Attached files
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EX-2.1 - EX-2.1 - SYBASE INC | f55864exv2w1.htm |
EX-4.1 - EX-4.1 - SYBASE INC | f55864exv4w1.htm |
EX-99.1 - EX-99.1 - SYBASE INC | f55864exv99w1.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
May 12, 2010
Date of Report (Date of earliest event reported)
Date of Report (Date of earliest event reported)
SYBASE, INC.
(Exact name of registrant as specified in its charter)
Delaware (State or other jurisdiction of incorporation) |
1-16493 (Commission File Number) |
94-2951005 (IRS Employer Identification No.) |
One Sybase Drive
Dublin, CA 94568
(Address of principal executive offices, including zip code)
Dublin, CA 94568
(Address of principal executive offices, including zip code)
(925) 236-5000
(Registrants telephone number, including area code)
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On May 12, 2010, Sybase, Inc., a Delaware corporation (the Company), SAP America, Inc., a
Delaware corporation (Parent) and Sheffield Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent (Purchaser), entered into an Agreement and Plan of Merger (the
Merger Agreement). Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Purchaser has agreed to commence a cash tender offer to acquire all of the
shares of the Companys common stock, including the associated preferred share purchase rights
issued in connection with the Rights Agreement (as defined below), (the Offer) for a purchase
price of $65.00 per share, net to the holders thereof, in cash (the Offer Price).
Purchaser has agreed to commence the Offer within 10 business days of May 12, 2010, and the
Offer will remain open until at least July 1, 2010. The consummation of the Offer will be
conditioned on (i) at least a majority of the shares of the Companys common stock (calculated on a
fully diluted basis in accordance with the Merger Agreement) having been validly tendered into and
not withdrawn from the Offer, (ii) receipt by Parent and Purchaser of certain regulatory approvals,
including expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 and certain foreign antitrust laws, (iii) the accuracy of the representations and
warranties and compliance with the covenants contained in the Merger Agreement, subject to
qualifications and (iv) other customary conditions.
The Merger Agreement provides that, following the consummation of the Offer, Purchaser will
merge with and into the Company (the Merger), with the Company surviving the Merger as a wholly
owned subsidiary of Parent. In the Merger, each outstanding share of the Companys common stock
(other than treasury shares, shares held by Parent, Purchaser or any of their wholly owned
subsidiaries, or as to which dissenters rights have been properly exercised) will be converted
into the right to receive the Offer Price. The consummation of the Merger is subject to certain
closing conditions, including approval by the Companys stockholders, if required as described
below.
In addition, in connection with the transactions contemplated by the Merger Agreement, all
options and stock appreciation rights of the Company which are unexpired, unexercised and
outstanding, whether vested or unvested, will be cancelled and converted into the right to receive,
within 30 days following the consummation of the Offer, an amount in cash equal to the Offer Price,
less the exercise price of the applicable option or stock appreciation right. All shares of
restricted stock of the Company, other than those held by non-employee directors or that accelerate
upon a change in control pursuant to the terms of an individual agreement, will remain subject to
the vesting terms that applied with respect to such shares of restricted stock immediately prior to
the consummation of the Offer under the Company restricted stock award applicable to such shares of
restricted stock, and each holder of such shares of restricted stock will be paid in cash in a
lump-sum on the date upon which such shares of restricted stock would have vested under the terms
and conditions set forth in the Company restricted stock award applicable to such shares of
restricted stock. All shares of restricted stock of the Company held by non-employee directors or
that accelerate upon a change in control pursuant to the terms of an individual agreement will be
cancelled and converted into the right to receive as soon as practicable following the consummation
of the Offer an amount in cash equal to the Offer Price.
The Company has granted to Parent and Purchaser an irrevocable option (the Top-Up Option)
under the Merger Agreement to purchase at a per share price equal to the Offer Price, following the
consummation of the Offer and subject to certain conditions and limitations, newly issued shares of
the Companys common stock, up to the total number of its authorized but unissued shares, equal to
the number of shares that, when added to the number of shares of the Companys common stock owned
by Parent and Purchaser immediately following the consummation of the Offer, shall equal one share
more than 90% of the shares of the Companys common stock outstanding after such purchase
(calculated on a fully diluted basis in accordance with the Merger Agreement). The Top-Up Option
is intended to expedite the timing of the completion of the Merger by effecting the Merger pursuant
to Delawares short form merger statute. Following the Offer and, if necessary, the exercise of
the Top-Up Option, if Purchaser does not own at least 90% of the outstanding Shares, a Company
stockholder vote is required to consummate the Merger. In such case, the approval of the Merger at a meeting of the Companys
stockholders
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would be assured because of Purchasers ownership of at least a majority of the shares
of the Companys common stock (calculated on a fully diluted basis in accordance with the Merger
Agreement) following completion of the Offer.
The Merger Agreement contains customary representations, warranties and covenants of the
parties. The Company has agreed to operate its business in the ordinary course until the effective
time of the Merger. The Company has also agreed to refrain from engaging in certain activities.
In addition, under the terms of the Merger Agreement, the Company agrees not to solicit or support
any alternative acquisition proposals, subject to customary exceptions for the Company to respond
to and support unsolicited proposals in the exercise of the fiduciary duties of the Board of
Directors. The Company will be obligated to pay a termination fee of $150 million to Parent in
certain customary circumstances.
SAP AG, an Aktiengesellschraft organized under the laws of Germany, and the parent company of
Parent (SAP AG), has granted in favor of the Company a guarantee under the Merger Agreement
pursuant to which SAP AG has guaranteed the payment and performance of Parents and the Purchasers
liability and obligations (including for breach) under the Merger Agreement.
The foregoing description of the Merger Agreement does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement, which is attached as Exhibit 2.1 to
this Current Report on Form 8-K and is incorporated herein by reference. The Merger Agreement has
been attached to provide investors with information regarding its terms. It is not intended to
provide any other factual information about the Company. In particular, the assertions embodied in
the representations and warranties contained in the Merger Agreement are qualified by information
in confidential disclosure schedules provided by the Company in connection with the signing of the
Merger Agreement. These disclosure schedules contain information that modifies, qualifies and
creates exceptions to the representations and warranties set forth in the Merger Agreement.
Moreover, certain representations and warranties in the Merger Agreement were used for the purpose
of allocating risk between the Company, Parent and Purchaser, rather than establishing matters of
fact. Accordingly, the representations and warranties in the Merger Agreement may not constitute
the actual state of facts about the Company, Parent or Purchaser.
Stockholder Rights Plan
On May 12, 2010, prior to the execution of the Merger Agreement, the Company entered into an
amendment (the Rights Agreement Amendment) to the Preferred Stock Rights Agreement between the
Company and American Stock Transfer and Trust Company, as rights agent, dated as of July 31, 2002,
as amended as of February 14, 2005 (as so amended, the Rights Agreement), in order to, among
other things, render the rights therein inapplicable to each of (i) the approval, execution or
delivery of the Merger Agreement, including the approval, execution and delivery of any amendments
thereto, (ii) the announcement, commencement and consummation of the Offer, (iii) the consummation
of the Merger, (iv) the acceptance for payment and purchase or exchange of shares of the Companys
common stock pursuant to the Merger Agreement, including without limitation, in connection with the
Offer, the Merger or the exercise of the Top-Up Option, (v) the announcement of the Merger
Agreement or the Merger or (vi) the announcement or consummation of any other transactions
contemplated by the Merger Agreement.
A copy of the Rights Agreement Amendment is attached hereto as Exhibit 4.1 and is incorporated
herein by reference. The foregoing description of the Rights Agreement Amendment is qualified in
its entirety by reference to the full text of the Rights Agreement Amendment.
Item 3.03 Material Modification to Rights of Security Holders.
Please see the disclosure set forth under Item 1.01 Entry into a Material Definitive
Agreement, which is incorporated by reference into this Item 3.03.
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Item 8.01 Other Events.
On May 12, 2010, the Company and SAP AG issued a joint press release announcing the execution
of the Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.1 to this
report.
Additional Information and Where to Find It
This communication is neither an offer to purchase nor a solicitation of an offer to sell
securities. The tender offer for the outstanding shares of the Companys common stock described in
this announcement has not commenced. At the time the offers are commenced, a subsidiary of SAP AG
(Purchaser) will file a Schedule TO Tender Offer Statement, with the Securities and Exchange
Commission, and Sybase, Inc. will file a Schedule 14D-9 Solicitation/Recommendation Statement, with
respect to the offer. The Tender Offer Statement (including an offer to purchase, a related letter
of transmittal and other offer documents) and the Solicitation/Recommendation Statement will
contain important information that should be read carefully before any decision is made with
respect to the Tender Offer. Those materials and all other documents filed by SAP AG or Purchaser
with the Securities and Exchange Commission (SEC) will be available at no charge on the SECs web
site at www.sec.gov. The Schedule TO Tender Offer Statement and related materials may be obtained
for free by directing such requests to SAP AG, Attention: Stefan Gruber, Dietmar-Hopp-Allee 16,
69190 Walldorf, Germany , Telephone: +49 6227 744872. The Schedule 14D-9
Solicitation/Recommendation Statement and such other documents may be obtained for free by
directing such requests to Sybase, Inc., Attention: Dan Cohen, One Sybase Drive, Dublin, CA 94568,
Telephone: +1-925-236-5000.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger among Sybase, Inc., SAP America, Inc. and Sheffield Acquisition Corp., dated May 12, 2010. | |
4.1
|
Amendment No. 2 to Preferred Stock Rights Agreement between Sybase, Inc. and American Stock Transfer and Trust Company, as rights agent, dated May 12, 2010. | |
99.1
|
Joint Press Release of Sybase, Inc. and SAP AG, dated May 12, 2010. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SYBASE, INC. |
||||
Date: May 13, 2010 | By: | /s/ Daniel R. Carl | ||
Daniel R. Carl | ||||
Vice President and General Counsel | ||||
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EXHIBIT INDEX
Exhibit No. | Description | |
2.1
|
Agreement and Plan of Merger among Sybase, Inc., SAP America, Inc. and Sheffield Acquisition Corp., dated May 12, 2010. | |
4.1
|
Amendment No. 2 to Preferred Stock Rights Agreement between Sybase, Inc. and American Stock Transfer and Trust Company, as rights agent, dated May 12, 2010. | |
99.1
|
Joint Press Release of Sybase, Inc. and SAP AG, dated May 12, 2010. |