SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 2)
CARBON BLACK, INC.
(Name of Subject Company)
CALISTOGA MERGER CORP.
(Names of Filing Persons)
(Parent of Offeror)
(Names of Filing Persons)
Common stock, par value $0.001 per share
(Title of Class of Securities)
(CUSIP Number of Class of Securities)
Chief Executive Officer
3401 Hillview Avenue
Palo Alto, CA
(Name, address and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
With a copy to:
Brandon C. Parris
Michael G. OBryan
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105-2482
CALCULATION OF FILING FEE
|Transaction Valuation*||Amount of Filing Fee**|
Calculated solely for purposes of determining the filing fee. The transaction value was calculated by adding (a) 74,931,471 shares of issued and outstanding common stock, par value $0.001 per share (the Shares), of Carbon Black, Inc., a Delaware corporation (Carbon Black), multiplied by the offer price of $26.00 per Share and (b) 7,396,477 Shares issuable pursuant to outstanding vested options to acquire Shares from Carbon Black with an exercise price less than the offer price of $26.00 per share, multiplied by $20.82, which is the offer price of $26.00 per Share less the weighted-average exercise price for such options of $5.18 per Share.
The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for fiscal year 2019, effective October 1, 2018, by multiplying the transaction value by 0.0001212.
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: $254,789
|Filing Party: Calistoga Merger Corp. and VMware, Inc.|| |
Form or Registration No.: Schedule TO
|Date Filed: September 6, 2019|
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.
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: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
This Amendment No. 2 (this Amendment) amends and supplements the Tender Offer Statement on Schedule TO (as amended and together with any subsequent amendments and supplements thereto, the Schedule TO), filed with the Securities and Exchange Commission (SEC) on September 6, 2019, by Calistoga Merger Corp. (Purchaser), a Delaware corporation and a wholly owned subsidiary of VMware, Inc. (Parent), a Delaware corporation. The Schedule TO relates to the tender offer by Purchaser for all of the outstanding shares of common stock, par value $0.001 per share (Shares), of Carbon Black, Inc. (Carbon Black), at a price of $26.00 per Share, without interest, net to the seller in cash, and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the offer to purchase, dated September 6, 2019 (the Offer to Purchase), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the Letter of Transmittal, a copy of which is attached as Exhibit (a)(1)(B), and which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the Offer).
The information set forth in the Offer to Purchase, including Schedule I thereto, is incorporated by reference to the extent stated herein in response to Items 1 through 9 and Item 11 of the Schedule TO, and is supplemented by the information specifically provided in this Amendment.
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 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
|(a)(5)(R)||Sanjay Poonen Interview on CNBC.|
|(a)(1)(A)*||Offer to Purchase, dated September 6, 2019.|
|(a)(1)(B)*||Letter of Transmittal, dated September 6, 2019.|
|(a)(1)(C)*||Notice of Guaranteed Delivery, dated September 6, 2019.|
|(a)(1)(D)*||Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, dated September 6, 2019.|
|(a)(1)(E)*||Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, dated September 6, 2019.|
|(a)(1)(F)*||Summary Advertisement, as published in the New York Times on September 6, 2019.|
|(a)(5)(A)||Press Release of VMware, Inc., dated August 22, 2019 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by VMware, Inc. on August 22, 2019).|
|(a)(5)(B)||Q&A, dated August 22, 2019 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(C)||Blog Post by VMware, Inc., dated August 22, 2019 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(D)||Blog Post by Dell Inc., dated August 22, 2019 (incorporated by reference to Exhibit 99.3 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(E)||E-mails to employees, dated August 22, 2019 (incorporated by reference to Exhibit 99.4 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(F)||Talking Points, distributed August 22, 2019 (incorporated by reference to Exhibit 99.5 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(G)||Customer Presentation, dated August 22, 2019 (incorporated by reference to Exhibit 99.6 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(H)||Earnings Conference Call Slides, dated August 22, 2019 ((incorporated by reference to Exhibit 99.7 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(I)||Earnings Call Transcript, dated August 22, 2019 (incorporated by reference to Exhibit 99.8 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(J)||Carbon Black Town Hall Meeting Talking Points (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(K)||Social Media Posts (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by VMWare, Inc. on August 23, 2019).|
|(a)(5)(L)||Internal Blog to Dell Sales Community by Dell dated August 26, 2019 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by VMWare, Inc. on August 26, 2019).|
|(a)(5)(M)||Customer Communication (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by VMWare, Inc. on August 28, 2019).|
|(a)(5)(N)||Transcript of VMworld Strategy Session with VMware, Carbon Black and Pivotal Executives, August 28, 2019 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by VMWare, Inc. on August 29, 2019).|
|(a)(5)(O)||Supplemental Slides from VMworld Strategy Session with VMware, Carbon Black and Pivotal Executives, August 28, 2019 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by VMWare, Inc. on August 29, 2019).|
|(a)(5)(P)||Transcript of Dell, Inc. Investor Call, August 29, 2019 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by VMWare, Inc. on August 30, 2019).|
|(a)(5)(Q)*||Joint Press Release issued by VMware, Inc. and Carbon Black, Inc., dated September 10, 2019.|
|(a)(5)(R)||Sanjay Poonen Interview on CNBC.|
|(d)(1)||Agreement and Plan of Merger, dated as of August 22, 2019, by and among VMware, Inc., Calistoga Merger Corp. and Carbon Black, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by VMware, Inc. on August 22, 2019).|
|(d)(2)*||Confidentiality/Nondisclosure Agreement, dated July 23, 2019, by and between Carbon Black, Inc. and VMware, Inc.|
|(d)(3)||Form of Tender and Support Agreement, dated as of August 22, 2019, by and among VMware, Inc., Calistoga Merger Corp. and certain Carbon Black stockholders (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by VMware, Inc. on August 22, 2019).|
|(d)(4)*||Exclusivity Agreement, dated as of August 12, 2019, by and among VMware, Inc. and Carbon Black, Inc.|
|(d)(5)*||Thomas Hansen Offer Letter.|
|(d)(6)*||Patrick Morley Offer Letter.|
|(d)(7)*||Ryan Polk Offer Letter.|
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.
|CALISTOGA MERGER CORP.|
|Title:||President and Secretary|
|Title:||Vice President, Deputy General Counsel and Assistant Secretary|
Dated: September 11, 2019
Transcript of Sanjay Poonen Appearance on Mad Money, first used or made available on September 10, 2019:
JIM CRAMER, MAD MONEY, HOST:
Weve seen all sorts of turmoil in the high flying cloud stocks for the past few days. Some of these damps have come down hard. What about the not so high flying cloud stocks? Look at VMware, the virtualization software pioneering Cramer Cloud Kit that allows data centers to run multiple virtual machines in a single server. And thats become a major player in the cloud infrastructure space they are on the border. VMwares been doing just fine for the past week. Hey, maybe because the stock had been crushed last month. Remember this company, a subsidiary of Dell reported a fantastic quarter in late August. Fantastic. But there was one major fly in the ointment. We learned that VMware will be making two acquisitions. Not one but two, Pivotal Software and another Dell Subsidiary, Carbon Black a cloud native security player. The deals werent seven that big. Theyre paying 3.6 billion for Pivotal 2.1 billion for Carbon Black. Didnt matter, investors and analysts alike found the deals questionable in value and the stock got clobbered. Seeing the 120 in its lows last month. Down from 180 near the end of July. However the past couple of weeks VMwares begun to bounce. Stock back up over up to 153 after a trip of almost a 6 buck gain today. I told you at the time that the negative reaction was way overblown. Is Wall-Street finally coming to the same conclusions? Lets take a closer look with Sanjay Poonen. Hes VMwares Chief Operating Officer for Customer Operations. He had a better sense of these so called controversial deals and what they mean for his company. Mr. Poonen, welcome back to Mad Money.
SANJAY POONEN, CHIEF OPERATING OFFICER, VMWARE:
Good to see you Sanjay. Have a seat.
Always a pleasure.
Thank you. Now there I see (interrupted)
Look at this.
Why dont we just start with Carbon Black.
Lets start with these.
There we go and my pivotal socks.
Pivotal socks. Okay, well lets start with these because know the quarter was fine. We can entrust that later cause I thought it was an excellent quarter. People were baffled that you could do two acquisitions at once. Why one company could even handle that and why you picked these companies. I think if you, the stock is saying that maybe theres more to it than that. You could walk us through.
Yeah, lets walk through them one at a time.
When you look at these types of transformational moments going on digital transformation. These happen once every 10, 20 years. VMwares the company that invented the virtual machine and for the last 20 years weve created a million jobs in that part of infrastructure. There is a movement going on digital transformation right now called containers and we believe its our birth right to own that movement because therell be potentially tens of millions of jobs among developers created on top of this virtual machine. Think of the virtual machine sort of like the ship and containers like the things on top (Interrupted).
No cause I was going to say is that the good analogy?
Thats the right one. The 1950s containers completely transformed ships. VMware created the ship and now these containers are going to allow apps to be fundamentally transformed. We found as thought about this that this was the right time to do it and it was our birthright to do better than anyone else. Why not take those 3,000 people in Pivotal, 750 million in revenue and turbo charge the next ten years of VMware not just in virtual machines and virtualization in the pot. The cloud which is the first C but the other C is containers and we think thats a big part and well get to security later but thats the (interrupted).
Okay now Pivotal had, you lately had not had them won well in the stock market. Has something changed to make it so its more valuable? Or is it the merger of VMware that creates?
Two things. One is they refactored their product. Now sit completely on this word Kubernetes. If you dont know what it is its sort of the big open source container movement and the go to market engine probably stuttered a little bit but thats what VMware does well. Were go to market machine, well bring them in and accelerate this to our 500,000 customers. So we feel good. When we get a good product in the hands of a good go to market machine, I think we can accelerate and thats the will of it.
And when you say we I mean actually youre going to be doing this? Youre the captain in this right?
Well listen, VMwares its no one person does it.
Right. Thats fair.
It takes a village to do it but also our partners, our partners like Dell and the ecosystem. VMware has 75,000 partners Jim, who love us. Were going to take this to those ecosystem partners with a big tent. System integrators there excited about this. We branded the entire thing, thats the other thing we have done pretty well. Tanzu which is the Japanese word for containers. Were doing big adds in New York, San Francisco, London, Hambert. A play on word VMware that says container ware. Were not changing the name of the company but were going big in containers and thats the key message I want your viewers to take away.
Okay. A crowded area right now is security. Okay, cloud security. Youre wearing a t-shirt of a company that a lot of people on the analysis call said geez why Carbon Black? Is he you know tonight did say that business had gotten a little soft versus projections. Why does your great company need a part, why not just partner with a security company? Why do you have to own one?
Well listen, fundamentally we have a bigger plan in security and let me just walk you through (interrupted).
Okay, please due.
A quick understanding of the strategy. Theres a lot of parallels within security and healthcare and my moms a doctor. Imagine you enter a doctor Jim and you asked her, How do you get well? And she said, You have to eat 5,000 tablets. Eating one every 30 seconds would take you a couple of weeks to do that. Thats what the security industry is today. 5,000 vendors, broken, lots of different agents that bloated on peoples laptops. Lots of alerts showing
up, manual labor. So we look at this and say theres a fundamental new way to do it which is to make security intrinsic into your diet. You eat your vegetables, your fruit, you drink your water, brush your teeth and thats what were doing with security, making it part of our platform. So weve been doing very well in network security around the NSX product. But endpoint security and work load security, we didnt have much there. We had Workspace One, our Airwatch related product, and we found as many of these endpoint security players were, you know, kind of little bit in turmoil. Symantec got bought by Broadcom, McAfee got bought by Intel and spun out again. We thought it was the perfect time for us to come up with a disruptive play that was based on big data, A.I. was Cloud native and theres only two companies doing it. Crowdstrike and Carbon Black. We felt this company was better integrated to us, had as good of a product or better, okay? Financial results are good for us as you could understand.
Right, it sure was.
And we acquire, we intend to acquire them, the acquisition of one is close. We have a plan to integrate this and make it intrinsic in a way that nobody else will do and we lay that out in VM World. We think this will transform the security industry thats been broken today. Thats our plan.
I now understand it. I needed to hear it from you. In the meantime you always come with a lesson, this time you have a music lesson about business that I think a lot of people want to hear.
Listen I think in general much has been talked about STEM.
Engineering math. I think you could add an A into that and call it steam because arts is really important and I think when you could bring music and arts, one of the gifts I have as a jazz pianist is making things simple. Cause sometimes Ill bring music into the middle of a keynote. If you watch on YouTube Ive done this a couple of different times and its just a way most keynotes are boring and death by power points.
Why not add a little music into it and sometimes when I start the keynote this way people are stunned by it and thats why we want to make this lively, entertaining and theres often a little bit of an artistic message that you could play in that at the core of every song it is a beautiful melody that goes round and round and thats what business is all about.
Well Im grateful for you coming in and speaking English about why these acquisitions are good and also I think your Ray Charles music, let me just say your piano as good as good as the band.
One of my favorites.
Goes out of my mind.
I know. Okay thats Sanjay Poonen, VMwares Chief Operating Officer. I hope you understand now, I think it helps me tremendously about why Carbon Black, why Pivotal, and why I buy VMware. Specifically cause its really dab. Mad Money is back after the break.
This communication contains forward-looking statements including, among other things, statements regarding the proposed acquisitions of Carbon Black and Pivotal Software by VMware, such as: the expected timing for the acquisitions; the growth opportunities and expansion of VMwares offerings associated with each acquisition and potential benefits to VMware and its customers and partners. These forward-looking statements are subject to applicable safe harbor provisions under federal securities laws, such as the Private Securities Litigation Reform Act of 1995. Actual results could differ materially from those projected in the forward-looking statements as a result of certain risk factors, including but not limited to: (1) the satisfaction or waiver of the conditions to closing the proposed acquisitions (including the failure to obtain necessary regulatory approvals) in the anticipated timeframe or at all; (2) uncertainties as to how many of Carbon Blacks stockholders will tender their shares in the tender offer and the outcome of the vote by Pivotal stockholders to approve the Pivotal acquisition; (3) the possibility that either or both acquisitions do not close; (4) the possibility that competing offers may be made; (5) risks related to obtaining the requisite consents to each acquisition, including, without limitation, the timing (including possible delays) and receipt of regulatory approvals from various governmental entities (including any conditions, limitations or restrictions placed on these approvals and the risk that one or more governmental entities may deny approval); (6) the possibility that the expected benefits from the proposed acquisitions will not be realized or will not be realized within the expected time period; (7) the risk that the businesses will not be integrated successfully; (8) the risk of litigation and regulatory actions related to the proposed acquisitions; (9) other business effects, including the effects of industry, market, economic, political or regulatory conditions; and (10) other unexpected costs or delays in connection with the acquisitions. These forward-looking statements are made as of the date of this communication, are based on current expectations and are subject to uncertainties and changes in condition, significance, value and effect as well as other risks detailed in documents filed with the Securities and Exchange Commission, including VMwares most recent reports on Form 10-K and Form 10-Q and current reports on Form 8-K that we may file from time to time, which could cause actual results to vary from expectations. VMware assumes no obligation to, and does not currently intend to, update any such forward-looking statements after the date of this communication.
Additional Information about the Pivotal Acquisition and Where to Find It
This communication may be deemed to be solicitation material in respect of the proposed merger with Pivotal Software (the Pivotal Merger). This communication does not constitute an offer to sell or the solicitation of an offer to buy VMware securities or the solicitation of any vote or approval. The proposed Pivotal Merger will be submitted to Pivotals stockholders for their consideration. In connection with the proposed transaction, Pivotal intends to file a proxy statement and other relevant materials with the Securities and Exchange Commission (the SEC) in connection with the solicitation of proxies by Pivotal, the Company and Dell Technologies in connection with the proposed transaction. The definitive proxy statement will be mailed to Pivotals stockholders.
BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE PROPOSED TRANSACTION, INVESTORS AND STOCKHOLDERS OF PIVOTAL ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT REGARDING THE PROPOSED TRANSACTION (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND OTHER RELEVANT MATERIALS CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. The proxy statement, any amendments or supplements thereto and other relevant materials, and any other documents filed by Pivotal with the SEC, may be obtained once such documents are filed with the SEC free of charge at the SECs website at www.sec.gov.
In addition, Pivotals stockholders may obtain free copies of the documents filed with the SEC through the Investors portion of Pivotals website at pivotal.io/investors or by contacting Pivotals Investor Relations Department via e-mail at email@example.com.
Pivotal, VMware, Dell Technologies Inc. and certain of their respective executive officers, directors, other members of management and employees, may under the rules of the SEC, be deemed to be participants in the solicitation of proxies from Pivotals stockholders in connection with the proposed transaction. Information regarding the persons who may be considered participants in the solicitation of proxies will be set forth in Pivotals preliminary and definitive proxy statements when filed with the SEC and other relevant documents to be filed with the SEC in
connection with the proposed transaction, each of which can be obtained free of charge from the sources indicated above when they become available. Information regarding certain of these persons and their beneficial ownership of Pivotals common stock is also set forth in Pivotals proxy statement for its 2019 annual meeting of stockholders filed on May 3, 2019 with the SEC, which may be obtained free of charge from the sources indicated above.
Additional Information about the Carbon Black Tender Offer and Where to Find It
The tender offer referenced in this communication has not yet commenced. This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell Carbon Black securities, nor is it a substitute for the tender offer materials that VMware and its acquisition subsidiary will file with the SEC. The solicitation and offer to buy Carbon Black stock will only be made pursuant to an Offer to Purchase and related tender offer materials. At the time the tender offer is commenced, VMware and its acquisition subsidiary will file a tender offer statement on Schedule TO and thereafter Carbon Black will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the tender offer. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WILL CONTAIN IMPORTANT INFORMATION. CARBON BLACK STOCKHOLDERS ARE URGED TO READ THESE DOCUMENTS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT HOLDERS OF CARBON BLACK SECURITIES SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SECURITIES. The Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, will be made available to all holders of Carbon Black stock at no expense to them. The tender offer materials and the Solicitation/Recommendation Statement will be made available for free at the SECs website at www.sec.gov. Additional copies may be obtained for free by contacting VMware or Carbon Black. Copies of the documents filed with the SEC by Carbon Black will be available free of charge on Carbon Black internet website at investors.carbonblack.com/financial-information/sec-filings or by contacting Carbon Blacks Investor Relations Department at (617) 393-7400. Copies of the documents filed with the SEC by VMware will be available free of charge on VMwares internet website at ir.vmware.com contacting VMwares Investor Relations Department via email at IR@vmware.com.
In addition to the Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, VMware and Carbon Black each file annual, quarterly and current reports and other information with the SEC. VMwares and Carbon Blacks filings with the SEC are available to the public on the SECs website at www.sec.gov.