SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
SCHEDULE TO
(RULE 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
MERCATOR SOFTWARE, INC.
(Name of Subject Company)
GREEK ACQUISITION CORPORATION
ASCENTIAL SOFTWARE CORPORATION
(Name of filing persons, Offerors)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
587587106
(CUSIP Number of Class of Securities)
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PETER GYENES
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ASCENTIAL SOFTWARE CORPORATION
50 WASHINGTON STREET
WESTBOROUGH, MASSACHUSETTS 01581
TELEPHONE: (508) 366-3888
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidders)
Copies to:
SCOTT N. SEMEL, ESQ. LOUIS A. GOODMAN, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ASCENTIAL SOFTWARE CORPORATION ONE BEACON STREET
50 WASHINGTON STREET BOSTON, MA 02108
WESTBOROUGH, MASSACHUSETTS 01581 TELEPHONE: (617) 573-4800
TELEPHONE: (508) 366-3888
CALCULATION OF FILING FEE
Transaction Valuation* Amount of Filing Fee**
---------------------- ----------------------
$105,800,817 $8,560***
* Estimated for purposes of calculating the amount of the filing fee only.
The filing fee calculation assumes the purchase of all 35,266,939
outstanding shares of Mercator Software, Inc. at $3.00 per share.
** The amount of the filing fee, calculated in accordance with rule 0-11 of
the Securities Exchange Act of 1934, as amended, and Fee Advisory #11 for
Fiscal Year 2003 issued by the Securities and Exchange Commission on
February 21, 2003, equals .008090% of the transaction valuation.
*** Previously paid. See below.
[X] 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.
Amount previously paid: $8,560 Filing parties: Ascential Software Corporation and
Greek Acquisition Corporation
Form or Registration No.: Schedule TO-T Date filed: August 8, 2003
[ ] 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 a tender offer: [ ]
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This Amendment No. 1 to Tender Offer Statement on Schedule TO amends
and supplements the statement originally filed on August 8, 2003, by Ascential
Software Corporation, a Delaware corporation ("Ascential"), and Greek
Acquisition Corporation ("Purchaser"), a Delaware corporation and wholly owned
subsidiary of Ascential. This Schedule TO relates to the offer by Ascential
through Purchaser to purchase all of the outstanding shares of common stock, par
value $0.01 per share, and the associated preferred stock purchase rights
(together, the "Shares"), of Mercator Software, Inc., a Delaware corporation
(the "Company"), at $3.00 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, dated August 8, 2003, as amended (the "Offer to Purchase"), and in the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer").
ITEMS 1 THROUGH 9 AND 11.
The information set forth in the Offer to Purchase and the related
Letter of Transmittal is incorporated herein by reference with respect to Items
1 through 9 and 11 of this Schedule TO.
ITEM 10. FINANCIAL STATEMENTS.
Not applicable.
ITEM 11. ADDITIONAL INFORMATION
Item 11 of the Schedule TO is hereby amended and supplemented to
include the following information:
15. Certain Legal Matters
The fifth full paragraph of this section on page 32 of the Offer to
Purchase is hereby amended and restated as follows:
"The waiting period under the HSR Act with respect to the Offer expired
at 11:59 p.m. Eastern Standard Time on August 25, 2003."
ITEM 12. MATERIALS TO BE FILED AS EXHIBITS
(a)(1)(A) Offer to Purchase, dated August 8, 2003*
(a)(1)(B) Letter of Transmittal*
(a)(1)(C) Notice of Guaranteed Delivery*
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees*
(a)(1)(E) Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees*
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9*
(a)(1)(G) Summary Advertisement as published in the Wall Street Journal
on August 8, 2003*
(a)(1)(H) Letter to Stockholders, dated August 8, 2003, from the
Chairman and Chief Executive Officer of Mercator Software,
Inc., dated August 8, 2003 (incorporated by reference to
Exhibit (a)(3) to Mercator Software, Inc.'s
Solicitation/Recommendation Statement on Schedule 14D-9 filed
by Mercator on August 8, 2003)
(a)(1)(I) Press Release issued by Ascential and Mercator on August 4,
2003 (incorporated herein by reference to the
precommunication Schedule TO filed by Ascential on August 4,
2003)
(a)(1)(J) Letter from the President of Ascential to Customers and
Partners, distributed on August 4, 2003 (incorporated herein
by reference to the precommunication Schedule TO filed by
Ascential on August 4, 2003)
(a)(1)(K) Frequently Asked Questions distributed on August 4, 2003
(incorporated herein by reference to the precommunication
Schedule TO filed by Ascential on August 4, 2003)
(a)(1)(L) Messaging Document (incorporated herein by reference to the
precommunication Schedule TO filed by Ascential on August 4,
2003)
(a)(1)(M) Transcript of August 4, 2003 conference call (incorporated
herein by reference to the precommunication Schedule TO filed
by Ascential on August 4, 2003)
(a)(1)(N) Reminder Letter dated August 21, 2003
(a)(1)(O) Press Release issued by Ascential on August 26, 2003
(b) Not applicable
(d)(1) Agreement and Plan of Merger, dated as of August 2, 2003, by
and among Ascential Software Corporation, Greek Acquisition
Corporation and Mercator Software, Inc. (incorporated herein
by reference to Exhibit 2.1 to Ascential's Current Report on
Form 8-K, dated August 2, 2003,filed with the Commission on
August 5, 2003)
(d)(2) Stock Tender Agreement, dated as of August 2, 2003, by and
among Ascential Software Corporation, Greek Acquisition
Corporation and the directors and certain executive and other
officers of Mercator Software, Inc. set forth therein
(incorporated herein by reference to Exhibit 10.1 to
Ascential's Current Report on Form 8-K, dated August 2, 2003,
filed with the Commission on August 5, 2003)
(d)(3) Common Stock Option Agreement, dated as of August 2, 2003, by
and among Ascential Software Corporation, Greek Acquisition
Corporation and Mercator Software, Inc. (incorporated herein
by reference to Exhibit 10.2 to Ascential's Current Report on
Form 8-K, dated August 2, 2003, filed with the Commission on
August 5, 2003)
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(d)(4) Confidentiality Agreement, dated April 28, 2003, by and among
Bear, Stearns & Co. Inc., on behalf of Ascential Software
Corporation, and JP Morgan and Mercator Software, Inc., as
amended July 17, 2003*
(d)(4) Confidentiality Agreement, dated April 28, 2003, by and among
Bear, Stearns & Co. Inc., on behalf of Ascential Software
Corporation, and JP Morgan and Mercator Software, Inc., as
amended July 17, 2003*
(d)(5) Key Employee Agreement, dated as of August 1, 2003, by and
between Ascential Software Corporation and Mark W. Register;
and Non-Competition, Non-Disclosure and Developments
Agreement, dated August 1, 2003 among Ascential Software
Corporation and Mark W. Register*
(d)(6) Key Employee Agreement, dated as of August 1, 2003, between
Ascential Software Corporation and Thracy P. Varvoglis; and
Non-Competition, Non-Disclosure and Developments Agreement,
dated August 1, 2003 among Ascential Software Corporation and
Thracy P. Varvoglis*
(d)(7) Form of Retention Agreement among Ascential Software
Corporation, Mercator Software, Inc. and each of Mark W.
Register and Thracy P. Varvoglis*
(d)(8) Forms of Executive Non-Competition, Non-Solicitation and
Developments Agreement among Ascential Software Corporation,
Mercator Software, Inc. and certain of Mercator's executive
officers*
(d)(9) Amendment to Executive Non-Competition, Non-Solicitation and
Developments Agreement, dated as of August 1, 2003, among
Ascential Software Corporation, Mercator Software, Inc. and
David S. Linthicum*
(d)(10) Executive Non-Competition, Non-Solicitation and Developments
Agreement, as of August 1, 2003, among Ascential Software
Corporation, Mercator Software, Inc.and Kenneth J. Hall*
(g) Not applicable
(h) Not applicable
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* Previously filed.
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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 Amendment No. 1 is true, complete and correct.
ASCENTIAL SOFTWARE CORPORATION
By: /s/ Peter Fiore
-------------------------------------
Name: Peter Fiore
Title: President
GREEK ACQUISITION CORPORATION
By: /s/ Peter Fiore
-------------------------------------
Name: Peter Fiore
Title: President
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