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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO/A
(Rule 14d-100)
Tender Offer Statement Under Section 14(d)(1)
or Section 13(e)(1) of the Securities Exchange Act of 1934
Amendment No. 1
CONTINUUS SOFTWARE CORPORATION
(Name of Subject Company (Issuer))
RAINDROP ACQUISITION CORPORATION
a wholly owned subsidiary of
TELELOGIC AB
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
21218R 10 4
(CUSIP Number of Class of Securities)
Hakan Rippe
Executive Vice President Business Development
Telelogic AB
400 Valley Road, Suite 200
Mt. Arlington, New Jersey 07856
(973) 770-6400
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
With a copy to:
Paul D. Tosetti
R. Scott Shean
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071-2007
Telephone: 213-485-1234
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
$42,037,248 $8,408
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* Estimated for purposes of calculating the filing fee only. The filing fee
calculation assumes the purchase of 11,130,314 outstanding shares of common
stock of Continuus Software Corporation at a purchase price of $3.46 per
share. The transaction value also includes (a) the offer price of $3.46 per
share less $1.73 per share (which is the average exercise price of
outstanding options which have an exercise price below $3.46) multiplied by
1,898,577 (which is the number of outstanding options which have an
exercise price below $3.46); (b) the offer price of $3.46 per share less
$1.38 (which is the average purchase price of shares purchaseable under
employee stock purchase plans of Continuus Software Corporation) multiplied
by 80,216 (which is the number of shares purchaseable under the employee
stock purchase plans of Continuus Software Corporation);
and (c) the offer price of $3.46 per share less $0.81 (which is the average
exercise price of outstanding warrants which have an exercise price below
$3.46) multiplied by 28,292 (which is the number of outstanding warrants
which have an exercise price below $3.46). The amount of the filing fee
calculated in accordance with Rule 0-11 of the Securities Exchange Act of
1934, as amended, equals 1/50 of 1% of the transaction value.
** This amount was paid on October 30, 2000.
[ ] 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.
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[ ] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting
the results of the tender offer: [ ]
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This Amendment No. 1 (the "Amendment") amends and supplements the
Tender Offer Statement on Schedule TO filed with the Securities and Exchange
Commission (the "Commission") on October 30, 2000 (the "Schedule TO") by
Raindrop Acquisition Corporation (the "Purchaser"), a Delaware corporation and a
wholly owned subsidiary of Telelogic AB, a company organized under the laws of
Sweden, to purchase all outstanding shares of common stock of Continuus Software
Corporation (the "Company"), par value $.001 per share (the "Shares"), at $3.46
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(l) and (a)(2)
(which are herein collectively referred to as the "Offer"). The information set
forth in the introduction to the Offer to Purchase (the "Introduction") is
incorporated herein by reference. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in the Offer to
Purchase or in the Schedule TO.
Item 4. Terms of the Transaction.
Item 4 of the Schedule TO is hereby amended and supplemented by
including the following information:
WILL THE DIRECTORS AND EXECUTIVE OFFICERS OF CONTINUUS TENDER THEIR SHARES IN
THE OFFER?
Yes. The members of the board of directors of Continuus, their affiliates
and the executive officers of Continuus have all agreed to tender their shares
pursuant to the offer. Each entered into a tender agreement with Telelogic and
the Purchaser pursuant to which they agreed to tender and sell all shares (other
than restricted shares) owned by them to the Purchaser in accordance with the
terms of the offer. These individuals and their affiliated entities own an
aggregate of 3,886,527 shares (including 370,000 restricted shares) or 35% of
Continuus' shares outstanding on October 23, 2000. See Section 11 of the Offer
to Purchase -- "The Tender Agreement."
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
Item 5 of the Schedule TO is hereby amended and supplemented by
including the following information:
Agreements with Executive Officers of Continuus
As of October 25, 2000, Telelogic, the Purchaser and Continuus entered
into an amendment to the change in control severance benefits agreement (the
"Change in Control Amendment") with Steven Johnson, Chief Financial Officer of
Continuus.
Under the Change in Control Amendment Mr. Johnson has agreed for a
limited period of time following the Effective Time not to compete with
Continuus' business, not to solicit for employment Continuus employees and not
to disclose confidential information, in each case subject to certain
limitations. In addition, Mr. Johnson has agreed to the cancellation of his
vested and unvested stock option awards and unvested restricted stock awards as
of the Effective Time.
The Change in Control Amendment provides that Mr. Johnson will have the
right to receive, in cash, (i) at the Effective Time, for each Share issuable
upon exercise of an option that is exercisable and outstanding, an amount equal
to the difference between the Merger Consideration and the per Share exercise
price of such option, (ii) for each Share subject to an unvested option an
amount equal to the difference between the Merger Consideration and the per
Share exercise price of such option plus interest from the Effective Time, and
(iii) for each Share of restricted stock, an amount equal to the Merger
Consideration plus interest from the Effective Time; provided however, the right
to receive the amounts granted in (ii) and (iii) above shall be held in escrow
and be due and payable only after they become vested. The amounts in (ii) and
(iii) above shall vest 100% on January 31, 2001 provided Mr. Johnson remains in
the employ of Continuus through that date. If, however, Mr. Johnson is
terminated without cause, such amounts shall become immediately due and payable.
Pursuant to the Change in Control Amendment described herein, Mr. Johnson will
be entitled to receive $69,340 as of the Effective Time.
The foregoing description of the Change in Control Amendment of Mr.
Johnson is qualified in its entirety by the terms of such agreement. Such
agreement has been filed as an exhibit to the Schedule TO, of which this Offer
to Purchase constitutes a part, and such agreement is hereby incorporated by
reference. The foregoing document which has been attached as an exhibit to the
Schedule TO may be examined at, and may be obtained from, the offices of the SEC
in the same manner as set forth in Section 8 of the Offer to Purchase.
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Item 11. Additional Information.
Item 11 of the Schedule TO is hereby amended and supplemented by
including the following information:
SCHEDULE II
SECTIONS 262 OF THE
DELAWARE GENERAL CORPORATION LAW
Set forth below is Section 262 of the General Corporation Law of the State
of Delaware regarding appraisal rights, which rights will only be available in
connection with the Merger.
SECTION 262 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
(S)262 Appraisal Rights --
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to (S)228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the Stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to (S)251 (other than a merger effected pursuant to
(S)251(g)), (S)252, (S)254, (S)257, (S)258, (S)263 or (S)264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which
stock, or depository receipts in respect thereof, at the record date fixed
to determine the stockholders entitled to receive notice of and to vote at
the meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the Stockholders of the surviving corporation
as provided in subsection (f) of (S)251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
(S)(S)251, 252, 254, 257, 258, 263 and 264 of this title to accept for such
stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or depository
receipts in respect thereof) or depository receipts at the effective
date of the merger or consolidation will be either listed on a national
securities exchange or designated as a national market system security
on an interdealer quotation system by the National Association of
Securities Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
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(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under (S)253 of this title is not owned by
Telelogic or its subsidiaries immediately prior to the merger, appraisal
rights shall be available for the shares of the subsidiary Delaware
corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to
the meeting, shall notify each of its stockholders who was such on the
record date for such meeting with respect to shares for which appraisal
rights are available pursuant to subsections (b) or (c) hereof that
appraisal rights are available for any or all of the shares of the
constituent corporations, and shall include in such notice a copy of this
section. Each stockholder electing to demand the appraisal of such
stockholder's shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal of
such stockholder's shares. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of such stockholder's
shares. A proxy or vote against the merger or consolidation shall not
constitute such a demand. A stockholder electing to take such action must
do so by a separate written demand as herein provided. Within 10 days after
the effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that the
merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to Section
228 or Section 253 of this title, each constituent corporation, either
before the effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section, provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within 20 days after the date of mailing
of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not
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more than 10 days prior to the date the notice is given; provided that, if
the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder's demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder's written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any element
of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted
such stockholder's certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that he is not entitled to appraisal rights under this section.
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(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates up on the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded such stockholder's appraisal rights as provided in
subsection (d) of this section shall be entitled to vote such stock for any
purpose or to receive payment of dividends or other distributions on the stock
(except dividends or other distributions payable to stockholders of record at a
date which is prior to the effective date of the merger or consolidation);
provided, however, that if no petition for an appraisal shall be filed within
the time provided in subsection (e) of this section, or if such stockholder
shall deliver to the surviving or resulting corporation a written withdrawal of
such stockholder's demand for an appraisal and an acceptance of the merger or
consolidation, either within 60 days after the effective date of the merger or
consolidation as provided in subsection (e) of this section or thereafter with
the written approval of the corporation, then the right of such stockholder to
an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding
in the Court of Chancery shall be dismissed as to any stockholder without the
approval of the Court, and such approval may be conditioned upon such terms as
the Court deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, Share Certificates, and any
other required documents should be sent by each stockholder or such
stockholder's broker, dealer, commercial bank, trust company or other nominee to
the Depositary at one of the addresses set forth below:
The Depositary for the Offer is:
WELLS FARGO SHAREOWNER SERVICES
<TABLE>
<S> <C> <C>
By Mail: By Hand: By Overnight Delivery:
Wells Fargo Shareowner Services Wells Fargo Shareowner Services Wells Fargo Shareowner Services
P.O. Box 64858 161 North Concord Exchange Attn: Reorganization Department
St. Paul, MN 55164-0858 South St. Paul, MN 55075 161 North Concord Exchange
South St. Paul, MN 55075
</TABLE>
<TABLE>
<S> <C>
By Facsimile Transmission: Confirmation Receipt of Facsimile by Telephone
(For Eligible Institutions Only) Only
(651) 450-4163 (800) 468-9716
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number as set forth below. Additional copies
of this Offer to Purchase, the Letter of Transmittal, or other related tender
offer materials may be obtained from the Information Agent or from brokers,
dealers, commercial banks or trust companies.
The Information Agent for the Offer is:
D.F. KING & CO.
77 Water Street
New York, NY 10005
Banks and Brokers Call Collect: (212) 269-5550
ALL OTHERS PLEASE CALL TOLL FREE: (800) 714-3311
The Dealer Manager for the Offer is:
LEHMAN BROTHERS
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Item 12. Exhibits
Exhibit No. Exhibit Name
----------- ------------
(d)(7) Amendment to the Executive Officer Change in Control Severance
Benefits Agreement dated as of October 25, 2000, by and among
Steven Johnson, Continuus Software Corporation, Telelogic AB
and Raindrop Acquisition Corporation.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Raindrop Acquisition Corporation
By: /s/ HAKAN RIPPE
Name: Hakan Rippe
Title: Chief Financial Officer and Secretary
Telelogic AB
By: /s/ HAKAN RIPPE
Name: Hakan Rippe
Title: Executive Vice President Business
Development
Dated: November 13, 2000
S-1
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EXHIBIT INDEX
Exhibit No. Exhibit Name
----------- ------------
(d)(7) Amendment to the Executive Officer Change in Control Severance
Benefits Agreement dated as of November 3, 2000, by and among
Steven Johnson, Continuus Software Corporation, Telelogic AB
and Raindrop Acquisition Corporation.
Exhibit Index Page 1
