0001193125-12-019895.txt : 20120123 0001193125-12-019895.hdr.sgml : 20120123 20120123132759 ACCESSION NUMBER: 0001193125-12-019895 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20120123 DATE AS OF CHANGE: 20120123 GROUP MEMBERS: SAP AG, GROUP MEMBERS: SAP AMERICA, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SuccessFactors, Inc. CENTRAL INDEX KEY: 0001402305 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943398453 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83665 FILM NUMBER: 12538828 BUSINESS ADDRESS: STREET 1: 1500 FASHION ISLAND BLVD., SUITE 300 CITY: SAN MATEO STATE: CA ZIP: 94404 BUSINESS PHONE: (650) 645-2000 MAIL ADDRESS: STREET 1: 1500 FASHION ISLAND BLVD., SUITE 300 CITY: SAN MATEO STATE: CA ZIP: 94404 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Saturn Expansion Corp CENTRAL INDEX KEY: 0001536240 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: C/O SAP AMERICA, INC. STREET 2: 3999 WEST CHESTER PIKE CITY: NEWTOWN SQUARE STATE: PA ZIP: 19073 BUSINESS PHONE: (610) 661-1000 MAIL ADDRESS: STREET 1: C/O SAP AMERICA, INC. STREET 2: 3999 WEST CHESTER PIKE CITY: NEWTOWN SQUARE STATE: PA ZIP: 19073 SC TO-T/A 1 d268167dsctota.htm AMENDMENT NO. 7 TO SCHEDULE TO Amendment No. 7 to Schedule TO

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO/A

 

 

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

(Amendment No. 7)

 

 

SuccessFactors, Inc.

(Name of Subject Company (Issuer))

 

 

Saturn Expansion Corporation

a wholly-owned subsidiary of

SAP America, Inc.

an indirectly wholly-owned subsidiary of

SAP AG

(Name of Filing Persons, Offerors)

Common Stock, par value $0.001 per share,

(Title of Class of Securities)

 

 

864596101

(CUSIP Number of Class of Securities)

Michael Junge

Executive Vice President and General Counsel

SAP AG

Dietmar-Hopp-Allee 16

D-69190 Walldorf

Federal Republic of Germany

+49 6227 74 7474

(Name, Address and Telephone Number of Person Authorized

to Receive Notices and Communications on Behalf of Filing Persons)

 

 

Copy to:

A. Peter Harwich

Allen & Overy LLP

1221 Avenue of the Americas

New York, New York 10020

Telephone: (212) 610-6300

Calculation of Filing Fee

 

 

Transaction Valuation(1)   Amount of Filing Fee(2)

$3,819,221,880

   $437,682.83

 

 

 

(1) Estimated for purposes of calculating the amount of the filing fee only, in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Calculated by multiplying $40.00, the per share tender offer price, by shares of common stock of SuccessFactors, Inc., which includes (a) 84,801,782 shares of common stock issued and outstanding (including shares of restricted stock, but excluding treasury shares), (b) 6,130,344 shares of common stock subject to outstanding stock options with an exercise price less than $40.00 and (c) 4,548,421 restricted stock units outstanding.
(2) The filing fee was calculated in accordance with Rule 0-11 of the Exchange Act and Fee Rate Advisory #3 for fiscal year 2012, issued September 29, 2011, by multiplying the transaction value by .00011460.
x 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 date of its filing.

 

Amount Previously Paid: $437,682.83    Filing Party: Saturn Expansion Corporation
Form or Registration No.: Schedule TO-T    Date Filed: December 16, 2011

 

¨ 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:

 

x 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:  ¨

 

 

 

This Amendment No. 7 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on December 16, 2011 (as amended or supplemented, the “Schedule TO”) by Saturn Expansion Corporation, a Delaware corporation (the “Purchaser”) and a wholly-owned subsidiary of SAP America, Inc., a Delaware corporation (“SAP America”) and an indirectly wholly-owned subsidiary of SAP AG, a stock corporation organized under the laws of the Federal Republic of Germany (“SAP AG”). The Schedule TO relates to the offer by the Purchaser to purchase all issued and outstanding shares of common stock of SuccessFactors, Inc., a Delaware corporation (“SuccessFactors”), par value $0.001 per share (the “SuccessFactors Common Stock” or the “Shares”), at a price of $40.00 per Share, net to the holder thereof in cash, without interest and less any required withholding of taxes, upon the terms and subject to the conditions set forth in the offer to purchase dated December 16, 2011 (as it may be amended or supplemented, the “Offer to Purchase”), and the related letter of transmittal (as it may be amended or supplemented, the “Letter of Transmittal,” and together with the Offer to Purchase, the “Offer”), copies of which were filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.

 

Item 11. Additional Information.

The Offer to Purchase and Item 11 of the Schedule TO, to the extent Item 11 incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as set forth below.

The thirteenth paragraph of Section 15 – “Legal Matters; Required Regulatory Approvals” of the Offer to Purchase is hereby amended and restated in its entirety as follows:

“U.S. National Security Regulations. Exon-Florio empowers the President of the United States of America to review and, if necessary, prohibit or suspend an acquisition of, or investment in, a U.S. company by a “foreign person” if the President, after investigation, determines that the foreign person’s control threatens to impair the national security of the United States. Pursuant to Exon-Florio, CFIUS has been delegated the authority to receive notices of proposed transactions, determine when an investigation is warranted, conduct investigations, require mitigation measures and submit recommendations to the President to suspend or prohibit the completion of transactions or to require divestitures of completed transactions. A party or parties to a transaction may, but are not required to, submit to CFIUS a voluntary notice of the transaction, except in limited circumstances, which do not apply in this case. CFIUS also has the power to initiate reviews on its own in the absence of a voluntary notification. The parties filed a joint voluntary notice with CFIUS pursuant to Exon-Florio and its implementing regulations, which was accepted with an effective date of December 22, 2011. The initial 30 day review period expired on January 20, 2012. Under Exon-Florio, if CFIUS has not completed its work within the initial 30 day review period, CFIUS has the right to investigate the transaction for up to an additional 45 calendar days before making a recommendation. On January 20, 2012, the parties received written notification from CFIUS that it would initiate such an investigation to complete its assessment. The additional 45-day period expires on March 5, 2012, though it is possible CFIUS’ investigation could be completed sooner. The decision by CFIUS to proceed with an investigation is not unusual. See Section 14 – “Conditions of the Offer.””

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.

Dated: January 23, 2012

 

SATURN EXPANSION CORPORATION
By:  

/s/    Brad C. Brubaker

  Name: Brad C. Brubaker
  Title: Secretary
SAP AMERICA, INC.
By:  

/s/    Brad C. Brubaker

  Name: Brad C. Brubaker
  Title: Secretary
SAP AG
By:  

/s/    Michael Ploetner

  Name: Michael Ploetner
  Title: Authorized Signatory
By:  

/s/    Wendy Boufford

  Name: Wendy Boufford
  Title: Authorized Signatory

EXHIBIT INDEX

 

(a)(1)(A)*

   Offer to Purchase, dated December 16, 2011.

(a)(1)(B)*

   Form of Letter of Transmittal.

(a)(1)(C)*

   Notice of Guaranteed Delivery.

(a)(1)(D)*

   Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.

(a)(1)(E)*

   Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.

(a)(1)(F)*

   Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.

(a)(5)(A)*

   Press release issued by SAP AG and SuccessFactors on December 3, 2011, incorporated herein by reference to the Form 6-K furnished by SAP AG, SAP America and the Purchaser on December 5, 2011.

(a)(5)(B)*

   Summary Advertisement as published in the Wall Street Journal on December 16, 2011.

(a)(5)(C)*

   Press release issued by SAP AG on December 16, 2011.

(a)(5)(D)*

   Complaint captioned Federic Peretti v. Douglas J. Burgum et al., Case No. CIV510279 filed on December 8, 2011 in the Superior Court of the State of California – County of San Mateo, incorporated herein by reference to the Schedule 14D-9 filed by SuccessFactors on December 16, 2011.

(a)(5)(E)*

   Complaint captioned Steamfitters Local 449 Pension Plan v. Douglas J. Burgum et al., Case No. CIV510436 filed on December 14, 2011 in the Superior Court of the State of California – County of San Mateo, incorporated herein by reference to Amendment No. 1 to the Schedule 14D-9 filed by SuccessFactors on December 21, 2011.

(a)(5)(F)*

   Press release issued by SAP AG on December 27, 2011.

(a)(5)(G)*

   Consolidated complaint captioned In re SuccessFactors, Inc. Shareholders Litigation, Case No. CIV510279, filed on January 5, 2012 in the Superior Court of the State of California – County of San Mateo, incorporated herein by reference to Amendment No. 3 to the Schedule 14D-9 filed by SuccessFactors on January 11, 2012.

(a)(5)(H)*

   Complaint captioned Sanjay Israni v. Lars Dalgaard et al., Case No. 12-CV-0076-JSW, filed on January 5, 2012 in the United States District Court for the Northern District of California, incorporated herein by reference to Amendment No. 3 to the Schedule 14D-9 filed by SuccessFactors on January 11, 2012.

(a)(5)(I)*

   Press Release issued by SAP AG on January 17, 2012.

(a)(5)(J)*

   Press Release issued by SAP AG on January 19, 2012.

(b)(1)*

   Euro 1 billion Credit Facility Agreement dated December 3, 2011, among SAP AG, as borrower, J.P. Morgan Limited as mandated lead arranger, the financial institution listed in Schedule 1 as original lender, and J.P. Morgan Europe Limited, as agent.

(d)(1)*   Agreement and Plan of Merger dated as of December 3, 2011 by and among SAP America, the Purchaser and SuccessFactors incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by SuccessFactors on December 5, 2011.
(d)(2)*   Mutual Non-Disclosure Agreement effective as of October 20, 2011 between SAP AG and SuccessFactors.
(d)(3)*   Exclusivity Agreement dated as of November 9, 2011 between SAP AG and SuccessFactors.
(g)   Not applicable.
(h)   Not applicable.
99.2*   Power of Attorney

 

* Filed Previously