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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
VIASOFT, INC.
(Name Of Subject Company)
VIASOFT, INC.
(Name Of Person(s) Filing Statement)
COMMON STOCK, $0.001 PAR VALUE
(Title Of Class Of Securities)
92552U-10-2
(CUSIP Number Of Class Of Securities)
CATHERINE HARDWICK, ESQ.
3033 NORTH 44TH STREET
SUITE 101
PHOENIX, AZ 85018
(602) 952-0050
(Name, Address And Telephone Number Of Person Authorized
To Receive Notice And Communications On Behalf Of The
Person(s) Filing Statement)
WITH COPIES TO:
WILLIAM M. HARDIN, ESQ.
RONDA R. BECKERLEG, ESQ.
OSBORN MALEDON, P.A.
2929 NORTH CENTRAL AVENUE, SUITE 2100
PHOENIX, ARIZONA 85012-2794
(602) 640-9000
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INTRODUCTION
Viasoft, Inc. ("Viasoft") hereby amends and supplements its
Solicitation/Recommendation Statement on Schedule 14D-9 dated July 22, 1999, as
previously supplemented and amended by Amendment No. 1 thereto dated August 5,
1999 (the "Schedule 14D-9"), with respect to the tender offer made by Compuware
Corporation, a Michigan corporation ("Compuware"), and CV Acquisition, Inc., a
Delaware corporation and wholly-owned subsidiary of Compuware ("Purchaser") to
purchase all of the outstanding Shares. Capitalized terms not defined herein
shall have the meanings assigned thereto in the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND
Item 3(b)(2) of the Schedule 14D-9 is hereby amended and supplemented
by adding the following text thereto:
Amendment to Merger Agreement. Viasoft, Compuware and
Purchaser have entered into a First Amendment to Agreement and Plan of
Merger dated as of August 18, 1999 ("First Amendment"), pursuant to
which 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 Merger Agreement. Any further
extension of the Expiration Date of the Offer shall only occur upon
mutual written agreement of Viasoft, Compuware and Purchaser. The
foregoing summary of the First Amendment is qualified in its entirety
by reference to the First Amendment itself, a copy of which is filed as
Exhibit 13 to this Amendment No. 2 to Schedule 14D-9 and is
incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
Item 8(c) of the Schedule 14D-9 is hereby amended and supplemented by
adding the following text thereto:
On August 19, 1999, Compuware and Viasoft issued the press
release attached hereto as Exhibit 14. The information set forth in the
press release is incorporated herein by reference.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by
adding the following text thereto:
(d) Company Financial Projections. During the course of
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"). Purchaser included certain
information concerning the Forecast in an amendment to its Schedule
14D-1. The Company does not as a matter of course make public forecasts
as to future revenue or earnings. The Forecast was prepared for
internal purposes and not with a view to dissemination 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
Purchaser's Offer to Purchase states that information concerning the
Forecast is included therein only because it was furnished to
Compuware.
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.
In addition, the Forecast is a forward looking statement subject to
risks and uncertainties that could cause actual results to differ
materially from the Forecast, including, but not limited to, the impact
of the announcement of the transactions contemplated by the Merger
Agreement, the timing and results of the parties' efforts to obtain
regulatory approvals of such transactions, the Company's dependence on
the year 2000 century date conversion market, both mainframe and
desktop, and dependence on its ESW primary product line, the
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volatility of the Company's common stock price, fluctuations in
revenues and operating results, fluctuations in market demand and
product mix, the Company's ability to manage changes in its
professional services business and risks associated with a professional
services business, including volatility of workload, ability to
successfully manage consulting projects, proper allocation of resources
and hiring, training and retaining qualified personnel, risks
associated with international operations including longer payment
cycles and exchange rate fluctuations, the Company's ability to manage
rapid change in its business and industry, the Company's ability to
enhance existing products and develop or acquire new products and
technology to keep pace with technological developments and evolving
industry standards and to respond to changes in customer needs, the
Company's ability to identify, complete, manage and integrate
acquisitions of businesses, products and technologies, charges, costs
and uncertainties related to acquisitions, intense competition in the
Company's markets, the performance of the Company's distributors and
resellers, the Company's dependence on key management and technical
personnel and increasing competition to attract skilled personnel, the
adequacy of the Company's program to address year 2000 compliance
issues and general economic and business conditions, as well as factors
detailed from time to time in the Company's filings with the
Commission. 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 in
Compuware's Schedule 14D-1 should not be regarded as an indication that
the Company considered or considers it a reliable predictor of future
events, and this information should not be relied on as such. The
Company undertakes no obligation to update or otherwise revise the
Forecast, and the Company assumes no responsibility for the validity,
reasonableness, accuracy or completeness of the Forecast.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by
adding the following text thereto:
Exhibit 13 First Amendment to Agreement and Plan of Merger among
Compuware Corporation, CV Acquisition, Inc. and
Viasoft, Inc. dated as of August 18, 1999.
Exhibit 14 Press Release dated August 19, 1999.
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.
VIASOFT, INC.
By: /s/ STEVEN D. WHITEMAN
Steven D. Whiteman
Chairman of the Board and Chief
Executive Officer
Dated: August 20, 1999
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EXHIBIT INDEX
Except as noted below, the following Exhibits have been previously filed in
connection with this Schedule 14D-9.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
1 Letter to Shareholders of Viasoft, Inc. dated July 22, 1999.
2 Text of Joint Press Release issued by Compuware and the Company on July
15, 1999.
3 Opinion of Broadview International LLC (included as Annex B to the
Schedule 14D-9).
4 Agreement and Plan of Merger dated as of July 14, 1999, among Viasoft,
Inc., Compuware Corporation and CV Acquisition, Inc.
5 Shareholder Tender and Voting Agreement dated as of July 14, 1999,
among CV Acquisition, Inc. and certain shareholders and option holders
of Viasoft, Inc.
6 Viasoft, Inc. Change in Control Separation Plan dated July 14, 1999.
7 Portions of the Company's definitive Proxy Statement dated October 15,
1998.
8 Confidentiality Agreement between Compuware and Viasoft, Inc. dated as
of June 2, 1999.
9 Amendment to Rights Agreement Between Viasoft, Inc. and Harris Trust
and Savings Bank, as Rights Agent dated as of July 14, 1999.
10 ANNEX A Information Statement
11 ANNEX B Opinion Of Broadview International LLC
12 Press Release dated August 4, 1999.
13 First Amendment to Agreement and Plan of Merger among Compuware
Corporation, CV Acquisition, Inc. and Viasoft, Inc. dated as of August
18, 1999.*
14 Press Release dated August 19, 1999.*
</TABLE>
* FILED HEREWITH
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EXHIBIT 13
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
-----------------------------------------------
Name: Eliot R. Stark
Title: President
VIASOFT, INC.
By: /S/ STEVEN D. WHITEMAN
-----------------------------------------------
Name: Steven D. Whiteman
Title: Chairman and Chief Executive Officer
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EXHIBIT 14
FOR IMMEDIATE RELEASE
COMPUWARE EXTENDS TENDER OFFER FOR VIASOFT, INC.
PHOENIX, ARIZ. (AUGUST 19, 1999) - Viasoft, Inc. (Nasdaq NM: VIAS)
announced today 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. 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.
Viasoft also announced today that, pursuant to the Agreement and Plan
of Merger, as amended, Compuware has elected to extend the Offer Period until
12:00 midnight, Eastern time, on Monday September 20, 1999. The extension of the
tender offer is being made to provide sufficient time to comply with the request
for additional information and documents by the Antitrust Division of the U.S.
Department of Justice pursuant to the Hart-Scott-Rodino Antitrust Improvements
Act of 1976 and to allow the Department of Justice time to complete its
investigation in conjunction with Compuware's ongoing tender offer.
ABOUT VIASOFT
Viasoft is a leader in understanding enterprise applications to help
companies realize the greatest return on their information technology
investments. The Company provides business solutions consisting of specialized
professional services and award-winning software, designed to enable customers
worldwide to cost-effectively manage and evolve their information technology
assets. 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 distributors and resellers. For
more information on Viasoft's services and technology, please visit the
Company's World Wide Web site at www.viasoft.com.
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ABOUT COMPUWARE
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.
PRESS CONTACTS:
Mark Schonau Christopher M.F. Norris
Senior Vice President, Fin. & Admin. Director, Corporate Communications
Viasoft, Inc. Compuware Corporation
602-952-0050 248-737-7506
The statements made in this press release that are not historical facts
contain forward-looking information that involves risks and
uncertainties. Important factors that may cause actual results to
differ include, but are not limited to, market demand and acceptance,
the impact of competitive products and services, risks associated with
results and timing of technology development and commercialization, the
Company's ability to manage growth and acquisitions of technology or
businesses, the effect of economic and business conditions including
risks inherent in international operations and the ability to attract
and retain technical personnel, risks associated with, as well as the
Company's ability to manage, a consulting services business and other
risks detailed from time to time in the Company's Securities and
Exchange Commission filings.
