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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION
14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 1)
VIASOFT, INC.
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(Name of Subject Company)
CV ACQUISITION, INC.
COMPUWARE CORPORATION
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(Bidder)
COMMON STOCK, $0.001 PAR VALUE
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(Title of Class of Securities)
237823109
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(CUSIP Number of Class of Securities)
THOMAS COSTELLO, JR., ESQ.
CV ACQUISITION, INC.
COMPUWARE CORPORATION
31440 NORTHWESTERN HIGHWAY
FARMINGTON HILLS, MI 48334-2564
TELEPHONE: (248) 737-7300
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidder)
COPIES TO:
DONALD J. KUNZ, ESQ.
DAVID E. BARNES, ESQ.
HONIGMAN MILLER SCHWARTZ AND COHN
2290 FIRST NATIONAL BUILDING
DETROIT, MICHIGAN 48226
TELEPHONE: (313) 465-7454
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This Amendment No. 1 to the Schedule 14D-1 relates to the offer by CV
Acquisition, Inc., a Delaware corporation ("Purchaser"), to purchase all
outstanding shares of Common Stock $0.001 par value, of Viasoft, Inc., a
Delaware corporation (the "Company"), at $9.00 per Share, net to the seller in
cash, without interest, upon the terms and subject to the conditions set forth
in the Offer to Purchase and in the related Letter of Transmittal dated July 22,
1999, copies of which were attached as Exhibits (a)(1) and (a)(2), respectively,
to the Schedule 14D-1 filed with the Securities and Exchange Commission on July
22, 1999. The purpose of this Amendment No. 1 is to amend and supplement Items
3, 4, 10 and 11 of the Schedule 14D-1 as described below.
Item 3. Past Contacts, Transactions or Negotiations with the Subject Company
(c) Financial Projections. During the course of the Purchaser's review
of the Company, Compuware received a financial forecast from the Company for its
2000 fiscal year which is not publicly available (the "Forecast"). The Forecast
included the following information (in millions): Total revenues -- $106.1,
operating income -- $12.4; and net income -- $9.4. The Company has advised
Compuware that it does not as a matter of course make public forecasts as to
future revenue or earnings and that the Forecast was prepared for internal
purposes and not with a view to discrimination to the public. The Forecast does
not reflect the Company's actual performance since the Forecast was prepared,
changes in the Company's business or in the economy in general since the
Forecast was prepared, or prospective changes in the Company's business or in
the economy in general resulting from events which have occurred since the
Forecast was prepared. The Forecast was not prepared with a view to complying
with the published guidelines of the Commission regarding projections or with
the AICPA Guide for Prospective Financial Statements and information is included
in this Offer to Purchase only because it was furnished to Compuware.
Neither Compuware nor Parent relied on the Forecast in determining
whether to make the Offer. The Forecast necessarily reflects numerous
assumptions with respect to industry performance, general business and economic
conditions and other matters, many of which are inherently uncertain or beyond
the Company's control, and which are not listed in the Forecast or otherwise
known to Compuware. The Forecast is a forward looking statement subject to risks
and uncertainties that could cause actual results to differ materially from the
Forecast. Therefore, there can be no assurance that the Forecast will be
accurate, and actual results may be materially different from those contained in
the Forecast. The inclusion of this information should not be regarded as an
indication that Compuware, the Purchaser or anyone who received this information
considered it a reliable predictor of future events, and this information should
not be relied on as such. Neither Compuware nor the Purchaser assumes any
responsibility for the validity, reasonableness, accuracy or completeness of the
Forecast.
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Item 4. Source and Amount of Funds or Other Consideration.
(a) - (c) The total amount of funds required by Purchaser to consummate
the Offer and the Merger is estimated to be approximately $161.2 million
(assuming the Purchase of all Shares outstanding), plus approximately $1.5
million to pay related fees and expenses. Purchaser plans to obtain all the
funds needed for the Offer and the Merger from Compuware. Compuware will obtain
such funds in part from the credit facility referred to below. As of March 31,
1999, Compuware had approximately $193 million in cash and cash equivalents and
approximately $310 million in short term investments. Neither Purchaser nor
Compuware has conditioned the Offer or the Merger on obtaining financing.
On June 30, 1999, Compuware countersigned a commitment letter, dated
June 29, 1999, from Morgan Stanley Senior Funding, Inc. ("Morgan Stanley") and
Comerica Bank ("Comerica"), pursuant to which Morgan Stanley and Comerica
committed to provide a credit facility to Compuware on certain terms and
conditions. As contemplated by the commitment letter, Compuware, Morgan Stanley
and Comerica entered into a credit agreement, dated as of August 3, 1999. Prior
to August 18, 1999, the credit agreement provided that Morgan Stanley and
Comerica would provide to Compuware, on specified terms and subject to specified
conditions, up to $900 million in credit financing. On August 18, 1999, the
credit agreement was amended to include additional financial institutions which,
together with Morgan Stanley and Comerica, will provide the credit facility.
Approximately $300 million from the credit facility was advanced to
Compuware on August 4, 1999 to finance Compuware's acquisition of Data
Processing Services Corporation. The balance of the credit facility is expected
to be used to consummate the Offer and the Merger and for other corporate
purposes.
The credit facility is a four-year senior bank revolving credit
facility, with scheduled reductions of the commitments under the facility of
$100 million, $100 million and $700 million at the end of the second, third and
fourth years, respectively. Outstanding loans under the credit facility are to
be repaid if at any time their aggregate principal amount exceeds the then total
credit facility commitment. The interest rates on outstanding loans under the
credit facility will, at Compuware's option, be either (i) the Eurodollar rate
plus a margin of 1.25% initially, or (ii) the higher of the Comerica prime rate
or 0.5% over the federal funds rate, plus a margin of 0.25% initially. In
addition, the credit agreement provides for commitment fees on the unutilized
commitments under the credit facility of 0.25% per annum initially. The interest
rate margins and commitment fees will be adjusted after six months according to
Compuware's then credit rating.
The credit agreement also contain representations, warranties,
covenants, events of default and conditions customary for credit facilities of
this size and type. Compuware has agreed to pay certain fees to Morgan Stanley
and Comerica with respect to the commitment letter and to Morgan Stanley,
Comerica and the other lenders with respect to
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the credit facility. Compuware also has agreed to reimburse certain expenses of
Morgan Stanley and Comerica in connection with the commitment letter and to
provide customary indemnities to Morgan Stanley, Comerica and the other lenders
in connection with the credit facility.
The foregoing summary of the sources and amount of funds is qualified
in its entirety by reference to the text of the credit agreement, including the
exhibits and schedules thereto, and the commitment letter. A copy of the credit
agreement is filed as Exhibit (b)(2) to this Amendment. A copy of the commitment
letter is attached as Exhibit (b)(1) to the Schedule 14D-1.
Although no definitive plan or arrangement for repayment of borrowings
under the credit facility has been made, Compuware anticipates such borrowings
will be repaid with internally generated funds and from other sources which may
include the proceeds of future bank financings or the public or private sale of
debt or equity securities. No decision has been made concerning the method
Compuware will use to repay the borrowings under the credit facility. Such
decision will be made based on Compuware's review from time to time of the
advisability of particular actions, as well as prevailing interest rates,
financial and other economic conditions and such other factors as Compuware may
deem appropriate.
Item 10. Additional Information
(c) On August 3, 1999, the U.S. Department of Justice requested additional
information in connection with its review of the proposed acquisition
of the Company by Compuware.
Reference is made to the press release issued by Compuware on August 4,
1999, a copy of which is filed as Exhibit (a)(9) to this Amendment No.
1 to Schedule 14D-1 and is incorporated herein by reference.
(f) On August 18, 1999, the Parent, the Purchaser and the Company entered
into an Amendment to the Merger Agreement pursuant to which the Parent
shall have the right in its discretion to extend the Expiration Date of
the Offer at any time, and from time to time, to any date, or dates,
prior to and including the earlier of October 31, 1999 or five (5)
business days after expiration or termination of any applicable writing
periods under the HSR Act relating to the transactions contemplated in
the Merger Agreement.
Reference is made to the Amendment of Agreement and Plan of Merger
among the Parent, the Purchaser and the Company dated August 18, 1999,
a copy of which is filed as Exhibit (c)(4) to this Amendment No. 1 to
Schedule 14D-1 and is incorporated herein by reference.
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The second paragraph of Section 14 of the Offer to Purchase is amended
to read as follows:
"In addition, notwithstanding any other provision of this Offer or the
Merger Agreement, Purchaser will not be required to accept for payment
(subject to the Securities and Exchange Commission's rules) and pay for
any Shares not theretofore accepted for payment and paid for, and may
terminate or amend this Offer, if, on or before the scheduled
expiration date of this Offer (as extended, if applicable), any of the
following conditions exists and is continuing:"
Item 11. Material to be Filed as Exhibits.
(a)(9) Press Release issued by Compuware on August 4, 1999.
(b)(2) Credit Agreement, dated as of August 3, 1999, among Compuware
Corporation, Various Lenders, Comerica Bank, as Administrative Agent
and Co-Arranger, and Morgan Stanley Senior Funding, Inc., as Lead
Arranger, Syndication Agent and Book Manager (incorporated by reference
from Exhibit (b)(2) of the Offer to Purchase of COMP Acquisition Co.
and Compuware Corporation on Schedule 14D-1 related to Data Processing
Resources Corporation).
(d)(2) Amendment of Agreement and Plan of Merger among Compuware Corporation,
CV Acquisition, Inc. and Viasoft, Inc., dated as of August 18, 1999.
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SIGNATURE
After due inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certify that the information set forth in this Statement
is true, complete and correct.
August 19, 1999
CV ACQUISITION INC.
By: /S/ THOMAS COSTELLO, JR.
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Name: Thomas Costello, Jr.
Title: Vice President, Secretary
and Treasurer
COMPUWARE CORPORATION
By: /S/ LAURA FOURNIER
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Name: Laura Fournier
Title: Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT NAME
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(a)(9) Text of Press Release by Compuware dated August 4,
1999.
(b)(2) Credit Agreement, dated as of August 3, 1999, among
Compuware Corporation, Various Lenders, Comerica Bank,
as Administrative Agent and Co-Arranger, and Morgan
Stanley Senior Funding, Inc., as Lead Arranger,
Syndication Agent and Book Manager (incorporated by
reference from Exhibit (b)(2) of the Offer to Purchase
of COMP Acquisition Co. and Compuware Corporation on
Schedule 14D-1 related to Data Processing Resources
Corporation).
(d)(2) Amendment of Agreement and Plan of Merger among
Compuware Corporation, CV Acquisition, Inc. and
Viasoft, Inc., dated as of August 18, 1999.
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EXHIBIT (a)(9)
NEWS RELEASE
[COMPUWARE CORPORATION LETTERHEAD]
FOR IMMEDIATE RELEASE
AUGUST 19, 1999
COMPUWARE EXTENDS TENDER OFFER FOR VIASOFT, INC.
FARMINGTON HILLS, Mich.--August 19, 1999--Compuware Corporation (NASDAQ: CPWR)
today announced that it has entered into an amendment to the Agreement and
Plan of Merger, dated July 14, 1999, among Compuware, CV Acquisition, Inc. and
Viasoft, Inc. (Viasoft). The amendment to the Merger Agreement gives Compuware
the right to extend the expiration of the Offer Period in connection with its
tender offer for all the outstanding shares of common stock of Viasoft at any
time, and from time to time, to the earlier of October 31, 1999, or five
business days after the expiration or termination of the waiting period under
the Hart-Scott-Rodino Antitrust Improvement Act of 1976. Any extension of the
Offer Period after such dates must be by mutual agreement of Compuware and
Viasoft.
Compuware also announced today that, pursuant to the Agreement and Plan of
Merger, as amended, it has elected to extend the Offer Period until 12:00
midnight, Eastern Time, on Monday September 20, 1999.
COMPUWARE CORPORATION
Compuware productivity solutions help 14,000 of the world's largest
corporations more efficiently maintain and enhance their most critical business
applications. Providing immediate and measurable return on information
technology investments, Compuware products and services improve quality, lower
costs and increase the speed at which systems can be developed, implemented and
supported. Compuware employs approximately 15,000 information technology
professionals worldwide. With trailing 12-month revenues of more than $1.7
billion, Compuware is the world leader in client/server development
technology. For more information about Compuware, please contact the corporate
offices at 800-521-9353. You may also visit Compuware on the World Wide Web at
www.compuware.com.
VIASOFT, INC.
Headquartered in Phoenix, Ariz., Viasoft provides sales and professional
services through regional offices in the United States, Canada, Australia,
Europe and a growing network of international subsidiaries, distributors and
resellers. For more information on Viasoft's services and technologies, please
visit the company's World Wide Web site at www.viasoft.com.
MORE
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Compuware Extends Tender Offer for Viasoft, Inc.
August 19, 1999
PRESS CONTACTS:
Christopher M.F. Norris Mark Schonau
Director, Corporate Communications Senior Vice President of Finance &
Compuware Corporation Communications
248-737-7506 Viasoft, Inc.
602-808-1090
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EXHIBIT (d)(2)
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMONG COMPUWARE CORPORATION, CV ACQUISITION, INC. AND VIASOFT, INC.
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
August 18, 1999, among Compuware Corporation, a Michigan corporation
("Compuware"), CV Acquisition, Inc., a Delaware corporation and a wholly-owned
subsidiary of Compuware ("Merger Sub"), and Viasoft, Inc., a Delaware
corporation ("Viasoft").
RECITALS
A. The parties hereto entered into an Agreement and Plan of Merger,
dated as of July 14, 1999 (the "Agreement").
B. The parties desire to amend the Agreement in accordance with, and
only to the extent expressly set forth in, the terms and conditions set forth
herein.
C. All capitalized terms used herein which are defined in the Agreement
shall have the same meanings herein as set forth in the Agreement.
Therefore, the parties agree as follows:
1. Notwithstanding any terms in the Agreement to the contrary,
including Section 1.1, Compuware shall have the right in its discretion to
extend the Expiration Date of the Offer at any time, and from time to time, to
any date, or dates, prior to and including the earlier of (i) October 31, 1999,
or (ii) five (5) business days after expiration or termination of any applicable
waiting periods under the HSR Act relating to the transactions contemplated in
the Agreement. Any further extension of the Expiration Date of the Offer shall
only occur upon mutual written agreement of the parties.
2. Nothing herein shall amend or extend the January 31, 2000 date set
forth in Section 8.1 of the Agreement, and nothing herein shall affect Viasoft's
obligation (subject to the terms and conditions of the Agreement) to convene a
Shareholders Meeting prior to said date.
3. The Agreement, as amended hereby, shall remain in full force and
effect.
IN WITNESS WHEREOF, Compuware, Merger Sub and Viasoft have caused this
First Amendment to Agreement and Plan of Merger to be signed by the respective
officers hereunto duly authorized all as of the date first written above.
COMPUWARE CORPORATION
By: /S/ ELIOT R. STARK
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Name: Eliot R. Stark
Title: Executive Vice President
(Signatures continued on next page)
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(Signatures continued from previous page)
CV ACQUISITION, INC.
By: /S/ ELIOT R. STARK
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Name: Eliot R. Stark
Title: President
VIASOFT, INC.
By: /S/ STEVEN D. WHITEMAN
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Name: Steven D. Whiteman
Title: Chairman and Chief Executive Officer
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