-----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, WZ8UdhlQHwXqd2s6Ljr1pvIGJB2rtA7qtnS7/AtmtZTCrbIcOk0DaDlvWw0ztBGx 2rUQgs+FDR7FJmM0INjS1g== 0000950103-03-002004.txt : 20031007 0000950103-03-002004.hdr.sgml : 20031007 20031007160123 ACCESSION NUMBER: 0000950103-03-002004 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20031007 GROUP MEMBERS: GINGKO CORPORATION GROUP MEMBERS: INFORMATION RESOURCES, INC. LIT. CONT. GROUP MEMBERS: ROMESH WADHWANI GROUP MEMBERS: SYMPHONY TECHNOLOGY II GP, LLC GROUP MEMBERS: SYMPHONY TECHNOLOGY II-A, L.P. GROUP MEMBERS: TENNENBAUM &CO.,LLC FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GINGKO ACQUISITION CORP CENTRAL INDEX KEY: 0001250977 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 4015 MIRANDA AVE STREET 2: 2ND FL. CITY: PALO ALTO STATE: CA ZIP: 94304 MAIL ADDRESS: STREET 1: 4015 MIRANDA AVE STREET 2: 2ND FL CITY: PALO ALTO STATE: CA ZIP: 94304 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INFORMATION RESOURCES INC CENTRAL INDEX KEY: 0000714278 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING, ACCOUNTING, RESEARCH, MANAGEMENT [8700] IRS NUMBER: 521287752 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-35926 FILM NUMBER: 03931606 BUSINESS ADDRESS: STREET 1: 150 N CLINTON ST CITY: CHICAGO STATE: IL ZIP: 60661-1416 BUSINESS PHONE: 3127261221 MAIL ADDRESS: STREET 1: 150 N CLINTON ST CITY: CHICAGO STATE: IL ZIP: 60661-1416 SC TO-T/A 1 oct0603_tot-a3.htm



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549



SCHEDULE TO
(RULE 14d-100)
Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of
the Securities Exchange Act of 1934

(Amendment No. 3)

INFORMATION RESOURCES, INC.
(Name of Subject Company)

GINGKO ACQUISITION CORP.,
a wholly owned subsidiary of
GINGKO CORPORATION,
a company formed by
SYMPHONY TECHNOLOGY II-A, L.P.,
SYMPHONY TECHNOLOGY II GP, LLC,
ROMESH WADHWANI

and affiliates of
TENNENBAUM & CO., LLC
and by
INFORMATION RESOURCES, INC. LITIGATION CONTINGENT
PAYMENT RIGHTS TRUST

(Names of Filing Persons—Offerors)

COMMON STOCK, PAR VALUE $0.01 PER SHARE
(and Associated Preferred Share Purchase Rights)

(Title of Class of Securities)



456905108
(Cusip Number of Class of Securities)

Gingko Corporation
c/o Symphony Technology Group
4015 Miranda Avenue, 2nd Floor
Palo Alto, California 94304
Telephone: (650) 935-9500

(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of Filing Persons)

Copies to:

Jeffrey D. Berman
John D. Amorosi
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
Dhiya El-Saden
Gregory L. Surman
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Telephone: (213) 229-7000



o Check 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: ___________________ Filing Party: __________________
     
  Form or Registration No.: __________________ Date Filed: _______________________


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. |_|






Items 1 through 9 and Item 11.

          This Amendment No. 3 to the Tender Offer Statement on Schedule TO amends and supplements the statement originally filed with the Securities and Exchange Commission on September 8, 2003, as amended by Gingko Acquisition Corp., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Gingko Corporation, a Delaware corporation (“Parent”) and a company formed by Symphony Technology II-A, L.P., a Delaware limited partnership, Symphony Technology II GP, LLC, a Delaware limited liability company, Romesh Wadhwani and affiliates of Tennenbaum & Co., LLC, a Delaware limited liability company. The Schedule TO was also filed by Information Resources, Inc. Litigation Contingent Payment Rights Trust, a statutory trust formed by Information Resources, Inc. under the Delaware Statutory Trust Act. This Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.01 per share (the “Common Stock”), of Information Resources, Inc., a Delaware corporation (the “Company”), and the associated preferred share purchase rights (the “Rights”, and together with the Common Stock, the “Shares”) issued pursuant to the Rights Agreement, as amended and restated as of October 27, 1997, and as further amended as of June 29, 2003 and September 7, 2003, between the Company and Harris Trust and Savings Bank as Rights Agent (the “Rights Agreement”), for $3.30 per Share, net to the seller in cash, plus one contingent value right certificate (“CVR Certificate”) per Share representing the right to receive an amount equal to a portion of potential lawsuit proceeds, if any, of an antitrust lawsuit, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated September 8, 2003 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with any amendments or supplements thereto, collectively constitute the “Offer”). Any capitalized term that is used, and not defined in this document, shall have the meaning set forth in the Schedule TO. 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.

The Offer to Purchase is further amended as follows:

(1) The first full sentence on the cover of the Offer to Purchase is deleted and replaced with the following:

  “THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON OCTOBER 29, 2003, UNLESS THE OFFER IS EXTENDED.”

(2) The first sentence of the paragraph appearing in the “Summary Term Sheet” section of the Offer to Purchase under the caption “How long do I have to decide whether to tender in the offer?” is deleted and replaced with the following:

  “You have until at least 12:00 Midnight, New York City time, on October 29, 2003, to decide whether to tender your shares in the offer.”

(3) The second sentence in the first paragraph appearing in the Offer to Purchase under “The Offer—Section 1—Terms of the Offer” is deleted and replaced with the following:

  ““Expiration Date” means 12:00 Midnight, New York City time, on October 29, 2003, unless extended, in which event “Expiration Date” means the latest time and date at which the Offer, as so extended, shall expire.”

Item 10. Financial Statements.

Not applicable.

Item 11. Additional Information.

          On October 7, 2003, Purchaser announced that it was extending the Expiration Date of the Offer to 12:00 midnight, New York City time, on October 29, 2003, unless the Offer is



extended to a later date. The Offer was initially set to expire at 12:00 midnight, New York City time on October 10, 2003. As required by the Merger Agreement, the Purchaser has obtained the Company’s consent to the extension of the Expiration Date. According to LaSalle Bank National Association who is serving as the Depositary in connection with the Offer, as of October 6, 2003, holders of approximately 1,140,476 Shares have tendered their Shares pursuant to the Offer. The press release issued by Purchaser announcing the extension of the Expiration Date is incorporated by reference to Exhibit (a)(1)(I) to this Schedule TO.

Item 12.    Exhibits.

(a)(1)(A)**** Offer to Purchase, dated September 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)**** Letter dated September 8, 2003 to Stockholders of Information Resources, Inc. who tendered shares pursuant to Purchaser’s prior offer launched July 14, 2003.

(a)(1)(H)** Text of press release issued by Gingko Acquistion Corp. and Information Resources, Inc. on September 8, 2003.

(a)(1)(I)+++ Text of press release issued by Gingko Acquisition Corp. on October 7, 2003.

(a)(2)(A)**** Letter to Stockholders of Information Resources, Inc. from Symphony Technology Group dated as of September 8, 2003.

(a)(4)(A)*** Registration Statement on Form S-4 of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated September 8, 2003.



(a)(5)(A)+ Transcript of Conference Call held by Purchaser and the Company on September 8, 2003.    

(a)(5)(B)++ Analysis of CVRs Based on Agreed 34% Tax Rate vs. Hypothetical Sharing of NOL with CVR Holders distributed to shareholders on September 29, 2003.

(b)(1)**** Commitment letter dated as of September 7, 2003 among Tennenbaum Capital Partners, LLC, as agent for one or more entities managed by Tennenbaum Capital Partners, LLC, Gingko Corporation and Symphony Technology II-A, L.P.

(b)(2)**** Commitment letter dated as of September 7, 2003 among Symphony Technology II-A, L.P., Gingko Corporation and Information Resources, Inc.

(d)(1)**** Agreement and Plan of Merger dated as of September 7, 2003 by and among Gingko Corporation, Gingko Acquisition Corp. and Information Resources, Inc.

(d)(2)*** Form of Contingent Value Rights Agreement by and among Information Resources, Inc. Litigation Contingent Payment Rights Trust, Information Resources, Inc., Gingko Corporation, Gingko Acquisition Corp. and the Rights Agents (as defined therein).

(d)(3)*** Certificate of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated as of August 27, 2003.

(d)(4)*** Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust dated as of August 27, 2003.

(d)(5)*** Form of Amended and Restated Declaration of Trust of Information Resources, Inc. Litigation Contingent Payment Rights Trust to be entered into among Information Resources, Inc., as Sponsor, and the institutional trustee, Delaware trustee, and litigation trustees to be named therein.

(d)(6)* Confidentiality Agreement, dated February 19, 2003, between Symphony Technology Group and Information Resources, Inc.

(g) Not applicable.

(h) Not applicable.




* Incorporated by reference to Parent’s and Purchaser’s Schedule TO filed with the SEC on July 14, 2003.

** Previously filed with the SEC on Parent’s and Purchaser’s Schedule TO-C, dated September 8, 2003.

*** Incorporated by reference to the Registration Statement on Form S-4 of Information Resources, Inc. Litigation Contingent Payment Rights Trust filed with the SEC on September 8, 2003.

**** Previously filed with the SEC on Parent’s and Purchaser’s Schedule TO, dated September 8, 2003.

+ Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on September 9, 2003.

++ Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on September 29, 2003.

+++ Incorporated by reference to Purchaser’s filing pursuant to Rule 425 under the Securities Act of 1933 filed with the SEC on October 7, 2003.



SIGNATURE

After due inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: October 7, 2003

  GINGKO ACQUISITION CORP.


  By: /s/ William Chisholm  
    Name:
Title:
William Chisholm
Executive Vice President

  GINGKO CORPORATION


  By: /s/ William Chisholm  
    Name:
Title:
William Chisholm
Executive Vice President


  SYMPHONY TECHNOLOGY II-A, L.P.


  By: Symphony Technology II GP, LLC
its General Partner

  By: /s/ William Chisholm  
    Name:
Title:
William Chisholm
Managing Member


  SYMPHONY TECHNOLOGY II GP, LLC


  By: /s/ William Chisholm  
    Name:
Title:
William Chisholm
Managing Member


  ROMESH WADHWANI


    /s/ Romesh Wadhwani 
    Name: Romesh Wadhwani


  TENNENBAUM & CO., LLC


  By: /s/ Howard M. Levkowitz  
    Name:
Title:
Howard M. Levkowitz
Principal


  INFORMATION RESOURCES, INC. LITIGATION
CONTINGENT PAYMENT RIGHTS TRUST


  By: Information Resources, Inc.
its Sponsor

  By: /s/  Joseph P. Durrett
    Name:
Title:

Joseph P. Durrett
Chairman, Chief Executive
Officer and President



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