UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Amendment No. 3
(Rule 14d-100)
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
Herley Industries, Inc.
(Name of Subject Company (Issuer))
Lanza Acquisition Co.
and
Kratos Defense & Security Solutions, Inc.
(Name of Filing Persons (Offerors))
Common Stock, $0.10 par value
(Title of Class of Securities)
427398102
(CUSIP Number of Class of Securities)
Eric M. DeMarco
President and Chief Executive Officer
Kratos Defense & Security Solutions, Inc.
4820 Eastgate Mall
San Diego, CA 92121
(858) 812-7300
(Name, address and telephone number of person authorized
to receive notices and communications on behalf of filing persons)
Copy to:
Deyan Spiridonov
Teri O’Brien
Paul, Hastings, Janofsky & Walker LLP
4747 Executive Drive, 12th floor
San Diego, CA 92121
(858) 458-3000
CALCULATION OF FILING FEE
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Transaction Valuation* |
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Amount of Filing Fee** |
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$296,706,926 |
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$34,447.67 |
* Estimated for purposes of calculating the filing fee only. This calculation assumes the purchase of 15,616,154 shares of the Common Stock of Herley Industries, Inc. (representing the number of shares, including common stock outstanding and options) at the tender offer price of $19.00 per share.
** The amount of the filing fee, calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #5 for fiscal year 2011, issued December 22, 2010, by multiplying the transaction value by .0001161.
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.
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Amount Previously Paid: $34,447.67 |
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Filing Party: Kratos Defense & Security Solutions, Inc. |
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Form or Registration No.: Schedule TO-T |
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Date Filed: February 25, 2011 |
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: o
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
o Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
o Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
This Amendment No. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (together with any amendments and supplements thereto, the “Schedule TO”) originally filed with the Securities and Exchange Commission on February 25, 2011, as amended by Amendment No. 1 filed on March 8, 2011 and Amendment No. 2 filed on March 15, 2011, relating to the offer by Lanza Acquisition Co., a Delaware corporation (the “Purchaser”) and an indirect wholly-owned subsidiary of Kratos Defense & Security Solutions, Inc., a Delaware corporation (“Kratos”) to purchase all of the issued and outstanding shares of common stock, par value $0.10 per share (collectively, the “Shares” and each, a “Share”), of Herley Industries, Inc., a Delaware corporation (“Herley”) at a purchase price of $19.00 per Share, net to the seller in cash, without interest, less any applicable withholding taxes (the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 25, 2011 (together with any amendments and supplements thereto, the “Offer to Purchase”), and in the related Letter of Transmittal (together with any amendments and supplements thereto, the “Letter of Transmittal”), copies of which are filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO. This Amendment is being filed on behalf of Kratos and the Purchaser.
All the information set forth in the Offer to Purchase and Letter of Transmittal: (i) is incorporated by reference herein in response to Items 1 through 9 and Items 11 through 12 of the Schedule TO, (ii) is supplemented by the information specifically provided in this Amendment and (iii) except as otherwise set forth below, remains unchanged. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchaser or in the Schedule TO.
Items 4 and 11
Items 4 and 11 of the Schedule TO are hereby amended and supplemented as follows:
The second paragraph of the subsection captioned “Antitrust Matters.” of Section 15 — “Certain Legal Matters” of the Offer to Purchase is hereby amended and restated in its entirety to read as follows:
“On February 28, 2011, Kratos and Herley each filed a Notification and Report Form for certain Mergers and Acquisitions under the HSR Act in connection with the purchase of the Shares in the Offer and the Merger with the U.S. Federal Trade Commission (the “FTC”) and the U.S. Department of Justice (the “DOJ”). The HSR Act prescribes a 15-day initial waiting period, moved to the next business day if the period would otherwise expire on a weekend or federal holiday, for which early termination was requested. Under the provisions of the HSR Act applicable to the Offer and the Merger, the waiting period under the HSR Act applicable to the purchase of the Shares in the Offer and the Merger expired at 11:59 p.m., New York City time, on March 15, 2011 with no action by either the FTC or the DOJ. Accordingly, the condition to the Offer relating to the expiration or termination of the applicable waiting period imposed by the HSR Act with respect to the Offer has been satisfied, but the Offer remains subject to the other conditions. See Section 14—“Conditions of the Offer”. The Merger will not require an additional filing under the HSR Act if the Purchaser owns more than 50% of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Offer has expired.”
Item 12
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
(a)(5)(C) Press Release issued by Kratos Defense & Security Solutions, Inc. on March 16, 2011.
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.
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LANZA ACQUISITION CO. |
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By: |
/s/ Deanna H. Lund |
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Name: |
Deanna H. Lund |
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Title: |
Executive Vice President and Chief Financial Officer |
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Date: |
March 16, 2011 |
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KRATOS DEFENSE & SECURITY SOLUTIONS, INC. |
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By: |
/s/ Deanna H. Lund |
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Name: |
Deanna H. Lund |
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Title: |
Executive Vice President and Chief Financial Officer |
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Date: |
March 16, 2011 |
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INDEX TO EXHIBITS
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(a)(1)(A) |
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Offer to Purchase, dated as of February 25, 2011.* |
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(a)(1)(B) |
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Letter of Transmittal (including Substitute Form W-9).* |
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(a)(1)(C) |
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Notice of Guaranteed Delivery.* |
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(a)(1)(D) |
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Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.* |
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(a)(1)(E) |
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Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and other Nominees.* |
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(a)(1)(F) |
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Summary Advertisement published on February 25, 2011.* |
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(a)(5)(A) |
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Press Release issued by Kratos Defense & Security Solutions, Inc. on February 7, 2011 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by Kratos Defense & Security Solutions, Inc. on February 7, 2011).* |
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(a)(5)(B) |
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Press Release issued by Kratos Defense & Security Solutions, Inc. on February 25, 2011.* |
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(a)(5)(C) |
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Press Release issued by Kratos Defense & Security Solutions, Inc. on March 16, 2011. |
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(b)(1) |
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Commitment Letter, dated February 7, 2011, by and among Kratos Defense & Security Solutions, Inc. and Jefferies Group, Inc., Key Capital Corporation and OPY Credit Corp. (incorporated by reference to Exhibit 10.1 to the Schedule TO-C filed by Kratos Defense & Security Solutions, Inc. on February 7, 2011).* |
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(d)(1) |
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Agreement and Plan of Merger, dated February 7, 2011, by and among Kratos Defense & Security Solutions, Inc., Lanza Acquisition, Co. and Herley Industries, Inc. (incorporated by reference to Annex A to the Prospectus Supplement dated February 7, 2011, pursuant to the Registration Statement on Form S-3 of Kratos Defense & Security Solutions, Inc. (File No. 333-161340)).* |
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(d)(2) |
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Confidentiality Agreement, dated October 12, 2010, between Herley Industries, Inc. and Kratos Defense and Security Solutions, Inc.* |
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(d)(3) |
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Exclusivity Agreement, dated January 19, 2011, between Herley Industries, Inc. and Kratos Defense and Security Solutions, Inc.* |
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(g) |
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Not applicable. |
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(h) |
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Not applicable. |
* Previously Filed
Exhibit (A)(5)(C)
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Press Contact: |
FOR IMMEDIATE RELEASE
KRATOS DEFENSE & SECURITY SOLUTIONS, INC.
ANNOUNCES EXPIRATION OF HART-SCOTT-RODINO WAITING PERIOD
FOR ACQUISITION OF HERLEY INDUSTRIES
SAN DIEGO, CA, March 16, 2011—Kratos Defense & Security Solutions, Inc. (NASDAQ: KTOS), a leading National Security Solutions provider, today announced that the waiting period required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, with respect to the pending acquisition of Herley Industries, Inc. (NASDAQ: HRLY) by Lanza Acquisition Co., an indirect, wholly-owned subsidiary of Kratos, at a price of $19.00 per share in cash, without interest, less any applicable withholding taxes, has expired without a request for additional information.
The expiration of the Hart-Scott-Rodino waiting period has satisfied one of the conditions to the closing of the tender offer. Unless the tender offer is extended, the tender offer and any withdrawal rights to which Herley’s stockholders may be entitled will expire at 12:00 midnight, New York City time, on Thursday, March 24, 2011 (the end of the day on Thursday). Following the acceptance for payment of shares in the tender offer and completion of the transactions contemplated in the merger agreement, Herley will be an indirect wholly-owned subsidiary of Kratos.
About Kratos Defense & Security Solutions
Kratos Defense & Security Solutions, Inc. (NASDAQ: KTOS) is a specialized National Security business providing mission critical products, services and solutions for United States National Security priorities. Kratos’ core capabilities are sophisticated engineering, manufacturing and system integration offerings for National Security platforms and programs. Kratos’ areas of expertise include C5ISR, unmanned systems, cyber warfare, cyber security, information assurance, critical infrastructure security and weapons systems sustainment. Kratos has primarily an engineering and technical oriented work force of approximately 2,800, the majority of which hold an active National Security clearance. The vast majority of Kratos’ work is performed on a military base, in a secure facility or at a critical infrastructure location. Kratos’ primary end customers are United States Federal Government agencies, including the Department of Defense, classified agencies, intelligence agencies and Homeland Security related agencies.
Additional Information and Where to Find It
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. Stockholders of Herley are urged to read the relevant tender offer documents and all amendments thereto because they will contain important information that stockholders should consider before making any decision regarding tendering their shares. Kratos and its acquisition subsidiary have filed a tender offer statement on Schedule TO with the SEC and Herley has filed a solicitation/recommendation statement on Schedule 14D-9 with respect to the tender offer described in this press release. Any offers to purchase or solicitations of offers to sell will be made only pursuant to such tender offer statement. The tender offer statement (including an offer to purchase, a related letter of transmittal and other offer documents) and all amendments thereto and the related solicitation/recommendation statement and all amendments thereto contain important information, including the various terms of, and conditions to, the tender offer, that should be read carefully by Herley’s stockholders before they make any decision with respect to the tender offer. Such materials will be made available to Herley’s stockholders at no expense to them. In addition, such materials (and all other offer documents filed with the SEC) are available at no charge on the SEC’s Web site: www.sec.gov and may also be obtained by directing a request to the Corporate Secretary of Kratos Defense & Security Solutions, Inc., at (858) 812-7300.