SEC Division of Corporation Finance no-action letter: SERENA Software, Inc.

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Securities Exchange Act of 1934 - Sections 13(a) and 15(d)

April 13, 2004

Response of the Office of Mergers and Acquisitions Division of Corporation Finance

Re: SERENA Software, Inc. Offer for Shares and ADSs of Merant plc Division of Corporation Finance File No. 5-45819

Dear Ms. McDowell:

We are responding to your letter dated March 18, 2004 to Brian V. Breheny and Christina Chalk in the Division of Corporation Finance. A copy of your correspondence is attached. By doing this, we avoid having to recite or summarize the facts set forth in your letter. Each defined term in this letter has the same meaning as in your March 18, 2004 correspondence, unless otherwise indicated.

Based on the representations in your letter but without necessarily concurring in your analysis, the United States Securities and Exchange Commission (Commission) hereby grants exemptions from Section 14(d)(5) and Rule 14d-11 of Regulation 14D, to permit SERENA Software, Inc. (SERENA) to keep the Subsequent Offer Period open for more than twenty US business days, as permitted by the UK City Code. The Commission also grants exemptions from Rules 14d-10(a)(2) and (c) and 14d-11(b) and (f) to allow the Mix and Match Election process to be conducted in the manner described in your March 18, 2004 letter.

In addition, based on the representations in your letter dated March 18, 2004 but without necessarily concurring in your analysis, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action if SERENA terminates the Initial Offer Period and thereby ends withdrawal rights before the scheduled expiration of a voluntary extension of the Initial Offer Period, so long as at the time withdrawal rights terminate: (i) the Initial Offer Period has been open for at least 20 US business days; and (ii) all Offer conditions have been satisfied or waived. In this regard, we note that in the case of a reduction in the minimum tender condition, SERENA will act in accordance with the Commission's interpretation set forth in Section II.B of Release No. 33-7759 (January 24, 2000). Similarly, the staff of the Division of Corporation Finance will not recommend that the Commission take enforcement action if SERENA sets the pro ration factor of the Mix and Match Election before the expiration of the offer, as described in your letter.

The foregoing exemptions and no-action positions are based solely on the representations and the facts presented in your letter dated March 18, 2004, as supplemented by telephone conversations with the Commission staff. The relief is strictly limited to the application of the rules listed above to this transaction. You should discontinue this transaction pending further consultations with the staff if any of the facts or representations set forth in your letter change.

We also direct your attention to the anti-fraud and anti-manipulation provisions of the federal securities laws, including Section 10(b) and 14(e) of the Exchange Act, and Rule 10b-5 there under. The participants in this transaction must comply with these and any other applicable provisions of the federal securities laws. The Division of Corporation Finance expresses no view on any other questions that may be raised by the proposed transaction, including but not limited to, the adequacy of disclosure concerning and the applicability of any other federal or state laws to the proposed transaction.

Sincerely,

For the Commission, By the Division of Corporation Finance pursuant to delegated authority,

Mauri L. Osheroff Associate Director Division of Corporation Finance

Enclosure

Incoming Letter:

March 18, 2004

Securities and Exchange Commission 450 Fifth Street, NW Washington, DC 20549

Attention: Brian V. Breheny, Esq. Christina Chalk, Esq. Office of Mergers and Acquisitions Division of Corporation Finance

Re: SERENA Software, Inc. Offer for Shares and ADSs of Merant plc

Dear Mr. Breheny and Ms. Chalk:

We are writing on behalf of SERENA Software, Inc., a corporation incorporated under the laws of Delaware ("SERENA"). On March 3, 2004, SERENA announced its intention to make a recommended offer (the "Offer") for the entire issued and to be issued share capital of Merant plc, a public limited company incorporated under the laws of England and Wales (the "Company"). It is intended that the Offer, consisting of a combination of cash and SERENA common stock, will be made available in the United States to holders of the Company's ordinary shares (the "Company Shares") and American Depositary Shares representing Company Shares (the "Company ADSs"). SERENA filed a registration statement on Form S-4 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") in respect of the common stock of SERENA being offered on March 8, 2004. SERENA intends to commence the Offer on the date hereof in accordance with The City Code on Takeovers and Mergers (the "City Code"), the Exchange Act (as defined below) and any relief granted herein. Pursuant to the City Code, SERENA must commence the offer within 28 days after the announcement of SERENA's intention to make the Offer was made (i.e., March 31, 2004), or such later date as the U.K. Panel on Takeovers and Mergers (the "Panel") may agree. On the date hereof, SERENA filed a Tender Offer Statement on Schedule TO.

On behalf of SERENA, we are requesting that the Commission confirm that termination of any voluntary extension of the Initial Offer Period (as defined below) prior to the scheduled expiration of such period will not be inconsistent with the Securities Exchange Act of 1934 and the rules and regulations thereunder (as amended, the "Exchange Act") so long as the following conditions are met: (i) the Initial Offer Period has been open for at least 20 U.S. business days and (ii) all conditions of the Offer (the "Conditions") have been satisfied or waived. 1 We are also requesting exemptive relief from Section 14(d)(5) and Rule 14d-11 under the Exchange Act so as to permit SERENA, under certain circumstances, to keep the Subsequent Offer Period (as defined below under "Proposed Offer Structure") open beyond 20 U.S. business days. 2 Finally, we are requesting exemptive relief from Rule 14d-l0(a)(2) and (c) and Rule 14d-11(b) and (f) in connection with the "Mix and Match Election" (described in detail below) and are requesting that the Commission take no enforcement action if SERENA sets the proration factor of the Mix and Match Election before the expiration of the Offer. 3

Background

The Company

The Company is a "foreign private issuer" as defined in Rule 3b-4(c) under the Exchange Act and is a reporting company under the Exchange Act. According to the Company's Form 20 F for the fiscal year ended April 30, 2003, the Company designs, develops and markets software products and services for enterprise change management, software configuration management and web content management. The Company's solutions help companies improve their ability to manage change software applications, code and web content.

The Company Shares have been admitted to the Official List of the UK Listing Authority and are traded on the London Stock Exchange plc's market for listed securities (the "London Stock Exchange"). American Depositary Receipts evidencing Company ADSs are listed on the Nasdaq National Market (the "Nasdaq"). Each Company ADS represents five Company Shares. Company ADSs and Company Shares (for non-trading purposes, in connection with the listing of Company ADSs) are registered pursuant to Section 12(b) of the Exchange Act.

Based on information made available by the Company to SERENA, SERENA believes that United States beneficial holders hold more than 10% but less than 40% of the Company Shares (including Company Shares represented by Company ADSs). More particularly, the Company has provided SERENA with a beneficial ownership report for United States holders prepared by an investment advisor to the Company as of February 29, 2004. Based on an analysis of 90.57% of the outstanding share capital of the Company (including Company Shares represented by Company ADSs), it was determined that as of the date of the report, United States holders beneficially owned 13,887,670 Company Shares (including Company Shares represented by Company ADSs). On the basis of 105,516,545 Company Shares (including Company Shares represented by Company ADSs) and disregarding the 21,813,699 Company Shares beneficially owned by Schroders plc and entities connected with it (which collectively hold more than 10% of the outstanding Company share capital), as of the relevant date for making such determination, United States holders beneficially owned 16.6% of the Company Shares (including Company Shares represented by Company ADSs). Based on this information, the Offer is eligible for a "Tier II" exemption but not for a "Tier I" exemption under Rules 14d-l(c) and (d).

SERENA

SERENA is a leading provider of enterprise change management infrastructure software to manage change to enterprise applications. Its products and services are used to manage and control application change for organizations whose business operations are dependent on managing information technology.

SERENA is a reporting company under the Exchange Act and has filed, on a timely basis, all reports required to be so filed by SERENA pursuant to the Exchange Act in the 12 months preceding the date of filing of the Registration Statement. SERENA's common stock is quoted on the Nasdaq National Market under symbol "SRNA."

Proposed Offer Structure

General

The Offer will be structured as a single offer made concurrently in the United Kingdom as well as in the United States and certain other jurisdictions where the Offer may be legally extended. In accordance with customary practice in the United Kingdom, the Offer will be made in the United Kingdom on behalf of SERENA by SERENA's financial advisor.

The Offer will be structured so as to comply with the City Code, the regulatory regime with the greatest interest in the conduct of the Offer, the rules and regulations of the United Kingdom Listing Authority and the London Stock Exchange and Regulations 14D and 14E under the Exchange Act as they apply to offers that satisfy the requirements of the "Tier II" exemption under Rule 14d-l(d). The City Code is administered by the Panel.

The Offer will be subject to the Conditions customary for offers of this type in the United Kingdom. One of the most important of the Conditions is a condition (the "Acceptance Condition") that SERENA receive acceptances from holders of Company Shares (including Company Shares represented by Company ADSs) with respect to not less than 90% (or such lesser percentage as SERENA may subsequently decide) of Company Shares (including Company Shares represented by Company ADSs) to which the Offer relates. Pursuant to the City Code, the Acceptance Condition may not be satisfied or waived unless SERENA shall have acquired or agreed to acquire, directly or indirectly, pursuant to the Offer or otherwise, Company Shares (including Company Shares represented by Company ADSs) carrying more than 50% of the votes normally exercisable at general meetings of the Company's shareholders.

To harmonize the United Kingdom and the United States regulatory regimes, SERENA has been required by the Panel not to declare the Offer unconditional as to acceptances unless all other Conditions are also satisfied or, to the extent permitted, waived (i.e., the Offer becomes or is declared "wholly unconditional"). The Panel has required this in order to remove the possibility of withdrawals reducing the level of acceptances below 50% (based on the fact that declaring the Offer wholly unconditional will terminate the right to withdraw Company Shares and Company ADSs with respect to which the Offer has been accepted prior to such time). On that basis, under the City Code, the Offer would be required to lapse if it does not become or is not declared wholly unconditional by the 60th day after commencement, unless the Panel agrees otherwise.

In accordance with the Commission's interpretation of the Tier II exemption as set forth in section II.B of the Cross-Border Release, the Acceptance Condition may be reduced in accordance with the City Code if a public announcement that such a reduction may be made is announced by press release and publication in a newspaper of general circulation in the United States five U.S. business days prior to the time an offeror reduces the Acceptance Condition.

The Offer will provide that SERENA will make an announcement five U.S. business days prior to the date on which any such reduction in the Acceptance Condition may be effected, stating the percentage to which the Acceptance Condition may be reduced. Any such announcement will be made through a press release and by placing an announcement in a newspaper of national circulation in the United States. Any such announcement will advise shareholders to withdraw their acceptances immediately if their willingness to accept the Offer would be affected by a reduction of the Acceptance Condition. In addition, disclosure regarding the procedure for reducing the Acceptance Condition will be described in the Offer documentation.

During the five-day period following the public announcement that such a reduction may be made, holders will have withdrawal rights. The Offer will provide that withdrawal rights will be available until the Offer is declared wholly unconditional. If necessary, SERENA will delay declaring the Offer wholly unconditional until the expiration of the five-day period following the public announcement that such a reduction may be made.

Initial Offer Period

The Offer will remain open for acceptance after the date of commencement for not less than 20 U.S. business days and thereafter for such additional period or periods as may be determined by SERENA ("Voluntary Extensions") or as may be mandated ("Mandatory Extensions") by the provisions of Regulations 14D and 14E under the Exchange Act (subject to any exemptive relief granted) or the City Code (as so extended, the "Initial Offer Period"). The Offer shall provide that SERENA may declare the Offer wholly unconditional and terminate the Initial Offer Period at or at any time after the 20th U.S. business day after the Offer commences (but not before expiration of any Mandatory Extension), whether or not on a scheduled expiration date of the Offer. Holders will have withdrawal rights throughout the Initial Offer Period. In accordance with Rule 31.8 of the City Code, payment for any security with respect to which the Offer has been validly accepted as of the end of the Initial Offer Period would be made within 14 calendar days after the date at which the Offer becomes or is declared wholly unconditional.

Subsequent Offer Period

In accordance with the City Code, once the Offer becomes wholly unconditional, the Offer must, among other things, remain open for acceptances for at least 14 calendar days and may remain open for such longer period (the "Subsequent Offer Period") as SERENA deems appropriate. In practice, transactions in the United Kingdom are usually structured so as to keep the Subsequent Offer Period open for a period longer than the mandatory 14 calendar days under the City Code and longer than the 20 U.S. business days provided for in the first sentence of Rule 14d-11. In accordance with Rule 31.8 of the City Code, payment for any security with respect to which the Offer is validly accepted during the Subsequent Offer Period would be made within 14 calendar days of the date of the receipt of an acceptance complete in all respects in respect of that security. Payments for Company securities with respect to which the Offer is validly accepted during the Subsequent Offer Period will therefore be made on a rolling basis.

"Mix and Match Election"

In the Offer, SERENA plans to offer a standard entitlement of 136.5 pence and 0.04966 of a SERENA share for each Company Share (682.5 pence and 0.2483 of a SERENA share for each Company ADS). SERENA will provide a "Mix and Match Election" in the Offer, whereby holders of Company Shares and Company ADSs may request to receive either more shares of SERENA common stock or more cash than the standard entitlement. However, the Mix and Match Election will be available only to the extent that off-setting elections have been made by other holders who accept the Offer. To the extent that elections cannot be satisfied as a result of such off-setting elections, entitlements to shares of SERENA common stock and cash in excess of the standard entitlement will be reduced on a pro rata basis. Once the share allocations have been determined, the cash element of the consideration will be reduced or increased (as the case may be) for each holder of Company Shares or Company ADSs who has been allocated an increased or reduced number of shares of SERENA common stock. All calculations will be made by reference to the number of valid acceptances and elections received by SERENA as of the date that is five calendar days after the date on which the Offer becomes or is declared wholly unconditional. For the purposes of these calculations, each Company Share will be valued at 195 pence and each share of SERENA common stock will be valued at �11.78, which is calculated as the average closing price of one SERENA share for the 20 U.S. trading days ended March 1, 2004 (the third trading day prior to the announcement of the Offer), converted into pounds sterling based on the average daily exchange rate for the five trading days ended March 3, 2004 (the date on which the Offer was announced). The same values per Company share and per SERENA share were used to determine the amount of the standard entitlement in the Offer. The maximum number of shares of SERENA common stock to be issued under the Offer and the maximum amount of cash to be paid under the Offer will not be varied as a result of the Mix and Match Election.

Shareholders of the Company who make Mix and Match Elections will not know the exact number of shares of SERENA common stock or the amount of cash they will receive until settlement of the consideration under the Offer, although an announcement of the approximate extent to which Mix and Match Elections will be satisfied will be made two U.S. business days after the Mix and Match Election ceases to be open for acceptances.

The Mix and Match Election will remain open for acceptance by holders of Company Shares and Company ADSs until the date which is five calendar days after the date on which the Offer becomes or is declared wholly unconditional. This date represents the latest practicable time to which the Mix and Match Elections may be allowed while remaining in compliance with the requirements of Rule 31.8 of the City Code regarding the timing of payments for Company Shares and Company ADSs with respect to which the Offer has been validly accepted as of the end of the Initial Offering Period. Each holder of Company Shares or Company ADSs who accepts the Offer during the Subsequent Offer Period after the Mix and Match Election is closed will receive the standard entitlement. SERENA will reintroduce a Mix and Match Election only during the compulsory acquisition period provided in Sections 429 to 430F of the U.K. Companies Act 1985 (the "Companies Act") as it is required to do pursuant to the Companies Act. This Mix and Match Election would be made only among the holders of Company shares and Company ADSs that are subject to the compulsory acquisition process. Therefore, the ability to satisfy any elections requested by a Company securityholder subject to the compulsory acquisition will depend upon the elections made by other Company securityholders that are subject to the compulsory acquisition, and the maximum amount of cash and SERENA shares will not be varied as a result of the reintroduction of the Mix and Match Election.

Discussion of Issues

Rule 14e-1, Rule 14d-7 and the Initial Offer Period

Pursuant to Rule 14e-l(a), it is unlawful to hold a tender offer open for less than 20 U.S. business days. A procedure for the extension of a tender offer beyond its initial expiration date is set forth in Rule 14e-1(d). Section 14(d)(5) and Rule 14d-7(a)(1) provide that any person who has deposited securities pursuant to a tender offer has the right to withdraw any such securities during the period such offer request or invitation remains open.

Under the City Code, an offer must be open for acceptance for at least 21 calendar days but will often be extended thereafter until further notice or even indefinitely. The terms of such offers will usually prevent accepting shareholders from withdrawing acceptances, irrespective of whether they accepted before or after the Conditions were satisfied, until 21 calendar days after the date set as the first closing date. Once an offer is wholly unconditional, withdrawals are in any case not possible as the accepting shareholders' shares become the property of the offeror when the offer becomes wholly unconditional or, if later, at the time of an acceptance.

As the Exchange Act requires a 20 U.S. business day period during which withdrawals are possible, the Offer will provide that the Offer cannot become or be declared wholly unconditional until the end of the first 20 U.S. business day period. After the first U.S. 20 business day period, if the Offer has still not become or been declared wholly unconditional, the Offer will remain open for acceptances and a new closing date will be specified (unless SERENA at that time determines that the Offer should lapse). SERENA will make a public announcement of any extension of the Offer by 8:00 am London time and 8:00 am New York City time on the business day following the date on which the Offer was scheduled to expire. In accordance with United Kingdom practice, however, SERENA intends to declare the Offer wholly unconditional as soon after the 20th U.S. business day as all of the Conditions have been fulfilled or waived. SERENA will not declare the Offer wholly unconditional, however, before the expiration of any Mandatory Extension.

After the Offer becomes wholly unconditional, the Initial Offer Period will end and the Subsequent Offer Period will begin. Valid acceptances in respect of the Company Shares and Company ADSs would cease to be capable of withdrawal at the time when the Offer becomes wholly unconditional.

Rule 14d-11 and the Subsequent Offer Period

Pursuant to Rule 14d-11 under the Exchange Act, offerors may elect to provide a Subsequent Offer Period of from three U.S. business days to 20 U.S. business days during which the Offer can be accepted, if certain conditions are satisfied, but during which withdrawal rights will not apply. As discussed above, if the Offer becomes or is declared wholly unconditional, the City Code requires that the Offer must remain open for a Subsequent Offer Period of at least 14 calendar days.

In the United Kingdom, transactions are structured so as to keep the Subsequent Offer Period open for a period longer than such 14 calendar days, and longer than the 20 U.S. business days provided for under Rule 14d-11, often indefinitely, or at least during the period during which compulsory acquisition rights accrue, i.e., four months after the date on which the Offer is made. The extended offer period is also used to allow employees whose options vest on a change of control (usually when an offer is wholly unconditional) to participate in the Offer. Sometimes an offeror announces that the Subsequent Offer Period will be held open until further notice. In these circumstances, under the City Code, the offeror must give 14 calendar days notice prior to closing the Subsequent Offer Period.

SERENA's goal is, and will at all times remain, the acquisition of 100% ownership of the Company. In a typical tender offer for a U.S. company, 100% ownership can be achieved through a second-step merger once a majority (or sometimes two-thirds) of the target company's stock is acquired in the tender offer. However, in an offer for a U.K. company, 100% ownership can be achieved through compulsory acquisition procedures only if at least 90% of the target company's shares to which the offer relate are acquired. Accordingly, for SERENA's goal of 100% ownership to be achieved, valid acceptances in respect of at least 90% of the Company Shares subject to the Offer (including Company Shares represented by Company ADSs) must be received while the Offer is open for acceptance, and within four months after the commencement of the Offer.

The expectation is that, if SERENA has reduced the Acceptance Condition below 90%, additional acceptances in the Subsequent Offer Period will cause the 90% goal to be reached and that the Subsequent Offer Period will be extended as permitted by the City Code to achieve the 90% goal. Provided such 90% level is reached within four months after the date the offer document is mailed to the target's shareholders, an offeror is then entitled to acquire the target company's remaining shares on the same terms as the offer pursuant to the compulsory acquisition provisions of the Companies Act. The compulsory acquisition procedures would fall within the exemption to Rule 13e-3 set forth in Rule 13e-3(g)(1)(i).

SERENA thus seeks permission to allow the Subsequent Offer Period to remain open for longer than 20 U.S. business days contemplated in the first sentence of Rule 14d-11, in accordance with the City Code and the United Kingdom procedure as stated above. We do not believe that this request represents a material departure from the Exchange Act, as all valid acceptances in respect of Company Shares or Company ADSs received during the Subsequent Offer Period will as a matter of English contract law be sold immediately (i.e. ownership will pass to SERENA) when the relevant shareholder validly accepts the Offer and SERENA pays for them within 14 calendar days thereafter as required by Rule 31.8 of the City Code.

Rules 14d-10 and 14d-11 and the Mix and Match Election

Pursuant to Rule 14d-10(a)(2) under the Exchange Act, no bidder shall make a tender offer unless the consideration paid to any security holder pursuant to the tender offer is the highest consideration paid to any other security holder during such tender offer. Pursuant to Rule 14d-l0(c) under the Exchange Act, where an offeror offers more than one type of consideration in a tender offer, security holders must be afforded an equal right to elect among each of the types of consideration offered and the highest consideration of each type paid to any security holder must be paid to any other security holder receiving that type of consideration. As a result of the elections and allocations pursuant to the Mix and Match Election, some Company securityholders may receive more cash or more SERENA shares than other Company securityholders, though every Company securityholder will have the right to receive the standard entitlement. Company securityholders who accept the offer during the Subsequent Offer Period after the fifth calendar day after the end of the Initial Offer Period will not have the right to make an election in the Mix and Match Election, but will receive the standard entitlement.

Pursuant to Rule 14d-11(b), where an offeror is offering security holders a choice of different forms of consideration, the offeror may elect to provide a subsequent offering period only where there is no ceiling on any form of consideration offered. Pursuant to Rule 14d-11(f), during a subsequent offer period, the bidder must offer the same form and amount of consideration to security holders in both the initial and the subsequent offering period. The terms of the Offer provide for a maximum number of shares of SERENA common stock to be issued under the Offer and a maximum amount of cash to be paid under the Offer, which will not be varied as a result of the Mix and Match Election. These maximum amounts of SERENA shares and cash could be viewed as a ceiling on the forms of consideration offered in the Subsequent Offer Period. As noted above, SERENA will terminate the Mix and Match election after the fifth calendar day after the end of the Initial Offer Period and Company securityholders who validly accept the Offer during the Subsequent Offer Period after that date will receive the standard entitlement.

SERENA hereby seeks exemptive relief for the Mix and Match Election from the application of Rule 14d-l0(a)(2), Rule 14d-10(c), Rule 14d-11(b) and Rule 14d-11(f) to permit it to (i) allocate the cash and shares in the Offer taking into account the elections of the Company securityholders in the manner described above under the heading "Mix and Match Election", (ii) to provide the Subsequent Offer Period though the terms of the Offer provide for a maximum number of shares of SERENA common stock and a maximum amount of cash to be paid under the Offer, which will not be varied as a result of the Mix and Match Election and (iii) to terminate the Mix and Match Election five calendar days after the end of the Initial Offer Period.

We do not believe that the principles underlying the Exchange Act would be compromised by the granting of the relief requested. While the Offer consists of more than one type of consideration, the ratio between cash and shares of SERENA common stock being offered is the same for each holder of Company Shares and Company ADSs. Each shareholder of the Company shall be entitled to receive cash and shares of SERENA common stock in the same ratio offered by SERENA regardless of when such holder accepts the Offer. The purpose of the Mix and Match Election is to facilitate exchanges between securityholders of the Company. The maximum number of shares of SERENA common stock to be issued under the Offer and the maximum amount of cash to be paid under the Offer would not be varied as a result of the Mix and Match Election. The ability of a securityholder of the Company to make a Mix and Match Election would depend on the extent to which other securityholders of the Company would make opposite elections. As a result of the UK payment provisions, which require payment for shares validly tendered in the Initial Offer Period 14 days after the Offer is declared wholly unconditional, SERENA can offer the Mix and Match for five calendar days after the Offer is declared wholly unconditional without having to calculate the proration factor for the Mix and Match Election more than once with respect to the Offer. In the UK, a mix and match election is not regarded as an alternative offer which would be subject to specific regulation under the Takeover Code, but merely as an additional facility available to target shareholders.

Requested Exemptive Relief and Confirmation of No Action

Based on the foregoing, we respectfully request on behalf of SERENA that the Commission confirm that it will take no enforcement action if SERENA terminates withdrawal rights and the Initial Offer Period at any time that the Offer has been open for at least 20 U.S. business days and becomes or is declared wholly unconditional (whether or not on a scheduled expiration date of the Offer other than a scheduled expiration date of the Offer resulting from a Mandatory Extension). We also request exemptive relief from Section 14(d)(5) and Rule 14d-11 of the Exchange Act so as to permit SERENA to keep the Subsequent Offer Period open beyond 20 U.S. business days in compliance with the City Code. Finally we are also requesting exemptive relief from Rule 14d-10(a)(2) and (c) and 14d-11(b) and (f) of the Exchange Act with respect to the Mix and Match Election and confirmation that the Commission will take no enforcement action if SERENA sets the proration factor of the Mix and Match Election before the expiration of the Offer.

We respectfully request that the Commission issue the requested exemptive relief and confirmations of no action as soon as practicable.

Very truly yours,

/s/ Stewart L. McDowell

Endnotes

1 We believe that the exemptive relief we are requesting with respect to the termination of withdrawal rights and the Initial Offer Period before the scheduled expiration of any voluntary extension of the Offer, so long as the Offer is declared or becomes wholly unconditional, is consistent with Re: Amerada Hess Corporation Offer for Shares and ADSs of LASMO plc (Division of Corporation Finance File No. 5-52225) (December 13, 2000); Re: Offer by RWE Aktiengesellschaft for Innogy Holdings plc (Division of Market Regulation File No.: TP 02-44) (March 22, 2002); and Re: Offer by Celltech Group plc for Oxford GlycoSciences plc (Division of Market Regulation File No.: TP 03-42) (March 3, 2003).

2 We believe the exemptive relief we are requesting with respect to the subsequent offering period is consistent with Re: Air Products and Chemicals, Inc. and L'Air Liquide S.A. Offer for the Outstanding Capital Stock of The BOC Group plc. (Division of Corporation Finance File No. 5-557 15; Division of Market Regulation File No. TP 00-58) (March 10, 2000); Re: Offer by RWE Aktiengesellschaft for Innogy Holdings plc (Division of Market Regulation File No.: TP 02-44) (March 22, 2002); and Re: Offer by Celltech Group plc for Oxford GlycoSciences plc (Division of Market Regulation File No.: TP 03-42) (March 3, 2003).

3 We believe that the relief that we are requesting with respect to the "Mix and Match Election" is consistent with Re: The Royal Bank of Scotland Group plc Offer for Shares and ADSs of National Westminster Bank PLC (Division of Corporation Finance File No.: 5055229) (December 27, 1999); Re: Amerada Hess Corporation Offer for Shares and ADSs of LASMO plc (Division of Corporation Finance File No. 5-52225) (December 13, 2000); Re:Smith & Nephew Group plc and Smith and Nephew plc Tender Offers for Shares and ADSs of Centerpulse AG and Shares of InCentive Capital AG (SEC File No. 5-50488) (April 24, 2003); and Re: Zimmer Holdings, Inc. Tender Offer for Shares and ADSs of Centerpulse AG and Shares of InCentive Capital AG (SEC File No. 5-5-488) (June 19, 2003).

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Modified: 04/21/2004