UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 1
to
SCHEDULE
TO
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
ILOG S.A.
(Name of
Subject Company (Issuer))
CITLOI S.A.S.
(Offeror)
An
indirect wholly-owned subsidiary of
INTERNATIONAL
BUSINESS MACHINES CORPORATION
(Parent
of Offeror)
(Names of
filing persons (identifying status as offeror, issuer or other
person))
Ordinary
Shares,
nominal
value €1.00 per Ordinary Share
and
American
Depositary Shares,
each
representing one Ordinary Share
(Title of
Class of Securities)
FR0004042364
452360100
(CUSIP
Number of Class of Securities)
Andrew
Bonzani, Esq.
Vice
President, Assistant General Counsel and Secretary
International
Business Machines Corporation
Armonk,
New York 10504
(914) 499-1900
(Name,
address and telephone numbers of person
authorized
to receive notices and communications on behalf of filing persons)
Copies
to:
George
A. Stephanakis, Esq.
Cravath,
Swaine & Moore LLP
CityPoint,
One Ropemaker Street
London,
EC2Y 9HR, England
011
44 207 453 1000
CALCULATION
OF FILING FEE
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U.S.$34,521,598
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U.S.$1,357
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(1)
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Estimated
for purposes of calculating the filing fee only. The transaction valuation
was calculated on the basis of (i) the offer price of (a) €10.00
for each of the 1,955,638 American Depositary Shares outstanding;
(b) €10.00 for each of the 532,536 ordinary shares held by U.S.
holders within the meaning of Rule 14d-1(d) under the United States
Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(c) €0.50 for each of the 16,000 2003 warrants n
o
1
held by U.S. holders; (d) €0.50 for each of the 8,000 2003 warrants
n
o
2
held by U.S. holders; (e) €0.65 for each of the 30,000 2004 warrants
held by U.S. holders; (f) €0.50 for each of the 32,000 2005 warrants
held by U.S. holders; (g) €0.83 for each of the 32,000 2006 warrants
held by U.S. holders; and (h) €1.93 for each of the 16,000 2007
warrants held by U.S. holders, and (ii) an exchange rate (using the
noon buying rate in New York City for cable transfers in euro as certified
for customs purposes by the Federal Reserve Bank of New York on
October 3, 2008) of U.S.$1.3816 for one euro. The number of American
Depositary Shares outstanding, and the number of ordinary shares and
warrants held by U.S. holders, is based on information provided to the
Offeror by ILOG S.A.
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(2)
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The
amount of the filing fee, calculated in accordance with Rule 0-11
under the Exchange Act and Fee Rate Advisory No. 6 for the fiscal
year 2008, equals U.S.$39.30 per U.S.$1,000,000 of transaction
valuation.
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x
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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.
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Amount
Previously Paid: U.S.$1,357
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Filing
Party: International Business Machines Corporation
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Form
or Registration No.: Schedule TO
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Date
Filed: October 14, 2008
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o
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
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Check the
appropriate boxes below to designate any transactions to which the statement
relates:
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x
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third-party
tender offer subject to
Rule 14d-1.
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o
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issuer
tender offer subject to
Rule 13e-4.
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o
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going-private
transaction subject to
Rule 13e-3.
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o
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amendment
to Schedule 13D under
Rule 13d-2.
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Check the
following box if the filing is a final amendment reporting the results of the
tender offer:
o
This
Amendment No. 1 amends and supplements the Tender Offer Statement under cover of
Schedule TO (the “Schedule TO”) originally filed on October 14, 2008 by
International Business Machines Corporation, a New York corporation (“Parent”),
and its indirect wholly-owned subsidiary, CITLOI S.A.S., a
société par actions
simplifiée
organized under the laws of the Republic of France
(“Purchaser”). The Schedule TO relates to the offer by CITLOI S.A.S. to
acquire for cash all outstanding ordinary shares of ILOG S.A., a
société anonyme
organized
under the laws of the Republic of France (“ILOG”), nominal value €1.00
(“Shares”), including Shares held in treasury by ILOG or its subsidiaries and
Shares represented by American Depositary Shares (“ADSs”), including any
dividend payable for the fiscal year ended June 30, 2008, as well as all
outstanding warrants issued by ILOG (“Warrants”), through concurrent offers in
the United States (the “U.S. Offer”) and in France (the “French Offer” and,
together with the U.S. Offer, the “Offers”). In the U.S. Offer, Purchaser is
seeking to acquire all outstanding Shares and Warrants held by U.S. holders
(within the meaning of Rule 14d-1(d) under the Exchange Act), as well as
all outstanding ADSs held by holders wherever located, upon the terms and
subject to the conditions set forth in the U.S. Offer to Purchase dated October
14, 2008 (the “U.S. Offer to Purchase”), the ADS letter of transmittal (the “ADS
Letter of Transmittal”), and the forms of acceptance for Shares and Warrants
(the “Forms of Acceptance”), copies of which are filed as
Exhibits (a)(1)(A), (a)(1)(B), (a)(1)(F) and (a)(1)(I) to the Schedule TO,
respectively. This Amendment No. 1 to the Schedule TO is being filed on
behalf of Parent and Purchaser. Capitalized terms used and not defined in this
Amendment No. 1 have the same meanings as in the Schedule TO. Except as
specifically provided herein, this Amendment No. 1 does not modify any of the
information previously reported on Schedule TO.
Amendments to the U.S. Offer
to Purchase
Items 1
through 11 of the Schedule TO, to the extent such Items incorporate by reference
the information contained in the U.S. Offer to Purchase, are hereby amended and
supplemented as follows:
(a) The
“TABLE OF CONTENTS” of the U.S. Offer to Purchase is hereby amended by deleting
the word “Certain” from the Item titled “Certain United States Federal and
French Income Tax Considerations” and replacing it with the word
“Material.”
(b) The
“SUMMARY TERM SHEET” of the U.S. Offer to Purchase is hereby amended by deleting
the words “Certain United States Federal and French Income Tax Considerations”
in the third paragraph on page vii of the U.S. Offer to Purchase and replacing
it with the words “Material United States Federal and French Income Tax
Considerations.”
(c) The
“INTRODUCTION” of the U.S. Offer to Purchase is hereby amended by deleting the
words “Certain United States Federal and French Income Tax Considerations” in
the second paragraph on page 2 of the U.S. Offer to Purchase and replacing it
with the words “Material United States Federal and French Income Tax
Considerations.”
(d) The
“INTRODUCTION” of the U.S. Offer to Purchase is hereby amended by deleting the
second full paragraph on page 4 of the U.S. Offer to Purchase and replacing it
with the following:
“Material U.S. Federal and French
income tax consequences of the sale of Shares, ADSs or Warrants are described in
Section 6 of this Offer to Purchase.”
(e)
Section 5 (“Certain Information Regarding ILOG”) of the U.S. Offer to Purchase
is hereby amended by deleting the last full paragraph of such section on pages
13-14 of the U.S. Offer to Purchase and replacing it with the
following:
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“
Available
Information.
Shares and ADSs are registered under the
Exchange Act and, accordingly, ILOG is subject to the information and
reporting requirements of the Exchange Act applicable to foreign private
issuers and in accordance therewith is obligated to file reports and other
information with the Commission relating to its business, financial
condition and other matters. Such reports and other information should be
available for inspection at the public reference room at the Commission’s
office at 100 F Street, N.E., Washington, D.C. 20549. Copies may be
obtained by mail, upon payment of the Commission’s customary charges, by
writing to its principal office at 100 F Street, N.E., Washington, D.C.
20549. Further information on the operation of the Commission’s public
reference room in Washington, D.C. can be obtained by calling the
Commission at 1-800-SEC-0330. The Commission maintains an Internet
worldwide website that contains reports, proxy statements and other
information about issuers who file electronically with the Commission. The
address of that site is
http://www.sec.gov
.”
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(f)
Section 6 (“Certain United States Federal and French Income Tax Considerations”)
of the U.S. Offer to Purchase is hereby amended by deleting the title of such
section on page 14 of the U.S. Offer to Purchase and replacing it with the
following:
“Material United States Federal and
French Income Tax Considerations”
(g)
Section 6 (“Certain United States Federal and French Income Tax Considerations”)
of the U.S. Offer to Purchase is hereby amended by deleting the first sentence
in the first paragraph of such section on page 14 of the U.S. Offer to Purchase
and replacing it with the following:
“The following is a general summary of
material U.S. Federal and French income tax consequences of a sale of Securities
for cash pursuant to this Offer and, if applicable, any subsequent squeeze-out
transaction.”
(h)
Section 6 (“Certain United States Federal and French Income Tax Considerations”)
of the U.S. Offer to Purchase is hereby amended by deleting the first sentence
in the fourth paragraph of such section on page 14 of the U.S. Offer to
Purchase.
Amendments to the ADS Letter
of Transmittal
The ADS
Letter of Transmittal and Items 1 through 11 of the Schedule TO, to the extent
such Items incorporate by reference the information contained in the ADS Letter
of Transmittal, are hereby amended and supplemented by deleting the words “THE
TENDER OFFER
— 6.
Certain United States Federal and French Income Tax Considerations” in
the third paragraph on page 13 of the ADS Letter of Transmittal and replacing it
with the words “THE TENDER OFFER
— 6.
Material
United States Federal and French Income Tax Considerations.”
Amendments to the Form of
Acceptance for Shares
The Form
of Acceptance for Shares and Items 1 through 11 of the Schedule TO, to the
extent such Items incorporate by reference the information contained in the Form
of Acceptance for Shares, are hereby amended and supplemented by deleting the
words “THE TENDER OFFER
— 6.
Certain United
States Federal and French Income Tax Considerations” in the last paragraph on
page 8 of the Form of Acceptance for Shares and replacing it with the words “THE
TENDER OFFER
— 6.
Material United States Federal and French Income Tax
Considerations.”
Amendments to the Form of
Acceptance for Warrants
The Form
of Acceptance for Warrants and Items 1 through 11 of the Schedule TO, to the
extent such Items incorporate by reference the information contained in the Form
of Acceptance for Warrants, are hereby amended and supplemented by deleting the
words “THE TENDER OFFER
— 6.
Certain United
States Federal and French Income Tax Considerations” in the fifth paragraph on
page 7 of the Form of Acceptance for Shares and replacing it with the words “THE
TENDER OFFER
— 6.
Material United States Federal and French Income Tax
Considerations.”
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.
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Citloi S.A.S.
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By
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/s/
Gregory
C. Bomberger
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Name:
Gregory C. Bomberger
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Title:
Authorized
Signatory
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Date: November
5, 2008
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International
Business Machines Corporation
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By
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/s/
Andrew
Bonzani
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Name:
Andrew Bonzani
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Title:
Vice President,
Assistant General Counsel and Secretary
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Date: November
5, 2008
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(a)(1)(A)
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U.S.
Offer to Purchase dated October 14, 2008.*
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(a)(1)(B)
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ADS
Letter of Transmittal.*
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(a)(1)(C)
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Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
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(a)(1)(D)
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Letter
to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
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(a)(1)(E)
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Guidelines
for Certification of Taxpayer Identification Number (TIN) on Substitute
Form W-9.*
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(a)(1)(F)
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Form
of Acceptance for Shares.*
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(a)(1)(G)
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Technical
Notice to French Financial Intermediaries and U.S.
Custodians.*
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(a)(1)(H)
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Letter
to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.*
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(a)(1)(I)
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Form
of Acceptance for Warrants.*
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(a)(2)
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None.
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(a)(3)
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Not
applicable.
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(a)(4)
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Not
applicable.
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(a)(5)(A)
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Press
Release issued by Parent and ILOG on July 27, 2008 (incorporated
herein by reference to the Schedule TO-C filed by Parent on
July 27, 2008).*
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(a)(5)(B)
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Press
Release issued by Parent on October 14, 2008.*
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(a)(5)(C)
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Summary
Advertisement as published in The Wall Street Journal on October 14,
2008.*
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(b)
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Not
applicable.
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(d)(1)
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Memorandum
of Understanding between Parent and ILOG dated July 27,
2008.*
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(d)(2)
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Letter
Agreement between Parent and ILOG dated June 19,
2008.*
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(d)(3)
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Confidentiality
Agreement between Parent and ILOG dated November 30,
2006.*
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(d)(4)
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Undertaking
to tender between Parent and INRIA—Transfert dated July 27,
2008.*
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(d)(5)
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Undertaking
to tender between Parent and SAP AG dated July 27,
2008.*
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(g)
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None.
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(h)
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None.
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*
Previously filed on October 14, 2008.
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