Source and amount of
consideration; terms of amended options,” and Section 11, “Interests of directors and executive
officers; transactions and arrangements concerning the options,” is incorporated herein by
reference. The eligible option plans and related option agreements are incorporated herein by
reference as Exhibits (d)(1) through (d)(4) and contain information regarding the subject
securities.
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes.
The information set forth in the Offer to Amend under “Summary Term Sheet and Questions and
Answers” and Section 3, “Purposes of the offer” is incorporated herein by reference.
(b) Uses of securities acquired.
The information set forth in the Offer to Amend under Section 6, “Acceptance of options for
amendment, issuance of cash payments, and amended options,” and Section 12, “Status of options
amended by us in the offer; accounting consequences of the offer,” is incorporated herein by
reference.
(c) Plans.
The information set forth in the Offer to Amend under Section 3, “Purpose of the offer,” is
incorporated herein by reference.
Item 7. Source and Amount of Funds or Other Consideration.
(a) Sources of funds.
The information set forth in the Offer to Amend under Section 9, “Source and amount of
consideration; terms of amended options,” and Section 16, “Fees and expenses,” is incorporated
herein by reference.
(b) Conditions.
The information set forth in the Offer to Amend under Section 7, “Conditions of the offer,” is
incorporated herein by reference.
(d) Borrowed funds.
Not applicable.
Item 8. Interest in Securities of the Subject Company.
(a) Securities ownership.
The information set forth in the Offer to Amend under Section 11, “Interests of directors and
executive officers; transactions and arrangements concerning the options,” is incorporated herein
by reference.
(b) Securities transactions.
The information set forth in the Offer to Amend under Section 11, “Interests of directors and
executive officers; transactions and arrangements concerning the options,” is incorporated herein
by reference.
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or recommendations.
Not applicable.
Item 10. Financial Statements.
(a) Financial information.
The information set forth in the Offer to Amend under Section 10, “Information concerning the
Company,” and under Section 18, “Financial statements,” is incorporated herein by reference.
(b) Pro forma information.
Not applicable.
Item 11. Additional Information.
(a) Agreements, regulatory requirements and legal proceedings.
The information set forth in the Offer to Amend under Section 11, “Interests of directors and
executive officers; transactions and arrangements concerning the options,” and Section 13, “Legal
matters; regulatory approvals,” is incorporated herein by reference.
(b) Other material information.
Not applicable.
Item 12. Exhibits.
| |
|
|
| Exhibit Number |
|
Description |
(a)(1)(A)
|
|
Offer to Amend the Exercise Price of Certain Options, dated January 2, 2008 |
|
|
|
(a)(1)(B)
|
|
Communications to all eligible employees from the Stock Administration
Department, dated January 4, 2008 |
|
|
|
(a)(1)(C)
|
|
Tender offer election form |
|
|
|
(a)(1)(D)
|
|
Form of addendum |
|
|
|
(a)(1)(E)
|
|
Forms of confirmation of election to accept offer and confirmation of
election not to participate in offer |
|
|
|
(a)(1)(F)
|
|
Forms of reminder emails to employees |
|
|
|
(a)(1)(G)
|
|
Form of amendment(s) to stock option agreement and promise to make cash
payment |
|
|
|
(a)(1)(H)
|
|
Screen shots of intranet site providing access to offer materials |
|
|
|
(a)(1)(I)(i)
|
|
Presentation materials for eligible U.S. employees |
|
|
|
(a)(1)(I)(ii)
|
|
Presentation materials for eligible Canada employees |
|
|
|
(b)
|
|
Not applicable |
|
|
|
(d)(1)
|
|
Registrant’s 1997 Stock Incentive Plan (incorporated by reference to
Exhibit 4.1 filed with the Registrant’s Registration Statement on Form S-8
(File No. 333-41337) filed on July 23, 2004) |
|
|
|
(d)(2)
|
|
Registrant’s 1997 Stock Incentive Plan Forms of Agreement |
|
|
|
(d)(3)
|
|
Registrant’s 2000 Nonstatutory Stock Option Plan (incorporated by
reference to Exhibit 4.1 filed with the Registrant’s Registration
Statement on Form S-8 (File No. 333-66586) filed on August 2, 2001) |
|
|
|
(d)(4)
|
|
Registrant’s 2000 Nonstatutory Stock Option Plan Forms of Agreement |
|
|
|
(g)
|
|
Not applicable |
|
|
|
(h)
|
|
Not applicable |
Item 13. Information Required by Schedule 13e-3.
Not applicable.
SIGNATURE
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.
| |
|
|
|
|
|
|
McAFEE, INC. |
|
|
|
|
|
|
|
|
|
/s/ MARK D. COCHRAN |
|
|
|
|
Mark D. Cochran
|
|
|
|
|
Executive Vice
President and General Counsel |
|
|
|
|
|
|
|
Date: January 4, 2008 |
|
|
|
|
INDEX TO EXHIBITS
| |
|
|
| Exhibit Number |
|
Description |
(a)(1)(A)
|
|
Offer to Amend the Exercise Price of Certain Options, dated
January 4, 2008 |
|
|
|
(a)(1)(B)
|
|
Communications to all eligible employees from the Stock
Administration Department, dated January 4, 2008 |
|
|
|
(a)(1)(C)
|
|
Tender offer election form |
|
|
|
(a)(1)(D)
|
|
Form of addendum |
|
|
|
(a)(1)(E)
|
|
Forms of confirmation of election to accept offer and confirmation
of election not to participate in offer |
|
|
|
(a)(1)(F)
|
|
Forms of reminder emails to employees |
|
|
|
(a)(1)(G)
|
|
Form of stock option agreement(s) and promise to make cash payment |
|
|
|
(a)(1)(H)
|
|
Screen shots of intranet site providing access to offer materials |
|
|
|
(a)(1)(I)(i)
|
|
Presentation materials for eligible U.S. employees |
|
|
|
(a)(1)(I)(ii)
|
|
Presentation materials for eligible Canada employees |
|
|
|
(b)
|
|
Not applicable |
|
|
|
(d)(1)
|
|
Registrant’s 1997 Stock Incentive Plan (incorporated by reference
to Exhibit 4.1 filed with the Registrant’s Registration Statement
on Form S-8 (File No. 333-41337) filed on July 23, 2004) |
|
|
|
(d)(2)
|
|
Registrant’s 1997 Stock Incentive Plan Forms of Agreement |
|
|
|
(d)(3)
|
|
Registrant’s 2000 Nonstatutory Stock Option Plan (incorporated by
reference to Exhibit 4.1 filed with the Registrant’s Registration
Statement on Form S-8 (File No. 333-66586) filed on August 2,
2001) |
|
|
|
(d)(4)
|
|
Registrant’s 2000 Nonstatutory Stock Option Plan Forms of Agreement |
|
|
|
(g)
|
|
Not applicable |
|
|
|
(h)
|
|
Not applicable |