As filed with the Securities and Exchange Commission on July 26, 2000
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 14D-9
Amendment No. 7
Solicitation/Recommendation Statement
Under Section 14(D)(4) of the
Securities Exchange Act of 1934
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BAAN COMPANY N.V.
(Name of Subject Company)
BAAN COMPANY N.V.
(Name of Person Filing Statement)
COMMON SHARES, PAR VALUE NLG 0.06 PER SHARE
(Title of Class of Securities)
N08044104
(CUSIP Number of Class of Securities)
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Robert Ruijter
Baan Company N.V.
Baron van Nagellstraat 89
3771 LK Barneveld
The Netherlands
011-31-342-42-8888
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications
on Behalf of the Person filing Statement)
With copies to:
Robert E. Goudie, Esq. Robert B. Schumer, Esq.
Senior Vice President, John C. Kennedy, Esq.
General Counsel and Secretary Paul, Weiss, Rifkind, Wharton & Garrison
Baan Company N.V. 1285 Avenue of the Americas
2191 Fox Mill Road, Suite 500 New York, New York 10019-6064
Herndon, Virginia 20171 (212) 373-3000
(703) 234-6000
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
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This Amendment No. 7 to Schedule 14D-9 relates to an offer by
Invensys Holdings Limited ("Offeror"), a private limited company organized under
the laws of England and Wales and an indirect wholly owned subsidiary of
Invensys plc ("Parent"), a public limited company organized under the laws of
England and Wales to purchase any and all outstanding common shares par value
NLG 0.06 of Baan Company N.V. (the "Company"), a public limited liability
company organized under the laws of The Netherlands at a price of (Euro) 2.85
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 June 14,
2000, as amended (the "Offer to Purchase").
This Amendment No. 7 to the Schedule 14D-9 supplements and amends
information contained in the Schedule 14D-9 originally filed on June 14, 2000,
as amended.
Item 3. Past Contacts, Transactions, Negotiations and Agreements.
Item 3 of the Schedule 14D-9 is hereby amended and supplemented to add the
following information thereto:
"On July 26, 2000, Parent announced that as of the then current
Expiration Date of the Offer, approximately 134 million Shares (approximately
50% of the outstanding Shares of the Company) had been duly tendered to the
Offeror. Parent also announced that these tendered Shares, when coupled with the
66 million Shares then owned by Offeror, represented approximately 75% of the
outstanding Shares. Accordingly, the Minimum Condition (95% of the outstanding
Shares) had not been satisfied. Pursuant to an Asset Purchase Agreement and
Offer Amendment dated as of July 26, 2000, among Offeror, Parent, Company and
Baan Software B.V. (the "Purchase Agreement"), Offeror had agreed to extend the
offer for five business days (during which period tendering shareholders would
continue to have withdrawal rights) and to reduce the Minimum Condition of the
Offer from 95% to a majority of the outstanding Shares. In addition, Offeror
waived the conditions to the completion of the Offering requiring the absence of
a material adverse effect on the Company and the absence of material breaches of
the Company's representations and covenants under the Offer Agreement. The Offer
remains subject to certain other conditions set forth in the Offer Agreement, as
amended and supplemented by the Purchase Agreement.
In consideration for the reduction of the Minimum Condition from 95%
to a majority of the outstanding Shares, Offeror, Parent, Company and Baan
Software B.V. entered into the Purchase Agreement. Pursuant to the Purchase
Agreement, the Company and Baan Software B.V. have agreed to sell Offeror all of
their assets and Offeror has agreed that upon such sale, it would assume all of
the liabilities of the Company and Baan Software B.V. for a sum of (Euro) 762
million, subject to an adjustment designed to result in a distribution (gross)
to shareholders of (Euro) 2.85 per Share upon liquidation of the Company. The
Company, Parent and Offeror anticipate that the Company will be liquidated
between January 1, 2001 and the first anniversary of the completion of the asset
sale. The asset sale by the Company is subject to Company shareholder approval.
The Purchase Agreement provides that the Company will convene a meeting of its
shareholders in accordance with Dutch law on Tuesday, August 15, 2000 or as soon
thereafter as possible to, among other things, consider, authorize, and approve
the execution, delivery and performance by the Company of the Purchase Agreement
and transactions contemplated thereby.
Pursuant to the Purchase Agreement, the Company has agreed not to
take certain actions without the prior approval of Offeror. The obligations of
Company and Offeror under the Purchase Agreement are each subject to the
satisfaction of certain conditions, including but not limited to: positive
advice of the Company Works Council concerning the transactions contemplated
thereby, receipt of all required governmental approvals, receipt of Company
shareholder approval, the absence of any injunction or similar legal order
prohibiting or restraining consummation of any of the transactions contemplated
by the Purchase Agreement and the absence of any pending legal action or
governmental investigation or inquiry which might reasonably be expected to
result in any such injunction or order. The obligation of the Offeror to
purchase Shares tendered pursuant to the Offer is subject, among other things,
to the absence of any injunction or similar legal order prohibiting or
restraining consummation of any of the material transactions contemplated by the
Purchase Agreement and the absence of any pending legal action or governmental
investigation or inquiry which is reasonably likely to result in any such
injunction or order.
The Purchase Agreement further provides that if the Offeror acquires
pursuant to the Offer a number of Shares which when coupled with Shares already
owned by Parent or Offeror, represent a majority of the outstanding Shares,
Offeror will provide a Subsequent Offering Period beginning no later than the
business day following expiration of the Offer and ending the earlier of 3:00
p.m. on the 19th business day thereafter. The Purchase Agreement may be canceled
by either Parent or the Company (i) if the Offer is terminated and the Offeror
does not purchase Shares pursuant to the Offer and (ii) if the number of Shares
tendered, accepted and paid for in the Offer and during the Subsequent Offering
Period, together with other Shares then owned directly or indirectly by Offeror,
equal 95% or more of the total number of Shares then outstanding. In addition,
the Purchase Agreement may be cancelled by Parent if the number of Shares
tendered, accepted and paid for in the Offer, together with the other Shares
that owned directly or indirectly by Parent, constitutes a majority of the
Shares outstanding.
The Purchase Agreement also provides that the Company and Parent
will simultaneously enter into a management services agreement, pursuant to
which the Offeror will provide management services to the Company and a
revolving credit agreement pursuant to which Offeror will provide a revolving
credit line of (Euro) 100 million to the Company. Outstanding obligations under
the revolving credit agreement at the time of Closing of the Purchase Agreement
will be assumed by the Offeror.
Also on July 26, 2000, Lazard delivered an updated fairness opinion
to the Company's Management and Supervisory Boards confirming that, based upon
and subject to the assumptions and qualifications set forth in such opinion, the
(Euro) 2.85 per Share to be received by the holders of the Shares in the Offer,
as amended, was, as of July 26, 2000, fair to the holders of the Shares from a
financial point of view.
Copies of the Purchase Agreement, the revolving credit agreement,
the management services agreement, and the updated fairness opinion have been
filed as exhibits to this Amendment No. 7 to Schedule 14D-9 and are incorporated
herein by reference."
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Item 9. Exhibits.
(a)(1)* Letter to Shareholders dated June 14, 2000.
(a)(2)* Press Release dated May 31, 2000 (incorporated by reference to
the Company's Current Report on Form 6-K, dated June 6, 2000).
(b)(1)* Offer Agreement, dated as of May 31, 2000, by and between
Parent and the Company (incorporated by reference to Parent's
Statement of Beneficial Ownership on Schedule 13D, dated June
9, 2000).
(b)(2)* Assignment and Assumption Agreement, dated as of June 2, 2000
by and among Parent, Offeror and certain other parties
(incorporated by reference to the Schedule TO).
(b)(3)* Share Purchase Agreement, dated as of May 31, 2000, by and
between Parent and Mr. Jan Baan (incorporated by reference to
Parent's Statement of Beneficial Ownership on Schedule 13D,
dated June 9, 2000).
(b)(4)* Share Purchase Agreement, dated as of May 31, 2000, by and
between Parent and Stichting Oikonomos (incorporated by
reference to Parent's Statement of Beneficial Ownership on
Schedule 13D, dated June 9, 2000).
(b)(5)* Share Purchase Agreement, dated as of May 31, 2000, by and
between Parent and Vanenburg Group B.V. and Amendment
Agreement, dated as of June 2, 2000, by and between the same
parties (incorporated by
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reference to Parent's Statement of Beneficial Ownership on
Schedule 13D, dated June 9, 2000).
(b)(6)* Share Purchase Agreement, dated as of May 31, 2000, by and
among Parent and General Atlantic Partners II, L.P., General
Atlantic Partners V, L.P., General Atlantic Partners 10, L.P.
and GAP Coinvestment Partners, L.P. (incorporated by reference
to Parent's Statement of Beneficial Ownership on Schedule 13D,
dated June 9, 2000).
(b)(7)* Termination and Standstill Agreement, dated as of May 29, 2000,
by and between the Company and Fletcher International Limited
(incorporated by reference to Parent's Statement of Beneficial
Ownership on Schedule 13D, dated June 9, 2000).
(b)(8)* Assignment and Assumption Agreement, dated as of May 31, 2000,
by and between the Company and Parent (incorporated by
reference to Parent's Statement of Beneficial Ownership on
Schedule 13D, dated June 9, 2000).
(c)(1)* Share Rights Agreement, dated as of December 31, 1998, between
the Company and Fletcher (incorporated by reference to the
Company's Annual Report on Form 20-F with respect to the year
ended December 31, 1998).
(c)(2)* Amendment to the Share Rights Agreement, dated as of November
24, 1999, between the Company and Fletcher.
(d)* Fairness opinion of Lazard, dated May 30, 2000.
(e)* Shareholders' Informational Meeting Materials, dated June 14,
2000 (incorporated by reference to the Company's Statement on
Schedule 14D-9, dated June 9, 2000).
(f)* Script for Extraordinary General Meeting of Shareholders, held
on June 29, 2000.
(g)* Slides used in the Company's presentation made at the
Extraordinary General Meeting of Shareholders on June 29, 2000.
(h)* Letter from the Company to its employees, dated July 14, 2000.
(i)* Text of an advertisement to be run beginning July 15, 2000
(English translation).
(j)* Press Release, dated July 17, 2000.
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(k)* Letter from the Company to its employees, dated July 18, 2000.
(l)* Letter from the Company to its shareholders, dated July 19,
2000.
(m)* Form of letter from the Company to its customers, sent
beginning July 20, 2000.
(n)** Asset Purchase Agreement and Offer Amendment, dated as of July
26, 2000, by and among the Company, Baan Software B.V., Offeror
and Parent (incorporated by reference to Exhibit (d)(i) in
Parent's Amendment No. 15 to its Schedule TO and Exhibit I in
Amendment No. 14 to its Statement of Beneficial Ownership on
Schedule 13D, dated July 26, 2000).
(o)** Interim Management Services Agreement, dated as of July 26,
2000, by and between the Company and Offeror (incorporated by
reference to Exhibit (d)(ii) in Parent's Amendment No. 15 to
its Schedule TO and Exhibit J in Amendment No. 14 to its
Statement of Beneficial Ownership on Schedule 13D, dated July
26, 2000).
(p)** Revolving Credit Agreement, dated as of July 26, 2000, by and
among the Company, Parent and Offeror (incorporated by
reference to Exhibit (d)(iii) in Parent's Amendment No. 15 to
its Schedule TO and Exhibit K in Amendment No. 14 to its
Statement of Beneficial Ownership on Schedule 13D, dated July
26, 2000).
(q)** Fairness opinion of Lazard, dated July 26, 2000.
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* Filed previously
** Filed herewith
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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.
BAAN COMPANY N.V.
By: /s/ Robert Goudie
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Name: Robert Goudie
Title: Senior Vice President, General Counsel
and Secretary
Dated: July 26, 2000
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[LAZARD LOGO]
Exhibit (q)
July 26, 2000
The Board of Managing Directors
and the Board of Supervisory Directors
Baan Company N.V.
Baron van Nagellstraat 89
3770 AC Barneveld
The Netherlands
Dear Members of the Boards:
On May 31, 2000, Baan Company N.V. (the "Company"), Invensys plc
("Parent"), Invensys Holdings B.V., i.o., a wholly-owned subsidiary of Parent
(the "Purchaser"), and Invensys B.V., i.o., a wholly-owned subsidiary of the
Purchaser ("Offer Sub") entered into an Offer Agreement (the "Offer Agreement").
Pursuant to the Offer Agreement, Invensys Holdings Limited ("Holdings")
commenced on June 14, 2000, a tender offer (the "Offer") to purchase all the
outstanding common shares, par value NLG 0.06 per share (the "Common Shares"),
of the Company at a price of 2.85 Euros per share, net to the seller in cash
(with a U.S. dollar equivalent option) (the "Consideration"). We understand that
the Company, Holdings and Parent propose to reduce the minimum tender condition
and waive certain other conditions of the Offer by amendment to the Offer
Agreement. We further understand that no modification has been made to the
Consideration to be received by the holders of the Common Shares pursuant to the
Offer. The Offer Agreement, as amended, is hereafter referred to as the "Amended
Offer Agreement" and the Offer, as amended, is hereafter referred to as the
"Amended Offer".
On May 30, 2000, we rendered our opinion that, based upon and
subject to the assumptions and qualifications stated in such opinion, the
Consideration to be received by the holders of the Common Shares pursuant to the
Offer was, as of that date, fair to such holders from a financial point of view.
You have requested our opinion, as of the date hereof, as to the fairness from a
financial point of view of the Consideration to be received by the holders of
the Common Shares pursuant to the Amended Offer. In connection with this
opinion, we have:
<PAGE>
(i) reviewed the financial terms and conditions of (x) the Offer
Agreement (which did not contain disclosure schedules) and (y)
the draft of the amendment to the Offer Agreement dated July
25, 2000;
(ii) analyzed certain historical business and financial information
relating to the Company;
(iii) reviewed financial forecasts and other data provided to us by
the Company relating to its businesses for 2000, which did not
contain projected statements of cash flows (we have been
informed by representatives of the Company that no projected
statements of cash flows for 2000 exist and no projections for
any year after 2000 exist) and which have not been updated to
reflect estimated second quarter results;
(iv) held discussions with members of senior management of the
Company with respect to the businesses and prospects of the
Company and its strategic objectives;
(v) reviewed public information with respect to certain other
companies in lines of business we believe to be generally
comparable to those of the Company;
(vi) reviewed the financial terms of certain business combinations
involving companies in lines of business we believe to be
generally comparable to those of the Company;
(vii) reviewed the historical stock prices and trading volumes of
the Common Shares; and
(viii) conducted such other financial studies, analyses and
investigations as we deemed appropriate.
We have relied upon the accuracy and completeness of the foregoing
information and have not assumed any responsibility for any independent
verification of such information or any independent valuation or appraisal of
any of the assets or liabilities of Parent or the Company or concerning the
solvency of, or issues relating to solvency concerning, Parent or the Company.
With respect to financial forecasts, we have assumed that they have been
reasonably prepared on bases reflecting the best currently available estimates
and judgments of the management of the Company as to the future financial
performance of the Company. We assume no responsibility for and express no view
as to such forecasts or the assumptions on which they are based. We note that
management has not provided us with an estimate of synergies expected to result
from the transactions contemplated by the Amended Offer Agreement.
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Further, our opinion is necessarily based on economic, monetary,
market and other conditions as in effect on, and the information made available
to us as of, the date hereof. In rendering our opinion, we did not address the
relative merits of the Amended Offer, any alternative potential transaction or
the Company's underlying decision to enter into the Amended Offer Agreement.
In rendering our opinion, we have assumed that the Amended Offer
will be consummated on the terms described in the Amended Offer Agreement,
without any waiver of any material terms or conditions. We have also assumed
that the definitive Amended Offer Agreement will not differ in any material
respect from the draft thereof referred to in paragraph (i) above.
Lazard Freres & Co. LLC is acting as investment banker to the
Company in connection with the Amended Offer and will receive a fee for our
services, a substantial portion of which is contingent upon the consummation of
the Amended Offer. We have in the past provided investment banking services to
the Company for which we received usual and customary compensation. In addition,
the Company has agreed to indemnify us for certain liabilities that may arise
out of the rendering of this opinion. We are also currently advising Parent on a
divestiture for which we expect to be paid reasonable and customary fees. Lazard
Freres & Co. LLC is not regulated by any authority or body in the Netherlands,
and is rendering this opinion in accordance with customary practice in the
United States. With your consent, we have assumed that law, custom and practice
in the Netherlands relating to opinions such as the one being delivered hereby
are not materially different from those of the United States.
Our engagement and the opinion expressed herein are for the benefit
of the Company's Board of Managing Directors and the Company's Board of
Supervisory Directors and our opinion is rendered to them in connection with
their consideration of the Amended Offer made pursuant to the Amended Offer
Agreement. This opinion is not intended to and does not constitute a
recommendation to any holder of the Common Shares as to whether such holder
should tender such holder's Common Shares in the Amended Offer. This opinion
does not address any transaction involving the Common Shares, whether or not
contemplated by the Amended Offer Agreement, other than the Amended Offer. It is
understood that this letter may not be disclosed or otherwise referred to
without our prior written consent, except as may otherwise be required by law or
by a court of competent jurisdiction. This opinion is given pursuant to the
engagement letter dated January 31, 2000 and is governed by New York law. It may
only be relied on with the express condition that it is governed by New York
law.
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Based on and subject to the foregoing, we are of the opinion that
the Consideration to be received by the holders of the Common Shares pursuant to
the Amended Offer is fair to the holders of the Common Shares from a financial
point of view.
Very truly yours,
LAZARD FRERES & CO. LLC
By /s/ Allan Chapin
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Allan M. Chapin
Managing Director
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