This Amendment No. 1 to Schedule TO
amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities
and Exchange Commission on November 25, 2008 (Schedule TO) by RADVISION Ltd.
(the Company) relating to the offer by the Company to eligible participants to
exchange options to purchase ordinary shares of the Companys, par value NIS 0.1 per
share, issued under our Year 2000 Employee Stock Option Plan (the 2000 Plan)
and having an exercise price of $7.50 or more per share, for replacement options
(Replacement Options) issued under our 2000 Plan that will entitle the holder
to purchase the same number of our ordinary shares at an exercise price equal to the
greater of (i) $7.50 per share and (ii) the per share closing price of our
ordinary shares on the NASDAQ Global Market on the date the Replacements Options are
granted, upon the terms and subject to the conditions in the Offer to Exchange that was
filed as Exhibit 99.(a)(1) to the Schedule TO, as amended and supplemented by this
Amendment No. 1.
This Amendment No. 1 is being filed
in connection with the Companys response to comments received from the Securities
and Exchange Commission.
Except as specifically set forth
herein, this Amendment No. 1 does not modify any of the information previously
reported in the Schedule TO.
As permitted by General Instruction F
to the Schedule TO, the information set forth in the Schedule TO, as amended by this
Amendment No. 1, including all other schedules and exhibits hereto and thereto, is hereby
expressly incorporated by reference herein in response to Items 1 through 13 of the
Schedule TO. You should read this Amendment No. 1 to the Schedule TO together with the
Schedule TO.
ITEM 4. |
Terms of the Transaction. |
The third paragraph of Section 3 of
the Offer to Exchange, titled Procedures for Surrendering Options, is hereby
amended and restated in its entirety as follows:
Determination of Validity;
Rejection of Options; Waiver of Defects; No Obligation to Give Notice of Defects. We
will determine, in our discretion, all questions as to the number of shares subject to
eligible options and the validity, form, eligibility, including time of receipt, and
acceptance of any surrender of options. Security holders may challenge any determination
we make concerning these matters. Only a court of competent jurisdiction can make a
decision concerning these matters that will be final and binding upon all persons.
Furthermore, subject to our compliance with Rule 13e-4 under the Exchange Act, we reserve
the right to waive with respect to all option holders any of the conditions of this offer
or any defects or irregularities. We cannot make any such waiver for any one person or
group of people. This is a one-time offer, and we will strictly enforce this offer period,
subject only to an extension that we may grant in our sole discretion.
The fourth paragraph of Section 4 of
the Offer to Exchange, titled Change in Election, is hereby amended and
restated in its entirety as follows:
Neither we nor any other person
is obligated to inform you of any defects or irregularities in any election form or notice
of withdrawal, and no one will be liable for failing to inform you of any defects or
irregularities. We will determine, in our discretion, all questions as to the validity and
form, including time of receipt, of election forms and notices of withdrawal. Security
holders may challenge any determination we make concerning these matters. Only a court of
competent jurisdiction can make a decision concerning these matters that will be final and
binding upon all persons.
Section 6 of the Offer to Exchange,
titled Conditions of this Offer, is hereby amended and restated in its
entirety as follows:
6. |
CONDITIONS OF THIS OFFER |
We may terminate or amend this offer,
or postpone our acceptance and cancellation of any options surrendered to us, in each
case, subject to Rule 13e-4(f)(5) promulgated under the Exchange Act, if at any time prior
to the expiration date, we determine that any of the following events has occurred and, in
our reasonable judgment, it is inadvisable for us to proceed with this offer:
(a) |
any action or proceeding by any government agency, authority or tribunal
or any other person, domestic or foreign, is threatened (orally or in writing)
or instituted or pending before any court, authority, agency or tribunal seeking
to enjoin, make illegal or delay completion of this offer, the acquisition of
some or all of the surrendered options, the issuance of new options, or
otherwise relates to this offer or that, in our reasonable judgment, could
materially and adversely affect our business, condition, financial or other,
income, operations or prospects or materially impair our ability to create
better performance incentives for our employees through this offer; |
(b) |
any action is threatened (orally or in writing), pending or taken, or any
approval is withheld, by any court or any authority, agency or tribunal that, in
our reasonable judgment, would or potentially would: |
|
(i) |
make
it illegal for us to accept some or all of the surrendered options or to
issue some or all of the new options or otherwise restrict or prohibit
consummation of this offer or otherwise relate to this offer; |
|
(ii) |
delay
or restrict our ability, or render us unable, to accept the surrendered
options for exchange or to issue new options for some or all of the
surrendered options; |
|
(iii) |
materially
impair our ability to create better performance incentives for our
employees through this offer; or |
|
(iv) |
materially
and adversely affect our business, condition, financial or other, income,
operations or prospects; |
(c) |
any general suspension of trading in, or limitation on prices for,
securities on any national securities exchange or in the over-the-counter
market; |
(d) |
the declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States or Israel, whether or not mandatory; |
(e) |
any change, development, clarification or position taken in generally
accepted accounting principles that could or would require us to record a
compensation expense against our earnings in connection with this offer for
financial reporting purposes; |
(f) |
the commencement of a war, armed hostilities or other international or
national crisis involving or impacting the United States or Israel, which could
reasonable be expected to affect materially or adversely, or to delay
materially, the completion of this offer; |
(g) |
any significant and adverse change in the market price of our ordinary shares or
any change in the general political, market, economic or financial conditions in
the United States, Israel or elsewhere that could, in our reasonable judgment,
have a material and adverse effect on the business condition (financial or
otherwise), operation or prospects of our company or our subsidiaries or on the
trading in our ordinary shares; |
(h) |
any change in the general political, market, economic or financial conditions in
the United States, Israel or elsewhere that could, in our reasonable judgment,
have a material and adverse effect on the business condition (financial or
otherwise), operation or prospects of our company or our subsidiaries that, in
our reasonable judgment, makes it inadvisable to proceed with this offer; or |
(i) |
in the case of any of the foregoing at the time of the commencement of the
offer, a material acceleration or worsening thereof; |
(j) |
another person publicly makes or proposes a tender or exchange offer for some or
all of our ordinary shares, or an offer to merge with or acquire us, or we learn
that: |
|
(i) |
any
person, entity or group, within the meaning of Section 13(d)(3) of the
Exchange Act, has acquired or proposed to acquire beneficial ownership of more than 5% of
the outstanding shares of our ordinary shares, or any new group is formed that
beneficially owns more than 5% of our outstanding ordinary shares, other than any such
person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC on or
before the date of this offer; |
|
(ii) |
any
such person, entity or group that has filed a Schedule 13D or Schedule 13G with the SEC
on or before the date of this offer has acquired or proposed to acquire beneficial
ownership of an additional 2% or more of our outstanding ordinary shares; or |
|
(iii) |
any
person, entity or group shall have filed a Notification and Report Form
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 or
made a public announcement that it intends to acquire us or any of
our assets or securities. |
The conditions to this offer are for
our benefit. We may assert them in our discretion prior to the expiration date and we may
waive them at any time and from time to time prior to the expiration date, whether or not
we waive any other condition to this offer. If a condition is triggered, we will notify
optionholders and shareholders as soon as practicable whether we have waived an offer
condition. Our failure to exercise any of these rights is not a waiver of any of these
rights, and the waiver of any of these rights with respect to particular facts and
circumstances is not a waiver with respect to any other facts and circumstances. Security
holders may challenge any determination we make concerning the events described in this
section. Only a court of competent jurisdiction can make a decision concerning the events
described in this section that will be final and binding upon all persons.
ITEM 7. |
Source and Amount of Funds or Other Consideration. |
See the amended and restated Section
6 of the Offer to Exchange, titled Conditions of this Offer, set forth above
in Item 4 titled Terms of the Transaction.
ITEM 10. |
Financial
Statements. |
The financial information contained
in Section 9 of the Offer to Exchange, titled Information About RADVISION; Summary
Financial Information is hereby amended and restated in its entirety as follows:
Financial Information.
Set forth below is a selected summary of our companys financial information. This
information is derived from and qualified by reference to our publicly available
consolidated financial statements and should be read in conjunction with the financial
statements, related notes and other financial information included in F-1 through F-45 of
our Annual Report on Form 20-F for the fiscal year ended December 31, 2007 and our Report
of Foreign Private Issuer on Form 6-K filed with the SEC on October 30, 2008, which are
incorporated herein by reference.
The selected consolidated statement
of operations data for the years ended December 31, 2006 and 2007 and the selected
consolidated balance sheet data as of December 31, 2006 and 2007 are derived from our
audited consolidated financial statements that are included in our Annual Report on Form
20-F for the year ended December 31, 2007 incorporated by reference in this document.
The information as of September 30, 2008 and for the nine months ended September 30, 2007
and 2008 is derived from our non-audited financial statements included in our Report of
Foreign Private Issuer on Form 6-K filed with the SEC on October 30, 2008 incorporated by
reference in this document.
Consolidated Statement
of Operations Data:
|
Year Ended December 31,
|
Nine Months Ended
September 30,
|
|
2006
|
2007
|
2007
|
2008
|
|
|
|
(unaudited)
|
|
(in thousands, except per share data) |
|
|
|
|
|
Revenues |
|
|
$ | 91,023 |
|
$ | 91,583 |
|
$ | 69,267 |
|
$ | 62,007 |
|
Cost of revenues | | |
| 18,165 |
|
| 18,294 |
|
| 13,724 |
|
| 13,728 |
|
|
| |
| |
| |
| |
Gross Profit | | |
| 72,858 |
|
| 73,289 |
|
| 55,543 |
|
| 48,279 |
|
Operating expenses: | | |
Research and development | | |
| 25,331 |
|
| 30,329 |
|
| 22,819 |
|
| 27,125 |
|
Marketing and selling | | |
| 30,648 |
|
| 32,627 |
|
| 24,120 |
|
| 26,978 |
|
General and administrative | | |
| 6,492 |
|
| 8,633 |
|
| 6,665 |
|
| 6,905 |
|
Patent settlement accrual | | |
| 1,900 |
|
| - |
|
| - |
|
| - |
|
|
| |
| |
| |
| |
Total operating costs and expenses | | |
| 64,371 |
|
| 71,589 |
|
| 53,604 |
|
| 61,008 |
|
Operating income (loss) | | |
| 8,487 |
|
| 1,700 |
|
| 1,939 |
|
| (12,729 |
) |
Financial income, net | | |
| 5,825 |
|
| 6,095 |
|
| 5,013 |
|
| 1,395 |
|
|
| |
| |
| |
| |
Income (loss) before taxes on income | | |
| 14,312 |
|
| 7,795 |
|
| 6,952 |
|
| (11,334 |
) |
Tax benefit (expense), net | | |
| 936 |
|
| 1,790 |
|
| 180 |
|
| (119 |
) |
|
| |
| |
| |
| |
Net income (loss) | | |
$ | 15,248 |
|
$ | 9,585 |
|
$ | 7,132 |
|
$ | (11,453 |
) |
|
| |
| |
| |
| |
Basic net earnings per Ordinary share | | |
$ | 0.69 |
|
$ | 0.44 |
|
$ | 0.32 |
|
$ | (0.55 |
) |
Weighted average number of Ordinary shares used to | | |
compute basic net earnings per share | | |
| 22,077 |
|
| 21,951 |
|
| 22,109 |
|
| 20,670 |
|
Diluted net earnings (loss) per Ordinary share | | |
$ | 0.67 |
|
$ | 0.43 |
|
$ | 0.31 |
|
$ | (0.55 |
) |
Weighted average number of Ordinary shares used to | | |
compute diluted net earnings (loss) per share | | |
| 22,747 |
|
| 22,482 |
|
| 22,771 |
|
| 20,670 |
|
Consolidated Balance
Sheet Data:
|
As at December 31,
|
Nine Months
Ended September
30, 2008
|
|
2006
|
2007
|
(unaudited)
|
|
(in thousands, except per share data) |
|
|
|
|
|
|
|
|
Cash and cash equivalents |
|
|
$ | 23,110 |
|
$ | 45,370 |
|
$ | 31,670 |
|
Total current assets | | |
$ | 129,198 |
|
$ | 140,815 |
|
$ | 105,828 |
|
Long-term investments and receivables | | |
$ | 44,334 |
|
$ | 24,660 |
|
$ | 49,197 |
|
Property and equipment, net | | |
$ | 3,609 |
|
$ | 5,237 |
|
$ | 5,490 |
|
Goodwill | | |
$ | 2,966 |
|
$ | 2,966 |
|
$ | 2,966 |
|
Other intangible assets, net | | |
$ | 2,452 |
|
$ | 1,362 |
|
$ | 544 |
|
Total assets | | |
$ | 182,559 |
|
$ | 175,040 |
|
$ | 164,025 |
|
Current liabilities | | |
$ | 25,537 |
|
$ | 21,825 |
|
$ | 25,120 |
|
Accrued severance pay | | |
$ | 4,417 |
|
$ | 5,656 |
|
$ | 7,022 |
|
Total liabilities | | |
$ | 29,954 |
|
$ | 27,481 |
|
$ | 32,142 |
|
Shareholders' equity | | |
| 152,605 |
|
| 147,559 |
|
| 131,883 |
|
Total liabilities and shareholders' equity | | |
$ | 182,559 |
|
$ | 175,040 |
|
$ | 164,025 |
|
Item 12 of the Schedule TO is hereby
amended and restated as follows:
(a) |
(1) |
Offer to Exchange Outstanding Share Options, dated November 25, 2008,
including Summary Term Sheet, as amended. |
|
(2) |
Form
of e-mail to be sent to eligible employees upon commencement of the Offer
to Exchange, from Boaz Raviv, Chief Executive Officer of RADVISION Ltd.* |
|
(3) |
Form
of e-mail to be sent to eligible employees upon commencement of the Offer
to Exchange from Human Resources Department of RADVISION Ltd.* |
|
(4) |
Form
of Letter to Eligible Option Holders* |
|
(5) |
Form
of Election Form, as amended. |
|
(6) |
Form
of Notice of Withdrawal.* |
|
(7) |
Form
of Grant Detail Report.* |
|
(8) |
Form
of e-mail to be sent to eligible employees with amended Offer to Exchange
and Election Form. |
|
(9) |
Forms
of reminder e-mails to be sent to eligible employees. |
|
(10) |
Annual
Report on Form 20-F for the fiscal year ended December 31, 2007 filed with
the Securities and Exchange Commission on June 24, 2008 (File No.
000-29871), is incorporated herein by reference. |
|
(11) |
Report
of Foreign Private Issuer on Form 6-K filed with the Securities and
Exchange Commission on October 30, 2008, is incorporated herein by
reference. |
(d) |
(1) |
Year
2000 Employee Stock Option Plan, as amended, is incorporated herein by
reference to the Annual Report on Form 10-K for the year ended December
31, 2001, filed with the Securities and Exchange Commission on March 19,
2002 (File No. 000-29871). |
|
(2) |
Form
of Stock Option Agreement under the RADVISION Ltd. Stock Option Plan.* |
|
|
* Previously
filed with the Schedule TO filed with the Securities and Exchange Commission on November
25, 2008, and incorporated herein by reference. |
SIGNATURE
After
due inquiry and to the best of my knowledge and belief, I certify that the information set
forth in this Amendment No. 1 to Schedule TO is true, complete and correct.
|
|
RADVISION LTD.
By: /s/ Boaz Raviv
Boaz Raviv Chief Executive Officer |
Date: December 9, 2008
EXHIBIT INDEX
Exhibit Number |
Description |
(a)(1) |
Offer
to Exchange Outstanding Share Options, dated November 25, 2008, including
Summary Term Sheet, as amended. |
(a)(2)* |
Form
of e-mail to be sent to eligible employees upon commencement of the Offer to Exchange
from Boaz Raviv, Chief Executive Officer of RADVISION Ltd. |
(a)(3)* |
Form
of e-mail to be sent to eligible employees upon commencement of the Offer to Exchange
from Human Resources Department of RADVISION Ltd. |
(a)(4)* |
Form
of Letter to Eligible Option Holders. |
(a)(5) |
Form
of Election Form, as amended. |
(a)(6)* |
Form
of Notice of Withdrawal. |
(a)(7)* |
Form
of Grant Detail Report. |
(a)(8) |
Form
of e-mail to be sent to eligible employees with amended Offer to Exchange and
Election Form. |
(a)(9) |
Forms
of reminder e-mails to be sent to eligible employees. |
(a)(10) |
Annual
Report on Form 20-F for the fiscal year ended December 31, 2007 filed with the
Securities and Exchange Commission on June 24, 2008 (File No. 000-29871), is
incorporated herein by reference. |
(a)(11) |
Report
of Foreign Private Issuer on Form 6-K filed with the Securities and Exchange
Commission on October 30, 2008, is incorporated herein by reference |
(d)(1) |
Year
2000 Employee Stock Option Plan, as amended, is incorporated herein by
reference to the Annual Report on Form 10-K for the year ended December 31,
2001, filed with the Securities and Exchange Commission on March 19, 2002 (File
No. 000-29871). |
(d)(2)* |
Form
of Stock Option Agreement under the RADVISION Ltd. Stock Option Plan. |
|
|
* Previously
filed with the Schedule TO filed with the Securities and Exchange Commission on November
25, 2008, and incorporated herein by reference. |