-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QJIQZBNQff0yVHif0NZNU3wluq4NbcExd+Sl6wsCspIcKIqzxzsHV+cwIpjaNH+y m1ucamcC9FF/4ZARZrPQOg== 0001188112-06-002851.txt : 20060914 0001188112-06-002851.hdr.sgml : 20060914 20060914105822 ACCESSION NUMBER: 0001188112-06-002851 CONFORMED SUBMISSION TYPE: SC TO-I/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060914 DATE AS OF CHANGE: 20060914 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERNAP NETWORK SERVICES CORP CENTRAL INDEX KEY: 0001056386 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 912145721 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-I/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56941 FILM NUMBER: 061089842 BUSINESS ADDRESS: STREET 1: 601 UNION STREET SUITE 1000 CITY: SEATTLE STATE: WA ZIP: 98101 BUSINESS PHONE: 2064418800 MAIL ADDRESS: STREET 1: 250 WILLIAMS STREET STREET 2: SUITE E100 CITY: ATLANTA STATE: GA ZIP: 30303 FORMER COMPANY: FORMER CONFORMED NAME: INTERNAP NETWORK SERVICES CORP/WA DATE OF NAME CHANGE: 19990721 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INTERNAP NETWORK SERVICES CORP CENTRAL INDEX KEY: 0001056386 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER PROGRAMMING, DATA PROCESSING, ETC. [7370] IRS NUMBER: 912145721 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-I/A BUSINESS ADDRESS: STREET 1: 601 UNION STREET SUITE 1000 CITY: SEATTLE STATE: WA ZIP: 98101 BUSINESS PHONE: 2064418800 MAIL ADDRESS: STREET 1: 250 WILLIAMS STREET STREET 2: SUITE E100 CITY: ATLANTA STATE: GA ZIP: 30303 FORMER COMPANY: FORMER CONFORMED NAME: INTERNAP NETWORK SERVICES CORP/WA DATE OF NAME CHANGE: 19990721 SC TO-I/A 1 t11588_sctoia3.htm SCHEDULE TO - AMENDMENT NO. 3 Unassociated Document
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
Amendment No. 3 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
 
Internap Network Services Corporation
(Name of Subject Company (Issuer) and Filing Person (Offeror))

Options to Purchase Common Stock, $0.001 Par Value Per Share
(Title of Class of Securities)
 
45885A300
(CUSIP Number of Class of Securities)
(Underlying Common Stock)
 
Dorothy An
Internap Network Services Corporation
250 Williams Street
Atlanta, GA 30303
(404) 302-9700
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing person)
 
                                                  
 
 
 
CALCULATION OF FILING FEE
 
Transaction Value*
 
Amount of Filing Fee**
$7,398,262
 
$792
 
__________
*
Estimated solely for purposes of calculating the amount of the filing fee. The calculation of the transaction valuation assumes that all options to purchase the issuer’s common stock that are eligible for exchange will be exchanged for new options and cancelled pursuant to this offer. These options have a value of $7,398,262 calculated using the Black-Scholes method based upon the average of the high and low prices of the issuer’s common stock as reported on the American Stock Exchange on July 31, 2006.
 
**
The amount of the filing fee calculated in accordance with Rule 0-11(b) of the Securities Exchange Act of 1934, as amended, equals $107.00 for each $1,000,000 of the value of the transaction.  The filing fee was previously paid with the Schedule TO filed with the Securities and Exchange Commission on August 30, 2006.
 



o
 
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.
 

 
Amount Previously Paid:
Not applicable.
 
Form or Registration No.: 
Not applicable.
 
Filing Party:
Not applicable.
 
Date filed:
Not applicable.
 
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:
 
o
 
third-party tender offer subject to Rule 14d-1.
 
ý
 
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
 

2


 
This Amendment No. 3 amends and supplements the Tender Offer Statement on Schedule TO filed by Internap Network Services Corporation, a Delaware corporation (the “Company”), with the Securities and Exchange Commission on August 30, 2006, as amended by Amendment No. 1 to the Schedule TO filed by the Company with the Commission on August 30, 2006 and as amended by Amendment No. 2 to the Schedule TO filed by the Company with the Commission on September 6, 2006 (collectively, the “Schedule TO”), relating to the offer by the Company to exchange outstanding options to purchase shares of its common stock, par value $0.001 per share, on the terms and subject to the conditions described in the Exchange Offer, dated August 30, 2006, and related attachments thereto. This Amendment No. 3 is being filed to attach new Exhibit (a)(1)(L), which is an email communication being sent to the Eligible Employees on the date hereof describing certain changes that have been made to the Exchange Offer in response to a comment letter sent by the Commission to the Company on September 11, 2006.
 
 
This Amendment No. 3 to the Schedule TO is filed in satisfaction of the reporting requirements of Rule 13e-4(c)(3) promulgated under the Securities Exchange Act of 1934, as amended.
 
 
 
 
 

3

 
 
 
Item 12.  Exhibits.
 
Exhibit
No.
 
Description
 
(a)(1)(A)
 
Exchange Offer for Certain Outstanding Options for New Stock Options, dated August 30, 2006.*
 
(a)(1)(B)
 
Email to Eligible Employees of Internap Network Services Corporation, dated August 30, 2006.*
 
(a)(1)(C)
 
Election Form.*
 
(a)(1)(D)
 
Notice of Withdrawal.*
 
(a)(1)(E)
 
Form of Communication to Eligible Employees Participating in the Exchange Offer Confirming Receipt of Election Form.*
 
(a)(1)(F)
 
Form of Communication to Eligible Employees Confirming Receipt of Notice of Withdrawal.*
 
(a)(1)(G)
 
Form of Rights Letter to Eligible Employees Participating in the Exchange Offer.*
 
(a)(1)(H)
 
Form of Communication to Eligible Employees Rejecting the Election Form under the Exchange Offer.*
 
(a)(1)(I)
 
Form of Communication to Eligible Employees Rejecting the Notice of Withdrawal under the Exchange Offer.*
 
(a)(1)(J)
 
Form of Reminder Email to Eligible Employees.*
 
(a)(1)(K)
 
Email to Eligible Employees Regarding Listing of Internap Network Services Corporation’s Common Stock on the NASDAQ Global Market.*
(a)(1)(L)
 
Email to Eligible Employees Regarding Supplements to the Exchange Offer.
(a)(2)
 
Not applicable.
 
(a)(3)
 
Not applicable.
 
(a)(4)
 
Not applicable.
 
(a)(5)
 
Not applicable.
 
 
 

4

 
 
Exhibit
No.
 
Description
 

(b)
 
Not applicable.
 
(d)(1)
 
Internap Network Services Corporation 2000 Non-Officer Equity Incentive Plan (incorporated herein by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8, File No. 333-37400 dated May 19, 2000).
 
(d)(2)
 
Amended and Restated 2005 Incentive Stock Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006, filed on May 10, 2006).
 
(d)(3)
Form of Amended and Restated 2005 Incentive Stock Plan Stock Option Certificate (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2006, filed on August 8, 2006).
 
(g)
 
Not applicable.
 
(h)
 
Not applicable.
 

______________
* Previously Filed.
 
 
 
 

5

 
 
SIGNATURE
 
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.
 
 
 
 
 
Internap Network Services Corporation
 
 
 
By:  
/s/ David Buckel
 
Name:
David A. Buckel
 
Title:
Vice President and Chief Financial Officer
 
Date: 
September 14, 2006
 
 

6


 
 
INDEX TO EXHIBITS
 
Exhibit
No.
 
Description
 
(a)(1)(A)
 
Exchange Offer for Certain Outstanding Options for New Stock Options, dated August 30, 2006.*
 
(a)(1)(B)
 
Email to Eligible Employees of Internap Network Services Corporation, dated August 30, 2006.*
 
(a)(1)(C)
 
Election Form.*
 
(a)(1)(D)
 
Notice of Withdrawal.*
 
(a)(1)(E)
 
Form of Communication to Eligible Employees Participating in the Exchange Offer Confirming Receipt of Election Form.*
 
(a)(1)(F)
 
Form of Communication to Eligible Employees Confirming Receipt of Notice of Withdrawal.*
 
(a)(1)(G)
 
Form of Rights Letter to Eligible Employees Participating in the Exchange Offer.*
 
(a)(1)(H)
 
Form of Communication to Eligible Employees Rejecting the Election Form under the Exchange Offer.*
 
(a)(1)(I)
 
Form of Communication to Eligible Employees Rejecting the Notice of Withdrawal under the Exchange Offer.*
 
(a)(1)(J)
 
Form of Reminder Email to Eligible Employees.*
 
(a)(1)(K)
 
Email to Eligible Employees Regarding Listing of Internap Network Services Corporation’s Common Stock on the NASDAQ Global Market.*
(a)(1)(L)
 
Email to Eligible Employees Regarding Supplements to the Exchange Offer
(a)(2)
 
Not applicable.
 
(a)(3)
 
Not applicable.
 
(a)(4)
 
Not applicable.
 
(a)(5)
 
Not applicable.
 
(b)
 
Not applicable.
 
(d)(1)
 
Internap Network Services Corporation 2000 Non-Officer Equity Incentive Plan (incorporated herein by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-8, File No. 333-37400 dated May 19, 2000).
 
 
 

7

 
 
Exhibit
No.
 
Description
 

(d)(2)
 
Amended and Restated 2005 Incentive Stock Plan (incorporated herein by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006, filed on May 10, 2006).
 
(d)(3)
Form of Amended and Restated 2005 Incentive Stock Plan Stock Option Certificate (incorporated herein by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2006, filed on August 8, 2006).
 
(g)
 
Not applicable.
 
(h)
 
Not applicable.
 
 
________________________
*  Previously Filed.
 
 
 
 
 
 
8
 EX-99.(A)(1)(L) 2 ex99-a1l.htm EXHIBIT 99.(A)(1)(L) Unassociated Document
 

Exhibit (a)(1)(L)
 
Email Communication to Eligible Employees, dated September 14, 2006
 
Pursuant to Section 14 of the Exchange Offer distributed to you on August 30, 2006, relating to Internap Network Services Corporation’s pending offer to exchange eligible options to purchase shares of our common stock for new options, we have amended the Exchange Offer as indicated in the attached document to effect certain clarifications and modifications. These changes do not alter the financial terms of the Exchange Offer and, other than as indicated in the attached Amendments to the Exchange Offer, all other terms of the Exchange Offer remain unchanged.
 
The Election Form must be returned as indicated in the enclosed materials to James Salmond, so that it is received before 11:59 p.m., U.S. Eastern Time, on September 27, 2006 (or a later expiration date if we extend the offer).
 
If you have any questions about the offer, please contact James Salmond at (404) 302-9780 or by email at optionexchange@internap.com.
 
 
 
 
 
 
 
 
 
 


INTERNAP NETWORK SERVICES CORPORATION
 
AMENDMENTS TO THE EXCHANGE OFFER
 
1.    The introductory paragraph on page 1 of the Exchange Offer (“Summary Term Sheet - Questions and Answers”) is amended to read, in its entirety, as follows:
 
The following are answers to some of the questions that you may have about this exchange offer. Internap Network Services Corporation, which we refer to in this document as “we,” “us,” the “Company” or “Internap,” encourages you to carefully read the remainder of this exchange offer and the accompanying Election Form. Where appropriate, we have included references to the relevant sections of this exchange offer where you can find a more complete description of the topics in this summary.
 
2.    The final paragraph of Section 4 of the Exchange Offer (“Withdrawal Rights”), on page 26 of the Exchange Offer, is amended to read, in its entirety, as follows:
 
Neither we nor any other person is obligated to give notice of any defects or irregularities in any Notice of Withdrawal, nor will anyone incur any liability for failing to give notice of any defects or irregularities. We will determine all questions as to the form and validity, including time of receipt, of notices to withdrawal. Subject to any order or decision by a court or arbitrator of competent jurisdiction, our determinations of these matters will be final and binding.
 
3.    Section 6 of the Exchange Offer (“Conditions of this Exchange Offer”), on page 26-27 of the Exchange Offer, is amended to read, in its entirety, as follows:
 
Notwithstanding any other provision of this exchange offer, we will not be required to accept any eligible options tendered for exchange, and we may terminate or amend this exchange offer, in each case subject to Rule 13e-4(f)(5) under the Exchange Act, if at any time on or after the date hereof and prior to the expiration date of the exchange offer, any of the following events has occurred:
 
 
(a)
any instituted action or proceeding by any government or governmental, regulatory or administrative agency, authority or tribunal or other person, domestic or foreign, before any court, authority, agency or tribunal that directly or indirectly challenges the making of the exchange offer, the cancellation of some or all of the eligible options tendered for exchange, the issuance of new options, or otherwise relates in any manner to the exchange offer or that, in our reasonable judgment, could materially and adversely affect the business, financial condition, income or operations of the Company;
 
 
(b)
any action is instituted or taken, or any approval, exemption or consent is withheld, or any statute, rule, regulation, judgment, order or injunction is proposed, sought, promulgated, enacted, entered, amended, interpreted, enforced or deemed to be applicable to the exchange offer or us, by or from any court or any regulatory or administrative authority, agency or tribunal that, in our reasonable judgment, would directly or indirectly:
 
 
 
2
 
(i)    make it illegal for us to accept some or all of the tendered eligible options for exchange, or to issue some or all of the new options, or otherwise restrict or prohibit consummation of this exchange offer or otherwise relate in any manner to this exchange offer; or
 
(ii)    delay or restrict our ability, or render us unable, to accept the tendered eligible options for exchange or to grant new options for some or all of the tendered eligible options.
 
 
(c)
any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or automated quotation system 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;
 
 
(e)
the commencement of a war or other national or international calamity directly or indirectly involving the United States (other than the current situations in Iraq, Afghanistan and Lebanon), which could reasonably be expected to affect materially or adversely, or to delay materially, the completion of the exchange offer; or
 
 
(f)
a tender or exchange offer (other than this exchange offer) with respect to some or all of our capital stock, or a merger or acquisition proposal for us, is proposed, announced or is publicly disclosed.
 
The conditions to this exchange offer are for our benefit. We may assert them in our sole discretion prior to the expiration date of the exchange offer regardless of the circumstances giving rise to them (other than circumstances caused by our action or inaction). We may waive them, in whole or in part, at any time and from time to time prior to the expiration date of the exchange offer, in our sole discretion, whether or not we waive any other condition to this exchange offer. Subject to any order or decision by a court or arbitrator of competent jurisdiction, any determination we make concerning the events described in this Section 6 will be final and binding upon all persons.
 

3
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