UNITED STATES
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
July 26, 2010
Date of Report (Date of earliest event reported)
SYBASE, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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1-16493
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94-2951005
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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One Sybase Drive
Dublin, CA 94568
(Address of principal executive offices, including zip code)
(925) 236-5000
(Registrants telephone number, including area code)
Not Applicable
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 2.04.
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Triggering Events that Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.
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The consummation of the Company Change in Control (as defined in
Item 5.01 below) on July 26, 2010 and the consummation of the merger of Sheffield Acquisition Corp., a Delaware corporation (
Purchaser
), and a wholly-owned subsidiary of SAP America, Inc., a Delaware corporation
(
Parent
), and an indirectly wholly-owned subsidiary of SAP AG, a German stock corporation, with and into Sybase, Inc. (the
Company
), with the Company surviving as a wholly-owned subsidiary of Parent (the
Merger
), on July 29, 2010, each constituted a
Fundamental Change
as that term is defined in the Indenture (the
2009 Note Indenture
) relating to the Companys 3.5% Convertible Senior
Notes due 2029 (the
2009 Notes
). In addition, since the holders of outstanding shares of the Companys Common Stock, par value $0.001 per share (the
Common Stock
), including the associated rights to
purchase shares of Series A Preferred Stock (together with the Common Stock, the
Shares
) in the Merger received only cash consideration in exchange for their Shares, the purchase of the Shares constituted a
Non-Stock
Fundamental Change
as that term is defined in the 2009 Note Indenture. As a result, holders of the 2009 Notes have the right to (1) require the Company to repurchase their 2009 Notes on August 18, 2010 (the
Fundamental
Change Purchase Date
) at a price equal to their principal amount plus accrued and unpaid interest as set forth in the 2009 Note Indenture or (2) convert their 2009 Notes pursuant to the 2009 Note Indenture for cash at a conversion
rate set forth in the 2009 Note Indenture, subject to adjustment as set forth therein, based upon a stock price of $65.00 per Share.
Item 3.01.
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Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
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On July 29, 2010, in connection with the Merger, the Company notified the New York Stock Exchange (the
NYSE
) of
its intent to remove its common stock from listing on the NYSE and requested the NYSE to file a delisting application on Form 25 with the Securities and Exchange Commission (the
SEC
) to delist and deregister its Shares. The
Company will file with the SEC a certification on Form 15 under the Securities and Exchange Act of 1934, as amended (the
Exchange Act
), requesting the deregistration of the Companys Shares and the suspension of the
Companys reporting obligations under Section 13 and 15(d) of the Exchange Act.
Item 3.02
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Unregistered Sales of Equity Securities.
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As previously disclosed, Purchaser, Parent and the Company entered into the Agreement and Plan of Merger dated as of May 12, 2010
(the
Merger Agreement
). The Merger Agreement was filed as Exhibit 2.1 to the Companys Current Report on Form 8-K filed with the SEC on May 13, 2010.
In order to complete the Merger, on July 29, 2010, Purchaser exercised its top-up option to purchase Shares, and
accordingly, the Company issued 58,282,484 Shares (the
Top-Up Shares
) to Purchaser pursuant to Section 1.8 of the Merger Agreement, at a price per Share of $65.00, which resulted in an aggregate purchase price of
$3,788,361,460 (the
Top-Up Purchase Price
). Purchaser paid the Top-Up Purchase Price for the Shares by (i) payment of cash in the aggregate amount of $58,282.48, representing the par value of the Top-Up Shares, and
(ii) delivery of a promissory note having a principal amount equal to $3,788,303,177.52.
The Company offered and sold
the Top-Up Shares as a private placement pursuant to an exemption from registration provided by Section 4(2) of the Securities Act of 1933, as amended (the
Securities Act
). The Company relied on the representations made by
Purchaser that it was an accredited investor as defined in Rule 501 of Regulation D under the Securities Act and that it had the necessary investment intent as required by Section 4(2) of the Securities Act.
Item 3.03.
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Material Modification to Rights of Security Holders.
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The information set forth in Items 3.01 and 5.01 of this Current Report on Form 8-K is incorporated herein by reference in response to
this Item 3.03.
Item 5.01.
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Changes in Control of Registrant.
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Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, Purchaser offered to purchase all outstanding
Shares at a purchase price of $65.00 per Share, net to the holder thereof in cash, without interest and less any required withholding of taxes (the
Offer Price
), upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated May 26, 2010, as amended or supplemented (the
Offer to Purchase
), and in the related Letter of Transmittal (which, together with the Offer to Purchase, as amended or supplemented, constitute the
Offer
).
Upon the expiration of the Offer at 9:00 p.m., New York City Time on Monday, July 26, 2010,
Purchaser accepted for payment approximately 80,929,717 Shares (including 9,293,901 Shares tendered pursuant to the guaranteed delivery procedures set forth in the Offer to Purchase) representing approximately 92.1% of the outstanding Shares and
approximately 91.8% of the Companys voting securities determined on a fully diluted basis. Upon the acceptance of Shares for payment pursuant to the Offer on July 26, 2010, a change of control of the Company occurred (the
Company
Change in Control
). Purchaser accepted for payment all Shares validly tendered and not withdrawn prior to the expiration of the Offer according to the terms and conditions of the Offer.
Based on the per Share consideration of $65.00 and the number of Shares accepted for payment by Purchaser, as of July 26, 2010, the
value of the Shares purchased by Purchaser in connection with the Offer was approximately $5.26 billion. The funds used to purchase the Shares were provided by SAP AG from its cash on hand and a 2.75 billion dual-currency term loan facility
from Barclays Bank PLC and Deutsche Bank Luxembourg S.A.
Pursuant to the terms and conditions of the Merger Agreement,
following the exercise of the top-up option as described in Item 3.02, Purchaser was merged with and into the Company on July 29, 2010 in accordance with applicable provisions of Delaware law that authorize the completion of
the Merger without a vote or meeting of stockholders of the Company. In connection with the Merger, each outstanding Share not tendered in the Offer (other than Shares held by the Company, Purchaser, Parent, or any of their respective subsidiaries
or holders who properly exercise their appraisal rights under applicable Delaware law) was converted into the right to receive the Offer Price. Following the consummation of the Merger, the Company continued as the surviving corporation and a
wholly-owned subsidiary of Parent.
To the knowledge of the Company, except as set forth herein, there are no arrangements,
including any pledge by any person of securities of the Company or Parent, the operation of which may at a subsequent date result in a further change in control of the Company.
Item 5.02.
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Agreements of Certain Officers.
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In accordance with the terms of the Merger Agreement and effective as of the effective time of the Merger
(the
Effective Time
), John S. Chen, Richard S. Alberding, Cecilia Claudio, Michael Daniels, L. William Krause, Alan B. Salisbury, Jack E. Sum and Robert P. Wayman resigned as members of the board of directors of the Company and
Brad C. Brubaker, the sole director of Purchaser immediately prior to the Effective Time, became the sole director of the Company.
Item 5.03.
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Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal Year.
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Pursuant to the Merger Agreement, the certificate of incorporation of Purchaser as in effect immediately prior to the Effective Time,
became the certificate of incorporation of the Company and the bylaws of Purchaser as in effect immediately prior to the Effective Time, became the bylaws of the Company. The certificate of incorporation and the bylaws of the Company as so amended
are attached as Exhibit 3.1 and Exhibit 3.2 hereto, respectively, and incorporated herein by reference.
On
July 27, 2010, Sybase, Inc. issued the press release attached hereto as Exhibit 99.1.
On July 30, 2010,
Sybase, Inc. issued the press release attached hereto as Exhibit 99.2.
On July 30, 2010, SAP AG issued the press
release attached hereto as Exhibit 99.3.
Item 9.01
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Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit
No.
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Description
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3.1
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Amended and Restated Certificate of Incorporation of Sybase, Inc.
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3.2
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Amended and Restated Bylaws of Sybase, Inc.
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99.1
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Press Release issued by Sybase, Inc., dated July 27, 2010
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99.2
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Press Release issued by Sybase, Inc., dated July 30, 2010
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99.3
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Press Release issued by SAP AG, dated July 30, 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.
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SYBASE, INC.
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Date: July 30, 2010
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By:
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/s/ Daniel R.
Carl
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Daniel R. Carl
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Vice President and General Counsel
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EXHIBIT INDEX
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Exhibit
No.
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Description
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3.1
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Amended and Restated Certificate of Incorporation of Sybase, Inc.
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3.2
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Amended and Restated Bylaws of Sybase, Inc.
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99.1
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Press Release issued by Sybase, Inc., dated July 27, 2010
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99.2
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Press Release issued by Sybase, Inc., dated July 30, 2010
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99.3
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Press Release issued by SAP AG, dated July 30, 2010
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Sybase (NYSE:SY)
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Sybase (NYSE:SY)
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