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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 3)
Solicitation/Recommendation Statement
Pursuant to Section 14(d)(4) of the
Securities Exchange Act of 1934
ABR INFORMATION SERVICES, INC.
(Name of Subject Company)
ABR INFORMATION SERVICES, INC.
(Name of Person(s) Filing Statement)
Voting Common Stock, par value $0.01 per share
(Title of Class of Securities)
00077R 10 8
(CUSIP Number of Class of Securities)
James P. O'Drobinak
Senior Vice President and Chief Financial Officer
ABR Information Services, Inc.
34125 U.S. Highway 19 North
Palm Harbor, FL 34684-2141
(727) 785-2819
(Name,address and telephone number of person authorized to receive notice and
communications on behalf of the person(s) filing statement)
With Copies to:
Francis J. Aquila, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-4000
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This Amendment No. 3 (this "Amendment") amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 of ABR Information
Services, Inc., a Florida corporation (the "Company"), filed with the Securities
and Exchange Commission on May 7, 1999, as amended by Amendment No. 1 to such
Schedule filed with the Securities and Exchange Commission (the "SEC") on May
19, 1999, and Amendment No. 2 to such Schedule filed with the SEC on May 19,
1999 (as so amended, the "Statement"), with respect to the tender offer made by
Spring Acquisition Corp. ("Purchaser"), a Florida corporation and a wholly-owned
subsidiary of Ceridian Corporation, a Delaware corporation ("Parent"), to
purchase all of the outstanding shares of voting common stock, par value $0.01
per share, of the Company (the "Shares") at a purchase price of $25.50 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, dated May 7, 1999 of
Purchaser and Parent and in the related Letter of Transmittal.
Capitalized terms used but not defined herein have the meanings
given such terms in the Statement.
ITEM 2. Tender Offer of the Bidder.
Item 2 of the Statement is hereby amended by deleting the first
sentence of the first paragraph of such item and inserting in its place the
following sentence:
"The Offer is being made in accordance with Agreement and Plan of
Merger, dated as of April 30, 1999, as amended by Amendment No. 1 to the
Agreement and Plan of Merger, dated as of June 2, 1999 (as so amended, the
"Merger Agreement"), among the Company, Parent and Purchaser."
Item 2 of the Statement is hereby further amended by deleting the
last sentence of the second paragraph of such item and inserting in its place
the following:
"A copy of the Merger Agreement (as of April 30, 1999) is filed as
Exhibit (c)(1) hereto and is incorporated herein by reference. A copy of
the June 2, 1999 Amendment to the Merger Agreement is filed as Exhibit
(c)(8) hereto and is incorporated herein by reference."
ITEM 3. Identity and Background.
Item 3(b) of the Statement is hereby amended by deleting the last
paragraph appearing under the caption "Merger Agreement" and inserting in its
place the following:
"The foregoing description of terms and provisions of the Merger
Agreement is qualified in its entirety by reference to the text of the Merger
Agreement, which is filed as Exhibit (c)(1) and (c)(8) to this Statement and is
available for inspection and copying at the
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principal office of the SEC or may be viewed and printed from the SEC web site
at http://www.sec.gov."
Item 3(b) of the Statement is hereby further amended and
supplemented by adding thereto the following information:
Retirement Plan for Outside Directors
On June 2, 1999, the Company Board adopted a Retirement Plan for
Outside Directors (the "Retirement Plan"), effective as of June 1, 1999,
the purpose of which is to provide retirement income to members of the
Company Board who are not officers or employees of the Company (such
members, the "Outside Directors") in recognition of their past services to
the Company and to provide an incentive for such persons to continue to
serve as members of the Company Board. Each Outside Director of the
Company participates in the Retirement Plan.
Upon a participant's ceasing to be an Outside Director, the
Retirement Plan provides annual retirement benefits in an amount equal to
such participant's years of service as an Outside Director (including any
fractional part thereof) times the annual retainer paid to Outside
Directors of the Company on the date that such participant ceases to be an
Outside Director. If a participant has served less than 10 years as an
Outside Director, such retirement benefit shall be reduced by multiplying
the amount of the retirement benefit otherwise payable by a fraction, the
numerator of which is such participant's years of service and the
denominator of which is 10. The retirement benefits payable under the
Retirement Plan are payable annually for 15 years unless the participant
elects to have the present value (determined pursuant to the Retirement
Plan) of such participant's benefits paid as a lump sum. The Retirement
Plan also provides death benefits in an amount equal to the present value
of the amount that would have been paid if the participant had elected to
receive retirement benefits in the fifteen annual installments described
above.
The Retirement Plan provides that in the event of a Change in
Control (as defined in the Retirement Plan), the Company shall pay in cash
to each Outside Director, no later than the fifth day following the Change
in Control, an amount equal to the present value of such participant's
accrued retirement benefit under the Retirement Plan, determined as if
such Participant ceased to be an Outside Director upon the Change in
Control, and elected to receive his or her retirement benefit in the form
of a lump sum cash payment. The consummation of the transactions
contemplated by the Merger Agreement will constitute a Change in Control
as defined in the Retirement Plan. The text of the Retirement Plan is
attached to this Statement as Exhibit (c)(9) and is incorporated herein by
reference. The foregoing description is qualified in its entirety by
reference to the text of the Retirement Plan.
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ITEM 9. Material to be Filed as Exhibits.
Item 9 of the Statement is hereby amended and supplemented by adding
thereto the following:
Exhibit No. Description
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(c)(8) Amendment No. 1 to the Agreement and Plan of Merger,
dated as of June 2, 1999, among the Company, Parent and
Purchaser.
(c)(9) ABR Information Services, Inc. Retirement Plan for
Outside Directors.
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SIGNATURE
After reasonable 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.
Dated: June 3, 1999
ABR INFORMATION SERVICES, INC.
By: /s/ James E. MacDougald
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Name: James E. MacDougald
Title: President and
Chief Executive Officer
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Exhibit No. Description
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(c)(8) Amendment No. 1 to the Agreement and Plan of Merger,
dated as of June 2, 1999, among the Company, Parent and
Purchaser.
(c)(9) ABR Information Services, Inc. Retirement Plan for
Outside Directors.
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 (this "Amendment") to the Agreement and Plan of
Merger is made as of June 2, 1999 by and among ABR Information Services, Inc., a
Florida corporation (the "Company"), Ceridian Corporation, a Delaware
corporation ("Parent"), and Spring Acquisition Corp., a wholly-owned subsidiary
of Parent and a Florida corporation ("Merger Sub").
WHEREAS, the Company, Parent and Merger Sub have entered into that
certain Agreement and Plan of Merger, dated as of April 30, 1999 (the "Merger
Agreement");
WHEREAS, the Company, Parent and Merger Sub wish to make certain
modifications thereto;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Annex A to the Merger Agreement is hereby amended by deleting the
phrase ", and at any time prior to acceptance for payment for any such Shares,"
in clause (iii) of the introductory paragraph thereof, and inserting in its
place the phrase ", and at any time prior to expiration of the Offer,".
2. This Amendment is governed by, and shall be construed in
accordance with, the laws of the State of Florida.
3. Except as herein expressly amended, the Merger Agreement is
ratified and confirmed in all respects and shall remain in full force and effect
in accordance with its terms.
4. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
ABR INFORMATION SERVICES, INC.
By: /s/ James E. MacDougald
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Name: James E. MacDougald
Title: President and Chief Executive
Officer
CERIDIAN CORPORATION
By: /s/ Gary M. Nelson
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Name: Gary M. Nelson
Title: Vice President, General Counsel
and Secretary
SPRING ACQUISITION CORP.
By: /s/ Gary M. Nelson
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Name: Gary M. Nelson
Title: President and Chief Executive
Officer
ABR INFORMATION SERVICES, INC.
RETIREMENT PLAN FOR OUTSIDE DIRECTORS
ARTICLE I
DEFINITIONS
The purposes of this Plan are to provide retirement income to
members of the Board of Directors of ABR Information Services, Inc. (the
"Company") who are not employees of the Company in recognition of their past
services to the Company and to provide an incentive for such persons to continue
to serve as members of the Board of Directors of the Company.
ARTICLE II
DEFINITIONS
2.1. "Board" means the Board of Directors of the Company.
2.2. "Change in Control" means the occurrence of any one of the
following events:
(i) individuals who, on the Effective Date, constitute the Board
(the "Incumbent Directors") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the date hereof, whose election or nomination for election was approved by a
vote of at least two-thirds of the Incumbent Directors then on the Board (either
by a specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without written objection to
such nomination) shall be an Incumbent Director; provided, however, that no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest (as described in Rule 14a-11
under the Securities Exchange Act of 1934 (the "Act")) ("Election Contest") or
other actual or threatened solicitation of proxies or consents by or on behalf
of any "person" (as such term is defined in Section 3(a)(9) of the Act and as
used in Sections 13(d)(3) and 14(d)(2) of the Act) other than the Board ("Proxy
Contest"), including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest, shall be deemed an Incumbent Director;
(ii) any person is or becomes a "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the Company
representing 25% or more of the combined voting power of the Company's then
outstanding securities eligible to vote for the election of the Board (the
"Company Voting Securities"); provided, however, that the event described in
this paragraph (ii) which occurs by virtue of any of the following acquisitions
shall be deemed not to be a Change in Control of the Company: (A) by the Company
or any Subsidiary, (B) by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any Subsidiary, (C) by any underwriter
temporarily holding securities pursuant to an offering of such securities, (D)
pursuant to a Non-Qualifying Transaction (as defined in paragraph (iii) below),
(E) pursuant to any acquisition by a Participant (an "Acquiring Participant") or
any group of persons including an Acquiring Participant (or any entity
controlled by an Acquiring Participant or any group of persons including an
Acquiring Participant),
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provided, that an event that is deemed not to be a Change in Control under this
clause (E) shall nevertheless be a Change in Control for all Participants other
than any Acquiring Participant; or (F) a transaction (other than one described
in paragraph (iii) below) in which Company Voting Securities are acquired from
the Company, if a majority of the Incumbent Directors approve a resolution
providing expressly that the acquisition pursuant to this clause (F) does not
constitute a Change in Control of the Company under this paragraph (ii);
(iii) the consummation of a merger, consolidation, statutory share
exchange or similar form of corporate transaction involving the Company or any
of its subsidiaries that requires the approval of the Company's stockholders,
whether for such transaction or the issuance of securities in the transaction (a
"Reorganization"), or sale or other disposition of all or substantially all of
the Company's assets to an entity that is not an affiliate of the Company (a
"Sale"), unless immediately following such Reorganization or Sale: (A) more than
50% of the total voting power of (x) the corporation resulting from such
Reorganization or the corporation which has acquired all or substantially all of
the assets of the Company (in either case, the "Surviving Corporation"), or (y)
if applicable, the ultimate parent corporation that directly or indirectly has
beneficial ownership of 100% of the voting securities eligible to elect
directors of the Surviving Corporation (the "Parent Corporation"), is
represented by Company Voting Securities that were outstanding immediately prior
to such Reorganization or Sale (or, if applicable, is represented by shares into
which such Company Voting Securities were converted pursuant to such
Reorganization or Sale), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the Reorganization or
Sale, (B) no person (other than any employee benefit plan (or related trust)
sponsored or maintained by the Surviving Corporation or the Parent Corporation),
is or becomes the beneficial owner, directly or indirectly, of 25% or more of
the total voting power of the outstanding voting securities eligible to elect
directors of the Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) and (C) at least a majority of the members of the board
of directors of the Parent Corporation (or, if there is no Parent Corporation,
the Surviving Corporation) following the consummation of the Reorganization or
Sale were Incumbent Directors at the time of the Board's approval of the
execution of the initial agreement providing for such Reorganization or Sale
(any Reorganization or Sale which satisfies all of the criteria specified in
(A), (B) and (C) above shall be deemed to be a "Non-Qualifying Transaction"); or
(iv) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 25% of the Company Voting Securities as a result of the acquisition of
Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the Company
shall then occur.
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2.3. "Company" means ABR Information Services, Inc. and any
successors thereto..
2.4. "Effective Date" means June 1, 1999.
2.5. "Outside Director" means a member of the Board who is not an
officer or employee of the Company or any of its affiliates.
2.6. "Participant" means an Outside Director who is both eligible
for participation in the Plan and has not ceased to be a Participant.
2.7. "Plan" means the ABR Information Services, Inc. Retirement Plan
for Outside Directors as set forth herein and as amended from time to time.
2.8. "Plan Year" means the calendar year.
2.9. "Retainer" means the basic annual amount (excluding meeting
fees) of cash compensation payable to an Outside Director for services rendered
to the Company in effect as of the date he or she ceases to be a member of the
Board.
2.10. "Retirement Date" means the later of (i) the date on which an
Outside Director attains age 60 or (ii) the date on which he ceases to be an
Outside Director for any reason other than death.
2.11. "Year of Service" means a twelve-month continuous period,
whether before or after the Effective Date, commencing on the date an individual
becomes an Outside Director and each anniversary thereof, during which such
individual at all times serves as an Outside Director. For purposes of
determining the fractional part of a Year of Service for any Participant, a
Participant shall be credited with a full month of service for each full or
partial month during which the Participant served as an Outside Director.
ARTICLE III
PARTICIPATION
3.1. Each Outside Director shall be a Participant in the Plan on the
later of (a) the Effective Date and (b) the date he or she becomes an Outside
Director.
3.2. An Outside Director who becomes a Participant shall remain a
Participant until the later of (a) the date on which he or she ceases to be an
Outside Director and (b) the date on which such Outside Director is no longer
entitled to any benefits under the Plan.
3.3. To the extent provided by the Board, periods subsequent to the
Effective Date during which an Outside Director is unable to carry out the
duties of his position as a result of temporary injury, sickness, or leaves of
absence specifically approved by the Board, shall not cause an interruption of
an individual's service as an Outside Director or of his Years of Service for
purposes of this Plan.
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ARTICLE IV
RETIREMENT BENEFIT
4.1. (a) Subject to Section 4.1(b), upon ceasing to be an Outside
Director, each Participant shall receive an annual retirement benefit in an
amount equal to the product of (i) such Participant's Years of Service and
fractional part thereof and (ii) 100% of such Participant's Retainer.
(b) If, upon ceasing to be an Outside Director, a Participant's
Years of Service (and fractional part thereof) is less than ten, such
Participant's retirement benefit shall be an amount equal to the product of (i)
the amount determined under Section 4.1(a) and (ii) a fraction, the numerator of
which is such Participant's Years of Service and fractional part thereof, and
the denominator of which is ten.
4.2. (a) The retirement benefit payable to a Participant under
Section 4.1 shall be paid annually for fifteen years (or such Participant's
Years of Service, if longer), commencing on or about the first day of the Plan
Year following such Participant's Retirement Date, unless such Participant has
elected an alternative form of benefit as provided in Section 4.2(b).
(b) A Participant may elect to receive such Participant's retirement
benefit payable under Section 4.1 in the form of a lump sum payment. Such
election shall be made on a form provided by the Company for such purpose. If a
Participant elects to receive payment under this Section 4.2(b), such payment
shall equal the present value of the benefit otherwise payable to such
Participant for the period determined under Section 4.2(a), using the
assumptions set forth on Exhibit A.
ARTICLE V
DEATH BENEFIT
5.1. If a Participant dies before benefit payments have commenced in
accordance with Section 4.2, the Company shall pay such Participant's named
beneficiary or, if no beneficiary is named, his estate, as soon as practicable
after such Participant's death, a lump sum payment in an amount equal to the
present value of such Participant's accrued retirement benefit, assuming such
Participant had elected to receive such benefit annually for a period of fifteen
years. Such beneficiary shall be named on a form provided by and filed with the
Company for this purpose. The present value shall be calculated by using the
assumptions set forth on Exhibit A.
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ARTICLE VI
OBLIGATIONS OF COMPANY; SOURCE OF PAYMENTS
6.1. The sole obligation of the Company to any Participant in
respect of any amounts which may become payable hereunder is a contractual
obligation to make payments in accordance with the terms of the Plan.
6.2. The Plan is an unfunded plan and all amounts payable under the
Plan shall be paid from the general assets of the Company. Except as provided
under Article VII, the Company shall be under no obligation to segregate any of
its assets in respect of the benefits provided hereunder or to fund or otherwise
secure its obligation to pay such benefits.
ARTICLE VII
CHANGE IN CONTROL
7.1. Notwithstanding any provision of the Plan to the contrary, in
the event of a Change in Control, the Company shall pay in cash to each
Participant, no later than the fifth day following the Change in Control, an
amount equal to the present value of such Participant's accrued retirement
benefit under Section 4.1, determined as if such Participant ceased to be an
Outside Director upon the Change in Control, and elected to receive his or her
retirement benefit in the form of a lump sum cash payment.
ARTICLE VIII
ADMINISTRATION OF PLAN
8.1. The Plan shall be administered by the members of the Board who
are not Outside Directors and such members of the Board shall have full and
final authority to interpret the Plan; to prescribe, amend and rescind rules and
regulations, if any, relating to the Plan; and to make all determinations
necessary or advisable for the administration of the Plan. The reasonable
determination of the members of the Board administering the Plan in all matters
referred to herein shall be conclusive and binding for all purposes.
8.2. No member of the Board shall be liable for, and the Company
shall indemnify and hold each member of the Board harmless with respect to,
anything done or omitted to be done by such member or by any other member of the
Board in connection with the Plan, except for the willful misconduct or gross
negligence of such member. The Board shall have power to engage outside
consultants, auditors or other professional help to assist in the fulfillment of
its duties under the Plan. The expenses incurred in administering the Plan shall
be paid by the Company.
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ARTICLE IX
AMENDMENT AND TERMINATION
9.1. Except as provided in Section 9.2, the Plan may be amended or
terminated as of any date specified in a resolution adopted by the Board, but no
such amendment or termination shall reduce or otherwise adversely affect the
payment of benefits to any Participant who has commenced receiving payments
hereunder prior to the date of such amendment or termination.
9.2. On or after a Change in Control, the Plan may not be amended or
modified without the consent of each such affected Participant.
ARTICLE X
MISCELLANEOUS
10.1. The Company may withhold from all payments due hereunder all
taxes which, by applicable federal, state, local or other law, it is required to
withhold therefrom.
10.2. No Participant, his named beneficiary or his estate shall have
any right to commute, sell, transfer, assign or otherwise alienate or encumber
his or its right to receive any payments under the Plan and any attempt to do so
shall be void. No amounts payable under the Plan shall be subject to levy,
attachment, garnishment or other legal process of any kind in satisfaction of
the contracts, torts or other liabilities of a Participant, his name beneficiary
or his estate.
10.3. This Plan shall create no right in a Participant to continue
as a member of the Board or to create any other rights in a Participant or
obligations on the part of the Company, except as are set forth herein.
10.4. This Plan shall be governed by the laws of the State of
Florida.
10.5. (a) This Plan shall not be terminated by any merger,
consolidation, share exchange or similar event involving the Company whereby the
Company is or is not the surviving or resulting entity. In the event of any
merger, consolidation, share exchange or similar event, the provisions of this
Plan shall be binding upon the surviving or resulting corporation or the person
or entity to which the Company's assets are transferred
(b) Concurrently with any merger, consolidation, share exchange or
sale, lease or transfer of all or substantially all of its assets, the Company
will cause any successor or transferee unconditionally to assume all of the
obligations of the Company hereunder.
(c) This Plan shall inure to the benefit of and be enforceable by
each Participant's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If a Participant shall
die while any amounts are payable to such Participant hereunder, all such
amounts, unless otherwise provided herein, shall be paid in
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accordance with the terms of this Plan to such Participant's surviving spouse
or, if none, to such Participant's estate.
10.6. The invalidity or unenforceability of any provision of this
Plan shall not affect the validity or enforceability of any other provision of
this Plan, which other provisions shall remain in full force and effect.
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Exhibit A
1. Assumptions for present value calculation under Sections 4.2(b) and 5.1:
Pre-retirement mortality: None
Post-retirement mortality: None
Discount rate: 5% (applied 1.25% per quarter,
assuming payments are made at the
commencement of each month)
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