-----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, P1eEwu7VLv2cxkGPlrrOenrTYJQaqGb4WXP+JJJn2MmZyYIUoNVmS0c4pNwXadgI lqXKeNjQX/hdmqLOVkPZ4w== 0000950142-08-000870.txt : 20080421 0000950142-08-000870.hdr.sgml : 20080421 20080421165305 ACCESSION NUMBER: 0000950142-08-000870 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20080421 DATE AS OF CHANGE: 20080421 GROUP MEMBERS: ELLIOTT QOS LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PACKETEER INC CENTRAL INDEX KEY: 0001011344 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 770420107 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-57967 FILM NUMBER: 08767393 BUSINESS ADDRESS: STREET 1: 10201 NORTH DE ANZA BLVD CITY: CUPERTINO STATE: CA ZIP: 95014-2028 BUSINESS PHONE: 4088734400 MAIL ADDRESS: STREET 1: 10201 N. DE ANZA BLVD CITY: CUPERTINO STATE: CA ZIP: 95014-2028 FORMER COMPANY: FORMER CONFORMED NAME: CYBERSWITCH INC DATE OF NAME CHANGE: 19960530 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ELLIOTT ASSOCIATES, L.P. CENTRAL INDEX KEY: 0000904495 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 222140975 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 712 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2125062999 MAIL ADDRESS: STREET 1: 712 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10019 FORMER COMPANY: FORMER CONFORMED NAME: ELLIOTT ASSOCIATES LP DATE OF NAME CHANGE: 19930513 SC TO-T/A 1 scto-ta6_packeteer.htm AMENDMENT NO. 6

 


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. 6)

PACKETEER, INC.

(Name of Subject Company)

ELLIOTT QOS LLC

ELLIOTT ASSOCIATES, L.P.

(Names of Filing Persons (Offerors))

 

Common Stock, par value $0.001 per share

(Title of Class of Securities)

 

695210104

(CUSIP Number of Class of Securities)

 

Jesse A. Cohn

Elliott Associates, L.P.

712 Fifth Avenue, 36th Floor

New York, New York 10019

Telephone: (212)  506-2999

(Name, Address and Telephone Number of Person Authorized

to Receive Notices and Communications on Behalf of Filing Persons)

 

Copy to:

Robert B. Schumer

Steven J. Williams

Paul, Weiss, Rifkind, Wharton  & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Telephone: (212)  373-3000

 

CALCULATION OF FILING FEE

Transaction Valuation*

Amount of Filing Fee**

$189,202,827

$7,435.67

*

Estimated for purposes of calculating the filing fee only. This amount assumes the purchase of 32,906,014 shares of common stock of Packeteer, Inc. (“Packeteer ”) outstanding as of February 27, 2008 (which amount includes all 36,465,131 outstanding shares of common stock of Packeteer other than the 3,559,117 shares of common stock beneficially owned by Elliott Associates, L.P. and its affiliated funds), stock options outstanding as of December 31, 2007 with respect to 888,000 shares of common stock of Packeteer (which amount includes stock options with exercise prices less than the per share offer price), all restricted stock units outstanding as of December 31, 2007 with respect to 529,000 shares of common stock of Packeteer and performance shares outstanding as of December 31, 2007 with respect to 77,500 shares of common stock of Packeteer (which amount assumes a change of control prior to February 28, 2009). The number of outstanding shares, stock options, restricted stock units and performance shares is contained in Packeteer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007.

**

The amount of the filing fee is calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, by multiplying the transaction valuation by 0.0000393.

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:  $7,435.67 Filing Party: 

Elliott QoS LLC
Elliott Associates, L.P.

Form or Registration No.:    

 

SC TO-T

 

Date Filed:    

 

March 20, 2008

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:

x

third-party tender offer subject to Rule 14d-1.

o

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 is a final amendment reporting the results of the tender offer: x

 


 


 

Items 1 through 9, and Item 11.

This amendment No. 6 to Schedule TO (“Amendment No. 6”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on March 20, 2008 (the “Schedule TO”), by Elliott QoS LLC, a Delaware limited liability company and a subsidiary of Elliott Associates, L.P., a Delaware limited partnership, to purchase all outstanding shares of common stock, par value $0.001 per share (the “Shares”) of Packeteer, Inc., a Delaware corporation, at $5.50 per Share, net to the seller in cash, without interest and less applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 20, 2008, as amended (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).

Except as specifically set forth herein, this Amendment No. 6 does not modify any of the information previously reported on the Schedule TO. All capitalized terms used in this Amendment No. 6 and not otherwise defined have the respective meanings ascribed to them in the Offer to Purchase.

The information set forth in the Offer to Purchase, including all schedules thereto, is hereby expressly incorporated herein by reference in response to all of the items of this Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided herein.

On April 21, 2008, Elliott Associates, L.P. issued a press release announcing that Elliott QoS LLC had terminated the Offer. The Offer was scheduled to expire on Wednesday, April 23, 2008. No shares were purchased in the Offer and all shares previously tendered and not withdrawn will be promptly returned. The press release issued by Elliott Associates, L.P. is attached as Exhibit (a)(5)(v).

Item 10. Financial Statements.

Not applicable.

Item 12. Exhibits.

Exhibit No.

Description

 

 

(a)(1)(i)

Offer to Purchase dated March 20, 2008.*

 

 

(a)(1)(ii)

Letter of Transmittal.*

 

 

(a)(1)(iii)

Notice of Guaranteed Delivery.*

 

 

(a)(1)(iv)

Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

 

 

(a)(1)(v)

Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

 

 

(a)(1)(vi)

Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.*

 

 

(a)(1)(vii)

Summary Advertisement dated March 20, 2008.*

 

 

(a)(5)(i)

Press Release issued by Elliott Associates, L.P., dated March 20, 2008.*

 

 

(a)(5)(ii)

Press Release issued by Elliott Associates, L.P., dated April 2, 2008.*

 

 

(a)(5)(iii)

Press Release issued by Elliott Associates, L.P., dated April 8, 2008.*

 

 

(a)(5)(iv)

Press Release issued by Elliott Associates, L.P., dated April 16, 2008.*

 

 

(a)(5)(v)

Press Release issued by Elliott Associates, L.P., dated April 21, 2008.

 

 

 


 

 

 

 

 

(b)

Not applicable.

 

 

(d)

Not applicable.

 

 

(g)

Not applicable.

 

 

(h)

Not applicable.

________________

* Previously filed.

 

 


 

 

SIGNATURES

After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: April 21, 2008.

 

ELLIOTT QOS LLC



By:



/s/ Elliot Greenberg

Name:

Elliot Greenberg

Title:

Vice President

 

 

ELLIOTT ASSOCIATES, L.P.


By:


Elliott Capital Advisors, L.P., as General Partner


By:


Braxton Associates, Inc., as General Partner


By:


/s/ Elliot Greenberg

Name:

Elliot Greenberg

Title:

Vice President

 

 

 


 

 

EXHIBIT INDEX

Exhibit No.

Description

 

 

(a)(1)(i)

Offer to Purchase dated March 20, 2008.*

 

 

(a)(1)(ii)

Letter of Transmittal.*

 

 

(a)(1)(iii)

Notice of Guaranteed Delivery.*

 

 

(a)(1)(iv)

Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

 

 

(a)(1)(v)

Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

 

 

(a)(1)(vi)

Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.*

 

 

(a)(1)(vii)

Summary Advertisement dated March 20, 2008.*

 

 

(a)(5)(i)

Press Release issued by Elliott Associates, L.P., dated March 20, 2008.*

 

 

(a)(5)(ii)

Press Release issued by Elliott Associates, L.P., dated April 2, 2008.*

 

 

(a)(5)(iii)

Press Release issued by Elliott Associates, L.P., dated April 8, 2008.*

 

 

(a)(5)(iv)

Press Release issued by Elliott Associates, L.P., dated April 16, 2008.*

 

 

(a)(5)(v)

Press Release issued by Elliott Associates, L.P., dated April 21, 2008.

 

 

(b)

Not applicable.

 

 

(d)

Not applicable.

 

 

(g)

Not applicable.

 

 

(h)

Not applicable.

________________

* Previously filed.

 

 

 

 EX-99 2 exa5vscto-ta6_packeteer.htm EXHIBIT (A)(5)(V)

 

 

Exhibit (a)(5)(v)

 


 

For More Information Contact:  

Scott Tagliarino

(212) 974-6000

(917) 922-2364 (cell)

 

ELLIOTT ANNOUNCES TERMINATION OF TENDER OFFER

TO ACQUIRE PACKETEER, INC.

 

NEW YORK (April 21, 2008) – Elliott Associates, L.P., a private investment partnership involved in diversified trading programs, today announced that its affiliate, Elliott QoS LLC, has terminated its offer to purchase all outstanding shares of common stock of Packeteer, Inc. (NASDAQ: PKTR). The offer was scheduled to expire on Wednesday, April 23, 2008. No shares were purchased in the offer and all shares previously tendered and not withdrawn will be promptly returned.

 

On April 21, 2008, Packeteer and Blue Coat Systems, Inc. (NASDAQ: BCSI) announced a definitive agreement under which Blue Coat will acquire Packeteer for $7.10 per share in cash. In connection with the acquisition of Packeteer, Blue Coat has agreed to issue zero coupon convertible notes in the aggregate principal amount of $40 million to an affiliate of Elliott and an additional $40 million in aggregate principal amount of the notes to Francisco Partners II, L.P. Blue Coat will use the proceeds from the private placement to partially fund the acquisition of Packeteer. In connection with the issuance of the notes, Blue Coat has agreed to issue warrants to purchase shares of Blue Coat to the same affiliate of Elliott and to Francisco Partners II. The issuance of the notes and the warrants is subject to the closing of the Packeteer transaction.

 

Blue Coat also has agreed to purchase Elliott’s shares in Packeteer for $7.10 per share. That purchase is not conditioned upon the closing of the Packeteer transaction.

 

About Elliott Associates

Elliott Associates, L.P. and its sister fund, Elliott International, L.P. have more than $10.5 billion of capital under management. Founded in 1977, Elliott is one of the oldest hedge funds under continuous management. The Elliott funds’ investors include large institutions, high-net-worth individuals and families, and employees of the firm.

All trademarks used or mentioned in this release are protected by law.

 

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

THIS PRESS RELEASE CONTAINS FORWARD-LOOKING STATEMENTS. ALL STATEMENTS CONTAINED IN THIS PRESS RELEASE THAT ARE NOT CLEARLY HISTORICAL IN NATURE OR THAT NECESSARILY DEPEND ON FUTURE EVENTS ARE FORWARD-LOOKING, AND THE WORDS “ANTICIPATE,” “BELIEVE,” “EXPECT,” “ESTIMATE,” “PLAN,” AND SIMILAR EXPRESSIONS ARE GENERALLY INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS. THESE STATEMENTS ARE BASED ON CURRENT EXPECTATIONS OF ELLIOTT AND ITS AFFILIATES AND CURRENTLY AVAILABLE INFORMATION. THEY ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND INVOLVE CERTAIN RISKS AND UNCERTAINTIES THAT ARE DIFFICULT TO PREDICT AND ARE BASED UPON ASSUMPTIONS AS TO FUTURE EVENTS THAT MAY NOT PROVE TO BE ACCURATE. ELLIOTT DOES NOT ASSUME ANY OBLIGATION TO UPDATE ANY FORWARD-LOOKING STATEMENTS CONTAINED IN THIS PRESS RELEASE.

 

# # #

 

 

 

 

 

 

 

 

 

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