SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) or 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
E2OPEN, INC.
(Name of Subject Company (Issuer))
EAGLE ACQUISITION SUB, CORP.
(Name of Filing Persons (Offeror)) a wholly-owned subsidiary of
EAGLE PARENT HOLDINGS, LLC
(Name of Filing Persons (Parent of Offeror))
INSIGHT VENTURE PARTNERS IX, L.P.
INSIGHT VENTURE PARTNERS IX (CO-INVESTORS), L.P.
INSIGHT VENTURE PARTNERS (CAYMAN) IX, L.P.
INSIGHT VENTURE PARTNERS (DELAWARE) IX, L.P.
(Names of Filing Persons (Others))
Common Stock, par value $0.001 Per Share
(Including the Associated Rights)
(Title of Class of Securities)
29788A104
(CUSIP Number of Class of Securities)
Eagle Acquisition Sub, Corp.
Eagle Parent Holdings, LLC
c/o Blair Flicker
Insight Venture Management, LLC
1114 Avenue of the Americas
36th Floor
New York, NY 10036
(212) 230-9200
(Name, address and telephone number of person authorized to receive notices and communications on behalf of filing person)
Copy to:
Gordon R. Caplan
Morgan D. Elwyn
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
CALCULATION OF FILING FEE
| Transaction valuation* | Amount of filing fee** | |
| $272,626,250.67 | $31,679.17 | |
| * | Estimated solely for purposes of calculating the filing fee. This calculation is based on the offer to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share (together with the associated rights issued pursuant to the Preferred Shares Rights Agreement, dated January 16, 2015, by and between E2open, Inc. and Computershare Trust Company, N.A., the “Shares”), of E2open, Inc. (“E2open”), at a purchase price of $8.60 per Share, net to the holder thereof in cash, without interest thereon and subject to any required tax withholding. The underlying value of the transaction was calculated based on the sum of: (i) 29,320,462 issued and outstanding Shares, multiplied by $8.60 per Share; (ii) 1,215,381 Shares underlying outstanding options with an exercise price that is less than $8.60 per Share, multiplied by $4.87 per Share (which is equal to the difference between $8.60 and $3.73, the weighted average exercise price of such options that have an exercise price that is less than $8.60 per Share); (iii) 1,334,114 Shares subject to restricted stock units which are subject to only time-based vesting, multiplied by $8.60 per Share; and (iv) 357,906 Shares subject to restricted stock units which are subject to performance-based vesting for which the financial results have not been certified by E2open’s Audit Committee as of the Effective Time or for which a Catch-Up Opportunity (as defined in Section 11— “Merger Agreement; Other Agreements—The Merger Agreement—Treatment of Options and Restricted Stock; Stock Plans”) remains available (based upon the target number of Shares subject to such restricted stock units), multiplied by $8.60 per Share. |
| ** | The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2015, issued August 29, 2014, is calculated by multiplying the transaction valuation by 0.0001162. |
| 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 the date of its filing. |
| Amount Previously Paid: | $31,679.17 | Filing party: | Eagle Acquisition Sub, Corp. | |||
| Eagle Parent Holdings, LLC | ||||||
| Insight Venture Partners IX, L.P. | ||||||
| Insight Venture Partners IX (Co-Investors), L.P. | ||||||
| Insight Venture Partners (Cayman) IX, L.P. | ||||||
| Insight Venture Partners (Delaware) IX, L.P. | ||||||
| Form or Registration No.: | Schedule TO-T (File No. 005-87198) | Date filed: | February 26, 2015 | |||
| ¨ | 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. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Eagle Parent Holdings, LLC, a Delaware limited liability company (“Parent”), Eagle Acquisition Sub, Corp., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Parent, Insight Venture Partners IX, L.P., Insight Venture Partners IX (Co-Investors), L.P., and Insight Venture Partners (Cayman) IX, L.P., each a Cayman Islands exempted limited partnership, and Insight Venture Partners (Delaware) IX, L.P., a Delaware limited partnership, with the Securities and Exchange Commission on February 26, 2015 (together with any subsequent amendments or supplements thereto, the “Schedule TO”). The Schedule TO relates to the tender offer by Purchaser for all of the issued and outstanding shares of common stock, par value $0.001 per share (together with the associated rights issued pursuant to the Preferred Shares Rights Agreement, dated January 16, 2015, by and between E2open, Inc. and Computershare Trust Company, N.A., the “Shares”) of E2open, Inc., a Delaware corporation (“E2open”), at a price of $8.60 per Share, net to the seller in cash, without interest thereon and less any applicable withholding taxes, upon the terms and conditions set forth in the offer to purchase dated February 26, 2015 (together with any subsequent amendments or supplements thereto, the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A) to the Schedule TO, and in the related letter of transmittal that accompanied such Offer to Purchase. All capitalized terms used in this Amendment and not otherwise defined have the respective meanings ascribed to them in the Schedule TO.
All of the information set forth in the Offer to Purchase, including Schedule I thereto, is incorporated herein by reference in response to Items 1 through 9 and Item 11 of this Amendment, except as otherwise set forth below. This Amendment should be read together with the Schedule TO.
Items 1–11.
The Offer to Purchase is hereby amended and supplemented as follows:
| 1. | The following paragraph is hereby added after the last paragraph under the caption “Background of the Offer” in Section 10 “Background of the Offer; Past Contacts or Negotiations with E2open.” |
“On February 26, 2015, the FTC (as defined in Section 16—“Certain Legal Matters; Regulatory Approvals—Antitrust Compliance”) granted early termination of the waiting period under the HSR Act.”
| 2. | The last paragraph under the caption “Confidentiality Agreement” is hereby deleted in its entirety and the following paragraphs are hereby added after the third paragraph of that section in Section 11 “The Merger Agreement; Other Agreements.” |
“On March 2, 2015, E2open provided to Insight an amendment and written consent to the Insight Confidentiality Agreement (the “Insight Amendment and Consent”), pursuant to which E2open consented to Insight’s use of certain potential equity co-investors in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement, provided that each such potential equity co-investor enters into a confidentiality agreement containing certain confidentiality obligations that are substantially as restrictive as Insight’s obligations under the Insight Confidentiality Agreement and providing for E2open as a third party beneficiary, subject to the terms and conditions of the Insight Amendment and Consent.
The foregoing summaries of the Insight Confidentiality Agreement, Insight Confidentiality Agreement Waiver, Insight Consent and Insight Amendment and Consent do not purport to be complete and are qualified in their entirety by reference to the Insight Confidentiality Agreement, Insight Confidentiality Agreement Waiver, Insight Consent and Insight Amendment and Consent, copies of which are filed as exhibits (d)(2), (d)(3), (d)(4) and (d)(11) to the Schedule TO filed with the SEC, which are incorporated herein by reference.”
| 3. | The following paragraph is hereby added after the last paragraph in Section 15 “Certain Conditions to the Offer.” |
“On February 26, 2015, the FTC (as defined in Section 16—“Certain Legal Matters; Regulatory Approvals—Antitrust Compliance”) granted early termination of the waiting period under the HSR Act. Accordingly, the Antitrust Condition has been satisfied. The Offer continues to be subject to the remaining conditions set forth in this Section 15.”
| 4. | The second and third paragraphs under the caption “Antitrust Compliance” are hereby deleted in their entirety and the following paragraph is hereby added after the first paragraph of that section in Section 16 “Certain Legal Matters; Regulatory Approvals.” |
“Under the HSR Act, our purchase of Shares in the Offer may not be completed until the expiration of a fifteen calendar day waiting period following the filing by Insight Venture Partners IX, L.P. (“IVP IX”), as the ultimate parent of Purchaser, of a Premerger Notification and Report Form concerning the Offer with the FTC and the Antitrust Division, unless the waiting period is earlier terminated by the FTC and the Antitrust Division. IVP IX and E2open filed their Premerger Notification and Report Forms on February 13, 2015 with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger. On February 26, 2015, the FTC granted early termination of the waiting period under the HSR Act. Accordingly, the Antitrust Condition has been satisfied. The Offer continues to be subject to the remaining conditions set forth in Section 15—“Certain Conditions to the Offer.”
| 5. | The following paragraph is hereby added after the last paragraph under the caption “Certain Litigation” in Section 16 “Certain Legal Matters; Regulatory Approvals.” |
“On March 10, 2015, plaintiffs in theKeehn action in California filed an amended complaint with new factual allegations, including allegations that the E2open director defendants are self-interested in the proposed transaction and that they breached their fiduciary duties by allegedly omitting material information from E2open’s Solicitation/Recommendation Statement on Schedule 14D-9.”
Item 12.
Item 12 of the Schedule TO is hereby amended and supplemented to replace the following exhibit,
(d)(4) Consent under Confidentiality Agreement, dated February 2, 2015, by and between E2open, Inc. and Insight Venture Partners, LLC
and to add the following exhibit,
(d)(11) Amendment and Consent to Confidentiality Agreement, dated March 2, 2015, by and between E2open, Inc. and Insight Venture Partners, LLC
SIGNATURES
After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
| EAGLE ACQUISITION SUB, CORP. | ||
| By: | /s/ Blair Flicker | |
| Name : | Blair Flicker | |
| Title: | Secretary | |
| EAGLE PARENT HOLDINGS, LLC | ||
| By: | /s/ Blair Flicker | |
| Name : | Blair Flicker | |
| Title: | Secretary | |
| INSIGHT VENTURE PARTNERS IX, L.P. | ||
| By: | Insight Venture Associates IX, L.P. | |
| Its: | General Partner | |
| By: | Insight Venture Associates IX, Ltd. | |
| Its: | General Partner | |
| By: | /s/ Blair Flicker | |
| Name: | Blair Flicker | |
| Title: | Authorized Officer | |
| INSIGHT VENTURE PARTNERS (CAYMAN) IX, L.P. | ||
| By: | Insight Venture Associates IX, L.P. | |
| Its: | General Partner | |
| By: | Insight Venture Associates IX, Ltd. | |
| Its: | General Partner | |
| By: | /s/ Blair Flicker | |
| Name: | Blair Flicker | |
| Title: | Authorized Officer | |
| INSIGHT VENTURE PARTNERS IX (CO-INVESTORS), L.P. | ||
| By: | Insight Venture Associates IX, L.P. | |
| Its: | General Partner | |
| By: | Insight Venture Associates IX, Ltd. | |
| Its: | General Partner | |
| By: | /s/ Blair Flicker | |
| Name: | Blair Flicker | |
| Title: | Authorized Officer | |
| INSIGHT VENTURE PARTNERS (DELAWARE) IX, L.P. | ||
| By: | Insight Venture Associates IX, L.P. | |
| Its: | General Partner | |
| By: | Insight Venture Associates IX, Ltd. | |
| Its: | General Partner | |
| By: | /s/ Blair Flicker | |
| Name: | Blair Flicker | |
| Title: | Authorized Officer | |
Date: March 11, 2015
INDEX TO EXHIBITS
Exhibit | Description | |
| (d)(4) | Consent under Confidentiality Agreement, dated February 2, 2015, by and between E2open, Inc. and Insight Venture Partners, LLC | |
| (d)(11) | Amendment and Consent to Confidentiality Agreement, dated March 2, 2015, by and between E2open, Inc. and Insight Venture Partners, LLC | |