SEC Division of Corporation Finance no-action letter: SumTotal Systems, Inc.

650 Page Mill Road
Palo Alto, CA 94304-1050
"\v&-.D Wilson Sonsini Goodrich & Rosati PHONE 650.493.9300 W'tr-"" PROFESSIONAL CORPORATION FAX 650.493.6811 www.wsgr.com Securities Exchange Act of 1934, Section 15(d); Rule 12h-3(c) Via email: cfletters@Sec.gov

Division ofCorporate Finance

Office ofthe ChiefCounsel

100 F Street, N.E.

Washington, D.C. 20549-7010

Re: SumTotal Systems, Inc. (Commission File No. 000-50640) Ladies and Gentlemen:
We are writing on behalf of SumTotal Systems, Inc., a Delaware corporation (the "Company"), to request that a no-action letter be issued advising us that the Staffofthe Office of ChiefCounsel, Division of Corporation Finance (the "Staff') ofthe Securities and Exchange Conunission (the "SEC") concurs in the Company's view that the effectiveness ofthe Company's registration statements on Forms S-3 and S-8 during the fiscal year ending December 31,2009, would not preclude the Company from utilizing Rule 12h-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), to suspend the Company's duty to file with the SEC the reports required by Sections 13(a) and 15(d) ofthe Exchange Act and the rules and regulations promulgated thereunder with respect to the Company's common stock, par value $0.001 per share ("Common Stock"), preferred stock, warrants to purchase Common Stock, and debt securities, in the fiscal year in which the Company's registration statements on Forms S-3 and S-8 either became effective or were required to be updated pursuant to Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act") (i.e., the fiscal year ending December 31, 2009). Unless otherwise indicated, each reference herein to a "Section" or "Rule" is to the corresponding Exchange Act section or rule promulgated thereunder, respectively. This letter replaces in its entirety our earlier letter to the Staff, dated August 3, 2009.

1. Background
   The Company is the successor issuer under Section 12g-3(c) to Click21earn, Inc.

("Click2Iearn") and Docent, Inc. ("Docent"). C1ick21earn (formerly Asymetrix Learning

AUSTIN NEW YORK PALO AHO SAN DIEGO SAN FRANCISCO SEATrLE SHANGHAI WASHINGTON. D.C.

Systems, Inc.) filed a Fonn 8-A to register its common stock under Section 12(g) on May 19, 1998, and became subject to the reporting obligations ofthe Exchange Act when the Fonn 8-A became effective in connection with its initial public offering on June 12, 1998. Docent filed a Fonn 8-A to register its common stock under Section 12(g) on September 14, 2000, and became subject to the reporting obligations ofthe Exchange Act when the Fonn 8-A became effective in connection with its initial public offering on September 29,2000. On March 18,2004, each of C1ick2leam and Docent was merged with a distinct newly fonned acquisition subsidiary ofthe Company (fonnerly known as Hockey Merger Corp.), which at the time was a newly-fonned holding company. As a result ofthe mergers, each ofClick2leam and Docent became a wholly￾owned subsidiary of the Company, each outstanding share of Click2leam common stock was converted into 0.3188 shares of Common Stock and each outstanding share ofDocent common stock was converted into 0.7327 shares ofComrnon Stock. The shares of the Company Common Stock issued in the mergers were registered on Fonn S-4. Also as a result of the mergers, all options and warrants (all ofwhich warrants were unregistered) to purchase shares ofClick2leam or Docent common stock became options or warrants to purchase Common Stock of the Company, and the Company assumed all such options and warrants, as well as the Click2learn employee stock purchase plan. The options and employee stock purchase plan shares were registered by the Company on Fonn S-8, as described below. There were no additional debt or equity securities outstanding at the time of the mergers. Accordingly, as a result of, and immediately following the mergers, the Company became the sole holder of all outstanding securities of each ofClick2leam and Docent. Subsequent to the mergers, all outstanding warrants to purchase Common Stock were either exercised or expired. On May 26, 2009, the Company, Amber Holding Inc. ("Newco"), a Delaware corporation and a wholly-owned subsidiary of Vista Equity Partners Fund III, L.P. and Amber Acquisition Inc., a Delaware corporation and wholly-owned subsidiary ofNewco ("Merger Sub"), entered into an Agreement and Plan ofMerger (the "Merger Agreement"). Prior to the signing ofthe Merger Agreement, Vista Equity Partners Fund III, L.P. and certain ofits affiliates (collectively, "Vista") held, in the aggregate, 4,016,754 shares ofCommOll Stock, as reported on Amendment No.7 to Schedule 13D filed by Vista with the SEC on May 20,2009. At a special meeting ofthe Company's stockholders held on July 21,2009, the Company's stockholders adopted the Merger Agreement. Also on July 21,2009, pursuant to the Merger Agreement, a certificate ofmerger was filed with the Delaware Secretary ofState by which Merger Sub merged with and into the Company, and Merger Sub ceased to exist (the "Merger"). The Company was the surviving corporation in the Merger (the "Surviving
Corporation"), and continues to do business as "SumTotal Systems, Inc." As a result ofthe Merger, each then outstanding share of Common Stock (including shares held by the Company,

Wilson Sonsini Goodrich &Rosati PROFESSIONAL CORPORATION u.s. Securities and Exchange Commission

Newco, Merger Sub and Vista) was cancelled, and each then outstanding share ofCommon Stock (other than shares owned by the Company, Newco, Merger Sub and Vista) was automatically converted into the right to receive $4.85 in cash. Upon consummation ofthe Merger, Newco became the sole stockholder ofthe Company. No Company stockholders exercised appraisal rights available in connection with the Merger under Section 262 ofthe Delaware General Corporation Law. Each option to purchase Common Stock ("Option") that was outstanding and unexercised immediately prior to the Merger was cancelled and converted into the right to receive an amount in cash, without interest, equal to the product of(x) the excess, if any, of(A) $4.85 less (B) the exercise price per share attributable to such Option, multiplied by (y) the total number of shares issuable upon exercise of such Option. As required under the Merger Agreement, the Company paid holders of eligible Options the Option consideration described above, without interest thereon, less applicable taxes required to be withheld with respect to these payments. Although no consideration was received in respect ofOptions with an exercise price greater than or equal to $4.85 per share, all such Options were cancelled. Upon the consummation ofthe Merger, rights to receive shares ofCommon Stock granted under the Company's stock plans or other company employee benefit plans (the "Company Stock-Based Awards"), whether or not then vested, became fully vested and were automatically converted into the right to receive an amount in cash equal to the product of (x) the total number of shares of Common Stock subject to such Company Stock-Based Award and (y) $4.85 (reduced, if applicable, by any exercise or base price applicable to such Company Stock-Based Award), and each Company Stock-Based Award was cancelled and the holder thereofreceived the payment described above. As ofJune 22,2009, the Company had outstanding (i) 31,513,263 shares of Common Stock; (ii) Options to purchase 2,894,859 shares ofCommon Stock with an exercise price per share less than $4.85; and (iii) Company Stock-Based Awards representing the right to receive 880,341 shares ofCommon Stock. At the time ofthe Merger, the Company had no outstanding equity or debt securities other than the Common Stock, the Options, and the Company Stock￾Based Awards. The Common Stock is registered under Sections 12(b) and 12(g) and, prior to the Merger, was traded on the NASDAQ Global Market ("NASDAQ"). The Company has no other classes of equity or debt securities that are, or are required to be, registered under Section 12.

As a result of the Registration Statements (as defined below) being automatically updated pursuant to Section 1O(a)(3) of the Securities Act, the Company has reporting obligations pursuant to Section 15(d) with respect to the Common Stock, preferred stock, warrants to purchase Common Stock and debt securities of the Company. The Company has no reporting obligations under Section 15(d) for any securities other than the Common Stock, preferred stock, warrants to purchase Cornmon Stock and debt securities of the Company. At the completion ofthe Merger, each outstanding share ofMerger Sub common stock was converted into a share of common stock of the Surviving Corporation, and Newco became the sole stockholder ofthe Company. From and after the effective time ofthe Merger, Newco owned 1,000 shares ofCommon Stock and no other securities ofthe Company are outstanding. On April 28, 2009, a purported class action lawsuit was filed on behalf ofthe Company's stockholders entitled Irgens v. SumTotal Systems, Inc., et aI., as described in the Company's Proxy Statement on Schedule 14A, filed with the SEC on June 23, 2009. On July 15, 2009, as reported in the Company's Form 8-K, filed with the SEC on July 16, 2009, the parties to the litigation have entered into a binding memorandum of understanding regarding a complete settlement ofthe litigation. The settlement terms, which require court approval, provide that the litigation will be dismissed with prejudice against all defendants. Pursuant to the memorandum, the parties will execute a stipulation of settlement, which will be subject to court approval following notice to the Company's stockholders. The settlement does not affect the amount of merger consideration paid or payable to the Company's stockholders. In the event that the settlement is not approved, the parties will revert to their litigation status prior to the memorandum, and the Company therefore reserves the right to contest the merits of the litigation and the certification of the class action.
2. Effective Registration Statements
At the effective time ofthe Merger, the Company had on file with the SEC the following registration statements under which securities remained available for issuance (collectively, the "Registration Statements"):

• A Form S-8 (No. 333-113833), filed on March 23, 2004 and immediately
  effective upon filing, registering the issuance of shares of the Company's Common Stock pursuant to the following plans: the SumTotal Systems, Inc. 2004 Equity Incentive Plan; the Docent 1997 Stock Option Plan; the Docent 2000 Omnibus Equity Incentive Plan; the Click2learn 1995 Combined Incentive and Nonqualified Stock Option Plan; the Click2learn 1998 Equity Incentive Plan; the Click2learn 1998 Directors' Stock Option Plan; the Intelliprep Technologies, Inc.

2000 Equity Incentive Plan; and the SumTotal Systems, flk/a Click2learn, 1999 Employee Stock Purchase Plan.

• A Form S-8 (No. 333-133046), filed on April 6, 2006 and immediately effective
  upon filing, registering the issuance ofshares ofthe Company's Common Stock pursuant to the SumTotal Systems, Inc. 2004 Equity Incentive Plan and the SumTotal Systems, Inc. 1999 Employee Stock Purchase Plan, as amended.
• A Form S-3 (No. 333-134645), filed on June 1,2006 and effective October 2,
  2006, registering shares ofthe Company's Common Stock, preferred stock, warrants to purchase Common Stock, and debt securities.
• A Form S-8 (No. 333-138018), filed on October 16,2006 and immediately
  effective upon filing, registering the issuance of shares ofthe Company's Common Stock pursuant to the SumTotal Systems, Inc. 2004 Equity Incentive Plan.
• A Form S-8 (No. 333-152687), filed on July 31,2008 and immediately effective
  upon filing, registering the issuance ofshares of the Company's Common Stock pursuant to the Amended and Restated SumTotal Systems, Inc. 2004 Equity Incentive Plan and the Amended and Restated SumTotal Systems, Inc. Employee Stock Purchase Plan. Each of the Registration Statements was declared or became effective prior to January 1, 2009, but were automatically updated during 2009 as provided by Section 10(a)(3) ofthe Securities Act. On July 22,2009, the Company filed post-effective amendments to remove from registration any unsold Common Stock available for issuance under the Registration Statements. In addition, on July 24,2009, the Company filed a post-effective amendment No.2 to the Form S-3 (No. 333-134645) to deregister all remaining Common Stock, preferred stock, warrants to purchase Common Stock, and debt securities available for issuance thereunder. Each post-effective amendment on Form S-8 was effective automatically upon filing. Post-effective amendments No.1 and No.2 to the Form S-3 were declared effective on July 27,2009.

3. Exchange Act Reporting Obligations
   Upon consummation ofthe Docent - Click2learn combination in 2004, the Company was deemed registered under Section 12(g) pursuant to Rule 12g-3(c) as the successor to Docent and Click2Learn. In 2006, when the NASDAQ Stock Market

Wilson Sonsini Goodrich & Rosati PR.OFESSIONAL COR.POR.ATION

became a national securities exchange, the Common Stock was automatically registered under Section 12(b). The Company also has reporting obligations under Section 15{d) due to the filing and automatic updating ofthe Registration Statements. On July 21, 2009, upon consummation of the Merger, NASDAQ filed a Form 25 on the Company's behalfto deregister and delist the Common Stock registered under Section 12(b) ofthe Exchange Act. After the close ofmarket on July 22,2009, NASDAQ suspended the listing ofthe Common Stock on NASDAQ. The delisting became effective on July 31, 2009, and at such time, the Company's duty to file reports under Section 13(a) ofthe Exchange Act as a result ofthe registration ofthe Common Stock under Section 12(b) of the Exchange Act was suspended pursuant to Rule 12d2-2(d)(5). Upon such suspension ofthe Common Stock under Section 12(b), the Company's reporting obligations under
Section 12{g) ofthe Exchange Act were revived. However, since the Company has only
one stockholder following the Merger, the Company intends to promptly file a Form 15 to suspend its reporting obligations under Section 12(g) pursuant to Rule l2g-4(a)(l). Absent the relief sought in this letter, the Company's reporting obligations under Section 15(d) ofthe Exchange Act would continue after the termination ofthe 12(b) registration pursuant to Rule 12d2-2(d)(7). Subject to obtaining the relief sought by this letter, when the Company files the Form 15 with the SEC to deregister the Common Stock under Section 12(g), it will also suspend its reporting obligations under Section 15(d) pursuant to Rule 12h-3(b)(I)(i). The Company requires relief in connection with the suspension ofits reporting obligations under Section 15(d) because ofRule 12h-3(c). Under Rule 12h-3, an issuer can suspend its reporting obligations under Section 15(d) by filing a Form 15. However, Rule 12h-3(c) disallows the suspension for any class of securities for a fiscal year in which a registration statement relating to that class becomes effective under the Securities Act or is updated for purposes of Section 1O(a)(3) ofthe Securities Act through an issuer's Exchange Act filings. The Registration Statements were automatically updated in this fiscal year for the purposes ofSection 10(a)(3) ofthe Securities Act as a result of the Company's Exchange Act filings. As a result, Rule 12h-3{c) prevents the suspension ofthe Company's duty to report under Section l5(d) and the Company will be obligated to file periodic reports under Section l5(d) for the remainder of the 2009 fiscal year with respect to the Common Stock, preferred stock, warrants to purchase Common Stock and debt securities of the Company, unless the relief sought by this letter is granted. After receiving the relief sought in this letter, the Company will promptly file a Form 15, designating Rules 12h-3(b)(l)(i) and 12g-4(a)(I) as the appropriate rule provisions relied upon to suspend its reporting obligations under Sections 15(d) and 12(g), respectively. In the event that the now-completed Merger is unwound as a result ofthe litigation

discussed above, the Company undertakes to file all current and periodic reports which it would have been required to file since the date ofthe suspension of the Company's
Section 15(d) reporting obligations.
4. Discussion
We respectfully submit that, notwithstanding the provisionf. ofRule 12h-3(c), the Company should be able to rely on Rule 12h-3 to suspend its duty to file periodic reports under Section 15(d) of the Exchange Act for the following reasons:
a. The Company Meets the Requirements of Rule 12h-3(a) and (b) The Company has filed all reports required by Section 13(a) and Section 15(d) under the Exchange Act for fiscal years 2006, 2007, 2008 and the current year to date, including a Quarterly Report on Fonn 10-Q filed on May 5, 2009, a Current Report on Fonn 8-K reporting, among other things, the Merger Agreement filed on May 27,2009, and a Current Report on Fonn 8-K reporting, among other things, the consummation of the Merger filed on July 23,2009, and the Company will continue to file all required reports (periodic and current) prior to the filing ofthe Fonn 15. In addition, from and after the effective date ofthe Merger, all ofthe Company's outstanding Common Stock was held by a single holder, Newco, and no other securities were outstanding. As such, except for the application ofRule 12h-3(c), the Company satisfies the criteria for suspension ofreporting under Section I5(d) ofthe Exchange Act. b. Granting the Company Relief Will Not Undermine the Purpose of
Section 15(d)
The Staffhas indicated that a literal reading ofRule 12h-3(c) is not always justified in the interest ofpublic policy. In the proposing release to revise Rule 12h-3, the SEC stated that the purpose ofperiodic reporting under Section 15(d) is "to assure a stream of current infonnation about an issuer for the benefit ofpurchasers in the registered offering, and for the public, in situations where Section 13 ofthe Exchange Act would not otherwise apply" and that "this [Rule 12h-3(c)] limitation is in keeping with the philosophy reflected in Section 15(d) ofthe Exchange Act that generally the investing public should have available complete infonnation about the issuer's activities at least through the end ofthe year in which it makes a registered offering." See Exchange Act Release No. 34-20263,28 SEC Docket 1290 (October 5, 1983) (the "Proposing Release").

u.s. Securities and Exchange Commission

The policy concerns articulated in the Proposing Release are not at issue in this situation. Upon consummation ofthe Merger, all shares ofCommon Stock, Options and Company Stock-Based Awards were cancelled (including shares held by the Company, Newco, Merger Sub and Vista), and all shares of Common Stock, Options and Company Stock-Based Awards (other than shares owned by the Company, Newco, Merger Sub and Vista) were automatically converted into a right to receive cash. From and after the effective date ofthe Merger, all ofthe Company's outstanding Common Stock was held by a single holder, Newco, and no other securities were outstanding. When, as will occur here, pursuant to a merger transaction, the issuer becomes a wholly-owned subsidiary of another company, the concern about providing ongoing current information to the public expressed in the Proposing Release is not applicable. Further, as noted above, the Company has filed post-effective amendments, all ofwhich have become effective, to deregister all Common Stock, preferred stock, warrants to purchase Common Stock and debt securities of the Company under the Registration Statements. Accordingly, no investor is able to purchase securities ofthe Company pursuant to the Registration Statements and thus the protection of Section 15(d) is no longer necessary for potential purchasers or the investing public.
c. The Benefits of Periodic Reporting Do Not Outweigh the Filing
Burdens
In addition, relief should be granted to the Company because the purpose ofRule 12h-3 is to permit companies to suspend their reporting obligations when the securities are held by a small number ofpersons (less than 300 holders of each class). In the Proposing Release, the SEC noted that the rule suspended the duty to file reports because "Congress recognized, with respect to Section 15(d), that the benefits ofperiodic reporting by an issuer might not always be commensurate with the burdens imposed..." Since the effective time ofthe Merger, all securities ofthe Company are held solely by Newco. Should reliefnot be granted to the Company to suspend its reporting obligation under Section 15(d), the Company will be required to file periodic reports for the remainder of fiscal year 2009, which would include a Form 10-Q for fiscal quarters ending June 30, 2009 and September 30, 2009 and a Form lO-K for fiscal year ending December 31, 2009. The preparation required for such filings would place a heavy burden on the Company due to the expense and dedication ofmanagement time which is required for the filings which would be for the sole benefit of Newco who will already have access to the information contained in the filings as sole stockholder of the Company.

u.s. Securities and Exchange Commission

d. Prior No-Action Relief Granted With Respect to Rule 12h-3(c) In several analogous situations, the 8taffhas recognized that a literal reading of Rule 12h-3(c) can have unintended consequences and accordingly has taken a no-action position similar to that requested herein. 1 In each ofthese cases, notwithstanding that a registration statement under the Securities Act had been declared effective or updated pursuant to Section lO(a)(3) of the Securities Act in the fiscal year in question, the Staff agreed with the position that Rule 12h-3(c) did not require an issuer to remain subject to the reporting requirements of Section 15(d) following a merger in which it became a wholly-owned subsidiary of another company. Therefore, we believe, based on the foregoing arguments, that it is contrary to the underlying policy ofRule 12h-3(c) to deny the Company suspension of its reporting obligations under Section 15(d) ofthe Exchange Act merely because ofthe automatic updating ofthe Company's Fonns S-8 and S-3 pursuant to Section 10(a)(3) ofthe Securities Act during the current fiscal year.
5. Conclu!'ion
For the reasons discussed above, we respectfully request, on behalf ofthe Company, that the Staffissue a no-action letter advising us that the Staff concurs in the Company's view that the effectiveness of the Company's registration statements on Fonns S-3 and 8-8 during the fiscal year ending December 31, 2009 pursuant to Section 10(a)(3) of the Securities Act would not preclude the Company from utilizing Rule 12h-3 during such fiscal year to suspend the Company's duty to file with the SEC the reports required by Sections 13(a) and 15(d) ofthe Exchange Act and the rules and regulations promulgated thereunder with respect to the Company's Common Stock, preferred stock, warrants to purchase Common Stock and debt securities. If and when relief is granted by the Staff with respect to the foregoing, the Company will file a Fonn 15, designating Rule 12h-3(b)(I)(i) and 12g-4(a)(1) as the appropriate rule provisions relied upon to suspend the duty to file reports under Sections 15(d) and 12(g), respectively, on or before the date on which the Company's next report is due pursuant to the Exchange Act. Alternatively, we request an exemption, pursuant to Section 12(h) ofthe Exchange Act, 1 See, e.g., Westaff, Inc. (available May 19, 2009); PhannaNet Development Group (available May 8,2009); US1' Inc. (available February 18,2009); Anheuser-Busch Companies, Inc. (available February 18,2009); EnergySouth, Inc. (available December 11, 2008); Energy East Corporation (available October 31,2008); and ACE*COMM Corporation (available September 26,2008).

u.s. Securities and Exchange Commission

from any obligation ofthe Company to file reports under the Exchange Act under the circumstances described herein. Ifthe Staffdisagrees with any ofthe views expressed herein, we respectfully request an opportunity to discuss the matter with the Staffprior to any written response to this letter. In accordance with footnote 68 ofRelease No. 33-7427 (July 1, 1997), we are transmitting one copy ofthis letter bye-mail. Please direct any questions or comments you may have concerning this request to Katharine A. Martin or me at (650) 493-9300. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation //~ Bradley L. Finkelstein cc: Barbara Stinnett, SumTotal Systems, Inc.