-----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, LFm+Eqvc+BmjGqV8U8h75ZcCA4rAZKi4jlzdsLYXdwko3TPaqZlSx8CBoOx+0f86 ZW9cqYAwcVKgyTjui/Zrew== 0000891618-01-500912.txt : 20010627 0000891618-01-500912.hdr.sgml : 20010627 ACCESSION NUMBER: 0000891618-01-500912 CONFORMED SUBMISSION TYPE: SC TO-I/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20010524 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PERSISTENCE SOFTWARE INC CENTRAL INDEX KEY: 0001084400 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943138935 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: SC TO-I/A SEC ACT: SEC FILE NUMBER: 005-56467 FILM NUMBER: 1647610 BUSINESS ADDRESS: STREET 1: 1720 SOUTH AMPHLETT BLVD., 3RD FLOOR CITY: SAN MATEO STATE: CA ZIP: 94402 BUSINESS PHONE: 6503417733 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PERSISTENCE SOFTWARE INC CENTRAL INDEX KEY: 0001084400 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943138935 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: SC TO-I/A BUSINESS ADDRESS: STREET 1: 1720 SOUTH AMPHLETT BLVD., 3RD FLOOR CITY: SAN MATEO STATE: CA ZIP: 94402 BUSINESS PHONE: 6503417733 SC TO-I/A 1 f73024a2scto-ia.txt AMENDMENT #2 TO THE SC TO 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------------- SCHEDULE TO (AMENDMENT NO. 2) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 ----------------------------------- PERSISTENCE SOFTWARE, INC. (Name of Subject Company (Issuer)) ----------------------------------- PERSISTENCE SOFTWARE, INC. (Name of Filing Person (Offeror)) ----------------------------------- OPTIONS UNDER PERSISTENCE SOFTWARE, INC. 1997 STOCK PLAN TO PURCHASE COMMON STOCK, PAR VALUE $0.001 PER SHARE, HAVING AN EXERCISE PRICE IN EXCESS OF $1.00 HELD BY CERTAIN EMPLOYEE OPTION HOLDERS (Title of Class of Securities) ----------------------------------- 715329 10 8 (CUSIP Number of Class of Securities) (Underlying Common Stock) ----------------------------------- CHRISTINE RUSSELL CHIEF FINANCIAL OFFICER PERSISTENCE SOFTWARE, INC. 1720 SOUTH AMPHLETT BLVD., THIRD FLOOR SAN MATEO, CALIFORNIA 94402 (650) 372-3600 (Name, address and telephone number of person authorized to receive notices and communications on behalf of filing person) COPY TO: LAUREL FINCH VENTURE LAW GROUP 2775 SAND HILL ROAD MENLO PARK, CALIFORNIA 94025 (650) 854-4488 ================================================================================ 2 CALCULATION OF FILING FEE Transaction valuation* Amount of filing fee ---------------------- -------------------- $21,141,842 $4,229 * Calculated solely for purposes of determining the filing fee. This amount assumes that options to purchase 3,382,370 shares of common stock of Persistence Software, Inc. having an aggregate value of $21,141,842 as of June 8, 2001 will be exchanged pursuant to this offer. The aggregate value of such options was calculated based on the Black-Scholes option pricing model. The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th of one percent of the value of the transaction. |X| Check 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: $4,229 Form or Registration No.: Schedule TO Filing party: Persistence Software, Inc. Date filed: May 9, 2001 |_| 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. |X| 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 amends the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on May 9, 2001. The information in the Offer to Exchange, dated May 9, 2001 (the "Offer to Exchange"), attached hereto as Exhibit (a)(1), is incorporated herein by reference in response to all required Items except as set forth below. Item 7(d) Not applicable. Item 8(a) Not applicable. Item 9. Person/Assets, Retained, Employed, Compensated or Used. (a) Not applicable. Item 10. Financial Statements. (a) The information set forth on pages F-1 through F-18 of the Company's Annual Report on Form 10-K for its fiscal year ended December 31, 2000, filed with the Securities and Exchange Commission on April 2, 2001, and on pages 3 through 7 of the Company's Quarterly Report on Form 10-Q for its fiscal quarter ended March 31, 2001, filed with the Securities and Exchange Commission on May 15, 2001, is incorporated herein by reference. 3 (b) Not applicable. Item 11(b) Not applicable. Item 12. Exhibits. (a) (1) Offer to Exchange, dated May 9, 2001. (2) Form of Letter of Transmittal. (3) Form of Notice to Withdraw Tender. (4) Form of Letter to Eligible Option Holders. (5) Form of Letter to Tendering Option Holders. (6) Persistence Software, Inc. Annual Report on Form 10-K for its fiscal year ended December 31, 2000, filed with the Securities and Exchange Commission on April 2, 2001 and incorporated herein by reference. (7) Persistence Software, Inc. Quarterly Report on Form 10-Q for its fiscal quarter ended March 31, 2001, filed with the Securities and Exchange Commission on May 15, 2001 and incorporated herein by reference. (8) E-mail to Employees dated May 15, 2001. (9) E-mail to Employees dated May 24, 2001. (b) Not applicable. (d) (1) Persistence Software, Inc. 1997 Stock Plan. (2) Persistence Software, Inc. 1997 Stock Plan, as amended pending stockholder approval. (3) Form of Option Agreement Pursuant to the Persistence Software, Inc. 1997 Stock Plan. (g) Not applicable. (h) Not applicable. Item 13. Information Required by Schedule 13E-3. (a) Not applicable. -2- 4 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment No. 2 to Schedule TO is true, complete and correct. Persistence Software, Inc. /s/ Christine Russell ------------------------------------ Christine Russell Chief Financial Officer Date: May 24, 2001 -3- 5 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- (a)(1)* - Offer to Exchange, dated May 9, 2001. (a)(2)* - Form of Letter of Transmittal. (a)(3)* - Form of Notice to Withdraw Tender. (a)(4)* - Form of Letter to Eligible Option Holders. (a)(5)* - Form of Letter to Tendering Option Holders. (a)(6) - Persistence Software, Inc. Annual Report on Form 10-K for its fiscal year ended December 31, 2000, filed with the Securities and Exchange Commission on April 2, 2001 and incorporated herein by reference. (a)(7) - Persistence Software, Inc. Quarterly Report on Form 10-Q for its fiscal quarter ended March 31, 2001, filed with the Securities and Exchange Commission on May 15, 2001 and incorporated herein by reference. (a)(8)* - E-mail to Employees dated May 15, 2001. (a)(9) - E-mail to Employees dated May 24, 2001. (d)(1)* - Persistence Software, Inc. 1997 Stock Plan. (d)(2)* - Persistence Software, Inc. 1997 Stock Plan, as amended pending stockholder approval. (d)(3)* - Form of Option Agreement Pursuant to the Persistence Software, Inc. 1997 Stock Plan.
- ------------ *Previously filed. -4- EX-99.(A)9 2 f73024a2ex99-a9.txt EXHIBIT (A)9 1 Exhibit (a)(9) To: All Employees From: Christine Russell Cc: Linda Patane Subject: Option Exchange Program - Important Additional Information Date: May 24, 2001 - ------------------ If you are considering participation in our option exchange program through our Offer to Exchange dated May 9, 2001, please review the following information. We wanted to be sure that each of you receives copies of our most recent Annual Report and Quarterly Report filed with the SEC, because these filings contain important financial information relevant to your decision on whether to participate in the option exchange. Copies of these reports are attached to this e-mail. If you are having trouble viewing these attachments, or if you desire a hard copy for any other reason, we will send you a hard copy at no charge to you. Requests should be directed to Linda Patane by reply e-mail, or at our office at 1720 South Amphlett Blvd, Third Floor, San Mateo, California 94402, or by telephone at (650) 372-3600. In addition, you may have noted that the Letter of Transmittal in connection with the Offer to Exchange says that you have read and understood the terms of the offer to exchange. You are not actually required to read and understand all of the terms of the offer in order to participate in the offer, and we will give no effect to language in any Letter of Transmittal that represents that you have read and understood the terms of the offer. Of course, it is still necessary to follow the procedures described in the offer, and we continue to recommend that you carefully read all materials you receive in connection with the offer. Finally, the Offer to Exchange refers in Section 18 to forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act. We wish to clarify that the safe harbor provided in the Private Securities Litigation Reform Act of 1995 does not apply to statements made in connection with the tender offer. If you have any questions about the above, please feel free to contact Linda Patane or me. Best, Christine Russell -----END PRIVACY-ENHANCED MESSAGE-----