-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WBOT5Ysko831DdgGmJ1+z1/XqtTxpoSkWRWagmepF7WKKqYAjghV1h566gDc2tKN vYiS9bbbhcVbdo6Lrs/DuA== 0000950133-04-003814.txt : 20041019 0000950133-04-003814.hdr.sgml : 20041019 20041019114900 ACCESSION NUMBER: 0000950133-04-003814 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20041019 DATE AS OF CHANGE: 20041019 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DATAKEY INC CENTRAL INDEX KEY: 0000704914 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 411291472 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-35977 FILM NUMBER: 041084605 BUSINESS ADDRESS: STREET 1: 407 W TRAVELERS TRAIL CITY: BURNSVILLE STATE: MN ZIP: 55337 BUSINESS PHONE: 6128906850 MAIL ADDRESS: STREET 1: 407 WEST TRAVELERS TRAIL CITY: BURNSVILLE STATE: MN ZIP: 55337 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SAFENET INC CENTRAL INDEX KEY: 0000850313 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 521287752 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 4690 MILLENNIUM DRIVE CITY: BELCAMP STATE: MD ZIP: 21017 BUSINESS PHONE: 4109317500 MAIL ADDRESS: STREET 1: 4690 MILLENNIUM DRIVE CITY: BELCAMP STATE: MD ZIP: 21017 FORMER COMPANY: FORMER CONFORMED NAME: INFORMATION RESOURCE ENGINEERING INC DATE OF NAME CHANGE: 19920703 SC TO-T/A 1 w67716sctovtza.htm SCHEDULE TO-T/A sctovtza
 

Securities and Exchange Commission

Washington, D.C. 20549

SCHEDULE TO/A

(Rule 14d-100)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)
of The Securities Exchange Act of 1934

________________________

Datakey, Inc.

(Name of Subject Company (Issuer))

Snowflake Acquisition Corp. (Offeror)
A wholly-owned subsidiary of

SafeNet, Inc.
(Names of Filing Persons (identifying status as offeror, issuer or other person))

________________________

Common Stock, Par Value $0.05 per Share
Convertible Preferred Stock, Liquidation Value $2.50 per Share
(Title of Class of Securities)

________________________

Common Stock: 237909 10 6
Convertible Preferred Stock: none
(CUSIP Number of Class of Securities)

________________________

Anthony A. Caputo
Chairman, Chief Executive Officer & President
SafeNet, Inc.
4690 Millennium Drive
Belcamp, MD 21017
(410) 931-7500
(Name, address and telephone number of person authorized to
receive notices and communications on behalf of filing persons)

Copy To:
Elizabeth R. Hughes, Esq.
Matthew B. Swartz, Esq.
Venable LLP
8010 Towers Crescent Drive, Suite 300
Vienna, VA 22182
(703) 760-1600

Calculation of Filing Fee

     
Transaction Valuation*
$8,023,716 		  Amount of Filing Fee**
$1,017

* Estimated for purposes of calculating the amount of the filing fee only. The filing fee calculation assumes the purchase of 11,767,254 shares of Common Stock, par value $0.05 per share, and 150,000 shares of Convertible Preferred Stock, liquidation value $2.50 per share, of Datakey, Inc., at a price per share of $0.65 per share for the Common Stock and $2.50 per share for the Convertible Preferred Stock. Such number of shares represents all such shares outstanding as of September 8, 2004.

**The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #4 for Fiscal Year 2004 issued by the Securities and Exchange Commission on October 31, 2003, equals 0.01267% of the transaction value.

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 of Schedule and the date of its filing.
Amount Previously Paid : $1,017
Form or Registration No.: SC TO-T
Filing Party: SafeNet, Inc. and Snowflake Acquisition Corp.
Date Filed: September 21, 2004

o 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

o issuer tender offer subject to Rule 13e-4

o going-private transaction subject to Rule 13e-3

o amendment to Schedule 13D under Rule 13d-2

Check the following box if the filing is a final amendment reporting the results of the tender offer: o

 

 

     This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (the “Schedule TO”) filed with the Securities and Exchange Commission on September 21, 2004 and amended and supplemented on October 13, 2004 by SafeNet, Inc., a Delaware corporation (“SafeNet”), and Snowflake Acquisition Corp., a Minnesota corporation and a wholly-owned subsidiary of SafeNet (the “Purchaser”), relating to the third party tender offer by the Purchaser to purchase all issued and outstanding shares of common stock, par value .05 per share, of Datakey, Inc., a Minnesota corporation (“Datakey”), including the associated preferred stock purchase or other rights issued pursuant to the Rights Agreement, dated as of October 26, 2001, between Datakey and Wells Fargo Bank Minnesota, N.A., as amended from time to time (together, the “Common Stock”), and all issued and outstanding shares of convertible preferred stock, liquidation value $2.50 per share, of Datakey (the “Preferred Stock”) and, together with the Common Stock, the “Shares” and each share thereof a “Share”, at a purchase price of $.65 per share of Common Stock and $2.50 per share of Preferred Stock, net to the seller in cash without interest thereon. The terms and conditions of the Offer are described in the Offer to Purchase, dated September 21, 2004 (the “Offer to Purchase”), a copy of which is filed as Exhibit (a)(1) to the Schedule TO, and the related Letter of Transmittal, a copy of which is filed as Exhibit (a)(2) to the Schedule TO (which, as they may be amended or supplemented from time to time, together constitute the “Offer”).

ITEM 15.

     Item 15 is hereby amended and supplemented as follows:

     “On October 15, 2004, certain holders of Datakey promissory notes filed a lawsuit against Datakey in the District Court of Hennepin County, Minnesota. The lawsuit alleges that (1) the plaintiffs are entitled to a payment of $500,000 under loan documents to which Datakey and the noteholders are parties and (2) Datakey wrongfully excluded the noteholders from meetings of its board of directors which resulted in the board’s approval of Datakey’s sale to Purchaser at a price which the Plaintiffs allege is significantly below Datakey’s fair market value. The noteholders’ lawsuit seeks unspecified damages. Datakey disputes the noteholders’ claims and intends to contest them. Upon the closing of the Merger, SafeNet intends to cause the Purchaser to contest the noteholders’ claims.

     To the extent that any condition to the closing of the Offer or the Merger would fail to occur because of this lawsuit, Purchaser would waive any such condition and close the Offer and the Merger regardless of the existence of the noteholders’ lawsuit.”

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ITEM 12. EXHIBITS.

     
(a)(1)
  Offer to Purchase dated September 21, 2004*
 
    
(a)(2)
  Form of Letter of Transmittal*
 
    
(a)(3)
  Form of Notice of Guaranteed Delivery*
 
    
(a)(4)
  Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees*
 
    
(a)(5)
  Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and Other Nominees*
 
    
(a)(6)
  Form of Guidelines for Certificate of Taxpayer Identification Number on Substitute Form W-9*
 
    
(a)(7)
  Joint Press Release issued by SafeNet and Datakey on September 9, 2004 (incorporated by reference to the Schedule TO-C filed by SafeNet and the Purchaser with the Securities and Exchange Commission on September 10, 2004)*
 
    
(a)(8)
  Summary Advertisement published in the New York Times on September 21, 2004*
 
    
(a)(9)
  Press Release issued by SafeNet on September 21, 2004*
 
    
(b)
  Not Applicable
 
    
(d)(1)
  Agreement and Plan of Merger dated as of September 9, 2004 by and among SafeNet, the Purchaser and Datakey*
 
    
(d)(2)
  Stockholders' Agreement, dated as of September 9, 2004, by and among SafeNet, the Purchaser and certain stockholders of Datakey identified therein*
 
    
(d)(3)
  Stock Option Agreement, dated as of September 9, 2004, by and among SafeNet, the Purchaser and Datakey*
 
    
(d)(4)
  Mutual Nondisclosure Agreement, dated August 3, 2004, by and between SafeNet and Datakey*
 
    
(g)
  Not Applicable
 
    
(h)
  Not Applicable
 
    
*
  Previously filed as an exhibit to the Schedule TO filed on September 21, 2004 by SafeNet, Inc. and Snowflake Acquisition Corp. with the Securities and Exchange Commission and incorporated herein by reference.

ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.

     
 
   Not Applicable.

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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.

         
  SNOWFLAKE ACQUISITION CORP.
 		  
  By:           /s/ Ken Mueller  
    
 
    Name:   Ken Mueller   
    Its: Chief Financial Officer   
 
         
  SAFENET, INC.
 		  
  By:           /s/ Ken Mueller  
    
 
    Name:   Ken Mueller   
Dated: October 19, 2004    Its: Chief Financial Officer   
 

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