Applix Inc /MA/ - Amended tender offer statement by Third Party (SC TO-T/A)
18 Oktober 2007 - 8:09PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Amendment No. 3
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR
13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF
1934
APPLIX, INC.
(Name of subject company
(Issuer))
COGNOS INCORPORATED
COGNOS CORPORATION
DIMENSION ACQUISITION CORP.
(Names of Filing
Persons (Offerors))
Common Stock, $0.0025 par value per
share
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038316105
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(Title
of classes of securities)
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(CUSIP
number of common stock)
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W. John Jussup
Senior Vice President, Chief Legal
Officer and Secretary
Cognos Incorporated
3755 Riverside Drive
P.O. Box 9707, Station T
Ottawa, ON, Canada
K1G 4K9
(613) 738-1440
(Name, address, and
telephone number of person authorized to receive notices and communications on
behalf of Filing Persons)
Copies to:
Kevin M. Barry, Esq.
Bingham McCutchen LLP
150 Federal Street
Boston, Massachusetts 02110-1726
(617) 951-8000
CALCULATION OF FILING FEE
Transaction Valuation(1)
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Amount of Filing Fee(2)
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$286,789,447
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$8,804
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(1)
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Estimated for purposes of calculating the filing fee
only. Transaction value derived by multiplying 16,048,654 (number of shares
of common stock of subject company outstanding as of August 31, 2007
(according to the Agreement and Plan of Merger, dated September 4, 2007,
by and among the subject company, Cognos Incorporated and Dimension
Acquisition Corp., filed with the Cognos Incorporated Form 8-K filed on
September 5, 2007, with the Securities and Exchange Commission) by
$17.87 (the purchase price per share offered by Offeror). This amount is
based upon an estimate of the maximum number of shares to be purchased
pursuant to the tender offer at the tender offer price of $17.87 per Share.
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(2)
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The amount of the filing fee is calculated in
accordance with Rule 0-11 of the Securities Exchange Act of 1934, as
amended, by multiplying the transaction valuation by 0.0000307.
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x
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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.
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Amount Previously Paid:
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$8,804
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Filing Party:
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Cognos
Incorporated, Cognos Corporation and Dimension Acquisition Corp.
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Form of Registration No.:
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Schedule TO
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Date Filed:
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September 18, 2007
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o
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Check the box if
the filing relates solely to preliminary communications made before the
commencement of the tender offer.
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Check the appropriate
boxes below to designate any transactions to which the statement relates:
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x
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third party tender offer subject to Rule 14d-1
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o
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issuer tender offer subject to Rule 13e-4
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o
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going private transaction subject to Rule 13e-3
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o
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amendment to Schedule 13D under Rule 13d-2
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Check the
following box if the filing is a final amendment reporting the results of the
tender offer:
o
This Amendment No. 3 to
the Tender Offer Statement on Schedule TO (this Amendment), filed with the
Securities and Exchange Commission on October 18, 2007, amends and supplements
the Tender Offer Statement on Schedule TO filed on September 18, 2007 (the Statement)
as amended by Amendment No. 1, dated October 9, 2007, and Amendment No.2, dated
October 17, 2007, and relates to the offer by Dimension Acquisition Corp. (Offeror),
a Massachusetts corporation and an indirect, wholly-owned subsidiary of Cognos
Incorporated, a corporation organized and existing under the laws of Canada (Parent)
to purchase all outstanding shares of common stock, $0.0025 par value per share
and the associated preferred stock purchase rights (together, the Shares) of
Applix, Inc., a Massachusetts corporation (the Company), at a purchase price
of $17.87 per Share, net to the seller in cash without interest thereon, less
any required withholding taxes, upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated September 18, 2007 (the Offer to
Purchase), and in the related Letter of Transmittal (which, together with the
Offer to Purchase, and any amendments or supplements thereto, collectively
constitute the Offer). Capitalized terms used and not defined herein shall
have the meanings assigned to such terms in the Offer to Purchase.
The Offer is made
pursuant to the Agreement and Plan of Merger, dated as of September 4, 2007
(the Merger Agreement), by and among Offeror, Parent and the Company.
The information in the
Offer to Purchase and the related Letter of Transmittal is incorporated in this
Amendment by reference to all of the applicable items in the Statement, except
that such information is hereby amended and supplemented to the extent specifically
provided herein.
Items 1 through 11.
1. The subsection
entitled Background of the Transaction in Section 11 of the Offer to Purchase
entitled Background of Offer; Past Contacts or Negotiations with the Company
is amended and supplemented by adding the following paragraphs after the last
paragraph of the subsection:
On October 17, 2007,
Cognos and the Company announced that the Offer had expired at 12:00 midnight,
New York City time, on Tuesday, October 16, 2007. The depositary for the Offer
had advised Parent and Offeror that, as of 12:00 midnight, New York City time,
on October 16, 2007, an aggregate of approximately 14,091,974 Shares (including
Shares tendered by guaranteed delivery) had been tendered, representing
approximately 86% of the Companys then outstanding Shares. Offeror did not
exercise the Top-Up Option at that time because a sufficient number of Shares could
not be issued by the Company to meet the 90% threshold of the Top-Up Option.
Offeror commenced a subsequent offering period beginning on
2
Wednesday, October 17,
2007 and expiring at 5:00 p.m., New York City time on Tuesday, October 30,
2007.
Shortly following the
commencement of the subsequent offering period, the parties discussed the
purpose of the original structure of the Top-Up Option and the fact that the
inclusion of all outstanding exercisable options in the calculation of the 90%
threshold of the Top-Up Option was preventing the Company and Offeror from ever
exercising the Top-Up Option even though the holders of a majority of the
Companys outstanding Shares had tendered their Shares in the Offer. During
these discussions, Parent suggested that the parties amend the Top-Up Option to
change the threshold to 90% of the Companys outstanding Shares, excluding all
outstanding exercisable options, and thereby enabling a majority of the Companys
outstanding Shares to potentially determine the outcome of the Offer.
On October 17, 2007,
Messrs. Mahoney and Loewenberg, two of the Companys Continuing Directors,
together with the directors designated by Parent to serve on the Companys
board of directors pursuant to the terms and conditions of the Merger Agreement
determined to approve an amendment to the Merger Agreement pursuant to which
the Top-Up Option would be revised to exclude the outstanding exercisable
options from the calculation of the 90% threshold. On October 17, 2007, the
Company, Parent and Offeror entered into such an amendment to the Merger
Agreement. As a result of the Amendment, in the event that a sufficient number
of additional Shares are tendered during the subsequent offering period such
that the Company may issue to the Offeror enough Shares to achieve an ownership
of 90% of the Companys outstanding Shares without exceeding the NASDAQ
shareholder approval requirements. Offeror will have the ability to exercise
the Top-Up Option.
2. The first paragraph of
the subsection entitled Top-Up Option in Section 13 of the Offer to Purchase
entitled The Transaction Documents is amended and restated in its entirety as
follows:
The Company irrevocably
granted to Offeror an irrevocable option (the
Top-Up
Option
), exercisable only on or after the Appointment Time, to
purchase that number of Shares (the
Top-Up Option Shares
)
equal to the lowest number of Shares that, when added to the number of Shares
owned by Offeror at the time of such exercise, will constitute one share more
than 90% of the Shares then outstanding (assuming the issuance of the Top-Up
Option Shares) at a price per share equal to the Offer Price; provided,
however, that the Top-Up Option will not be exercisable unless immediately
after such exercise and the issuance of Shares pursuant thereto, Offeror would
own more than 90% of the Shares then outstanding; and provided further,
however, that in no event will the Top-Up Option be exercisable for a number of
Shares (i) in excess of the Companys then authorized and unissued shares of
Company common stock (giving effect to shares of Company common stock reserved
or issuance under the Company option plans as though such shares were
outstanding) or (ii) that would require approval of the stockholders of the
Company under applicable NASDAQ rules.
Items 12. Exhibits.
Item 12 of the Statement
is hereby amended and supplemented by adding the following exhibit:
(d)(1)(i) Amendment No. 1 to Agreement and Plan of
Merger, dated as of October 17, 2007, by and among Parent, Offeror and the
Company.
3
After due inquiry and to the best of its
knowledge and belief, each of the undersigned certifies that the information
set forth in this statement is true, complete and correct.
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DIMENSION ACQUISITION
CORP.
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By:
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/s/ TOM
MANLEY
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Name:
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Tom
Manley
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Title:
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President
and Treasurer
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COGNOS CORPORATION
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By:
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/s/ W.
JOHN JUSSUP
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Name:
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W.
John Jussup
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Title:
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Director
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COGNOS INCORPORATED
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By:
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/s/ ROBERT
G. ASHE
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Name:
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Robert
G. Ashe
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Title:
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President and Chief Executive
Officer
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Dated October 18, 2007
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4
EXHIBIT
INDEX
Exhibit No.
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Description
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(d)(1)(i)
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Amendment No. 1
to Agreement and Plan of Merger, dated as of October 17, 2007, by and among Parent, Offeror and the Company.
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5
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