DocumentSECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 5)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
SAP SE
(Name of Subject Company (Issuer/Offeror))
SAP SE
(Issuer/Offeror)
Qualtrics International Inc.
(Offeror)
(Name of Filing Persons)
Fixed Value Rights and
Existing RSUs
(Title of Class of Securities)
803054204
(CUSIP Number of Class of Securities)
(Underlying Ordinary Shares)
| | | | | |
Wendy Boufford
c/o SAP Labs
3410 Hillview Avenue, Palo Alto, CA, 94304
United States of America
650-849-4000 (Tel)
650-843-2041 (Fax) | Blake Tierney General Counsel Qualtrics International Inc. 333 West River Park Drive Provo, Utah 84604 (385-203-4999) |
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Filing Person)
Copy to:
Daniel Mitz
Lona Nallengara
Richard Alsop
Kristina Trauger
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022-6069
(212) 848-4000
CALCULATION OF FILING FEE
| | | | | |
| Transaction Valuation* | Amount of Filing Fee* |
| $418,840,138 | $45,696 |
* Calculated solely for purposes of determining the filing fee. This number assumes: (i) all eligible Fixed Value Rights and Existing RSUs are properly tendered and not withdrawn in the offer; (ii) an initial public offering price of Qualtrics Class A Common Stock equal to $30, as set forth in the IPO Registration Statement declared effective on January 28, 2021; and (iii) a volume-weighted average price per share of SAP Ordinary Shares on Xetra over the final five trading days prior to the expiration date of the offer equal to $128.20 (which was the volume-weighted average price per share based on the January 27, 2021 expiration of the exchange offer). The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals $109.10 for each $1,000,000 of the aggregate value of this transaction.
☒ 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: | $45,696 | Filing Party: Qualtrics International Inc. |
| Form or Registration No.: | Form S-4, | Date Filed: December 28, 2020, January 25, 2021 and January 28, 2021 |
| Registration No. 333-251770 | |
☐ 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:
☐ 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: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
☐ Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
☐ Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
This Amendment No. 5 amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on December 28, 2020, as amended January 12, 2021, January 19, 2021, January 25, 2021 and January 28, 2021 (as so amended, this “Schedule TO”) and is filed by SAP SE (“SAP”), a European Company (Societas Europaea or “SE”), and Qualtrics International Inc. (“Qualtrics”), a Delaware corporation and an indirectly majority-owned subsidiary of SAP. This Schedule TO relates to the offer by SAP and Qualtrics to Eligible Employees (as defined below) of a one-time opportunity to exchange all (but not less than all) of such employees’ outstanding cash-settled fixed value rights (“Fixed Value Rights”) and all (but not less than all) of such employees’ cash-settled variable rights that are linked to the value of SAP Ordinary Shares and that were granted on or after January 1, 2018 (“Post-2018 Variable Awards”) and cash-settled SAP rights that are linked to the value of SAP Ordinary Shares and that were granted as part of the “Move SAP Plan” or “Grow SAP Plan” (together with the Post-2018 Variable Awards, the “Existing RSUs”) for unvested rights (“Qualtrics RSUs”) to receive shares of Qualtrics’s Class A common stock, par value $0.0001 (“Qualtrics Stock”) upon the terms and subject to the conditions set forth in the Prospectus – Offer to Exchange, dated December 28, 2020, as amended January 12, 2021, January 19, 2021, January 25, 2021 and January 28, 2021 (the “Prospectus – Offer to Exchange”) and the related Terms of Election, (which together, as they may be amended or supplemented from time to time, constitute the “Offer”).
An “Eligible Employee” is an employee or executive officer of Qualtrics or its subsidiaries or an employee of SAP who provides substantially all of his or her services as an SAP employee to Qualtrics on the date hereof who holds Fixed Value Rights and Existing RSUs and who continues to be an employee of Qualtrics, its subsidiaries or SAP on and from the date hereof through the expiration of this Offer and also through the time and date on which the Qualtrics RSUs are granted. Although we intend to include all Eligible Employees worldwide, we may exclude otherwise Eligible Employees if, for any reason, we believe that their participation would be illegal, inadvisable or impractical under local law and regulations.
In connection with the Offer, Qualtrics has filed under the Securities Act of 1933, as amended, a Registration Statement on Form S-4, as amended by Amendment No. 4 to the Registration Statement on Form S-4 (Registration No. 333-251770) to register the Qualtrics RSUs, which includes the Prospectus – Offer to Exchange. The Offer expired substantially concurrently with the initial public offering of Qualtrics Stock (the “IPO”). In connection with the IPO, Qualtrics has filed with the Securities and Exchange Commission a Registration Statement on Form S-1 (the “IPO Registration Statement”).
Item 4. Terms of the Transaction
Item 4(a) of the Schedule TO, which incorporates by reference the information contained in the Offer, is hereby amended and supplemented by adding the following thereto:
The final exchange ratio in connection with the Offer is 4.2734 (number has been rounded). The average of the volume weighted average price per share of SAP Ordinary Shares on Xetra on January 20, 2021, January 21, 2021, January 22, 2021, January 25, 2021, and January 26, 2021 and the initial public offering price of Qualtrics Stock, which were used to calculate the final exchange ratio, were $128.20 (number has been rounded) and $30.00, respectively.
The Offer expired, as scheduled, at 2:00 p.m., Eastern Time, on January 27, 2021. The depository for the Offer has advised Qualtrics and SAP that, as of the Expiration Date, a total of approximately 2,315 eligible employees had elected to tender their outstanding awards in the Offer and had not withdrawn their elections, representing approximately 91.71% of the value of the Fixed Value Rights and Existing RSUs eligible to be tendered. Qualtrics and SAP will cancel all Fixed Value Rights and Existing RSUs properly tendered in the Offer.
On January 28, 2021, Qualtrics issued a press release announcing the completion of the Offer and the final exchange ratio, a copy of which is attached as Exhibit (a)(1)(F) hereto and is incorporated by reference.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following thereto:
| | | | | | | | |
Exhibit Number | | Description of Exhibit |
| (a)(1)(F) | | |
INDEX TO EXHIBITS | | | | | | | | |
Item 12. | | Exhibits. |
| (a)(1)(A) | | |
| (a)(1)(B)** | | |
| (a)(1)(C)** | | |
| (a)(1)(D)** | | |
| (a)(1)(E)** | | |
| (a)(1)(F) | | |
| (a)(4) | | |
| (a)(5)(A) | | |
| (a)(5)(B) | | |
| (a)(5)(C) | | |
| (a)(5)(D)** | | |
| (a)(5)(E)+ | | |
| (a)(5)(F)+ | | |
| (a)(5)(G)+ | | |
| (a)(5)(H)+ | | |
| (a)(5)(I) | | |
| (a)(5)(J)+ | | |
| (a)(5)(K)+ | | |
| (a)(5)(L) | | |
| (a)(5)(M)+ | | |
| (a)(5)(N) | | |
| (a)(5)(O) | | |
| (a)(5)(P)# | | |
| (a)(5)(Q)# | | |
| (a)(5)(R)# | | |
| (a)(5)(S)# | | |
| (a)(5)(T)# | | |
| (a)(5)(U)# | | |
| (a)(5)(V)+† | | |
| (a)(5)(W)+† | | |
| (a)(5)(X) | | |
| (a)(5)(Y)+ | | |
| (a)(5)(Z)+ | | |
| (a)(5)(AA) | | |
| (a)(5)(AB)# | | |
| (a)(5)(AC) | | |
| (b) | | None |
| (d) | | See exhibits (a)(5)(A) through (a)(5)(AA) |
| (g) | | None |
| (h) | | None |
________________
* To be filed by amendment.
** Previously filed.
# Represents management compensation plan, contract or arrangement.
+ Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon its request.
† Portions of this exhibit (indicated by asterisks) have been redacted in compliance with Regulation S-K Item 601(b)(10)(iv).
(1) Incorporated by reference to the Registration Statement on Form S-1 of Qualtrics International Inc. (Registration Statement No. 333-251767) filed with the Commission on December 28, 2020.
(2) Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-1 of Qualtrics International Inc. (Registration Statement No. 333-251767) filed with the Commission on January 12, 2021.
(3) Incorporated by reference to Amendment No. 1 to the Registration Statement on Form S-4 of Qualtrics International Inc. (Registration Statement No. 333-251770) filed with the Commission on January 12, 2021.
(4) Incorporated by reference to Amendment No. 4 to the Registration Statement on Form S-4 of Qualtrics International Inc. (Registration Statement No. 333-251770) filed with the Commission on January 28, 2021.
(5) Incorporated by reference to Amendment No. 2 to the Registration Statement on Form S-1 of Qualtrics International Inc. (Registration Statement No. 333-251767) filed with the Commission on January 19, 2021.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.
| | | | | |
| SAP SE |
| |
| By: | /s/ Luka Mucic |
| Name: | Luka Mucic |
| Title: | Chief Financial Officer |
| |
| By: | /s/ Michael Ploetner |
| Name: | Michael Ploetner |
| Title: | Authorized Signatory (Prokurist) |
| | | | | |
| QUALTRICS INTERNATIONAL INC. |
| |
| By: | /s/ Blake Tierney |
| Name: | Blake Tierney |
| Title: | General Counsel |
Date: January 28, 2021