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. 2)
AVOCENT
CORPORATION
(Name
of Subject Company)
GLOBE
ACQUISITION CORPORATION
EMERSON
ELECTRIC CO.
(Names
of Filing Persons – Offeror)
Common
Stock, Par Value $0.001 Per Share
(Title
of Class of Securities)
________________
053893103
(Cusip
Number of Class of Securities)
Frank
L. Steeves
Senior
Vice President, Secretary and General Counsel
Emerson
Electric Co.
8000 West
Florissant Avenue
St. Louis,
Missouri 63136
Telephone:
(314) 553-2000
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and
Communications on Behalf of Filing Persons)
Copies
to:
Phillip
R. Mills, Esq.
Marc
O. Williams, Esq.
Davis
Polk & Wardwell LLP
450
Lexington Avenue
New
York, New York 10017
Telephone:
(212) 450-4000
£
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:
R 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. £
This
Amendment No. 2 (“Amendment No.
2”) amends and supplements the Tender Offer Statement on Schedule TO (the
“Schedule TO”)
originally filed on October 15, 2009, as previously amended, by Emerson Electric
Co., a Missouri corporation (“Emerson”), and Globe
Acquisition Corporation, a Delaware corporation (“Purchaser”) and a wholly owned
subsidiary of Emerson, relating to the offer by Purchaser to purchase all
outstanding shares of common stock, par value $0.001 per share (“Shares”), of Avocent
Corporation, a Delaware corporation (“Avocent”), for $25.00 per
Share in cash, without interest, less certain applicable taxes, upon the terms
and subject to the conditions set forth in the Offer to Purchase dated October
15, 2009 (the “Offer to
Purchase”) and in the related Letter of Transmittal (which, together with
any amendments or supplements thereto, collectively constitute the “Offer”).
All
capitalized terms used in this Amendment No. 2 without definition have the
meanings ascribed to them in the Schedule TO.
The item
of the Schedule TO set forth below is hereby amended and supplemented as
follows:
Item
11. Additional Information.
Item 11
of the Schedule TO is hereby amended and supplemented by adding the following
text thereto:
“On November 2, 2009, Emerson submitted
the Hungarian Notification with respect to the Offer to the Hungarian
Competition Office (Gasdasági Versenyhivatal).
On November 9, 2009, the parties in the
litigations pending in both Alabama and Delaware relating to the transactions
contemplated by the Merger Agreement (collectively, the “Actions”) entered into a
memorandum of understanding (the “Memorandum of Understanding”)
reflecting an agreement-in-principle to settle both Actions on terms and
conditions set forth in the Memorandum of Understanding. Pursuant to the
Memorandum of Understanding, Avocent agreed to make certain additional
disclosures in the Schedule 14D-9, and plaintiffs, in turn, agreed to dismiss
the Actions and release all claims and actions relating to the proposed
transaction. In addition, the defendants agreed to pay or cause to be
paid to plaintiffs’ attorneys fees and expenses in an amount to be ordered by
the court but not to exceed $700,000 for both Actions. The settlement is subject
to, among other things, final court approval and consummation of the
Offer.
The settlement will not affect the
amount of the Offer Price or the merger consideration.
The defendants (including Emerson) have
denied and continue to deny any wrongdoing or liability with respect to all
claims, events and transactions complained of in the aforementioned litigations
or that they engaged in any wrongdoing. The defendants entered into the
Memorandum of Understanding to eliminate the uncertainty, burden, risk, expense
and distraction of further litigation.”
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.
Date:
November 10, 2009
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GLOBE
ACQUISITION CORPORATION
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By:
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/s/ Alan
Mielcuszny |
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Name:
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Alan
Mielcuszny
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Title:
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Vice
President
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EMERSON
ELECTRIC CO.
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By:
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/s/ Alan
Mielcuszny |
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Name:
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Title:
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Vice
President, Development
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