-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RjL5sZY3tnH1Om3f8D9viHPx22OgMGjuM7cTV1AJIClj027VryYXeoSuIeRMWQEf FIY8IQ2RrxMptEwVqjgQhw== 0000929624-01-000527.txt : 20010409 0000929624-01-000527.hdr.sgml : 20010409 ACCESSION NUMBER: 0000929624-01-000527 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010402 GROUP MEMBERS: MEMPHIS ACQUISITION INC. GROUP MEMBERS: SIEMENS AKTIENGESELLSCHAFT/ADR GROUP MEMBERS: SIEMENS CORPORATION SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EFFICIENT NETWORKS INC CENTRAL INDEX KEY: 0001085061 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 752486865 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: SEC FILE NUMBER: 005-56915 FILM NUMBER: 1588438 BUSINESS ADDRESS: STREET 1: 4849 ALPHA RD STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75244 BUSINESS PHONE: 9729913884 MAIL ADDRESS: STREET 1: 4201 SPRING VALLEY ROAD STREET 2: SUITE 1200 CITY: DALLAS STATE: TX ZIP: 75244 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SIEMENS AKTIENGESELLSCHAFT/ADR CENTRAL INDEX KEY: 0000790925 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: WITTE ISBACHERPLATZ 2 STREET 2: D-80333 CITY: MUNICH GERMANY STATE: NY ZIP: 10006 BUSINESS PHONE: 2129785009 SC TO-T/A 1 0001.txt SCHEDULE TO-T AMENDMENT #5 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- SCHEDULE TO/A Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934 (Amendment No. 5) ---------------- EFFICIENT NETWORKS, INC. (Name of Subject Company) ---------------- MEMPHIS ACQUISITION INC. SIEMENS CORPORATION SIEMENS AKTIENGESELLSCHAFT (Names of Filing Persons (Offeror)) Common Stock, Par Value $0.001 Per Share (Title of Class of Securities) ---------------- 282056100 (CUSIP Number of Class of Securities) ---------------- Kenneth R. Meyers, Esq. Siemens Corporation 153 East 53rd Street New York, New York 10022 (212) 258-4000 (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of Filing Persons) ---------------- Copy to: Peter D. Lyons, Esq. Shearman & Sterling 1550 El Camino Real Menlo Park, California 94025 (650) 330-2200 ---------------- CALCULATION OF FILING FEE ================================================================================= Transaction Valuation* Amount of Filing Fee** - --------------------------------------------------------------------------------- $1,477,026,771 $295,406 =================================================================================
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- * Estimated for purposes of calculating the amount of the filing fee only. Calculated by multiplying $23.50 per share tender offer price, by 62,852,203, the sum of the 59,332,385 shares of Common Stock outstanding as of February 21, 2001 and an estimated 3,519,818 shares of Common Stock subject to options, which will vest before March 29, 2001. ** Calculated as 1/50 of 1% of the transaction value. [X] 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: $295,406 Filing Party: Siemens Aktiengesellschaft ------------- -------------------------- Schedule TO/A Form or Registration No.: Amendment No. 2 Date Filed: March 14, 2001 --------------- ----------------------------
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes to designate any transactions to which the statement relates: [X] 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: [X] - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- This Amendment No. 5 (the "Final Amendment") amends and supplements the Tender Offer Statement on Schedule TO filed on March 2, 2001 (as subsequently amended and supplemented, the "Schedule TO") by Memphis Acquisition Inc., a Delaware corporation ("Purchaser") and a wholly owned subsidiary of Siemens Corporation, a Delaware corporation ("Siemens Corp.") and an indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal Republic of Germany ("Siemens AG"). On March 8, 2001, Purchaser, Siemens Corp. and Siemens AG filed Amendment No. 1 to the Schedule TO. On March 14, 2001, Purchaser, Siemens Corp. and Siemens AG filed Amendment No. 2 to the Schedule TO. On March 16, 2001, Purchaser, Siemens Corp. and Siemens AG filed Amendment No. 3 to the Schedule TO. On March 28, 2001, Purchaser, Siemens Corp. and Siemens AG filed Amendment No. 4 to the Schedule TO. The Schedule TO relates to the offer by Purchaser to purchase all the issued and outstanding shares of Common Stock, par value $0.001 per share (the "Shares"), of Efficient Networks, Inc., a Delaware corporation (the "Company"), at a purchase price of $23.50 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 2, 2001 (as subsequently amended and supplemented, the "Offer to Purchase") and in the related Letter of Transmittal, copies of which were filed as Exhibits (a)(1) and (a)(2) to the Schedule TO (which, together with any amendments or supplements thereto, collectively constitute the "Offer"). Pursuant to General Instruction H to Schedule TO, this Final Amendment satisfies the reporting requirements of Section 13(d) of the Securities Exchange Act of 1934, as amended, with respect to all securities acquired by Purchaser in the Offer. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO. Item 8. Interest in Securities of the Subject Company. Item 8 of the Schedule TO is hereby amended and supplemented to include the following information: At 12:00 midnight, New York City time, on Thursday, March 29, 2001, the Offer expired. Based on a preliminary count, approximately 54,833,819 Shares were validly tendered and not withdrawn pursuant to the Offer, of which 6,383,068 Shares were tendered pursuant to notices of guaranteed delivery. Such Shares constituted approximately 92.4% of the outstanding Shares. All Shares validly tendered and not withdrawn prior to the expiration of the Offer were accepted for payment. In addition to the Shares acquired in the Offer, Siemens AG owns 3,716,800 Shares, representing approximately 6.34% of the outstanding Shares. As a result, Memphis Acquisition and its affiliates own approximately 98.7% of the outstanding Shares, which is a sufficient number of Shares to enable Purchaser to effect the Merger without a vote or meeting of the Company's stockholders. Siemens AG and Siemens Corp. intend to effect the Merger of Purchaser with and into the Company as soon as practicable. Pursuant to the Merger, Shares that were not tendered into the Offer (other than Shares held in the treasury of the Company or Shares owned by Purchaser, Siemens Corp. or any direct or indirect wholly owned subsidiary of Siemens AG or of the Company immediately prior to the Merger, which Shares will be canceled without any conversion thereof and no payments or distributions will be made with respect thereto) will be canceled and converted automatically into the right to receive $23.50 per Share in cash (subject to applicable withholding taxes), without interest, subject to the rights of holders of non-tendered Shares to seek appraisal of the fair market value thereof pursuant to Section 262 of the Delaware General Corporation Law. Following the Merger, the Company will become a wholly owned subsidiary of Siemens Corp. A copy of the press release announcing the expiration of the Offer and the acceptance of validly tendered Shares is attached hereto as Exhibit (a)(11). 2 Item 12. Material to Be Filed as Exhibits. (a)(1) Offer to Purchase dated March 2, 2001.+ (a)(2) Form of Letter of Transmittal.+ (a)(3) Form of Notice of Guaranteed Delivery.+ (a)(4) Form of Letter from Goldman, Sachs & Co. to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.+ (a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Nominees to Clients.+ (a)(6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.+ (a)(7) Summary Advertisement as published in The Wall Street Journal on March 2, 2001.+ (a)(8) Press Release issued by Siemens AG on February 22, 2001.* (a)(9) Joint Press Release issued by Siemens AG and the Company on March 14, 2001.*** (a)(10) Joint Press Release issued by Siemens AG and the Company on March 28, 2001.**** (a)(11) Joint Press Release issued by Siemens AG and the Company on March 30, 2001. (d)(1) Agreement and Plan of Merger dated as of February 21, 2001 among Siemens Corp., Purchaser and the Company.+ (d)(2) Employment Agreement dated as of February 21, 2001 between the Company and Mark Floyd.+ (d)(3) Supplemental Agreement dated as of February 21, 2001 between Siemens Information and Communication Networks, Inc. and Mark Floyd.+ (d)(4) Confidentiality Agreement dated as of November 16, 2000 between Siemens Corp. and the Company.+ (d)(5) Complaint, Daniel Kucera, et al. v. Efficient Networks, Inc., et al., Cause No. 01-02083-C, filed on February 22, 2001, in the County Court of Dallas County in the State of Texas.** (d)(6) Complaint, Josephine Greenleaf, et al. v. Efficient Networks, Inc., et al., Cause No. 01-02132-D, filed on February 23, 2001, in the County Court of Dallas County in the State of Texas.** (g) None. (h) None.
- -------- * Incorporated by reference to the Schedule TO-C filed by Siemens AG, Siemens Corp. and Purchaser on February 21, 2001. + Incorporated by reference to the Schedule TO filed by Siemens AG, Siemens Corp. and Purchaser on March 2, 2001. ** Incorporated by reference to the Schedule TO/A filed by Siemens AG, Siemens Corp. and Purchaser on March 8, 2001. *** Incorporated by reference to the Schedule TO/A filed by Siemens AG, Siemens Corp. and Purchaser on March 14, 2001. **** Incorporated by reference to the Schedule TO/A filed by Siemens AG, Siemens Corp. and Purchaser on March 28, 2001. 3 Item 13. Information Required by Schedule 13E-3. Not applicable. 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. Dated: March 30, 2001 MEMPHIS ACQUISITION INC. By: /s/ Christoph Ferner ----------------------------------- Name: Christoph Ferner Title: President By: /s/ Gunther Barth ----------------------------------- Name: Gunther Barth Title: Vice President SIEMENS CORPORATION By: /s/ E. Robert Lupone ----------------------------------- Name: E. Robert Lupone Title: Senior Vice President, General Counsel and Secretary By: /s/ William G. Moran ----------------------------------- Name: William G. Moran Title: Vice President SIEMENS AKTIENGESELLSCHAFT By: /s/ Roland Koch ----------------------------------- Name: Roland Koch Title: Senior Vice President By: /s/ Christina Stercken ----------------------------------- Name: Christina Stercken Title: Managing Director 4 EXHIBIT INDEX
Exhibit No. ----------- (a)(1) Offer to Purchase dated March 2, 2001.+ (a)(2) Form of Letter of Transmittal.+ (a)(3) Form of Notice of Guaranteed Delivery.+ (a)(4) Form of Letter from Goldman, Sachs & Co. to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.+ (a)(5) Form of Letter from Brokers, Dealers, Commercial Banks, Trust Companies and Nominees to Clients.+ (a)(6) Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.+ (a)(7) Summary Advertisement as published in The Wall Street Journal on March 2, 2001.+ (a)(8) Press Release issued by Siemens AG on February 22, 2001.* (a)(9) Joint Press Release issued by Siemens AG and the Company on March 14, 2001.*** (a)(10) Joint Press Release issued by Siemens AG and the Company on March 28, 2001.**** (a)(11) Joint Press Release issued by Siemens AG and the Company on March 30, 2001. (d)(1) Agreement and Plan of Merger dated as of February 21, 2001 among Siemens Corp., Purchaser and the Company.+ (d)(2) Employment Agreement dated as of February 21, 2001 between the Company and Mark Floyd.+ (d)(3) Supplemental Agreement dated as of February 21, 2001 between Siemens Information and Communication Networks, Inc. and Mark Floyd.+ (d)(4) Confidentiality Agreement dated as of November 16, 2000 between Siemens Corp. and the Company.+ (d)(5) Complaint, Daniel Kucera, et al. v. Efficient Networks, Inc., et al., Cause No. 01-02083-C, filed on February 22, 2001, in the County Court of Dallas County in the State of Texas.** (d)(6) Complaint, Josephine Greenleaf, et al. v. Efficient Networks, Inc., et al., Cause No. 01-02132-D, filed on February 23, 2001, in the County Court of Dallas County in the State of Texas.** (g) None. (h) None.
- -------- * Incorporated by reference to the Schedule TO-C filed by Siemens AG, Siemens Corp. and Purchaser on February 21, 2001. + Incorporated by reference to the Schedule TO filed by Siemens AG, Siemens Corp. and Purchaser on March 2, 2001. ** Incorporated by reference to the Schedule TO/A filed by Siemens AG, Siemens Corp. and Purchaser on March 8, 2001. *** Incorporated by reference to the Schedule TO/A filed by Siemens AG, Siemens Corp. and Purchaser on March 14, 2001. **** Incorporated by reference to the Schedule TO/A filed by Siemens AG, Siemens Corp. and Purchaser on March 28, 2001. 5 EX-99.(A)(11) 2 0002.txt JOINT PRESS RELEASE ISSUED DATED MARCH 28, 2001 EXHIBIT 99(a)(11) SIEMENS COMPLETES TENDER OFFER FOR EFFICIENT NETWORKS Munich, Germany / Dallas, Texas - (March 30, 2001) - Siemens (NYSE: SI) and Efficient Networks, Inc. (Nasdaq: EFNT) announced the completion of the tender offer by Memphis Acquisition Inc., a wholly-owned subsidiary of Siemens, for all the issued and outstanding shares of common stock of Efficient Networks, Inc. The offer, priced at $23.50 per share, expired at 12:00 midnight, New York City time, on Thursday, March 29, 2001. At last count, 54,833,819 shares of Efficient Networks common stock had been tendered into the offer (including through notices of guaranteed delivery) prior to its expiration, which represents approximately 92.4% of the outstanding shares of Efficient Networks. All shares validly tendered and not withdrawn prior to the expiration of the offer have been accepted for payment according to the terms of the offer. In addition to the Efficient Networks shares acquired in the tender offer, Siemens owns 3,716,800 shares of Efficient Networks, representing approximately 6.34% of the outstanding shares of Efficient Networks. As a result, Memphis Acquisition and its affiliates own approximately 98.7% of the outstanding shares of common stock of Efficient Networks. In the proposed second step of Siemens' acquisition of Efficient Networks, Siemens expects to cause Memphis Acquisition Inc. to merge with Efficient Networks as soon as practicable. The merger may be consummated without a vote or meeting of Efficient Networks' stockholders. Once the proposed merger becomes effective, Efficient Networks will become a wholly owned subsidiary of Siemens. Efficient Networks - ------------------ Efficient Networks, based in Dallas, Texas, USA, is a leading independent developer and supplier of high-speed DSL CPE. Efficient Networks has approximately 600 employees. Efficient Networks' customers include network service providers, network equipment vendors and carrier-aligned distributors. Significant customers for the calendar year 2000 include: AOL, Bell South, Hanaro Telecom, SBC Communications, Singapore Telecom, Sprint, TeleDanmark, Telefonica and Worldcom. Efficient Networks reported sales of $102.5 million in the quarter ended December 31, 2000. Losses before interest, tax and amortization were $8.6 million for the period. As of December 31, 2000, Efficient Networks had total stockholders' equity of $987.9 million, cash and short-term investments of $436.4 million and convertible subordinated notes of $400.0 million. Contacts: Scott Bender Kitty Behof Media Relations Investor Relations Efficient Networks, Inc. Efficient Networks, Inc. Tel.: +1 (972) 852-1000 Tel.: +1 (972) 852-1000 E-mail: sbender@efficient.com E-mail: kbehof@efficient.com Siemens Information and Communication Networks Group - ---------------------------------------------------- Siemens Information and Communication Networks Group (ICN) is a leading provider of integrated voice and data networks for enterprises, carriers and service providers. Its comprehensive portfolio comprises, in particular, IP-based convergence solutions, and a full range of products for broadband access, optical transport networks, as well as the integration, services and applications business. The Siemens Group provides complete solutions from a single source for the infrastructure of the Next Generation Internet, a prerequisite for mobile business. In fiscal year 2000 (year-end 30 September 2000) ICN posted sales of 11.4 billion Euro, and earnings before interest and taxes (EBIT) of 692 million Euro. ICN employs 53,000 people worldwide. Further information about ICN is available at: http://www.ic.siemens.com/networks Siemens AG Reference Number: ICN 2001 02.043 e Corporate Communications Press Office Press Office Information and Communication Networks Peter Gottal Andreas Fischer Tel.: +49 89 636 33645; Fax: -32825 Tel.: +49 89 722 33988; Fax: -23855 E-mail: peter.gottal@cc.siemens.de E-mail: andreas.fischer@icn.siemens.de -----END PRIVACY-ENHANCED MESSAGE-----