ELX

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): May 5, 2015 (May 5, 2015)

 

 

EMULEX CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		001-31353		51-0300558
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

1320 Ridder Park Drive, San Jose, California

(Address of principal executive offices)

95131

(Zip Code)

(408) 435-7400

(Registrant’s telephone number, including area code)

3333 Susan Street, San Jose, California 95131

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Introductory Note

As previously disclosed, on February 25, 2015, Emulex Corporation, a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), with Avago Technologies Wireless (U.S.A.) Manufacturing Inc., a Delaware corporation (“Parent”), and Emerald Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (the “Purchaser”). Pursuant to the Merger Agreement, on April 7, 2015, Purchaser commenced an offer to purchase all of the outstanding shares of common stock, par value $0.10 per share (the “Shares”) of the Company at a price of $8.00 per Share (the “Offer Price”), in cash, without interest, subject to any withholding of taxes required by applicable law, upon the terms and subject to the conditions set forth in the offer to purchase, dated April 7, 2015 (as amended and supplemented, the “Offer to Purchase”), and in the related letter of transmittal (as amended and supplemented, the “Letter of Transmittal”), which Offer to Purchase and Letter of Transmittal collectively constituted the “Offer”. Also as previously disclosed, following consummation of the Offer on May 5, 2015, pursuant to the Merger Agreement, the Purchaser merged with and into the Company, with the Company continuing as the surviving corporation (the “Merger”), pursuant to which the Company became a wholly owned subsidiary of Parent.

 

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The foregoing description of the Merger Agreement and related transactions does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the U.S. Securities and Exchange Commission (the “SEC”) on February 26, 2015 and is incorporated herein by reference.

Item 1.01. Entry into a Material Definitive Agreement.

On May 5, 2015, in connection with the consummation of the Merger and pursuant to that certain Indenture, dated as of November 18, 2013 (the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), pursuant to which the Company issued its 1.75% Convertible Senior Notes due 2018 in an aggregate principal amount of $175 million (the “Notes”), the Company and the Trustee entered into a Supplemental Indenture No. 1, dated as of May 5, 2015 (the “Supplemental Indenture”), which amends and supplements the Indenture. The Supplemental Indenture provides that, as a result of the Merger, the Notes are now convertible only into the right to receive the amount of cash that a holder of a number of Shares equal to the Conversion Rate (as defined in the Indenture and including any adjustments pursuant to Section 4.06 of the Indenture) immediately prior to the consummation of the Merger would have owned or been entitled to receive upon the Merger.

The foregoing description of the Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Supplemental Indenture, which is filed as Exhibit 4.2 hereto and is incorporated herein by reference. A copy of the Indenture was filed by the Company as Exhibit 4.1 to the Company’s Current Report on Form 8-K dated November 21, 2013 and is incorporated herein by reference.

 

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Item 2.04. Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

The information set forth under Item 1.01 and Item 8.01 is incorporated herein by reference.

Item 3.03 Material Modification to Rights of Security Holders.

The disclosure under the Introductory Note and Item 1.01 is incorporated herein by reference.

Item 8.01. Other Events.

The consummation of the Merger constitutes a Merger Event (as defined in the Indenture) and the consummation of the Offer and the Merger constitutes a Fundamental Change and a Make-Whole Fundamental Change (each, as defined in the Indenture) under the Indenture. Accordingly, the effective date of the Merger Event and the Effective Date (as

 

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defined in the Indenture) of the Fundamental Change and the Make-Whole Fundamental Change is May 5, 2015. The Indenture provides that, as a result of the Fundamental Change, each Holder (as defined in the Indenture) of the Notes shall have the right to either require the Company to purchase its Notes or, alternatively, to surrender its Notes for conversion. In addition, as a result of the Make-Whole Fundamental Change, Holders who convert their Notes during the Make-Whole Fundamental Change Period (as defined below) shall be entitled to convert their Notes at an increased Conversion Rate.

Pursuant to the Indenture, on July 1, 2015 (the “Fundamental Change Purchase Date”), each Holder has the right, at the Holder’s option, to require the Company to purchase for cash all of such Holder’s Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the Fundamental Change Purchase Date, in accordance with the terms, procedures and conditions outlined in the Indenture and the Notes. The Company will purchase such Notes at a price of approximately $1,002.24 per $1,000 principal amount of the Notes, which is equal to the sum of 100% of the principal amount of such Notes and the accrued and unpaid interest thereon, to, but excluding, the Fundamental Change Purchase Date. Based on the amount of Notes outstanding as of May 4, 2015, the total amount of funds required by the Company to purchase all of the Notes on the Fundamental Change Purchase Date is approximately $175,392,000, assuming that all of the Notes are validly tendered for purchase and accepted for payment. The Company expects to use its cash on hand for the purchase of the Notes. In order to exercise the right to require the Company to purchase a Holder’s Notes, the Holder must validly tender such Notes on or after May 12, 2015 and on or prior to the close of business on June 30, 2015, the business day immediately preceding the Fundamental Change Purchase Date.

As an alternative to requiring the Company to purchase a Holder’s Notes, at the Holder’s election, the Holder may surrender Notes for conversion at any time from and after April 9, 2015 until June 30, 2015, the business day immediately preceding the Fundamental Change Purchase Date, in accordance with the Indenture. The Conversion Rate applicable to Notes that are surrendered for conversion during the period following May 5, 2015, the Effective Date (as defined in the Indenture) of the Make-Whole Fundamental Change, and ending at 5:00 p.m., New York City time, on June 30, 2015, the business day immediately preceding the Fundamental Change Purchase Date, will be increased by 29.8639 Shares of Common Stock per $1,000 principal amount of Notes to yield a Conversion Rate of 126.9961 Shares of Common Stock per $1,000 principal amount of Notes, pursuant to Section 4.06 of the Indenture. As described under Item 1.01 hereof, Holders who surrender their Notes for conversion from and after the Effective Time of the Merger will receive solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date, multiplied by $8.00, the Offer Price, less any applicable withholding taxes, and will not receive any Shares.

In accordance with the Indenture, the Company intends to deliver a notice to the Trustee and to the Holders (the “Notice”) setting forth the foregoing and containing additional information in relation thereto on May 12, 2015. The Company intends to file a copy of the Notice as an exhibit to the Company’s Current Report on Form 8-K on the date thereof.

Forward-Looking Statements

Certain statements either contained in or incorporated by reference into this communication, other than purely historical information, including estimates, projections and statements relating to the Company’s, Parent’s or Avago’s respective business plans, objectives and expected operating results, and the assumptions upon which those statements are based, are “forward-looking statements.” These forward-looking statements generally include statements that are predictive in nature and depend upon or refer to future events or conditions, and include words such as “believes,” “plans,” “anticipates,” “projects,” “estimates,” “expects,” “intends,” “strategy,” “future,” “opportunity,” “may,” “will,” “should,” “could,” “potential,” or similar expressions. The forward-looking statements contained in this document are based on current expectations and assumptions that are subject to risks and uncertainties which may cause actual results to differ materially from the forward-looking statements. Factors which could cause actual results to differ from those projected or contemplated in any such forward-looking statements include, but are not limited to, the following factors: risks that the transaction disrupts the current plans and operations of the Company, Parent or Avago; the ability of the Company to retain and hire key personnel; competitive responses to the transaction; unexpected costs, charges or expenses resulting from the transaction; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the transaction; Avago’s ability to achieve the growth prospects and synergies expected from the transaction, as well as delays, challenges and expenses associated with integrating the Company with its existing businesses; and legislative, regulatory and economic developments. The foregoing review of important factors that could cause actual events to differ from expectations should not be construed as exhaustive and should be read in conjunction with statements that are included herein and elsewhere, including the risks detailed in the Company’s public filings with the SEC from time to time, including the Company’s most recent Annual Report on Form 10-K for the year ended June 29, 2014 (as amended) and the Company’s subsequent Quarterly Report on Form 10-Q for the three months ended March 29, 2015. The reader is cautioned not to unduly rely on these forward-looking statements. The Company expressly disclaims any intent or obligation to update or revise publicly these forward-looking statements except as required by law.

 

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Item 9.01 Financial Statements and Exhibits.

 

(d)

Exhibits.

 

Exhibit Number		Description
4.1		Indenture, dated November 18, 2013, between Emulex Corporation and U.S. Bank National Association (incorporated by reference to the Company’s Current Report on Form 8-K dated November 21, 2013)
4.2		Supplemental Indenture No. 1, dated May 5, 2015, between Emulex Corporation and U.S. Bank National Association*

 

*	Filed herewith.

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Date: May 5, 2015

 

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EXHIBIT INDEX

 

Exhibit Number		Description
4.1		Indenture, dated November 18, 2013, between Emulex Corporation and U.S. Bank National Association (incorporated by reference to the Company’s Current Report on Form 8-K dated November 21, 2013)
4.2		Supplemental Indenture No. 1, dated May 5, 2015, between Emulex Corporation and U.S. Bank National Association*

 

*	Filed herewith.

 

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Exhibit 4.2

 

 

 

EMULEX CORPORATION

AND

U.S. BANK NATIONAL ASSOCIATION,

as Trustee

SUPPLEMENTAL INDENTURE NO. 1

Dated as of May 5, 2015

1.75% Convertible Senior Notes due 2018

 

 

 

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SUPPLEMENTAL INDENTURE NO. 1 (this “Supplemental Indenture”), dated as of May 5, 2015, between Emulex Corporation, a Delaware corporation, as issuer (the “Company”), and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”).

W I T N E S S E T H:

WHEREAS, the Company and the Trustee have heretofore entered into an Indenture, dated as of November 18, 2013 (such Indenture, as modified by this Supplemental Indenture, and as the same may be further modified, being hereinafter called the “Indenture”), pursuant to which the Company issued its 1.75% Convertible Senior Notes due 2018 in an aggregate principal amount of $175,000,000 (the “Notes”);

WHEREAS, the Company, Avago Technologies Wireless (U.S.A.) Manufacturing Inc., a Delaware corporation (“Parent”), and Emerald Merger Sub, Inc., a Delaware corporation (“Purchaser”), have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of February 25, 2015, pursuant to which, among other things, on the date of the execution of this Supplemental Indenture, Purchaser is being merged with and into the Company, with the Company being the surviving corporation in such merger (the “Merger”);

WHEREAS, in connection with the Merger, each share of the Company’s common stock, par value $0.10 (the “Common Stock”), was converted into the right to receive $8.00, payable net to the holder in cash, without interest (the “Reference Property”), subject to any withholding of taxes required by applicable law;

WHEREAS, the Merger constitutes a “Merger Event” under the Indenture;

WHEREAS, Section 4.07 of the Indenture provides that, prior to or at the effective time of a Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture pursuant to Sections 4.07(a) and 8.01(c) of the Indenture providing for a change of the right to convert each $1,000 principal amount of Notes into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to units of Reference Property equal to the Conversion Rate in effect immediately prior to such Merger Event would have owned or been entitled to receive upon such Merger Event, and to give effect to the Merger;

WHEREAS, Section 8.01(g) of the Indenture provides, among other things, that the Company and the Trustee, may enter into an indenture or indentures supplemental to the Indenture to make a change that does not adversely affect the rights of any Holder;

WHEREAS, the Board of Directors of the Company (the “Board of Directors”) has duly authorized this Supplemental Indenture by resolutions adopted on May 5, 2015, and the entry into this Supplemental Indenture by the parties hereto is permitted by the provisions of the Indenture; and

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WHEREAS, the Company has heretofore delivered or is delivering contemporaneously herewith to the Trustee an Officer’s Certificate described in Section 8.04 of the Indenture and an Opinion of Counsel described in Section 8.04 of the Indenture.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises, the receipt and sufficiency of which is hereby acknowledged, the Company covenants and agrees with the Trustee, as follows:

ARTICLE 1

DEFINITIONS

Section 1.01. Definitions. Capitalized terms used herein and not defined herein have the meanings ascribed to such terms in the Indenture.

ARTICLE 2

AMENDMENTS

Section 2.01. Conversion of Notes into the Reference Property. In accordance with and subject to Section 4.07 of the Indenture, as a result of the Merger, each $1,000 in principal amount of Notes is, from and after the Effective Time, convertible in accordance with the terms of the Indenture into the right to receive the amount of cash that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to the consummation of the Merger would have owned or been entitled to receive upon the Merger. For all conversions that occur after the effective time of the Merger in accordance with and subject to Article 4 of the Indenture, (i) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 4.06 of the Indenture), multiplied by the price paid per share of Common Stock in the Merger pursuant to the terms of the Merger Agreement, and (ii) the Company shall satisfy the conversion obligation by paying cash to converting Holders on the third Business Day immediately following the Conversion Date.

Section 2.02. Notices, Etc. to Trustee and Company. Section 11.07(a)(ii) of the Indenture is hereby amended by deleting such subsection in its entirety and replacing it with the following:

(ii) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid (and, in the case of securities held in book-entry form, by electronic transmission), to the Company addressed to it at the address of its principal office at 1320 Ridder Park Drive, San Jose, California 95131, Attn: Rebecca Boyden or at any other address furnished in writing to the Trustee by the Company prior to such mailing or electronically in PDF format.

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ARTICLE 3

MISCELLANEOUS PROVISIONS

Section 3.01. Effect of this Supplemental Indenture. From the date hereof, the Indenture shall be and be deemed to be modified and amended in accordance herewith, and the respective rights, limitation of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Holders shall hereafter be determined, exercised and enforced thereunder subject in all respects to such modifications and amendments, and all the terms and conditions of this Supplemental Indenture shall be and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.

Section 3.02. Trustee Matters. The Trustee accepts the Indenture, as supplemented hereby, and agrees to perform the same upon the terms and conditions set forth therein, as supplemented hereby. The Trustee shall be entitled to the benefit of every provision of the Indenture so supplemented relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

Section 3.03. Notice of Supplemental Indenture. In accordance with Section 8.03 of the Indenture, the Trustee will, on the Company’s behalf, mail notice of the execution of this Supplemental Indenture to each Holder. Failure to deliver such notice shall not affect the legality or validity of this Supplemental Indenture.

Section 3.04. Provisions Binding on Company’s Successors. All the covenants and agreements of the Company contained in this Supplemental Indenture shall bind its successors and assigns whether so expressed or not.

Section 3.05. Official Acts by Successor Company. Any act or proceeding by any provision of this Supplemental Indenture authorized or required to be done or performed by any board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.

Section 3.06. Governing Law. THIS SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

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Section 3.07. Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Conversion Agent, any authenticating agent, any Note Registrar and their successors hereunder or the Holders, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.

Section 3.08. Headings, Etc. The titles and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

Section 3.09. Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 3.10. Severability. In the event any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.

Section 3.11. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.

 

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