SC TO-T/A 1 w62157a2sctovtza.txt SCHEDULE TO-T/A SILVERSTREAM SOFTWARE, INC.,NOVELL -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE TO/A TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2) SILVERSTREAM SOFTWARE, INC. (NAME OF SUBJECT COMPANY (ISSUER)) DELAWARE PLANET INC. NOVELL, INC. (NAMES OF FILING PERSONS (OFFERORS)) COMMON STOCK, $0.001 PAR VALUE PER SHARE (TITLE OF CLASS OF SECURITIES) 827907106 (CUSIP NUMBER OF CLASS OF SECURITIES) JOSEPH A. LASALA, JR., ESQ. SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY NOVELL, INC. 8 CAMBRIDGE CENTER CAMBRIDGE, MA 02142 (617) 374-9800 (NAME, ADDRESS AND TELEPHONE NUMBERS OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS) Copies to: HOWARD L. SHECTER, ESQ. MORGAN, LEWIS & BOCKIUS LLP 101 PARK AVENUE NEW YORK, NY 10178 (212) 309-6000 CALCULATION OF FILING FEE
-------------------------------------------------------------------------------- -------------------------------------------------------------------------------- TRANSACTION VALUATION AMOUNT OF FILING FEE -------------------------------------------------------------------------------- $257,307,426* $23,673** -------------------------------------------------------------------------------- --------------------------------------------------------------------------------
* Estimated solely for purposes of calculating the amount of the filing fee in accordance with Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The calculation of the transaction valuation is based on 28,589,714 fully-diluted outstanding shares of common stock of SilverStream Software, Inc. as of June 9, 2002, at a purchase price of $9.00 per share. ** The amount of the filing fee, calculated in accordance with Section 13(e) of the Exchange Act, equals $92 per million dollars of the transaction valuation. [ ] 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.: $23,673 Filing Party: Novell, Inc. Delaware Planet Inc. Form Registration No.: 005-58265 Date Filed: June 18, 2002
[ ] 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-1. [ ] going private transaction subject to Rule 13c-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 to the Tender Offer Statement on Schedule TO (the "Schedule TO"), filed initially with the Securities and Exchange Commission on June 18, 2002, relates to the offer by Delaware Planet Inc., a Delaware corporation (the "Purchaser") and a wholly-owned subsidiary of Novell, Inc., a Delaware corporation ("Novell"), to purchase all of the outstanding shares of common stock (the "Shares") of SilverStream Software, Inc., a Delaware corporation (the "Company"), at a price of $9.00 per Share, net to the seller in cash, upon the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase, dated June 18, 2002, and in the related Letter of Transmittal, previously filed as exhibits (a)(1)(A) and (a)(1)(B), respectively, to the Schedule TO. Capitalized terms used and not defined herein, have the meanings given to them in the Offer to Purchase and the Schedule TO. ITEM 11. ADDITIONAL INFORMATION Item 11 is hereby amended and supplemented by the following: On Tuesday, July 9, 2002, Novell and the Company were notified that the German Federal Cartel Office cleared Novell's acquisition of SilverStream. With this clearance, along with the previously announced early termination of the 15-day waiting period applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, on June 28, 2002, Novell and SilverStream have now obtained all U.S. and foreign regulatory approvals necessary to close the Offer. On July 10, 2002, Novell and SilverStream issued a press release announcing the receipt of such regulatory approvals. The full text of such press release is filed as Exhibit (a)(1)(I) to this Schedule TO and is incorporated by reference herein. ITEM 12. EXHIBITS (a)(1)(A) Offer to Purchase dated June 18, 2002.* (a)(1)(B) Letter of Transmittal.* (a)(1)(C) Notice of Guaranteed Delivery.* (a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(1)(E) 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)(1)(G) Joint Press Release dated June 10, 2002 (incorporated by reference to the Schedule TO-C filed by Novell with the SEC on June 10, 2002).* (a)(1)(H) Summary Advertisement, published June 18, 2002.* (a)(1)(I) Joint Press Release dated July 10, 2002. (b) None. (d)(1) Mutual Non-Disclosure Agreement dated as of January 30, 2002 between Novell, Inc. and SilverStream Software, Inc.* (d)(2) Agreement and Plan of Merger dated as of June 9, 2002, by and among Novell, Inc., Delaware Planet Inc. and SilverStream Software, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Novell with the SEC on June 10, 2002).* (d)(3) Form of Stockholder's Agreement dated as of June 9, 2002, by and among Novell, Inc., Delaware Planet Inc., and each of Craig Dynes, Timothy Barrows, Paul J. Severino, Richard D'Amore, Kim Sheffield, Steven Benfield, The Litwack Irrevocable Trust, David Litwack, David Skok, Matrix IV Enterprises Fund, L.P. and Matrix Partners IV, L.P.* (d)(4) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and David Litwack.* (d)(5) Offer Letter dated as of June 17, 2002, by and among Novell, Inc. and Steven Benfield.* (d)(6) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and Roger Durn.* (d)(7) Offer Letter dated as of June 14, 2002, by and among Novell, Inc. and Michel Goossens.* (d)(8) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and John Judge.* (d)(9) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and Richard Wayne Parslow.* (d)(10) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and Kim Sheffield.* (d)(11) Offer Letter dated as of June 17, 2002, by and among Novell, Inc. and Craig Dynes.* (g) None. (h) None.
----------- * Previously filed 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. NOVELL, INC. By: /s/ Joseph A. LaSala, Jr. ------------------------------------ Name: Joseph A. LaSala, Jr. Title: Senior Vice President, General Counsel and Secretary DELAWARE PLANET INC. By: /s/ Joseph A. LaSala, Jr. ------------------------------------ Name: Joseph A. LaSala, Jr. Title: President and Secretary Dated: July 10, 2002 EXHIBIT INDEX (a)(1)(A) Offer to Purchase dated June 18, 2002.* (a)(1)(B) Letter of Transmittal.* (a)(1)(C) Notice of Guaranteed Delivery.* (a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(1)(E) 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)(1)(G) Joint Press Release dated June 10, 2002 (incorporated by reference to the Schedule TO-C filed by Novell with the SEC on June 10, 2002).* (a)(1)(H) Summary Advertisement, published June 18, 2002.* (a)(1)(I) Joint Press Release dated July 10, 2002. (b) None. (d)(1) Mutual Non-Disclosure Agreement dated as of January 30, 2002, between Novell, Inc. and SilverStream Software, Inc.* (d)(2) Agreement and Plan of Merger dated as of June 9, 2002, by and among Novell, Inc., Delaware Planet Inc. and SilverStream Software, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Novell with the SEC on June 10, 2002).* (d)(3) Form of Stockholder's Agreement dated as of June 9, 2002, by and among Novell, Inc., Delaware Planet Inc., and each of Craig Dynes, Timothy Barrows, Paul J. Severino, Richard D'Amore, Kim Sheffield, Steven Benfield, The Litwack Irrevocable Trust, David Litwack, David Skok, Matrix IV Enterprises Fund, L.P. and Matrix Partners IV, L.P.* (d)(4) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and David Litwack.* (d)(5) Offer Letter dated as of June 17, 2002, by and among Novell, Inc. and Steven Benfield.* (d)(6) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and Roger Durn.* (d)(7) Offer Letter dated as of June 14, 2002, by and among Novell, Inc. and Michel Goossens.* (d)(8) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and John Judge.* (d)(9) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and Richard Wayne Parslow.* (d)(10) Offer Letter dated as of June 5, 2002, by and among Novell, Inc. and Kim Sheffield.* (d)(11) Offer Letter dated as of June 17, 2002, by and among Novell, Inc. and Craig Dynes.* (g) None. (h) None.
----------- * Previously filed