SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 to
SCHEDULE TO
(Rule 13e-4)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
NetApp, Inc.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
Options to Purchase Common Stock, $0.001 par value
(Title of Class of Securities)
64110D104
(CUSIP Number of Class of Securities Underlying Common Stock)
Daniel J. Warmenhoven
Chief Executive Officer and Director
NetApp, Inc.
495 East Java Drive,
Sunnyvale, California 94089
(408) 822-6000
(Name, address and telephone numbers of person authorized to receive notices and
communications on behalf of filing persons)
Copies to:
Steven E. Bochner, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
CALCULATION OF FILING FEE
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Transaction Valuation* |
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Amount of Filing Fee |
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$577,573,970
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32,228.63 |
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Calculated solely for purposes of determining the filing fee. This amount assumes that options to purchase 36,102,463 shares of
common stock of NetApp, Inc. having an aggregate value of $577,573,970 as of May 12, 2009 will be exchanged or cancelled pursuant
to this offer. The aggregate value of such securities was calculated based on the Black-Scholes option pricing model. The amount of
the filing fee, calculated in accordance with the Securities Exchange Act of 1934, as amended, equals $55.80 for each $1,000,000 of
the value of this transaction. |
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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:
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$32,228.63 |
Form or Registration No.:
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005-48933 |
Filing party:
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NetApp, Inc. |
Date filed:
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May 22, 2009 |
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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:
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third-party tender offer subject to Rule 14d-1. |
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issuer tender offer subject to Rule 13e-4. |
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going-private transaction subject to Rule 13e-3. |
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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:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer). |
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer). |
Exhibit (a)(1)(I)
May 2009
NetApp Stock Option
Exchange
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What and Why?
What is the NetApp option exchange?
A one-time opportunity for employees to voluntarily
exchange "underwater" options for new restricted stock
units
Why is NetApp offering the exchange?
Value to Employees
Stock constitutes a key component of incentive and
long-term retention
Want to create environment where employees receive
equity value since most employees' option grants are
significantly underwater
Value to Company
Retention of employees who are key to our success
Reduces potential stockholder dilution
A portion of exchanged shares returned to the option
pool as available for grant
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Option Exchange Phases
Phase 1 - Shareholder Phase
Determine option exchange parameters
Solicit stockholder approval of option exchange
Shareholders approved!
Phase 2 - Employee Phase
Legal Preparation & Communication
Phase 3 - Exchange Phase
Launch & complete option exchange program
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Where Are We Now
Phase 3 - Exchange Phase
Exchange launched Friday May 22, 2009
Employees received offer information via e-mail
Exchange will be held open for 20 U.S. business days
only
Limited period only. Cannot exchange options after
exchange closes
SEC requirement, no flexibility permitted
Exchange targeted to close mid-to-late June (estimated
to be June 19, 2009 9:00 p.m. PDT
Upon close of exchange, surrendered options will be
cancelled, new RSUs granted
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Option to RSU Exchange
Exchange stock options for a lesser number of
restricted stock units (RSUs)
What is an RSU?
Right to receive shares of NetApp stock without
additional payment
Subject to vesting conditions & tax withholding at
vest
RSUs provide value, even if stock depressed
RSUs do not have voting rights or dividend rights until
vested
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Eligible Option Holders
All employees in our U.S. and certain overseas
locations that are employed by NetApp throughout the
exchange period
Officers and directors excluded from exchange:
Dan Warmenhoven, Tom Georgens, Steve Gomo,
Rob Salmon, Tom Mendoza
All members of the Board of Directors
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Eligible Option Grants
Options granted prior to June 20, 2008
Exercise price greater than or equal to $22.00 per
share
Grant-by-grant basis
Options granted from all option plans, including plans
from acquisitions
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Exchange Ratios
Five tiers eligible for the option exchange:
* Represents number of options surrendered to receive 1 RSU
Fractional shares rounded down (e.g. if upon exchange, result
would be 450.9 RSUs, you will receive 450 RSUs)
Exchange ratios applied on a grant-by-grant basis
If Option Exercise Price Is: Then Exchange Ratio of Options to RSUs* Is:
$22.00-$27.30 5 to 1
$27.31-$32.49 6 to 1
$32.50-$37.99 7 to 1
$38.00-$46.99 10 to 1
$47 and up 25 to 1
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Vesting of New RSUs
Depends upon vesting status & exercise price of
surrendered option grants
For surrendered option grants where entire grant is either
unvested or partially vested:
New RSU will have a 4-year vest (1/4 on each
anniversary of grant date)
For surrendered option grants where entire grant is fully
vested, new RSU vesting is based upon the exercise price
of the surrendered option as follows:
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Option Exercise Price: Then Vesting of New RSU is:
$22.00-$27.30 2 years (1/2 on each anniversary of grant date)
$27.31-$32.49 2 years (1/2 on each anniversary of grant date)
$32.50-$37.99 2 years (1/2 on each anniversary of grant date)
$38.00-$46.99 3 years (1/3 on each anniversary of grant date)
$47 and up 3 years (1/3 on each anniversary of grant date)
Vesting of New RSUs
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Cash Out <40 RSUs
If, upon exchange of option grant, surrendered options
would have resulted in fewer than 40 RSUs, a cash
payout is substituted for RSUs
Cash payment value based upon market closing price
on the day prior to expiration of option exchange
Payment, less applicable withholding, made as soon
as practicable
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How Does Exchange Work?
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Election process
Employee must log into offer website or make election
via fax or email. Website (https://netapp-
exchange.equitybenefits.com)
Elect options to exchange, on grant-by-grant basis
Receive confirmation of election
Employee can elect to exchange or withdraw elections
as often as desired during 20 day offer period
Once offer period expires, no further elections
New RSUs granted immediately after close of
exchange
RSU confirmation will be issued within several weeks
after close of exchange
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Examples of Exchange
Grant Date Options Outstanding Vested Options Unvested Options Exercise Price Exchange Ratio New RSUs* New Vest Term
Unvested or Partially Vested Option Jan 16, 2007 1,000 562 438 $39.83 10-for-1 100 4 Years
Fully Vested Option Jan 3, 2005 1,000 1,000 0 $32.70 7-for-1 142 2 Years
Fully Vested Option Dec 1, 2000 1,000 1,000 0 $53.938 25-for-1 40 3 Years
Option Exchanged for <40 RSUs Mar 1, 2000 750 750 0 $95.032 25-for-1 $540.00** N/A
* New RSUs = Options Outstanding / Exchange Ratio (rounded down to nearest whole
RSU)
** If exchange of options would have resulted in fewer than 40 RSUs, a cash payout is
substituted for the grant of RSUs. Cash payout = calculated RSU shares x closing stock
price on day preceding close of exchange offer. In this example, assuming stock price of
$18, cash payout = 30 x $18 = $540.00, less applicable withholdings
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Questions?
See FAQs, web page or contact
xdl-optexch-questions
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Exhibit (a)(1)(J)
The
following is the transcript of a video-on-demand presentation by
Company management explaining the option
exchange program for NetApp, Inc. employees disseminated on June 1, 2009.
Hello, everyone. Today were going to talk about the NetApp option exchange, uh, why were doing it
and what it means to you. The first slide here talks about the, uh, what is the option exchange and
why were doing this. So an option exchange is a one-time opportunity for employees to exchange
underwater options from new, restricted stock units. Now, I should stop here and let you know that
this is viewed by the Securities Exchange Commission as a public offering of shares, so this is a
very tightly regulated process with a lot of restrictions on communications, et cetera.
Youre going to notice today that Im sticking very, very close to the to the slides, uh, that
Im showing. And the reason for that is because the process is so tightly controlled by the SEC.
So, um, I think we can answer all your questions, but, uh, please bear with me as I kind of walk
you through the slides. So why is NetApp offering the exchange? Well, the first thing were trying
to do is address the issues around motivation and retention of our employees. You know, when we
started this process, when the stock was in the low teens, about 84 percent of, uh, all stock
options were underwater and about, uh, 90 percent of all employees had stock options that were
underwater.
So we had a severe morale problem created by the fact that all these options were underwater. This
is what were trying to address. If you think about the exchange, theres really three phases to
it. The first phase was the shareholder phase. This process actually started way back in January.
It started with legal, HR, finance, Dan, and Tom Georgens. And basically we were trying we were
going to try and address this issue we had of all these underwater options and the impact it was
having on our employee base.
So we came up with several approaches to, uh, to dealing with the problem, and, uh, we actually
went out to our shareholders and asked them what they thought about these
approaches. Now why would we do that? We did that because shareholders have to approve this. Again,
were issuing new equity and shareholders are required to approve that. So, anyway, um, we got the
feedback from shareholders, and frankly it wasnt very good. Because we were looking at an option
for option exchange, taking these old, underwater options and issuing new ones on a one-for-one
basis.
And the shareholders didnt like that. Why? Because the shareholders were being diluted
dramatically. So if you think about what were trying to balance here, were trying to balance a
value transfer between the old, existing option and the new RSU. We had a balance, um, you know,
the dilution that the shareholders were going to experience because the more dilution there is, the
less, um, value that the shareholders have per share of stock. And finally we had a retention issue
that we had to address.
So those are the thats a three-legged stool that we had to balance. And, uh, so we went back
and we recrafted the, uh, the exchange program, we interjected the the notion of, uh, of RSUs,
and that helped us get the right kind of exchange to minimize the dilution to shareholders and make
it acceptable to them. We then went on the road, tried to sell the program to the, uh, shareholder
base, and you can imagine in this environment it was a difficult sale. But at the end of the day,
we prevailed, shareholders voted to approve this.
So that concluded phase I of the process. In phase II of the process, this is what we call the
employee phase. And its kind of a a a funny name for this because really what its about is
is preparing all the legal documents for the tender offer, uh, and all the communication for the
employees. So its basically preparing everything so that the employees can participate in the
exchange. Weve also completed that process. Now weve launched the exchange. And basically, um,
thats phase III of the project. Thats where we are today. Um, and now its up for us to basically
make sure the employees have all the information they need to make a good decision around this and
complete the option exchange program.
So phase III, whats it all about? So the exchange was launched on Friday, uh, May 22. Employees
shouldve received a offer, uh, information via their email. The exchange is going to be held open
for 20 business days. Now this is very important. Its a limited period only. After these 20 days,
we cannot conduct any more exchange. We have to end it, uh, um, promptly, uh, at 9 p.m., uh, on the
on the 20th day. So and thats regulated by the SEC.
So theres theres SEC is driving this. There is no flexibility permitted on our our part.
So at the end of the day, on the last day of the exchange, whatever you have in the system, thats
whats going to be recorded. The exchange is targeted to close, uh, in mid to late June. Um, were
estimating it to be about, uh, June 19 at 9 p.m., uh, Pacific Daylight Time. And upon the close,
the exchange, uh, of the exchange, the surrendered options will be canceled and the new options
the new RSUs will be granted.
Lets talk about the exchange program in more detail. This slide shows the, uh, option to RSU
exchange. So basically what were going to be doing here is exchanging the old older stock
options, the underwater stock options for a lesser number of restricted stock units. Now an RSU is
basically a right to receive NetApp stock without any additional payment. Its subject to vesting
conditions and tax withholding at the point of vesting.
The interesting thing about RSUs is that they always provide value. Even if the stock price
declines, theres value inherent in an RSU. RSUs dont have voting rights or dividend rights, but
once theyre vested, they behave just like a, uh, they are they become a share of stock.
Eligible option holders. All employees in in our U.S. and, uh, overseas locations that are
employed by NetApp throughout the exchange period are eligible to participate.
The key point here is youve got to be employed throughout the exchange period. People that are not
eligible to participate in the exchange are the senior officers, Dan, Tom Georgens, Rob Salmon, Tom
Mendoza, and myself, and all members of the board of directors. So theyre all excluded from the
program. Eligible option grants. So what
what grants are eligible to participate? Well, all option grants that were granted prior to June
20, 2008 are eligible. The exercise price if your exercise price is greater than or equal to $22
per share, its eligible.
Again, before June 20 and an exercise price greater than or equal to $22 per share. Now, the
exchange is going to be done on a grant by grant basis, not option by option. So an entire grant is
in play here, not a single option. You cant break up an, uh, a grant that youve received into
some options are going to participate, some arent, et cetera. Youre either all in with the grant
or youre all out with the grant.
Options granted from all option plans, including, uh, plans from acquisitions. So basically
everybody thats received stock options here at NetApp or if youve been acquired by NetApp, uh,
youre able to participate. Exchange ratios. Theres basically five, uh, tiers here, um, for the
exchange ratios as you can see from this table. Now, before I I delve into this in detail, let
me just describe why there are exchange ratios to start with. So remember when we talked about
balancing shareholder requirements with employee needs, right?
So obviously the shareholders werent werent going to, uh, support a situation where we were,
uh, exchanging an option for an option. We talked about the dilution impact that that would have,
and employees would not, uh, support that. So what the exchange ratio does here is try to make, uh,
the value transfer between the shareholder and the employee neutral. In fact, it just slightly
favors the shareholder because of rounding.
So what do I mean by the value transfer? Well obviously the options youre holding, even though
theyre underwater, have a value associated with them. Theres some intrinsic value, uh, because
you have time left to exercise them, by definition, and theres a chance that the stock could rise
above the stock price and create value. So we look at what the value of those options are and then
we look at the the value of the RSU. Now an option has potential value. A a an RSU is
has certain value.
You know the value of the RSU is equal to a share of the stock. So what exchange rate basically
equates the potential value associated with the options that youre going to be, um, exchanging
with the RSU that youre going to be getting. Thats how this exchange rate table works. So
basically once again the the point of this table was to try and neutralize the exchange value of
the potential value in the options for the certain value in the in the RSU, okay?
So if you go down this table then, if your option is priced between $22 and $27, the exchange ratio
is five to one. That means you you surrender five options and you receive one RSU. At $27.31 to
$32.49, you exchange six options to receive one RSU; $32.50 to $37.99, its seven to one; $38.00 to
$46.99, its 10 to 1, and $47 and up its 25 to 1.
Now, youll notice as the option price goes higher, the exchange rate gets larger. And the reason
for that is because those options that are that are very, uh, that have strike prices in the
high, you know, 30s and 40s and and above type of thing, the potential value of those is pretty
small. So the high exchange rate, basically, once again, equates that value with the certain value
of receiving RSU. I think its important to note here also that, uh, any fractional share when
were done, uh, making this exchange, any fractional shares of RSU will be rounded down.
So if youve got, uh, if youve got 10 lets say 100.5 RSUs, basically that would round down to
100 RSUs. Uh, the exchange ratios, again, are applied to a on a grant by grant basis. Okay, uh,
vesting of new RSUs. So the vesting schedule depends on the status and the exercise price of the
surrendered option grants. What do I mean by that? For surrendered option grants where the entire
grant is either unvested or partially vested, for purposes of this exchange, were going to
consider that an unvested option grant.
And those will be subject to a new four-year vest period with one quarter of that, uh, of the new
RSU grant being vested every year. So in other words after the first year, 25 percent will vest.
After the second year, another 25 percent will will vest. The third
year after the third year, another 25 percent will vest. And finally after the the last year,
the fourth year, the final 25 percent will vest. We call this a cliff vesting process. So one
quarter of the RSUs will vest at the end of each of the four years.
For surrounded for for surrendered option grants, where the entire grant is fully vested, the
new S the new RSU vesting schedule is based on the exercise price of the stock of the
surrendered stock option. Let me show you what I mean. If you have a fully vested grant and your
option price is anywhere from $22 to $37.99, the top three tiers that you see there, your vesting
program will be over two years. Basically a 50 percent cliff vesting at the end of the first year
and a 50 percent, uh, cliff vesting at the end of the second year.
If your option strike price is between $38 and above, well then your your new RSU will vest over
a three-year period with, uh, a 33 percent cliff vesting at the end of each of the first three
years. So 33 percent at the end of the first year, another 33 percent at the end of the second
year, and then 33 percent more at the end of the, uh, of the third year. Now, youre wondering why
these how did we come up with these vesting schedules? Again, this was a tradeoff we made
between the interests of the employee and the interests of the shareholder.
Also the interests of the company. It wouldnt be right to basically, uh, vest these, uh, new RSUs
immediately or in a very, very short time frame. The whole point of this was to reestablish the
motivational incentives and the retention incentives that the, um, that a that an employee
equity plan should have. So we wanted to make sure that theres adequate vesting here to keep
employees, um, motivated and and retained here at NetApp, um, while at the same time offering
them value in the form of this exchange.
A couple of details now. So if, uh, if you if we do the exchange and someone has a situation
where theyre going to get less than 40 RSUs, then, uh, the company will provide a cash payout
instead of the RSU. So if you get less than 40, lets say you have 39 or 35 or 25, whatever it is,
RSUs, were going to give you cash in instead of the RSU.
The cash payment value is going to be based upon the the closing price of our stock on the day
prior to the expiration of the option exchange. Now why did we do that?
Because thats a requirement of the SEC. The payment, less the applicable withholding, will be made
as soon as practicable. Thatll probably be a couple of weeks. How does the exchange work? Well,
theres an election process for every employee. So every employee should should log on to the,
uh, to the offer website to to make the election via fax or email. And you can see the website
details here. Im not going to read it to you because, uh, Im sure you can read it yourself.
Basically, uh, the the the employee needs to elect the options to exchange on a grant by
grant basis, and youll receive then confirmation of the election through the system. By the way,
employees can elect to exchange or withdraw elections as often as they want during the 20-day
period. You can change your mind as often as you want. Do it by the day if you want. Um, thats
really up to you. Once the offer period expires, theres no further elections.
New RSUs will be granted immediately after the close of the exchange, and RS RSU confirmation,
uh, will be issued within several weeks after the close of the exchange. Now, a couple of points
here. I think its very, very important for every employee to make their own decisions with respect
to how they want to participate in this exchange. I cant offer you advice, even as your financial,
uh, as your as your chief financial officer of the company, I cant give you any advice.
By the way, no one else on the management team can give you advice. This is an ex explicit
requirement of the SEC. We cant tell you what to do or what we think you you should do. We
cant encourage you what to do. Every employee has to decide for themselves. I do encourage you to
talk among yourselves. If you want to share ideas, thats perfectly fine. I also suggest it
wouldnt be bad talking to a to your own personal financial advisor to get their impression of
of what you should do.
What I do ask you to do is take a hard look at this, try to understand it, and if you have
questions, dont hesitate to ask us, uh, through the website. Well be happy to answer your
questions. Well this slide is nothing more than an example, uh, of an exchange. Im not
going to walk through this because I think you can, uh, you can walk through it yourself, but you
can see different types of, uh, situations with options, some that are vested, some that are
partially vested, some that are, uh, you know, at at different stock prices.
Uh, there there are different quantities, et cetera, and you can see how the exchange will
handle each one of these. So I think the slide is self-explanatory, but please dont, uh, please
dont hesitate to ask questions if, uh, if this is confusing for you. So if you have any questions
about the exchange program, please see the frequently asked question, uh, sheets that weve
provided. Theres also been a webpage thats provided for your convenience.
Um, at the end of the day, the important thing is that, uh, every individual decide whether or not
they want to participate and how much they want to participate, et cetera. The management team is
here to answer questions with respect to the exchange program, but we cannot encourage, provide
advice, et cetera, in terms of what youre supposed to do. So good luck with your decisions and,
uh, well talk to you soon.