OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
▇▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
AT
$5.50 NET PER SHARE
BY
T MERGER SUB (OR), INC.,
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
TYCO INTERNATIONAL LTD.
---------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, NOVEMBER 30, 1999, UNLESS THE OFFER IS EXTENDED.
--------------------------------------------------------------------------------
THE OFFER IS BEING MADE FOR ALL OF THE OUTSTANDING SHARES. THE OFFER IS
CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED AND NOT
WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST THAT NUMBER OF SHARES
WHICH WOULD CONSTITUTE 51% OF THE OUTSTANDING SHARES ON A DILUTED BASIS. THE
MAJORITY SHAREHOLDER OF THE COMPANY WHO OWNS 8,119,375 SHARES (CONSTITUTING
APPROXIMATELY 53.0% OF THE OUTSTANDING SHARES ON A DILUTED BASIS) HAS AGREED TO
TENDER THESE SHARES IN THE OFFER. IF THE MAJORITY SHAREHOLDER IS UNABLE TO
TENDER 2,656,500 OF THESE SHARES (THE "PLEDGED SHARES") IN THE OFFER
(CONSTITUTING APPROXIMATELY 17.4% OF THE OUTSTANDING SHARES ON A DILUTED BASIS)
BECAUSE THE PLEDGED SHARES ARE NOT RELEASED FROM CERTAIN PLEDGE ARRANGEMENTS
BEFORE THE CONSUMMATION OF THE OFFER, THE MAJORITY SHAREHOLDER HAS AGREED TO
SELL TO THE PURCHASER THE PLEDGED SHARES FOLLOWING CONSUMMATION OF THE OFFER
UPON THE RELEASE OF THE PLEDGED SHARES FROM THE PLEDGE ARRANGEMENTS TO WHICH
THEY ARE SUBJECT.
THE BOARD OF DIRECTORS OF THE COMPANY HAS DETERMINED THAT THE OFFER AND THE
MERGER (AS HEREINAFTER DEFINED) ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
COMPANY AND ITS SHAREHOLDERS, HAS APPROVED THE MERGER AGREEMENT (AS HEREINAFTER
DEFINED), THE OFFER AND THE MERGER AND RECOMMENDS THAT THE COMPANY'S
SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
IMPORTANT
ANY SHAREHOLDER DESIRING TO TENDER ALL OR ANY PORTION OF SUCH SHAREHOLDER'S
SHARES SHOULD EITHER (1) COMPLETE AND SIGN THE LETTER OF TRANSMITTAL (OR A
FACSIMILE THEREOF) IN ACCORDANCE WITH THE INSTRUCTIONS IN THE LETTER OF
TRANSMITTAL, MAIL OR DELIVER IT AND ANY OTHER REQUIRED DOCUMENTS TO THE
DEPOSITARY INDICATED THEREON AND EITHER DELIVER THE CERTIFICATE(S) FOR SUCH
TENDERED SHARES TO THE DEPOSITARY ALONG WITH THE LETTER OF TRANSMITTAL OR TENDER
SUCH SHARES PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER SET FORTH IN
SECTION 2 OF THIS OFFER TO PURCHASE, OR (2) REQUEST SUCH SHAREHOLDER'S BROKER,
DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE TO EFFECT THE
TRANSACTION FOR THE SHAREHOLDER. SHAREHOLDERS HAVING SHARES REGISTERED IN THE
NAME OF A BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE MUST
CONTACT SUCH BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE IF
THEY DESIRE TO TENDER SUCH SHARES.
A SHAREHOLDER WHO DESIRES TO TENDER SHARES AND WHOSE CERTIFICATE(S) FOR
SHARES ARE NOT IMMEDIATELY AVAILABLE, OR WHO CANNOT COMPLY WITH THE PROCEDURES
FOR BOOK-ENTRY TRANSFER ON A TIMELY BASIS, MAY TENDER SUCH SHARES BY FOLLOWING
THE PROCEDURES FOR GUARANTEED DELIVERY SET FORTH IN SECTION 2 OF THIS OFFER TO
PURCHASE.
QUESTIONS AND REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO THE INFORMATION
AGENT AT ITS ADDRESS AND TELEPHONE NUMBER SET FORTH ON THE BACK COVER OF THIS
OFFER TO PURCHASE. REQUESTS FOR ADDITIONAL COPIES OF THIS OFFER TO PURCHASE, THE
LETTER OF TRANSMITTAL AND THE NOTICE OF GUARANTEED DELIVERY MAY BE DIRECTED TO
THE INFORMATION AGENT OR TO BROKERS, DEALERS, COMMERCIAL BANKS OR TRUST
COMPANIES.
------------------------
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
November 1, 1999
2
TABLE OF CONTENTS
PAGE
--------
Introduction..................................................... 4
The Tender Offer................................................. 6
1. Terms of the Offer; Extension of Tender Period; Termination;
Amendments.................................................. 6
2. Procedure for Tendering Shares.............................. 7
3. Withdrawal Rights........................................... 10
4. Acceptance for Payment and Payment of Offer Price........... 10
5. Certain Federal Income Tax Consequences..................... 11
6. Price Range of Shares; Dividends............................ 13
7. Effects of the Offer on the Market for Shares; Stock
Quotations; Registration Under the Exchange Act............. 13
8. Certain Information Concerning the Company.................. 14
9. Certain Information Concerning Tyco and Purchaser........... 16
10. Source and Amount of Funds.................................. 19
11. Contacts with the Company; Background of the Offer.......... 19
12. Purpose of the Offer; Short Form Merger; Plans for the
Company; Dissenters' Rights; Going Private Transactions..... 23
13. The Merger Agreement; Shareholder's Agreement............... 25
14. Dividends and Distributions................................. 36
15. Certain Conditions of the Offer............................. 36
16. Certain Legal Matters....................................... 38
17. Fees and Expenses........................................... 40
18. Miscellaneous............................................... 40
▇▇▇▇▇ ▇ Certain Information Concerning the Directors and Executive
Officers of Tyco International Ltd.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Information Concerning the Directors and Executive
Officers of Parent
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Information Concerning the Directors and Executive
Officers of Purchaser
3
To The Holders of Common Stock of
▇▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
INTRODUCTION
T MERGER SUB (OR), Inc., an Oregon corporation ("Purchaser"), a wholly owned
subsidiary of Sigma Circuits, Inc. ("Parent"), a Delaware Corporation and an
indirect wholly owned subsidiary of Tyco International Ltd., a Bermuda company
("Tyco"), hereby offers to purchase all outstanding shares (the "Shares") of
common stock of ▇▇▇▇▇▇▇▇▇▇ Industries, Inc., an Oregon corporation (the
"Company"), at $5.50 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the related
Letter of Transmittal (which together constitute the "Offer"). Tyco has fully
and unconditionally guaranteed the Offer.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, subject to Instruction 6 of the Letter of Transmittal, stock
transfer taxes on the purchase of Shares by Purchaser pursuant to the Offer.
However, any tendering shareholder or other payee who fails to complete and sign
the Substitute Form W-9 that is included in the Letter of Transmittal may be
subject to a required backup federal income tax withholding of 31% of the gross
proceeds payable to such shareholder or other payee pursuant to the Offer. See
Section 2. The Purchaser will pay all charges and expenses of ▇▇▇▇▇▇ &
Co., Inc., as Information Agent (the "Information Agent"), and ChaseMellon
Shareholder Services, L.L.C., as Depositary (the "Depositary"), incurred in
connection with the Offer. See Section 17.
The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer at least that
number of shares which would constitute 51% of the outstanding shares on a
diluted basis ("the Minimum Condition"). The majority shareholder of the Company
who owns 8,119,375 shares (constituting approximately 53.0% of the outstanding
shares on a diluted basis) has agreed to tender these shares in the offer. If
the majority shareholder is unable to tender 2,656,500 of these shares (the
"Pledged Shares") in the offer (constituting approximately 17.4% of the
outstanding shares on a diluted basis) because the Pledged Shares are not
released from certain pledge arrangements before the consummation of the Offer,
the majority shareholder has agreed to sell to the purchaser the Pledged Shares
following consummation of the offer upon the release of the Pledged Shares from
the pledge arrangements to which they are subject. The Offer is also subject to
certain other terms and conditions set forth in Section 15.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of October 26, 1999 (the "Merger Agreement"), among Parent, Purchaser and the
Company, and the related guarantee of Tyco. The Merger Agreement provides, among
other things, that upon the terms and subject to the conditions therein, as soon
as practicable after the consummation of the Offer, Purchaser will be merged
with and into the Company (the "Merger"), with the Company being the corporation
surviving the Merger (the "Surviving Corporation"). At the effective time of the
Merger (the "Effective Time"), each outstanding Share (other than Shares with
respect to which appraisal rights are properly exercised under the Oregon
Business Corporation Act (the "OBCA") ("Dissenting Shares") or owned by Tyco,
Parent, Purchaser or any other subsidiary of Tyco) will be converted into and
represent the right to receive $5.50 in cash or any higher price that may be
paid per Share in the Offer (the "Per Share Amount"), without interest. See
Section 13.
THE BOARD OF DIRECTORS OF THE COMPANY HAS DETERMINED THAT THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY AND ITS
SHAREHOLDERS, HAS APPROVED THE MERGER AGREEMENT, THE OFFER AND THE MERGER AND
RECOMMENDS THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR
SHARES PURSUANT TO THE OFFER.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc., one of the Company's financial advisors
("AHH"), has delivered to the Company's Board of Directors its written opinion
that the aggregate consideration to be received by the
4
shareholders of the Company pursuant to the Merger Agreement is fair to such
shareholders from a financial point of view. A copy of such opinion is contained
in the Company's Solicitation/Recommendation Statement on Schedule 14D-9 which
is being distributed to the Company's shareholders herewith.
The Merger Agreement provides that, promptly upon the purchase of Shares
pursuant to the Offer, Parent will be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors of the
Company as will give Parent, subject to compliance with Section 14(f) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), representation
on the Board of Directors equal to the product of (a) the total number of
directors on the Board of Directors and (b) the percentage that (i) the number
of Shares beneficially owned by Parent or any of its affiliates following
consummation of the Offer bears to (ii) the total number of Shares outstanding.
The Company shall, upon request by ▇▇▇▇▇▇, promptly increase the size of the
Board of Directors and/or exercise its reasonable best efforts to secure the
resignations of such number of directors as is necessary to enable ▇▇▇▇▇▇'s
designees to be elected to the Board of Directors and shall cause Parent's
designees to be so elected. See Section 13.
The Company has informed Purchaser that as of October 22, 1999,
(i) 13,129,751 Shares were issued and outstanding, (ii) no shares of Preferred
Stock were issued or outstanding, (iii) 1,809,550 shares of the Company's common
stock were reserved for future issuance pursuant to outstanding options (561,750
shares at exercise prices below $5.50 per share), (iv) no shares of common stock
were reserved for future issuance pursuant to the Company Stock Purchase Plan,
(v) 46,333 shares of common stock were reserved for future issuance upon
exercise of certain warrants at $12.00 per share, (vi) 1,743,559 shares of
common stock were reserved for future issuance upon exercise of the conversion
rights contained in that certain Deferral Loan and Lease Modification Agreement
dated as of October 12, 1999 among the Company and the lenders and lessors named
therein (the "Deferral Agreement") (these conversion rights cannot be exercised
if the Offer is completed before March 31, 2000) and (vii) 1,381,382 shares of
common stock were reserved for issuance upon the conversion of the Company's 9%
Convertible Subordinated Notes due December 29, 2008 (the "Notes") at a
conversion price of $8.325 per share. As used herein "outstanding shares on a
diluted basis" means the outstanding shares of the Company's common stock on a
fully diluted basis excluding shares issuable upon exercise of conversion rights
pursuant to the Deferral Agreement and options that are not exercisable prior to
March 1, 2000.
If the Minimum Condition is satisfied, Purchaser will have sufficient voting
power to approve the Merger, even if no other shareholder votes in favor of the
Merger. Under the OBCA, if a parent corporation owns at least 90% of the shares
of each class of shares of a subsidiary corporation, the parent can merge with
the subsidiary in a "short form" merger without a vote of shareholders. Assuming
that Purchaser acquires 90% or more of the Shares, Purchaser would be able to
effect the Merger pursuant to the short form merger provisions of the OBCA,
without the action of any other shareholder of the Company.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY DECISION
IS MADE WITH RESPECT TO THE OFFER.
5
THE TENDER OFFER
1. TERMS OF THE OFFER; EXTENSION OF TENDER PERIOD; TERMINATION;
AMENDMENTS. Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions of any
such extension or amendment), Purchaser will accept for payment and pay for all
Shares which are validly tendered on or prior to the Expiration Date (as
hereinafter defined) and not theretofore withdrawn as permitted by Section 3.
The term "Expiration Date" means 12:00 Midnight, New York City time, on Tuesday,
November 30, 1999, unless and until Purchaser (subject to the terms and
conditions of the Merger Agreement) shall have extended the period of time for
which the Offer is open, in which event the term "Expiration Date" shall mean
the latest time and date at which the Offer, as so extended by Purchaser, shall
expire.
The Offer is conditioned upon, among other things, the satisfaction of the
Minimum Condition. Subject to the provisions of the Merger Agreement, Purchaser
reserves the unilateral right (but shall not be obligated) to waive or reduce
the Minimum Condition or to waive any or all of the conditions of the Offer
other than the Minimum Condition. If, by 12:00 Midnight, New York City time, on
Tuesday, November 30, 1999, or any subsequent Expiration Date, any or all of the
conditions to the Offer have not been satisfied or waived, subject to the
provisions of the Merger Agreement, Purchaser may elect to (i) terminate the
Offer and return all tendered Shares to tendering shareholders, (ii) waive all
of the unsatisfied conditions (including, with the consent of the Company, the
Minimum Condition) and, subject to any required extension, purchase all Shares
validly tendered by the Expiration Date and not withdrawn, (iii) extend the
Offer and, subject to the right of shareholders to withdraw Shares until the
adjusted Expiration Date, retain the Shares that have been tendered until the
expiration of the Offer as extended or (iv) delay acceptance for payment of, or
payment for, the Shares, subject to complying with applicable law, until the
satisfaction or waiver of the conditions of the Offer. Purchaser acknowledges
that its reservation of the right to delay payment for Shares that it has
accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which
requires Purchaser to pay the consideration offered or return the Shares
tendered promptly after the termination or withdrawal of the Offer. See
Section 15.
Under the terms of the Merger Agreement, Purchaser may not, without the
prior written consent of the Company, (i) impose conditions to the Offer in
addition to the Offer Conditions (as defined below), (ii) modify or amend the
Offer Conditions or any other term of the Offer in a manner adverse to the
holders of Shares, (iii) waive or amend the Minimum Condition, (iv) reduce the
number of Shares subject to the Offer, (v) reduce the Per Share Amount,
(vi) except as provided in the following paragraph, extend the Offer, if all of
the Offer Conditions are satisfied or waived, or (vii) change the form of
consideration payable in the Offer.
Notwithstanding the foregoing, Purchaser may, without the consent of the
Company, extend the Offer at any time, and from time to time, (i) if at the then
scheduled expiration date of the Offer any of the conditions to Purchaser's
obligation to accept for payment and pay for Shares (the "Offer Conditions")
shall not have been satisfied or waived, until such time as such conditions are
satisfied or waived; (ii) for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the
"Commission") or its staff applicable to the Offer; or (iii) if all Offer
Conditions are satisfied or waived but the number of Shares tendered is less
than 90% of the then outstanding number of Shares, for an aggregate period of
not more than 10 business days (for all such extensions) beyond the latest
expiration date that would be permitted under clause (i) or (ii) of this
sentence.
Subject to the applicable regulations of the Commission and the provisions
of the Merger Agreement, Purchaser also expressly reserves the rights, in its
sole discretion, at any time or from time to time, (i) to extend the Offer and
adjust the Expiration Date, (ii) to terminate the Offer if any of the conditions
referred to in Section 15 have not been satisfied or upon the occurrence of any
of the events specified in Section 15 and (iii) to waive any condition or
otherwise amend the Offer in any respect, in each case by giving oral or written
notice of such extension, termination, waiver or amendment to the Depositary and
by
6
making a public announcement thereof. If Purchaser accepts for payment any
Shares pursuant to the terms of the Offer, it will accept for payment all Shares
validly tendered prior to the Expiration Date and not withdrawn, and will
promptly pay for all Shares so accepted for payment. Purchaser acknowledges that
notwithstanding anything to the contrary contained in the Offer, Purchaser shall
not be required to pay for the Shares and may terminate or amend the Offer only
if, prior to the Expiration Date, any of the conditions referred to in
Section 15 have not been satisfied or waived, or if any of the events specified
in Section 15 have occurred.
The rights reserved by Purchaser in the preceding paragraph are in addition
to Purchaser's rights pursuant to Section 15. Any extension, delay, termination
or amendment of the Offer will be followed as promptly as practicable by public
announcement thereof, such announcement in the case of an extension to be issued
no later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date, in accordance with the public announcement
requirements of Rule 14e-1(d) under the Exchange Act. Subject to applicable law
(including Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which require
that any material change in the information published, sent or given to
shareholders in connection with the Offer be promptly disseminated to
shareholders in a manner reasonably designed to inform shareholders of such
change), and without limiting the manner in which Purchaser may choose to make
any public announcement, Purchaser shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
making a release to the Dow ▇▇▇▇▇ News Service.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer (including, subject to the Merger Agreement, the Minimum Condition),
Purchaser will disseminate additional tender offer materials (including by
public announcement as set forth above) and extend the Offer to the extent
required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The
minimum period during which an offer must remain open following material changes
in the terms of the Offer, other than a change in price, percentage of
securities sought or inclusion of or change to a dealer's soliciting fee, will
depend upon the facts and circumstances, including the materiality, of the
changes. In the Commission's view, an offer should remain open for a minimum of
five business days from the date the material change is first published, sent or
given to shareholders, and, if material changes are made with respect to
information that approaches the significance of price and share levels, a
minimum of ten business days may be required to allow for adequate dissemination
and investor response. With respect to a change in price or, subject to certain
limitations, a change in the percentage of securities sought or inclusion of or
change to a dealer's soliciting fee, a minimum ten business day period from the
date of such change is generally required to allow for adequate dissemination to
shareholders. Accordingly, if, prior to the Expiration Date, Purchaser decreases
the number of Shares being sought or increases or decreases the consideration
offered pursuant to the Offer, and if the Offer is scheduled to expire at any
time earlier than the period ending on the tenth business day from the date that
notice of such increase or decrease is first published, sent or given to
shareholders, the Offer will be extended at least until the expiration of such
ten business day period. For purposes of the Offer, a "business day" means any
day other than a Saturday, Sunday or a federal holiday and consists of the time
period from 12:01 a.m. through 12:00 midnight, New York City time.
In connection with the Offer, the Company has provided or will provide
Purchaser with the names and addresses of all record holders of Shares and
security position listings of Shares held in stock depositories. This Offer to
Purchase, the related Letter of Transmittal and other relevant materials will be
mailed to registered holders of Shares and will be furnished to brokers,
dealers, commercial banks, trust companies and similar persons whose names, or
the names of whose nominees, appear on the shareholder list or, if applicable,
who are listed as participants in a clearing agency's security position listing,
for subsequent transmittal to beneficial owners of Shares.
2. PROCEDURE FOR TENDERING SHARES. Except as set forth below, in order for
Shares to be validly tendered pursuant to the Offer, the Letter of Transmittal
(or a facsimile thereof), properly completed and
7
duly executed, together with any required signature guarantees, or an Agent's
Message (as hereinafter defined) in connection with a book-entry transfer of
Shares, and any other documents required by the Letter of Transmittal, must be
received by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase on or prior to the Expiration Date, and either
(i) certificates representing tendered Shares must be received by the
Depositary, or such Shares must be tendered pursuant to the procedure for
book-entry transfer set forth below (and confirmation of receipt of such
delivery must be received by the Depositary), in each case on or prior to the
Expiration Date, or (ii) the guaranteed delivery procedures set forth below must
be complied with. No alternative, conditional or contingent tenders will be
accepted.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (i) if such Letter of Transmittal is signed by the registered holder
of the Shares tendered therewith, unless such holder has completed either the
box entitled "Special Delivery Instructions" or the box entitled "Special
Payment Instructions" in the Letter of Transmittal, or (ii) if Shares are
tendered for the account of a firm that is a member in good standing of the
Security Transfer Agent's Medallion Program, the New York Stock Exchange
Medallion Signature Program or the Stock Exchange Medallion Program (each being
hereinafter referred to as an "Eligible Institution"). See Instruction 1 of the
Letter of Transmittal.
If a certificate representing Shares is registered in the name of a person
other than the signatory of the Letter of Transmittal (or a facsimile thereof),
or if payment is to be made, or Shares not accepted for payment or not tendered
are to be returned to a person other than the registered holder, the certificate
must be endorsed or accompanied by an appropriate stock power, in either case
signed exactly as the name(s) of the registered holder(s) appears on the
certificate, with the signature(s) on the certificate or stock power guaranteed
by an Eligible Institution. If the Letter of Transmittal or stock powers are
signed or any certificate is endorsed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, such persons should so indicate when
signing and, unless waived by Purchaser, proper evidence satisfactory to
Purchaser of their authority so to act must be submitted. See Instruction 5 of
the Letter of Transmittal.
BOOK-ENTRY TRANSFER. The Depositary will establish accounts with respect to
the Shares at The Depository Trust Company ("DTC") for purposes of the Offer
within two business days after the date of this Offer to Purchase, and any
financial institution that is a participant in DTC's system may make book-entry
delivery of the Shares by causing DTC to transfer such Shares into the
Depositary's account in accordance with DTC's procedure for such transfer.
However, although delivery of Shares may be effected through book-entry transfer
at DTC, a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), with any required signature guarantees, or an Agent's
Message and any other required documents, must, in any case, be transmitted to
and received by the Depositary at one of its addresses set forth on the back
cover of this Offer to Purchase prior to the Expiration Date, or the guaranteed
delivery procedures described below must be complied with. The term "Agent's
Message" means a message transmitted through electronic means by DTC to, and
received by, the Depositary and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the
participant in DTC tendering the Shares that such participant has received, and
agrees to be bound by, the terms of the Letter of Transmittal. Delivery of
documents to DTC in accordance with DTC's procedures does not constitute
delivery to the Depositary.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates representing Shares are not
immediately available (or the procedures for book-entry transfer cannot be
completed on a timely basis) or time will not permit all required documents to
reach the Depositary prior to the Expiration Date, such Shares may nevertheless
be tendered, provided that all of the following conditions are satisfied:
(a) such tender is made by or through an Eligible Institution;
8
(b) the Depositary receives, prior to the Expiration Date, a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in
the form provided by Purchaser; and
(c) the certificates representing all tendered Shares in proper form for
transfer (or confirmation of a book-entry transfer of such Shares into the
Depositary's account at DTC), together with a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or, in connection with a book-entry transfer, an
Agent's Message) and any other documents required by the Letter of
Transmittal are received by the Depositary within three trading days after
the date of such Notice of Guaranteed Delivery. A "trading day" is any day
on which The Nasdaq Stock Market is open for business.
The Notice of Guaranteed Delivery may be delivered by hand, or may be
transmitted by telegram, telex, facsimile transmission or mail, to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of
(i) certificates representing such Shares (or timely confirmation of a
book-entry transfer of such Shares into the Depositary's account at DTC),
(ii) properly completed and duly executed Letter(s) of Transmittal (or
facsimile(s) thereof), together with any required signature guarantees (or, in
connection with a book-entry transfer, an Agent's Message) and (iii) any other
documents required by the Letter of Transmittal.
The method of delivery of all documents, including certificates for Shares,
is at the option and risk of the tendering shareholder, and the delivery will be
deemed made only when actually received by the Depositary. If delivery is by
mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to ensure timely
delivery.
DETERMINATION OF VALIDITY. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for payment
of any tendered Shares will be determined by Purchaser in its sole discretion,
and its determination shall be final and binding on all parties. Purchaser
reserves the absolute right to reject any or all tenders of any Shares that it
determines are not in appropriate form or the acceptance for payment of or
payment for which may, in the opinion of Purchaser's counsel, be unlawful.
Purchaser also reserves the absolute right to waive any defect or irregularity
in any tender with respect to any particular Shares or any particular
shareholder, and Purchaser's interpretation of the terms and conditions of the
Offer (including the Letter of Transmittal and the Instructions thereto) will be
final and binding on all parties. No tender of Shares will be deemed to have
been validly made until all defects or irregularities relating thereto have been
expressly waived or cured to the satisfaction of Purchaser. None of Purchaser,
Parent, Tyco, the Depositary, the Information Agent or any other person will be
under any duty to give notification of any defects or irregularities in tenders,
nor shall any of them incur any liability for failure to give any such
notification.
OTHER REQUIREMENTS. By executing the Letter of Transmittal, a tendering
shareholder irrevocably appoints designees of Purchaser as such shareholder's
proxies, in the manner set forth in the Letter of Transmittal, each with full
power of substitution, to the full extent of such shareholder's rights with
respect to the Shares tendered by such shareholder and accepted for payment by
Purchaser (and any and all other Shares or other securities or rights issued or
issuable in respect of such Shares on or after November 1, 1999), effective if,
when and to the extent that Purchaser accepts such Shares for payment pursuant
to the Offer. Upon such acceptance for payment, all prior proxies given by such
shareholder with respect to such Shares or other securities accepted for payment
will, without further action, be revoked, and no subsequent proxies may be given
by such shareholder nor any subsequent written consents executed (and, if given
or executed, will not be deemed effective). Such designees of Purchaser will,
with respect to such Shares and other securities or rights issuable in respect
thereof, be empowered to exercise all voting and other rights of such
shareholder as they, in their sole discretion, may deem proper in respect of any
annual, special or adjourned meeting of the Company's shareholders, action by
written consent in lieu of any such meeting or
9
otherwise. Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, immediately upon Purchaser's acceptance for payment
of such Shares, Purchaser must be able to exercise full voting rights with
respect to such Shares.
Purchaser's acceptance for payment of Shares tendered pursuant to any of the
procedures described above will constitute a binding agreement between the
tendering shareholder and Purchaser upon the terms and subject to the conditions
of the Offer.
To prevent backup withholding of federal income tax on payments made to
shareholders with respect to ▇▇▇▇▇▇ purchased pursuant to the Offer, each
shareholder must provide the Depositary with his correct taxpayer identification
number ("TIN") and certify that he is not subject to backup withholding of
federal income tax by completing the Substitute Form W-9 included in the Letter
of Transmittal. Non-United States holders must submit a completed Form W-8 to
avoid backup withholding. This form may be obtained from the Depositary. See
Instructions 10 and 11 of the Letter of Transmittal.
3. WITHDRAWAL RIGHTS. Tenders of Shares made pursuant to the Offer will be
irrevocable, except that Shares tendered may be withdrawn at any time prior to
the Expiration Date, and, unless theretofore accepted for payment by Purchaser
as provided herein, may also be withdrawn on or after January 1, 2000.
For a withdrawal of Shares tendered to be effective, a written, telegraphic,
telex or facsimile transmission notice of withdrawal must be timely received by
the Depositary at one of its addresses set forth on the back cover of this Offer
to Purchase. Any notice of withdrawal must specify the name of the person who
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and
the name(s) in which the certificate(s) representing such Shares are registered,
if different from that of the person who tendered such Shares. If certificates
for Shares to be withdrawn have been delivered or otherwise identified to the
Depositary, the name of the registered holder and the serial numbers shown on
the particular certificates evidencing such Shares to be withdrawn must also be
furnished to the Depositary prior to the physical release of the Shares to be
withdrawn. The signature(s) on the notice of withdrawal must be guaranteed by an
Eligible Institution (except in the case of Shares tendered by an Eligible
Institution). If Shares have been tendered pursuant to the procedures for
book-entry transfer set forth in Section 2, any notice of withdrawal must
specify the name and number of the account at DTC to be credited with such
withdrawn Shares and must otherwise comply with DTC's procedures.
If Purchaser extends the Offer, is delayed in its acceptance for payment of
any Shares tendered, or is unable to accept for payment or pay for Shares
tendered pursuant to the Offer, for any reason whatsoever, then, without
prejudice to Purchaser's rights set forth herein, the Depositary may,
nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares
may not be withdrawn except to the extent that the tendering shareholder is
entitled to and duly exercises withdrawal rights as described in this Section
and as otherwise required by Rule 14e-1(c) under the Exchange Act. Any such
delay will be accompanied by an extension of the Offer to the extent required by
law.
Withdrawals of tenders of Shares may not be rescinded and Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following the
procedures described in Section 2 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
and its determination will be final and binding on all parties. None of
Purchaser, Parent, Tyco, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal, nor shall any of them incur any
liability for failure to give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT OF OFFER PRICE. Upon the terms and
subject to the conditions of the Offer (including, if the Offer is extended or
amended, the terms and conditions of any extension or amendment), Purchaser will
accept for payment and will pay for all Shares validly tendered prior to the
Expiration Date (and not properly withdrawn in accordance with Section 3 above)
as soon as practicable
10
after the latest to occur of (a) the expiration or termination of the waiting
period applicable to the acquisition of the Shares pursuant to the Offer under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (b) the Expiration Date, and (c) subject to compliance with
Rule 14e-1(c) under the Exchange Act, the satisfaction or waiver of the
conditions of the Offer set forth in Section 15. Any determination concerning
the satisfaction of such terms and conditions shall be within the sole
discretion of Purchaser, and such determination shall be final and binding on
all tendering shareholders. See Section 15.
Purchaser expressly reserves the right to delay acceptance for payment of,
or payment for, Shares in order to comply in whole or in part with any
applicable law. If Purchaser desires to delay payment for Shares accepted for
payment pursuant to the Offer, and such delay would otherwise be in
contravention of Rule 14e-1(c) of the Exchange Act, Purchaser will formally
extend the Offer. See Section 15. In all cases, payment for Shares accepted for
payment pursuant to the Offer will be made only after timely receipt by the
Depositary of (i) certificates representing such Shares (or a timely
confirmation of a book-entry transfer of such Shares into the Depositary's
account at DTC, as described in Section 2), (ii) a properly completed and duly
executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or, in connection with a book-entry transfer, an Agent's
Message), and (iii) any other documents required by the Letter of Transmittal.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, tendered Shares when, as and if Purchaser gives
oral or written notice to the Depositary, as agent for the tendering
shareholders, of Purchaser's acceptance for payment of such Shares. Payment for
Shares so accepted for payment will be made by the deposit of the purchase price
therefor with the Depositary, which will act as agent for the tendering
shareholders for the purpose of receiving such payment from Purchaser and
transmitting such payment to tendering shareholders. If, for any reason
whatsoever, acceptance for payment of any Shares tendered pursuant to the Offer
is delayed, or Purchaser is unable to accept for payment Shares tendered
pursuant to the Offer, then, without prejudice to Purchaser's rights under
Section 1, the Depositary may, nevertheless, on behalf of Purchaser, retain
tendered Shares, and such Shares may not be withdrawn, except to the extent that
the tendering shareholders are entitled to withdrawal rights as described in
Section 3 and as otherwise required by Rule 14e-1(c) under the Exchange Act.
Under no circumstances will interest be paid on the purchase price by reason of
any delay in making such payments.
If any tendered Shares are not accepted for payment and paid for,
certificates representing such Shares will be returned (or, in the case of
Shares delivered by book-entry transfer with DTC as permitted by Section 2, such
Shares will be credited to an account maintained with DTC) without expense to
the tendering shareholder as promptly as practicable following the expiration or
termination of the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration to
be paid for Shares pursuant to the Offer, Purchaser will pay such increased
consideration for all Shares accepted for payment pursuant to the Offer, whether
or not such Shares have been tendered or accepted for payment prior to such
increase in the consideration.
Purchaser reserves the right to transfer or assign in whole or in part to
one or more affiliates of Purchaser, Parent or Tyco the right to purchase all or
any portion of the Shares tendered pursuant to the Offer, but any such transfer
or assignment will not relieve Purchaser of its obligations under the Offer and
will in no way prejudice the rights of tendering shareholders to receive payment
for Shares validly tendered and accepted for payment pursuant to the Offer.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. The receipt of cash for Shares
pursuant to the Offer (or in the Merger) will be a taxable transaction for
United States federal income tax purposes (and may also be a taxable transaction
under applicable state, local or other tax laws). In general, a shareholder will
recognize gain or loss for such purposes equal to the difference between such
shareholder's adjusted tax basis for the Shares such shareholder sells in such
transaction and the amount of cash received therefor.
11
Gain or loss must be determined separately for each block of Shares (i.e.,
Shares acquired at the same cost in a single transaction) sold pursuant to the
Offer or converted to cash in the Merger. Such gain or loss will be capital gain
or loss if the Shares are a capital asset in the hands of the shareholder and
will be long term capital gain or loss if the Shares were held for more than one
year on the date of sale (in the case of the Offer) or the effective time of the
Merger (in the case of the Merger). The receipt of cash for Shares pursuant to
the exercise of dissenters' rights, if any, will generally be taxed in the same
manner as described above.
Payments in connection with the Offer or the Merger may be subject to
"backup withholding" at a rate of 31%. Backup withholding generally applies if
the shareholder (a) fails to furnish such shareholder's social security number
or TIN, (b) furnishes an incorrect TIN, or (c) under certain circumstances,
fails to provide a certified statement, signed under penalties of perjury, that
the TIN provided is such shareholder's correct number and that such shareholder
is not subject to backup withholding. Backup withholding is not an additional
tax but merely an advance payment, which may be refunded to the extent it
results in an overpayment of tax. Certain persons generally are entitled to
exemption from backup withholding, including corporations, non-United States
persons and financial institutions. Certain penalties apply for failure to
furnish correct information and for failure to include reportable payments in
income. Each shareholder should consult with his own tax advisor as to such
shareholder's qualification for exemption from backup withholding and the
procedure for obtaining such exemption. Tendering shareholders may be able to
prevent backup withholding by completing the Substitute Form W-9 included in the
Letter of Transmittal.
The foregoing discussion may not be applicable to a shareholder who acquired
Shares pursuant to the exercise of employee stock options or otherwise as
compensation, or to a shareholder who is not a United States person for United
States federal income tax purposes (including a shareholder who is not a citizen
or resident of the United States) or who is otherwise subject to special tax
treatment under the Internal Revenue Code. In addition, the foregoing discussion
does not address the tax treatment of holders of options or warrants to acquire
Shares or of securities convertible into Shares.
The federal income tax discussion set forth above is included for general
information only and is based upon present law. Shareholders are urged to
consult their tax advisors with respect to the specific tax consequences of the
Offer and the Merger to them, including the application and effect of the
alternative minimum tax, and state, local or non-United States income and other
tax laws.
12
6. PRICE RANGE OF SHARES; DIVIDENDS. Since April 4, 1996, the Shares have
traded on the National Market System of The Nasdaq Stock Market under the symbol
"PGTZ." The following table sets forth, for the periods indicated, the high and
low per Share sales prices on the Nasdaq National Market System as reported by
published financial sources. The Company has not declared or paid any cash
dividends with respect to the Shares for the periods indicated.
HIGH LOW
-------- --------
FISCAL YEAR ENDED JUNE 30, 1998:
First Quarter............................................. $14.938 $10.500
Second Quarter............................................ 15.000 9.250
Third Quarter............................................. 11.125 8.500
Fourth Quarter............................................ 9.438 5.469
FISCAL YEAR ENDED JUNE 30, 1999:
First Quarter............................................. $ 9.000 $ 5.500
Second Quarter............................................ 9.500 6.375
Third Quarter............................................. 8.750 4.500
Fourth Quarter............................................ 6.063 4.625
FISCAL YEAR ENDING JUNE 30, 2000:
First Quarter............................................. $ 6.125 $ 3.531
Second Quarter (through October 29, 1999)................. 5.375 3.938
On October 26, 1999, the last trading day prior to the public announcement
of the terms of the Offer and the Merger, the closing per Share sales price on
the Nasdaq National Market System was $4.34. On October 29, 1999, the last
trading day prior to commencement of the Offer, the closing per Share sales
price on the Nasdaq National Market System was $5.34. Shareholders are urged to
obtain a current market quotation for the Shares.
7. EFFECTS OF THE OFFER ON THE MARKET FOR SHARES; STOCK QUOTATIONS;
REGISTRATION UNDER THE EXCHANGE ACT. The purchase of Shares pursuant to the
Offer will reduce the number of holders of Shares and the number of Shares that
might otherwise trade publicly. Consequently, depending upon the number of
Shares purchased and the number of remaining holders of Shares, the purchase of
Shares pursuant to the Offer may adversely affect the liquidity and market value
of the remaining Shares held by the public. Purchaser cannot predict whether the
reduction in the number of Shares that might otherwise trade publicly would have
an adverse or beneficial effect on the market price for, or marketability of,
the Shares or whether it would cause future market prices to be greater or less
than the Offer price.
The Shares are currently listed and traded on the Nasdaq National Market
System, which constitutes the principal trading market for the Shares. Depending
upon the aggregate market value and the number of Shares not purchased pursuant
to the Offer, the Shares may no longer meet the quantitative maintenance
criteria for continued inclusion on the Nasdaq National Market System and may
cease to be authorized for quotation on such market. Pursuant to the maintenance
criteria, issuers on the Nasdaq National Market System are required to have
(i) (A) at least 750,000 publicly held shares, (B) at least 400 holders of round
lots, (C) a market value of publicly held shares of at least $5 million, (D) a
minimum bid price per share of $1, and (E) net tangible assets of at least
$4 million or (ii) (A) at least 1.1 million publicly held shares, (B) at least
400 holders of round lots, (C) a market value of publicly held shares of at
least $15 million, (D) a market capitalization of at least $50 million or total
assets and total revenue of at least $50 million (each for the most recently
completed fiscal year or two of the last three most recently completed fiscal
years), (E) a minimum bid price per share of $5, and (F) at least four
registered and active market makers for the Shares. Shares held directly or
indirectly by directors, officers or beneficial owners of more than 10% of the
Shares outstanding are not considered as being publicly held for this purpose.
If, as a result of the purchase of Shares pursuant to the Offer or
otherwise, the Shares no longer meet the requirements for continued inclusion in
the Nasdaq National Market System or in any other tier of The
13
Nasdaq Stock Market, and the Shares are no longer included in The Nasdaq
National Market or in any other tier of The Nasdaq Stock Market, the market for
Shares could be adversely affected.
In the event that the Shares no longer meet the requirements for continued
inclusion in any tier of The Nasdaq Stock Market, it is possible that Shares
would continue to trade in the over-the-counter market and that price quotations
would be reported on the Nasdaq bulletin board or by other sources. The extent
of the public market for the Shares and the availability of such quotations
would, however, depend upon the number of holders of Shares remaining at such
time, the interest in maintaining a market in Shares on the part of securities
firms, the possible termination of registration of the Shares under the Exchange
Act, as described below, and other factors.
The Shares are currently registered under the Exchange Act. Such
registration may be terminated upon application of the Company to the Commission
if such Shares are not listed on a national securities exchange and there are
fewer than 300 holders of record of the Shares. The termination of the
registration of the Shares under the Exchange Act would substantially reduce the
information required to be furnished by the Company to its shareholders and to
the Commission, and would make certain of the provisions of the Exchange Act,
such as the short-swing profit recovery provisions of Section 16(b) and the
requirement of furnishing a proxy statement in connection with shareholders'
meetings and the related requirement of an annual report to shareholders, and
the requirements of Rule 13e-3 with respect to going private transactions, no
longer applicable with respect to the Shares or to the Company. Furthermore, if
registration of the Shares under the Exchange Act were terminated, the ability
of "affiliates" of the Company and persons holding "restricted securities" of
the Company to dispose of such securities pursuant to Rule 144 promulgated under
the Securities Act of 1933, as amended, may be impaired or, with respect to
certain persons, eliminated. If the Shares were no longer registered under the
Exchange Act, they would not be eligible for listing on any tier of The Nasdaq
Stock Market or for quotation on the Nasdaq bulletin board. According to the
Company, as of October 29, 1999, there were 1,422 holders of record of the
Shares.
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve Board"),
which has the effect, among other things, of allowing brokers to extend credit
on such Shares as collateral. Depending on factors similar to those described
above regarding listing and market quotations, it is possible the Shares would
no longer constitute "margin securities" for purposes of the Federal Reserve
Board's margin regulations and therefore could no longer be used as collateral
for loans made by brokers. If registration of the Shares under the Exchange Act
were terminated, the Shares would no longer be "margin securities."
8. CERTAIN INFORMATION CONCERNING THE COMPANY. Except as otherwise set
forth herein, the information concerning the Company contained in this Offer to
Purchase, including financial information, has been furnished by the Company or
has been taken from or based upon publicly available documents and records on
file with the Commission and other public sources. Although neither Purchaser,
Parent nor Tyco has any knowledge that would indicate that the statements
contained herein based on such information are untrue, neither Purchaser, Parent
nor Tyco takes any responsibility for the accuracy or completeness of the
information concerning the Company furnished by the Company or contained in such
documents and records or for any failure by the Company to disclose events or
information which may have occurred or may affect the significance or accuracy
of any such information but which are unknown to Purchaser, Parent or Tyco.
The Company was incorporated in the State of Oregon in 1981 under the name
▇▇▇▇▇▇▇▇▇▇ Industries, Inc. The Company's principal executive offices are
located at ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and its telephone number
is (▇▇▇) ▇▇▇-▇▇▇▇. The following description of the Company's business has been
taken from the Company's Annual Report on Form 10-K for the year ended June 30,
1999.
14
"The Company is a leader in providing electronics original equipment
manufacturers ("OEMs") and contract manufacturers with a full range of printed
circuit board ("PCB") and interconnect solutions, including schematic capture
and design, quick-turnaround, prototyping and pre-production, and large volume
production. The Company provides its solutions to four key electronics industry
segments (with corresponding percentages of Company revenue for the fiscal year
ended June 30, 1999): (i) data and telecommunications (40%), (ii) computers and
peripherals (32%), (iii) industrial and instrumentation (22%) and (iv) business
and consumer (6%). The Company's growth has been driven by sales to industry
leaders whose products require increasing complexity and technological
advancement within the electronic interconnect industry. The Company has
obtained ISO 9002 certifications for all of its manufacturing facilities, ISO
9001 certifications for all of its design centers and has received awards from a
number of its customers in recognition of its superior performance in meeting
their PCB needs. In fiscal 1999 the Company served more than 650 customers
worldwide."
Set forth below is a summary of certain consolidated financial information
with respect to the Company and its consolidated subsidiaries, excerpted or
derived from the information contained in the Company's Annual Reports on
Form 10-K and 10-K/A for the fiscal year ended June 30, 1999. More comprehensive
financial information is included in such reports and other documents filed by
the Company with the Commission. The financial information summary set forth
below is qualified in its entirety by reference to such reports and other
documents filed with the Commission and all of the financial information and
related notes contained therein. Such reports and other documents may be
inspected and copies may be obtained from the offices of the Commission in the
manner set forth below.
SELECTED CONSOLIDATED FINANCIAL DATA OF THE COMPANY
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
FISCAL YEAR
ENDED JUNE 30
-------------------
1999 1998
-------- --------
STATEMENT OF OPERATIONS:
Total revenues.............................................. $217,665 $182,773
Operating income (loss)..................................... (32,370) 10,830
Net income (loss)........................................... (25,539) 5,082
Net income (loss) per share--basic and diluted.............. (1.97) 0.40
BALANCE SHEET DATA:
Working capital............................................. $ 18,794 $ 19,297
Total assets................................................ 143,897 151,494
Notes payable and current portion of long-term
obligations............................................... 12,328 6,394
Long term liabilities net of current portion................ 67,326 73,413
Shareholders' equity........................................ 19,352 43,980
OTHER INFORMATION. The Shares are registered under the Exchange Act.
Accordingly, the Company is subject to the informational filing requirements of
the Exchange Act and, in accordance therewith, is obligated to file periodic
reports, proxy statements and other information with the Commission relating to
its business, financial condition and other matters. Information, as of
particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company is required to be disclosed in such proxy statements and
distributed to the Company's shareholders and filed with the Commission. Such
reports, proxy statements and other information should be available for
inspection at the public reference facilities at the Commission's principal
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, and
at the regional offices of the Commission located at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10048 and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Commission maintains a site on the World Wide Web, and the
reports, proxy
15
statements and other information filed by the Company with the Commission may be
accessed electronically on the Web at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇. Copies of such
material may also be obtained by mail, upon payment of the Commission's
customary fees, from the Commission's principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
9. CERTAIN INFORMATION CONCERNING TYCO, PARENT AND PURCHASER. Purchaser is
a newly formed Oregon corporation, a direct wholly-owned subsidiary of Sigma
Circuits, Inc., and an indirect wholly-owned subsidiary of Tyco. To date,
Purchaser has not conducted any business other than incident to its formation,
the execution and delivery of the Merger Agreement and the commencement of the
Offer.
Until immediately prior to the time that Purchaser purchases Shares pursuant
to the Offer, it is not anticipated that Purchaser will have any significant
assets or liabilities or engage in activities other than those incident to its
formation and capitalization and the transactions contemplated by the Offer and
the Merger. Since Purchaser is newly formed and has minimal assets and
capitalization, no meaningful financial information is available. The address of
the principal office of Purchaser is One Tyco Park, Exeter, New Hampshire 03833.
Parent is an indirect wholly owned subsidiary of Tyco and a manufacturer of
multilayer rigid PCB's. Parent was acquired by Tyco in July 1998.
Tyco is a diversified manufacturing and service company that, through its
subsidiaries, (i) designs, manufactures and distributes electrical and
electronic components and designs, manufactures, installs and services undersea
cable communication systems; (ii) designs, manufactures and distributes
disposable medical supplies and other specialty products, and conducts vehicle
auctions and related services; (iii) designs, manufactures, installs and
services fire detection and suppression systems and installs, monitors and
maintains electronic security systems; and (iv) designs, manufactures and
distributes flow control products.
Tyco is a Bermuda company. Its registered and principal executive offices
are located at The ▇▇▇▇▇▇▇ Building, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇,
▇▇▇▇▇▇▇, and its telephone number is (▇▇▇) ▇▇▇-▇▇▇▇. The executive offices of
Tyco's principal United States subsidiary, Tyco International (US) Inc. ("Tyco
(US)"), are located at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and its
telephone number is (▇▇▇) ▇▇▇-▇▇▇▇.
The following selected consolidated financial data for Tyco reflect the
combined results of operations and financial position of Tyco, United States
Surgical Corporation, which was acquired by Tyco on October 1, 1998, and AMP
Incorporated, which was acquired by Tyco on April 2, 1999, restated for all
periods presented pursuant to the pooling of interests method of accounting.
These combinations are more fully described in Notes 1 and 2 to the audited
Consolidated Financial Statements contained in Tyco's Current Report on
Form 8-K filed on June 3, 1999. The data presented for Tyco for the nine months
ended June 30, 1999 and 1998 are unaudited and, in the opinion of Tyco's
management, include all adjustments, consisting of normal recurring adjustments,
necessary for the fair presentation of such data. The information for Tyco for
the year ended September 30, 1998, the nine months ended September 30, 1997 and
the year ended December 31, 1996 was derived from the audited Consolidated
Financial Statements included in Tyco's Current Report on Form 8-K filed on
June 3, 1999. More comprehensive financial information is included in Tyco's
Annual Report on Form 10-K for the fiscal year ended September 30, 1998, its
Current Report on Form 8-K filed on June 3, 1999, its Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1999 and other documents filed
by Tyco with the Commission. The following summary is qualified in its entirety
by reference to such reports and other documents and the financial information
(including any related notes) contained therein. Such reports and other
documents should be available for inspection and copies thereof should be
obtainable in the manner set forth in Section 8. Such reports and other
documents should also be available for inspection at the offices of the New York
Stock Exchange, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, where the common
shares of Tyco are listed for trading.
16
SELECTED CONSOLIDATED HISTORICAL FINANCIAL DATA OF TYCO
(UNAUDITED)
NINE MONTHS ENDED
JUNE 30, YEAR ENDED NINE MONTHS ENDED YEAR ENDED
--------------------- SEPTEMBER 30, SEPTEMBER 30, DECEMBER 31,
1999(1) 1998(1) 1998(2) 1997(3)(4) 1996(5)(6)
--------- --------- ------------- ----------------- ------------
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
CONSOLIDATED STATEMENTS OF
OPERATIONS DATA:
Net sales..................... $16,272.0 $13,949.3 $19,061.7 $12,742.5 $14,671.0
Operating income.............. 951.5 1,902.7 1,948.1 125.8 587.4
Income (loss) from continuing
operations.................. 248.3 1,189.2 1,168.6 (348.5) 49.4
Income (loss) from continuing
operations per common
share(7):
Basic....................... 0.15 0.76 0.74 (0.24) 0.02
Diluted..................... 0.15 0.74 0.72 (0.24) 0.02
Cash dividends per common
share(7).................... See (8) below.
CONSOLIDATED BALANCE SHEET
DATA:
Total assets.................. $28,025.8 $23,440.7 $16,960.8 $14,686.2
Long-term debt................ 8,293.0 5,424.7 2,785.9 2,202.4
Shareholders' equity.......... 10,052.8 9,901.8 7,478.7 7,022.6
------------------------
(1) Operating income in the nine months ended June 30, 1999 includes charges of
$1.26 billion for merger, restructuring and other non-recurring charges and
$335.0 million for the impairment of long-lived assets primarily related to
the mergers with US Surgical and AMP and costs associated with AMP's profit
improvement plan. Operating income in the nine months ended June 30, 1998
includes a credit of $21.4 million to restructuring charges representing a
revision of estimates related to AMP's 1996 restructuring activities and a
charge of $12.0 million related to US Surgical's cost cutting objectives.
See Notes 8 and 9 to the unaudited Consolidated Financial Statements
contained in Tyco's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1999.
(2) Operating income in the fiscal year ended September 30, 1998 includes
charges of $80.5 million primarily related to costs to exit certain
businesses in US Surgical's operations and restructuring charges of
$12.0 million related to the operations of US Surgical. In addition, Tyco
recorded restructuring charges of $185.8 million in connection with AMP's
profit improvement plan and a credit of $21.4 million to restructuring
charges representing a revision of estimates related to AMP's 1996
restructuring activities. See Note 16 to the Consolidated Financial
Statements contained in Tyco's Current Report on Form 8-K filed on June 3,
1999.
(3) In September 1997, Tyco changed its fiscal year end from December 31 to
September 30. Accordingly, the nine-month transition period ended
September 30, 1997 is presented.
(4) On July 2, 1997, Tyco, formerly called ADT Limited, merged with Tyco
International Ltd., a Massachusetts corporation ("Former Tyco"). On
August 27, 1997 and August 29, 1997, Tyco merged with INBRAND Corporation
and Keystone International, Inc., respectively. These combinations are more
fully described in Notes 1 and 2 to the Consolidated Financial Statements
contained in Tyco's Current Report on Form 8-K filed on June 3, 1999.
Operating income in the nine months ended September 30, 1997 includes
charges related to merger, restructuring and other non-recurring costs of
$917.8 million and impairment of long-lived assets of $148.4 million, each
primarily related to the
17
mergers and integration of ADT, Former Tyco, Keystone and INBRAND and
charges of $24.3 million for litigation and other related costs and
$5.8 million for restructuring charges in US Surgical's operations. See
Notes 11 and 16 to the Consolidated Financial Statements contained in Tyco's
Current Report on Form 8-K filed on June 3, 1999. The results for the nine
months ended September 30, 1997 also include a charge of $361.0 million for
the write-off of purchased in-process research and development related to
the acquisition of the submarine systems business of AT&T Corp.
(5) Prior to their respective mergers, ADT, Keystone, US Surgical and AMP had
December 31 fiscal year ends and Former Tyco had a June 30 fiscal year end.
The selected consolidated financial data have been combined using a
December 31 fiscal year end for ADT, Keystone, Former Tyco, US Surgical and
AMP for the year ended December 31, 1996.
(6) Operating income in 1996 includes non-recurring charges of $744.7 million
related to the adoption of Statement of Financial Accounting Standards
No. 121, $237.3 million related principally to the restructuring of ADT's
electronic security services business in the United States and the United
Kingdom, $98.0 million to exit various product lines and manufacturing
operations associated with AMP's operations and $8.8 million of fees and
expenses related to ADT's acquisition of Automated Security (Holdings) plc,
a United Kingdom company. See Notes 11 and 16 to the Consolidated Financial
Statements contained in Tyco's Current Report on Form 8-K filed on June 3,
1999.
(7) Per share amounts have been retroactively restated to give effect to the
two-for-one stock splits distributed on October 21, 1999 and October 22,
1997, effected in the form of a stock distribution, the mergers with Former
Tyco, Keystone, INBRAND, US Surgical and AMP and a 0.48133 reverse stock
split effected on July 2, 1997.
(8) Tyco has paid a quarterly dividend of $0.0125 per common share since
July 2, 1997, the date of the Former Tyco/ADT merger. ADT had not paid any
dividends on its common shares since 1992. Prior to the merger with ADT,
Former Tyco paid a quarterly cash dividend of $0.0125 per share of common
stock since January 1992.
On October 21, 1999, Tyco announced revenues for fiscal 1999 of
$22.5 billion and income before extraordinary item, inclusive of acquisition and
other non-recurring charges, of $1.03 billion, or $0.62 per diluted share, after
giving effect to the two-for-one stock split distributed on October 21, 1999.
Except as set forth in this Offer to Purchase, none of Tyco, Parent,
Purchaser or, to the best of their knowledge, any of the persons listed in Annex
I, ▇▇▇▇▇ ▇▇ or ▇▇▇▇▇ ▇▇▇ hereto, (a) has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or the voting
of any securities of the Company, joint ventures, loan or option arrangements,
puts or calls, guaranties of loans, guaranties against loss, or the giving or
withholding of proxies, (b) has engaged in contacts, negotiations or
transactions with the Company or its affiliates concerning a merger,
consolidation, acquisition, tender offer or other acquisition of securities,
election of directors or a sale or other transfer of a material amount of assets
or (c) has had any other transaction with the Company or any of its executive
officers, directors or affiliates that would require disclosure under the rules
and regulations of the Commission applicable to the Offer. Other than the rights
arising under the Merger Agreement and the Shareholder's Agreement, neither
Parent, Purchaser nor any of their affiliates beneficially own any Shares or
have effected any transaction in the Shares within the past 60 days.
18
10. SOURCE AND AMOUNT OF FUNDS. The total amount of funds required by Tyco,
Parent and Purchaser to purchase all Shares pursuant to the Offer and the
Merger, (including amounts payable upon exercise to optionholders) and to pay
related fees and expenses, is estimated to be approximately $80 million. This
does not include approximately $93 million of indebtedness that the Surviving
Corporation will either repay or assume upon consummation of the Offer and the
Merger.
Purchaser will obtain all such funds from Tyco, Parent or their affiliates.
Tyco has sufficient financial resources to satisfy its, Parent's, and
Purchaser's obligations under the Offer and the Merger Agreement, and Tyco has
fully and unconditionally guaranteed the Offer. This Offer is not conditioned
upon any financing arrangements.
11. CONTACTS WITH THE COMPANY; BACKGROUND OF THE OFFER. Certain information
in this section on the background of the Offer regarding the deliberations of
the Company's Board and the actions of the Company's management and financial
advisors is based upon information furnished by the Company to Purchaser. In
this section, references to Tyco are to Tyco's United States subsidiaries and
affiliates including Tyco (US) and Tyco Printed Circuit Group. Tyco, the Bermuda
company, is referred to in this section as Tyco International Ltd.
In April 1999, the Company began to explore strategic alternatives,
including acquisition possibilities. At that time, the Company retained ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. and McDonald Investments Inc. to assist it in this
broad-ranging exploration. McDonald and KeyBank, the Company's principal
creditor, are both wholly owned subsidiaries of KeyCorp. Beginning in late
April 1999, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and McDonald contacted not less than 24 companies to
gauge their interest in potential strategic business relationships and business
combinations with the Company. As a result of these contacts, the Company
entered into discussions with four companies concerning a possible transaction.
On April 27, 1999, McDonald contacted a private equity investment firm
("Equity Investment Company A") to discuss a possible transaction. On April 28,
1999, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ contacted another private equity investment firm ("Equity
Investment Company B") and Tyco for the same purpose.
On April 29, 1999, Equity Investment Company A contacted McDonald indicating
interest in pursuing a possible transaction. On the same day, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
President of Tyco Printed Circuit Group, contacted ▇▇▇▇ ▇▇▇▇▇▇▇▇, indicated that
Tyco was interested in pursuing a transaction and requested ▇▇▇▇ ▇▇▇▇▇▇▇▇ to
contact ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President of Finance and Administration of Tyco
Printed Circuit Group. ▇▇▇▇ ▇▇▇▇▇▇▇▇ contacted ▇▇. ▇▇▇▇▇▇▇▇ on that same day
regarding a possible transaction.
From May 3, 1999 through May 9, 1999, Tyco Printed Circuit Group and the
Company negotiated a confidentiality agreement, which was signed on May 10,
1999, at which time each party commenced due diligence on the other. During the
week of May 3, 1999, Equity Investment Company A and the Company signed
confidentiality agreements and commenced due diligence on each other.
On May 5, 1999, the Company and Equity Investment Company B began
negotiating a confidentiality agreement, which was signed on May 13, 1999.
On May 12, 1999, Equity Investment Company A, the Company and their
respective advisers met at the offices of the Company's legal advisers in
Portland, Oregon to discuss due diligence matters. Additional due diligence
discussions were held on May 14, 1999 and during the weeks of May 16, 1999 and
May 24, 1999.
On May 17, 1999, Equity Investment Company B scheduled a meeting with
▇▇. ▇▇▇▇▇▇▇▇ to discuss a possible transaction.
On May 19 and 20, 1999, Tyco, the Company and their respective advisers held
meetings at the Company's headquarters offices in Tualatin, Oregon and at the
offices of the Company's legal advisers in Portland, Oregon to continue
discussing a possible business combination. The Company's and Tyco's
19
respective management and advisers participated in these meetings. The parties
held preliminary discussions about the non-financial aspects of a potential
acquisition of the Company by Tyco, including organization, facilities, products
and customers.
On May 20, 1999, representatives of Equity Investment Company B met with
▇▇. ▇▇▇▇▇▇▇▇ in Dallas, Oregon and conducted due diligence.
On May 24, 1999, Equity Investment Company B contacted ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
asked for additional due diligence information. On June 1, 1999, Equity
Investment Company B informed ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ that, although Equity Investment
Company B was interested in pursuing a possible business combination, for
financing and timing reasons it wished to delay discussions for at least three
months.
On June 3, 1999, Tyco presented the Company with a non-binding indication of
interest letter, suggesting a cash price of $7.25 to $8.00 per share for the
acquisition of all shares of the Company's common stock. From June 4, 1999
through June 21, 1999, the parties exchanged additional information and
internally reviewed the potential benefits of a transaction.
Also on June 3, 1999, Equity Investment Company A indicated it was
considering a recapitalization transaction that would value the Company's common
stock at approximately $6.00 per share, but that Equity Investment Company A
required additional due diligence before it would be in the position to finalize
an offer. Equity Investment Company A conducted further due diligence on
June 4, 1999 and during the week of June 6, 1999.
On June 14 and 15, and also from June 21 to June 24, 1999, representatives
of Tyco conducted due diligence at the offices of the Company's legal advisers
in Portland, Oregon.
On June 16, 1999, Equity Investment Company A notified McDonald that Equity
Investment Company A was prepared to enter into a recapitalization transaction
with the Company that would value the Company's common stock at $4.00 per share.
On June 20, 1999, McDonald informed Equity Investment Company A that the Company
had decided to postpone any decision on the proposal for at least two months.
On June 22, 1999, the president of a printed circuit board manufacturer (the
"PCB Company") contacted ▇▇. ▇▇▇▇▇▇▇▇ about a possible business combination.
On June 24, 1999, representatives of the PCB Company and the Company met to
discuss a possible business combination. The PCB Company and the Company entered
into confidentiality agreements and completed due diligence on June 28, 1999.
On June 29, 1999, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director of Mergers and Acquisitions of
Tyco (US), orally informed the Company that the proposal in its June 3, 1999
letter was no longer feasible due to valuation issues and concern about the
status of the Company's credit arrangements. ▇▇. ▇▇▇▇▇▇ indicated Tyco was still
interested in pursuing a transaction, and suggested postponing further
discussion until the Company's circumstances were clarified.
Also on June 29, 1999, the PCB Company indicated it would submit a business
combination proposal on July 2, 1999, but on July 1, 1999, the PCB Company
informed the Company that no proposal would be forthcoming on July 2, 1999. The
PCB Company requested more time to consider alternatives and to conduct
additional due diligence. On July 21, 1999, the PCB Company informed McDonald
that the PCB Company might be interested only in purchasing one or two of the
Company's manufacturing facilities, but the PCB Company never submitted any
transaction proposal for the Company's consideration.
On August 5, 1999, the Company announced its financial results for the
fourth quarter and fiscal year ended June 30, 1999. For the fourth quarter, the
Company reported a modest increase in revenue from the prior year and a
restructuring that resulted in a pretax charge of $21.4 million. The Company
also reported that at June 30, 1999 it was not in compliance with all the
covenants of its major credit agreements, including its revolving credit
agreement with KeyBank. The Company reported that its business and
20
financial condition could be materially and adversely effected if it were unable
to reach agreements with its creditors.
On August 31, 1999, ▇▇. ▇▇▇▇▇▇▇▇ asked ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to contact Tyco to
recommence transaction discussions. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ left a message with Tyco on
September 1, 1999, and on September 2, 1999 ▇▇. ▇▇▇▇▇▇ informed ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
that Tyco would consider recommencing discussions.
On September 7, 1999, ▇▇. ▇▇▇▇▇▇ called ▇▇. ▇. ▇. ▇▇▇▇▇▇▇▇, a director of
the Company and a managing director at ▇▇▇▇ ▇▇▇▇▇▇▇▇, and indicated Tyco was
interested in recommencing discussions with the Company, with the understanding
that Tyco was prepared to offer no more than $5.50 per share for the acquisition
of all shares of the Company common stock until the Company's September 1999
financial statements were available. Upon receipt of this information,
▇▇. ▇▇▇▇▇▇▇▇ instructed ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to cease communications with Tyco.
On September 10, 1999, the Company's commercial lenders requested that the
Company renegotiate its credit arrangements. Following this request, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, Chairman of the Board and Chief Executive Officer of the Company,
and ▇▇. ▇▇▇▇▇▇▇▇ convened a conference call among themselves, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
McDonald during which ▇▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇ requested that ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and McDonald contact a number of the original companies who ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and McDonald thought might be interested in purchasing the Company at a
lower price. ▇▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇ also asked ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to
contact Tyco to inform Tyco that the Company was interested in recommencing
transaction discussions at a price per share to be determined after Tyco had
completed its due diligence.
On September 13, 1999, ▇▇. ▇▇▇▇▇▇▇▇ discussed the Company's position with
▇▇. ▇▇▇▇▇▇, who requested updated due diligence materials and financial
statements.
On September 15, 1999, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ contacted Investment Company Company B
to gauge its interest in recommencing discussions concerning a possible
transaction.
On September 16, 1999, the Company's Board of Directors met to discuss the
status of negotiations with Tyco.
On September 20, 1999, ▇▇. ▇▇▇▇▇▇ indicated Tyco's interest in proceeding
with a transaction to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇ arranged
several due diligence meetings at the Company's headquarters offices in
Tualatin, Oregon over the next two weeks.
On September 21, 1999, the management of the Company and its advisers met at
the Company's headquarters offices in Tualatin, Oregon with representatives of
Tyco to discuss a possible business combination. On the same day, Equity
Investment Company B indicated to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ that Equity Investment Company
B was interested in pursuing discussions, but that Equity Investment Company B
was now interested only in purchasing certain Company manufacturing facilities
rather than the entire Company.
On September 23, 1999, the Company Board met to approve the delayed filing
with the Commission of its Annual Report on Form 10-K for the year ended
June 30, 1999 and to explore strategic alternatives with McDonald and ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
On September 29, 1999, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ contacted Tyco to discuss the status
of Tyco's expected offer.
In late September 1999, McDonald contacted Equity Investment Company A to
determine Equity Investment Company A's interest in recommencing discussions
concerning a possible transaction with the Company. On October 7, 1999, Equity
Investment Company A, ▇▇▇▇▇▇▇▇▇▇ and their respective advisers met at the
Company's headquarters offices in Tualatin, Oregon to discuss a possible
transaction. At that meeting Equity Investment Company A presented the Company
with a letter of interest for the purchase solely of the Company's Dallas and
Fremont manufacturing facilities, conditioned on satisfactory financing
arrangements and additional due diligence.
21
On October 12, 1999, the Company executed the Deferral Agreement with
substantially all of its lenders and lessors, thereby eliminating the existing
covenant defaults and the prospect of immediate acceleration of the amounts due
to those creditors.
Also on October 12, 1999, Equity Investment Company B informed ▇▇▇▇▇
▇▇▇▇▇▇▇▇ that Equity Investment Company B was no longer interested in pursuing
any acquisition discussions.
On October 13, 1999, the Company filed with the Commission its Annual Report
on Form 10-K for the fiscal year ended June 30, 1999, which had been due to be
filed September 28, 1999.
Also on October 13, 1999, Tyco delivered an acquisition proposal to the
Company. Under the terms of the proposal, Tyco would acquire the Company by
means of a cash tender offer, at a price of $5.50 per share of the Company
common stock. Representatives of Equity Investment Company A completed
additional due diligence on the same day.
On October 15, 1999, the the Company Board met with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at the
Company's headquarters offices in Tualatin, Oregon to review Tyco's proposal and
discuss tender offer procedures.
On October 15, 1999, Tyco International Ltd.'s Board of Directors approved
the acquisition of the Company at a price of $5.50 per share of the Company's
common stock.
On October 16, McDonald contacted Equity Investment Company A to inform
Equity Investment Company A that the Company preferred a transaction pursuant to
which all of the common stock of the Company would be acquired, rather than an
asset purchase of only two of the Company's facilities. McDonald also informed
Equity Investment Company A that the Company was seeking a stock transaction
that valued its common stock at $6.00 per share or greater. On October 17, 1999,
Equity Investment Company A informed McDonald that Equity Investment Company A
was not interested in purchasing all of the stock of the Company, but was only
interested in purchasing the two manufacturing facilities.
On October 18, 1999, ▇▇. ▇▇▇▇▇▇▇▇ informed Tyco that the Company was
entertaining other potential proposals for certain Company assets. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ requested that Tyco propose a transaction either at a higher price per
share or with a different structure. On October 20, 1999, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ (US)'s Senior Vice President, and ▇▇. ▇▇▇▇▇▇ declined to modify Tyco's
proposal.
On October 19, 1999, Tyco, the Company and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ convened several
conference calls to discuss Tyco's proposal and the transaction schedule.
On October 20, 1999, ▇▇. ▇▇▇▇▇▇▇▇ verbally accepted Tyco's non-binding
written offer on the Company's behalf and requested ▇▇. ▇▇▇▇▇▇ supply a draft
merger agreement, which the Company received from Tyco's legal advisers on
October 22, 1999.
From October 22 through October 26, 1999, Tyco, the Company and their
respective advisers negotiated the terms and provisions of the Merger Agreement
and ancillary documents.
The Company's Board of Directors met on October 25, 1999. At the meeting
- the Company's legal advisers and management updated the Company's Board on
the status of negotiations with Tyco and informed the Board that all
substantive issues had been resolved,
- the Company's legal advisers made a presentation to the Company's Board
regarding the fiduciary duties of the Company's Board,
- the Company's legal advisers reviewed with the Company's Board the terms
of the proposed merger agreement with Tyco and the regulatory filings and
approvals that would be required in connection with the proposed
transaction,
- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ made a financial presentation to the Company's Board, and
- ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ rendered its opinion to the effect that, as of that date,
the Per Share Amount was fair to the Company's shareholders from a
financial point of view.
22
Afterwards, the Company's Board by a unanimous vote (with ▇▇. ▇▇▇▇▇▇▇▇
abstaining because he is a managing director of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, which is
entitled to a fee payable in part upon the completion of a transaction such as
that presented by Tyco) determined the Merger was fair to, and in the best
interests of, the Company and its shareholders and
- unanimously approved (again with ▇▇. ▇▇▇▇▇▇▇▇ abstaining) the terms of the
Merger Agreement and the transactions contemplated by the agreement, and
- authorized the execution of the Merger Agreement and recommended that the
Company's shareholders tender all their shares in the Tyco Offer.
On October 25, 1999 the closing price of the Company's common stock was
$4.75 per share.
On October 26, 1999 all documentation, including the disclosure schedules of
the Company, were finalized to the satisfaction of the designated officers, and
all conditions with respect to the execution of the Merger Agreement were
satisfied. Late in the morning of that day, the Company Board met to receive an
update from ▇▇. ▇▇▇▇▇▇▇▇ as to the status of the transaction. That afternoon
- Tyco and the Company executed and delivered the Merger Agreement,
- the majority shareholder of the Company executed and delivered a
shareholder agreement agreeing to tender the shareholder's shares in the
Tyco Offer, and
- Tyco and the Company publicly announced the signing of the Merger
Agreement.
12. PURPOSE OF THE OFFER; SHORT FORM MERGER; PLANS FOR THE COMPANY;
DISSENTERS' RIGHTS; GOING PRIVATE TRANSACTIONS.
PURPOSE OF THE OFFER. The purpose of the Offer is for Purchaser to acquire
control of, and a majority equity interest in, the Company. The purpose of the
Merger is to acquire the remaining equity interest. The acquisition of the
entire common equity interest in the Company has been structured as a cash
tender offer followed by a cash merger in order to provide a prompt and orderly
transfer of ownership of the common equity of the Company from the public
shareholders to Parent and to provide public shareholders with cash for all of
their Shares. Accordingly, upon consummation of the transactions contemplated by
the Merger Agreement, Parent will own the entire equity interest in the Company.
Under the OBCA and the Company's Articles of Incorporation, the approval of
the Board of Directors of the Company and the affirmative vote of a majority of
the holders of outstanding Shares, voting as a single class, are required to
approve and adopt the Merger Agreement and the Merger. The Board of Directors of
the Company has approved the Offer, the Merger and the Merger Agreement and the
transactions contemplated thereby, and, unless the Merger is consummated
pursuant to the short-form merger provisions under the OBCA described below, the
only remaining required corporate action of the Company is the approval and
adoption of the Merger Agreement and the Merger by the affirmative vote of the
holders of a majority of the outstanding Shares. If the Minimum Condition is
satisfied, Purchaser will have sufficient voting power to cause the approval and
adoption of the Merger Agreement and the Merger without the affirmative vote of
any other shareholder.
The Merger Agreement provides that, if approval of the Merger by the
shareholders of the Company is required by law, the Company will, as soon as
possible following payment for Shares in the Offer, duly call and hold a meeting
of shareholders for the purpose of obtaining shareholder approval of the Merger,
and the Company, through its Board of Directors, will recommend to shareholders
that such approval be given.
SHORT FORM MERGER. Under the OBCA, if Purchaser acquires at least 90% of
the outstanding Shares, Purchaser will be able to approve the Merger without a
vote of the Company's other shareholders. The Merger Agreement provides that if
Purchaser, or any other direct or indirect subsidiary of Tyco or Parent,
acquires at least 90% of the outstanding Shares, Parent, Purchaser and the
Company will take all necessary
23
and appropriate action to cause the Merger to become effective as soon as
practicable after the expiration of the Offer without a meeting of shareholders
of the Company, in accordance with Section 60.491 of the OBCA. If Purchaser
acquires at least 90% of the Shares in the Offer, it will be able to effect the
Merger under Section 60.491 of the OBCA. In the event that all of the conditions
to Purchaser's obligation to purchase Shares in the Offer are satisfied or
waived and the number of Shares tendered is less than 90% of the outstanding
Shares, Purchaser may, subject to the limitations set forth in the Merger
Agreement, extend the Offer for an aggregate period of not more than 10 business
days (for all such extensions) without the consent of the Company. See
Section 1. If Purchaser does not acquire at least 90% of the outstanding Shares,
a significantly longer period of time may be required to effect the Merger,
because a vote of the Company's shareholders would be required under the OBCA.
PLANS FOR THE COMPANY. Except as otherwise set forth in this Offer to
Purchase, it is expected that, initially following the Merger, the business and
operations of the Company will be continued by the Surviving Corporation
substantially as they are currently being conducted, but within Tyco's Printed
Circuit Board Group. The directors of Purchaser will be the initial directors of
the Surviving Corporation, and the officers of the Company will be the initial
officers of the Surviving Corporation. Upon completion of the Offer, Tyco
intends to conduct a detailed review of the Company and its assets, corporate
structure, capitalization, operations, policies, management and personnel. After
such review, Tyco will determine what actions or changes, if any, would be
desirable in light of the circumstances which then exist, and reserves the right
to effect such actions or changes.
Except as described in this Offer to Purchase, none of Tyco, Parent or
Purchaser have any present plans or proposals that would relate to or result in
(i) any extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries, (ii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries, (iii) any change in the Company's Board of Directors or
management, (iv) any material change in the Company's capitalization or dividend
policy, (v) any other material change in the Company's corporate structure or
business, (vi) a class of securities of the Company being delisted from a
national securities exchange or ceasing to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association,
or (vii) a class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g) of the Exchange Act.
DISSENTERS' RIGHTS. No dissenters' rights are available in connection with
the Offer. Under Oregon law dissenters' rights are not available in a merger to
holders of any shares of stock which, like the Company's common stock, are
listed for quotation on the Nasdaq National Market System. Accordingly, if the
Company's common stock remains listed on the Nasdaq National Market System
following completion of the Offer, the Company's shareholders will have no
dissenters' rights in connection with the Merger. If, however, the Company's
common stock is not quoted on the Nasdaq National Market System on the record
date for determining shareholders eligible to vote on the Merger, shareholders
of the Company may have certain rights under the OBCA to dissent, and demand
appraisal of, and to obtain payment for the fair value of their Shares. Such
rights, if the statutory procedures were complied with, could lead to a judicial
determination of the fair value of the Shares (excluding any element of value
arising from the accomplishment or expectation of the Merger) to be required to
be paid in cash to such dissenting holders for their Shares. In addition, such
dissenting shareholders would be entitled to receive payment of a fair rate of
interest from the date of consummation of the Merger on the amount determined to
be the fair value of their Shares. In determining the fair value of the Shares,
an Oregon court would be required to take into account all relevant factors.
Accordingly, such determination could be based upon considerations other than,
or in addition to, the market value of the Shares. Therefore, the value so
determined in any appraisal proceeding could be different from the price being
paid in the Offer.
GOING PRIVATE TRANSACTIONS. The Merger would have to comply with any
applicable Federal law operative at the time. The Commission has adopted
Rule 13e-3 under the Exchange Act which is applicable to certain "going private"
transactions and which may under certain circumstances be applicable
24
to the Merger or another business combination following the purchase of Shares
pursuant to the Offer in which Purchaser, Parent or Tyco seeks to acquire the
remaining Shares not held by it. ▇▇▇▇▇▇▇▇▇ believes, however, that Rule 13e-3
will not be applicable to the Merger. If applicable, Rule 13e-3 requires, among
other things, that certain financial information concerning the Company and
certain information relating to the fairness of such transaction and the
consideration offered to minority shareholders in such transaction be filed with
the Commission and disclosed to shareholders prior to the consummation of such
transaction.
13. THE MERGER AGREEMENT; SHAREHOLDER'S AGREEMENT.
THE MERGER AGREEMENT
The following summary of certain provisions of the Merger Agreement, a copy
of which is filed as an exhibit to the Schedule 14D-1 referred to in
Section 18, is qualified in its entirety by reference to the text of the Merger
Agreement. Capitalized terms used in the following summary and not otherwise
defined in this Offer to Purchase shall have the meanings set forth in the
Merger Agreement.
THE MERGER. The Merger Agreement provides that, following the consummation
of the Offer and subject to the terms and conditions thereof, at the effective
time of the Merger (the "Effective Time") Purchaser shall be merged with and
into the Company and, as a result of the Merger, the separate corporate
existence of Purchaser shall cease, and the Company shall continue as the
Surviving Corporation and a direct subsidiary of Parent.
The respective obligations of Parent and Purchaser, on the one hand, and the
Company, on the other hand, to effect the Merger are subject to the satisfaction
or waiver at or prior to the Effective Time of each of the following conditions:
(i) Parent or Purchaser or their affiliates shall have consummated the Offer,
unless such failure to purchase is a result of a breach of Purchaser's
obligations to accept for payment or pay for Shares pursuant to the Offer in
violation of the terms of the Offer or of the Merger Agreement, (ii) the Merger
shall have been approved by the requisite vote of the shareholders, if required
by applicable law, in order to consummate the Merger, (iii) no order, statute,
rule, regulation, executive order, stay, decree, judgment or injunction shall
have been enacted, entered, promulgated or enforced by any court or other
Governmental Authority which prohibits or prevents the consummation of the
Merger which has not been vacated, dismissed or withdrawn prior to the Effective
Time, and (iv) all consents of any Governmental Authority required for the
consummation of the Merger and the transactions contemplated by the Agreement
shall have been obtained, other than where the failure to obtain such consents
is not reasonably likely to have a material adverse effect on the business,
assets, condition (financial or other), liabilities or results of operations of
the Surviving Corporation and its subsidiaries taken as a whole.
At the Effective Time of the Merger, (i) each issued and outstanding Share
(other than Shares that are held by shareholders properly exercising dissenters'
rights under the OBCA and Shares to be cancelled pursuant to clause (ii) below)
will be canceled and extinguished and be converted into the right to receive the
Per Share Amount in cash payable to the holder thereof, without interest, upon
surrender of the certificate representing such Share. From and after the
Effective Time, the holders of certificates evidencing ownership of Shares
outstanding immediately prior to the Effective Time shall cease to have any
rights with respect to such Shares except as otherwise provided for in the
Merger Agreement or by applicable Law, (ii) each Share owned by Tyco, Parent,
Purchaser or any direct or indirect wholly owned subsidiary of Tyco immediately
before the Effective Time shall be cancelled and extinguished, and no payment or
other consideration shall be made with respect thereto and (iii) the shares of
Purchaser common stock outstanding immediately prior to the Merger will be
converted into 1,000 shares of the common stock of the Surviving Corporation,
which shares will constitute all of the issued and outstanding capital stock of
the Surviving Corporation and shall be owned by Parent.
THE COMPANY'S BOARD OF DIRECTORS. The Merger Agreement provides that
promptly upon the purchase by Purchaser of Shares pursuant to the Offer (and
provided that the Minimum Condition has
25
been satisfied), Parent shall be entitled to designate such number of directors,
rounded up to the next whole number, on the Board of Directors of the Company as
will give Parent, subject to compliance with Section 14(f) of the Exchange Act,
representation on the Board of Directors of the Company equal to at least that
number of directors which equals the product of the total number of directors on
the Board of Directors of the Company (giving effect to the directors appointed
or elected pursuant to this sentence and including current directors serving as
officers of the Company) multiplied by the percentage that the aggregate number
of Shares beneficially owned by Parent or any affiliate of Parent (including
such Shares as are accepted for payment pursuant to the Offer, but excluding
Shares held by the Company) bears to the number of Shares outstanding. At such
time, if requested by Parent, the Company will also cause each committee of the
Board of Directors of the Company to include persons designated by Parent
constituting the same percentage of each such committee as Parent's designees
are of the Board of Directors of the Company. The Company shall, upon request by
▇▇▇▇▇▇, promptly increase the size of the Board of Directors of the Company or
exercise reasonable best efforts to secure the resignations of such number of
directors as is necessary to enable ▇▇▇▇▇▇'s designees to be elected to the
Board of Directors of the Company in accordance with terms of this section and
to cause Parent's designees so to be elected; provided, however, that, in the
event that Parent's designees are appointed to the Board of Directors of the
Company, until the Effective Time the Board of Directors of the Company shall
have at least two directors who are directors on the date of the Agreement, one
of whom will be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and one of whom will be a director who is
neither an officer of the Company nor a designee, shareholder, affiliate or
associate (within the meaning of the federal securities laws) of Tyco (such
directors, the "Independent Directors"). Notwithstanding anything in the Merger
Agreement to the contrary, subsequent to the designation of the directors by
▇▇▇▇▇▇ and prior to the Effective Time, the unanimous vote of the Independent
Directors shall be required to (i) amend or terminate the Merger Agreement on
behalf of the Company, (ii) exercise or waive any of the Company's rights or
remedies thereunder, (iii) extend the time for performance of Parent's
obligations thereunder, (iv) take any other action by the Company in connection
with the Merger Agreement required to be taken by the Board of Directors of the
Company or (v) amend the Company's Articles of Incorporation or the Company's
Bylaws, each as in effect on the date of the Merger Agreement.
SHAREHOLDERS' MEETING. Pursuant to the Merger Agreement, the Company will,
if required by applicable law in order to consummate the Merger, duly call, give
notice of, convene and hold a special meeting of its shareholders as promptly as
practicable following the consummation of the Offer for the purpose of voting
upon the Merger. The Merger Agreement provides that the Company will, if
required by applicable law in order to consummate the Merger, prepare and file
with the Commission and, when cleared by the Commission, will mail to
shareholders a proxy statement in connection with a meeting of the Company's
shareholders to vote upon the Company Proposals, or an information statement, as
appropriate, satisfying all requirements of the Securities Exchange Act.
If Purchaser acquires at least a majority of the Shares, it will have
sufficient voting power to approve the Merger, even if no other shareholder
votes in favor of the Merger.
The Merger Agreement provides that in the event that Parent or Purchaser
acquires at least 90% of each class of Shares, Parent, Purchaser and the Company
will take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after the expiration of the Offer, without a
meeting of shareholders of the Company, in accordance with Section 60.491 of the
OBCA.
OPTIONS, WARRANTS, CONVERTIBLE SECURITIES AND OTHER RIGHTS. The Merger
Agreement provides that each of the Company and Parent shall take all reasonable
actions necessary to provide that all then outstanding options to purchase
Shares, whether or not then exercisable or vested (each, a "Company Option"),
shall constitute the right to receive an amount in cash equal to the positive
difference, if any, between the Per Share Amount and the exercise price of the
Company Option multiplied by the number of Shares for which the Company Option
was exercisable immediately prior to the Effective Time, subject to reduction
only for any applicable withholding taxes. The Company shall provide a period of
at least 30 days prior to
26
the Effective Time during which Company Options may be exercised to the extent
exercisable at the Effective Time and, upon the expiration of such period, all
unexercised Company Options shall immediately terminate. The Company may, in its
sole discretion, permit holders of Company Options that are not exercisable
before the Effective Time to exchange such options for cash as described above.
In lieu of exercising Company Options as described above, the holders shall be
given the right, and the Company shall encourage the holders of Company Options
to exercise such right, to exchange such options for cash as described above. In
no event will any Company Options be exercisable after the Effective Time,
except to receive cash.
Each of the warrants of the Company, dated November 17, 1995, to purchase
Shares at a price of $12.00 per share, subject to adjustment (the "Company
Warrants"), shall be exercisable, from and after the Effective Time, for an
amount of cash equal to the Per Share Amount multiplied by the number of Shares
for which such warrant was exercisable immediately prior to the Effective Time.
Except as aforesaid, the exercise of any Company Warrant shall remain subject to
all terms and conditions provided in the applicable Company Warrant and/or
Warrant Agreement. Each of the Company and Parent shall take all action
necessary to provide that, upon consummation of the Merger, all Company Warrants
outstanding immediately prior to the Effective Time shall be exercisable for a
cash amount as aforesaid.
Under the Deferral Agreement, the Company's lenders and equipment lessors
have the right to convert a certain portion of the amounts owed to them under
the Deferral Agreement into shares of the Company's common stock at $5.77 per
share. The maximum number of Shares issuable pursuant to the exercise of the
rights contained in the Deferral Agreement is 1,743,559. This conversion right
cannot be exercised if the Offer is consummated before March 31, 2000. In
addition, the Company's Notes are convertible into shares of the Company's
common stock at $8.325 per share. The maximum number of Shares issuable upon
conversion of the Notes is 1,381,382.
The Company shall take such action as is necessary to cause the ending date
of the then current offering period under the Company's employee stock purchase
plan to be prior to the Effective Time and to terminate such plan as of the
Effective Time.
INTERIM OPERATIONS; COVENANTS. Pursuant to the Merger Agreement, the
Company has agreed that, except as expressly contemplated or provided by the
Merger Agreement or in the Company Disclosure Letter delivered by the Company to
Parent and Purchaser in connection with the Merger Agreement or consented to in
writing by Parent (which consent in the case of certain provisions shall not be
unreasonably denied), prior to the Effective Time, (i) the Company shall
conduct, and it shall cause the Company Subsidiaries to conduct, its or their
businesses in the ordinary course and consistent with past practice, and the
Company shall, and it shall cause the Company Subsidiaries to, use its or their
reasonable best efforts to preserve substantially intact its business
organization, to keep available the services of its present officers and
employees and to preserve the present commercial relationships of the Company
and the Company Subsidiaries with persons with whom the Company or the Company
Subsidiaries do significant business and (ii) without limiting the generality of
the foregoing, neither the Company nor any of the Company Subsidiaries will:
(A) amend or propose to amend its Articles of Incorporation or Bylaws
(or similar organizational documents);
(B) authorize for issuance, issue, grant, sell, pledge, dispose of or
propose to issue, grant, sell, pledge or dispose of any shares of, or any
options, warrants, commitments, subscriptions or rights of any kind to
acquire or sell any shares of, the capital stock or other securities of the
Company or any of the Company Subsidiaries, including, but not limited to,
any securities convertible into or exchangeable for shares of stock of any
class of the Company or any of the Company Subsidiaries, except for (a) the
issuance of shares pursuant to the exercise of Company Options outstanding
on the date of the Merger Agreement in accordance with their present terms,
(b) the issuance of shares pursuant to the Company Stock Purchase Plan as in
effect on the date of the Merger Agreement, (c) the issuance of shares
pursuant to the exercise of Company Warrants outstanding on the date of the
Merger Agreement in accordance with their present terms or (d) the issuance
of shares upon the conversion of the Notes in accordance with the indenture
relating to the Notes on its present terms;
27
(C) split, combine or reclassify any shares of its capital stock or
declare, pay or set aside any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of its
capital stock, other than dividends to the Company or any Company Subsidiary
(except that in no case may the Company or a Company Subsidiary declare or
pay any cross-border dividends), make or allow any Company subsidiary to
make any cross-border capital contributions, or directly or indirectly
redeem, purchase or otherwise acquire or offer to acquire any shares of its
capital stock or other securities (other than the repurchase of 100,000
Shares from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Company's President and Chief Operating
Officer, pursuant to that certain Stock Purchase Agreement dated
December 22, 1998 between the Company and ▇▇. ▇▇▇▇▇▇▇▇);
(D) (a) create or incur any indebtedness for borrowed money or issue any
debt securities, except pursuant to the Credit Agreements, or (b) make any
loans or advances, except in the ordinary course of business consistent with
past practice;
(E) (a) sell, pledge, dispose of or encumber any assets of the Company
or of any Company Subsidiary (except for (i) sales of assets in the ordinary
course of business and in a manner consistent with past practice,
(ii) pledges to secure debt permitted under paragraph (D),
(iii) dispositions of obsolete or worthless assets, and (iv) sales of
immaterial assets not in excess of $250,000 in the aggregate); (b) acquire
(by merger, consolidation, or acquisition of stock or assets) any
corporation, partnership or other business organization or division thereof;
(c) authorize any capital expenditures or purchases of fixed assets which
are, in the aggregate, in excess of $250,000 from the date hereof until
February 29, 2000; (d) assume, guarantee (other than guarantees of
obligations of the Company Subsidiaries entered into in the ordinary course
of business) or endorse or otherwise as an accommodation become responsible
for, the obligations of any person, or make any loans or advances, except in
the ordinary course of business consistent with past practice; or
(e) voluntarily incur any material liability or obligation (absolute,
contingent or otherwise) except in the ordinary course of business
consistent with past practice.
(F) increase in any manner the compensation of any of its officers or
employees (other than, except with respect to employees who are executive
officers or directors, in the ordinary course of business reasonably
consistent with past practice) or enter into, establish, amend or terminate
any employment, consulting, retention, change in control, collective
bargaining, bonus or other incentive compensation, profit sharing, health or
other welfare, stock option or other equity, pension, retirement, vacation,
severance, deferred compensation or other compensation or benefit plan,
policy, agreement, trust, fund or arrangement with, for or in respect of,
any shareholder, officer, director, employee, consultant or affiliate other
than, in any such case referred to above, as may be required by Law or as
required pursuant to the terms of agreements in effect on the date of the
Merger Agreement and other than arrangements with new employees (other than
employees who will be officers of the Company) hired in the ordinary course
of business consistent with past practice and providing for compensation
(other than equity-based compensation) and other benefits consistent with
those provided for similarly situated employees of the Company as of the
date hereof;
(G) alter through merger, liquidation, reorganization, restructuring or
in any other fashion the corporate structure or ownership of any Company
Subsidiary or the Company;
(H) except as may be required as a result of a change in law or as
required by the Commission, change any of the accounting principles or
practices used by it;
(I) make any tax election or settle or compromise any income tax
liability;
(J) pay, discharge or satisfy any material claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
other), other than the payment, discharge or satisfaction in the ordinary
course of business and consistent with past practice of liabilities
reflected or reserved against in, or contemplated by, the financial
statements (or the notes thereto) of the Company contained in
28
the Company SEC Filings filed prior to the date of the Merger Agreement or
incurred in the ordinary course of business consistent with past practice;
(K) except to the extent necessary for the exercise of its fiduciary
duties by the Board of Directors of the Company as set forth in, and
consistent with the provisions described under "No Solicitation" below,
waive, amend or allow to lapse any term or condition of any confidentiality
or "standstill" agreement to which the Company or any Company Subsidiary is
a party; or
(L) take, or agree in writing or otherwise to take, any of the foregoing
actions or any action which would make any of the representations or
warranties of the Company contained in the Merger Agreement untrue or
incorrect in any material respect at or prior to the Effective Time.
The Merger Agreement further provides that the Company shall, and the Company
shall cause each of the Company Subsidiaries to, comply with all Laws applicable
to it or any of its properties, assets or business and to maintain in full force
and effect all the Company Permits necessary for such business, except in any
such case for any failure so to comply or maintain that would not reasonably be
expected to result in a Material Adverse Effect.
NO SOLICITATION. Pursuant to the Merger Agreement, the Company shall not,
directly or indirectly, through any officer, director, employee, representative
or agent of the Company or any of the Company Subsidiaries, solicit or encourage
the initiation of (including by way of furnishing information) any inquiries or
proposals regarding any Company Takeover Proposal that if consummated would
constitute an Alternative Transaction (as defined below). The Board of Directors
of the Company is not prevented from (i) furnishing information to a third party
which has made a BONA FIDE Company Takeover Proposal that is a Superior Proposal
(as defined below) not solicited in violation of the Merger Agreement, provided
that such third party has executed an agreement with confidentiality provisions
substantially similar to those then in effect between the Company and an
affiliate of Parent (the "Confidentiality Agreement") or (ii) subject to
compliance with the other terms of the Merger Agreement's "No Solicitation"
provision, considering and negotiating a BONA FIDE Company Takeover Proposal
that is a Superior Proposal not solicited in violation of the Merger Agreement;
PROVIDED THAT, as to each of clauses (i) and (ii), the Board of Directors of the
Company reasonably determines in good faith (after due consultation with
independent counsel, which may be Stoel Rives LLP) that it is or is reasonably
likely to be required to do so in order to discharge properly its fiduciary
duties. For purposes of the Merger Agreement, a "Superior Proposal" means any
proposal made by a party to acquire, directly or indirectly, for consideration
consisting of cash and/or securities, all of the equity securities of the
Company entitled to vote generally in the election of directors or all the
assets of the Company (other than a DE MINIMUS amount of assets not material to
the conduct of the Company's business), on terms which the Board of Directors of
the Company reasonably believes (after consultation with Financial Advisor,
McDonald Investments or another financial advisor of nationally recognized
reputation) to be more favorable from a financial point of view to its
shareholders than the Offer and the Merger taking into account at the time of
determination all factors relating to such proposed transaction deemed relevant
by the Board of Directors of the Company, including, without limitation, the
financing thereof, the proposed timing thereof and all other conditions thereto
and any changes to the financial terms of the Merger Agreement proposed by
▇▇▇▇▇▇ and Purchaser. "Alternative Transaction" means any of (i) a transaction
pursuant to which any person (or group of persons) other than Parent or its
affiliates (a "Third Party") acquires or would acquire more than 20% of the
outstanding shares of any class of equity securities of the Company, whether
from the Company or pursuant to a tender offer or exchange offer or otherwise,
(ii) a merger or other business combination involving the Company pursuant to
which any Third Party acquires more than 20% of the outstanding equity
securities of the Company or the entity surviving such merger or business
combination, (iii) any transaction pursuant to which any Third Party acquires or
would acquire control of assets (including for this purpose the outstanding
equity securities of Company Subsidiaries and securities of the entity surviving
any merger or business combination including any of the Company Subsidiaries) of
the Company or any Company Subsidiaries having a fair market value (as
determined by the Board of Directors of the Company in good
29
faith) equal to more than 20% of the fair market value of all the assets of the
Company and the Company Subsidiaries, taken as a whole, immediately prior to
such transaction, or (iv) any other consolidation, business combination,
recapitalization or similar transaction involving the Company or any of the
Company Subsidiaries, other than the transactions contemplated by this
Agreement; PROVIDED, HOWEVER, that the term Alternative Transaction shall not
include any acquisition of securities by a broker dealer in connection with a
BONA FIDE public offering of such securities. Notwithstanding anything to the
contrary contained in the Merger Agreement, prior to the Effective Time, the
Company may, in connection with a possible Company Takeover Proposal, refer any
third party to the "No Solicitation" and "Fees and Expenses" sections of the
Merger Agreement and make a copy of these sections available to a third party.
The Merger Agreement requires the Company to immediately notify Parent and
Purchaser after receipt of any Company Takeover Proposal, or any modification of
or amendment to any Company Takeover Proposal, or any request for nonpublic
information relating to the Company or any of the Company Subsidiaries in
connection with a Company Takeover Proposal or for access to the properties,
books or records of the Company or any subsidiary by any person or entity that
informs the Board of Directors of the Company or such subsidiary that it is
considering making, or has made, a Company Takeover Proposal. Such notice to
Parent and Purchaser shall be made orally and in writing, and shall indicate the
identity of the person making the Company Takeover Proposal or intending to make
the Company Takeover Proposal or requesting non-public information or access to
the books and records of the Company, the terms of any such Company Takeover
Proposal or modification or amendment to a Company Takeover Proposal, and
whether the Company is providing or intends to provide the person making the
Company Takeover Proposal with access to information concerning the Company as
provided above. The Company shall also immediately notify Parent and Purchaser,
orally and in writing, if it enters into negotiations concerning any Company
Takeover Proposal.
Except as set forth in the Merger Agreement, neither the Board of Directors
of the Company nor any committee thereof shall (i) withdraw or modify, or
indicate publicly its intention to withdraw or modify, in a manner adverse to
Parent, the approval or recommendation by such Board of Directors or such
committee of the Offer or the Merger, (ii) approve or recommend, or indicate
publicly its intention to approve or recommend, any Company Takeover Proposal or
(iii) cause the Company to enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement (each, a "Company
Acquisition Agreement") related to any Company Takeover Proposal.
Notwithstanding the foregoing, in the event that prior to the Effective Time the
Board of Directors of the Company determines in good faith, after due
consultation with outside counsel, that the failure to do so constitutes or is
reasonably likely to constitute a breach of its fiduciary duties to the
Company's shareholders under applicable law, the Board of Directors of the
Company may approve or recommend a Superior Proposal and, in connection
therewith, withdraw or modify its approval or recommendation of the Offer or the
Company Proposals, but only at a time that is after the third business day
following ▇▇▇▇▇▇'s receipt of written notice advising Parent that the Board of
Directors of the Company has received a Superior Proposal and, in the case of
any previously received Superior Proposal that has been materially modified or
amended, such modification or amendment and specifying the material terms and
conditions of such Superior Proposal, modification or amendment.
The Merger Agreement does not restrict the Company from taking and
disclosing to its shareholders a position contemplated by Rule 14e-2(a)
promulgated under the Securities Exchange Act or from making any disclosure to
the Company's shareholders if, in the good faith judgment of the Board of
Directors of the Company, with the advice of outside counsel, failure so to
disclose could be determined to be a breach of its fiduciary duties to the
Company's shareholders under applicable law; PROVIDED, HOWEVER, that neither the
Company nor its Board of Directors nor any committee thereof shall, except as
permitted by the above, withdraw or modify, or indicate publicly its intention
to withdraw or modify, its position with respect to the Offer or the Merger or
approve or recommend, or indicate publicly its intention to approve or
recommend, a Company Takeover Proposal.
30
The Company shall advise its officers and directors and any investment
banker or attorney retained by the Company in connection with the transactions
contemplated by the Merger Agreement of the restrictions set forth above.
INDEMNIFICATION AND INSURANCE. From and after the Effective Time, the
Surviving Corporation shall indemnify and hold harmless all past and present
officers and directors (the "Indemnified Parties") of the Company and of the
Company Subsidiaries to the full extent such persons may be indemnified by the
Company pursuant to Oregon law, the Company's Articles of Incorporation and
Bylaws, as each is in effect on October 26, 1999, for acts and omissions
(x) arising out of or pertaining to the transactions contemplated by the Merger
Agreement or arising out of the Offer Documents or (y) otherwise with respect to
any acts or omissions occurring or arising at or prior to the Effective Time and
shall advance reasonable litigation expenses incurred by such persons in
connection with defending any action arising out of such acts or omissions,
PROVIDED that such persons provide the requisite affirmations and undertaking,
as set forth in applicable provisions of the OBCA.
In addition, Parent will provide, or cause the Surviving Corporation to
provide, for a period of not less than six years after the Effective Time, the
Company's current directors and officers an insurance and indemnification policy
that provides coverage for events occurring or arising at or prior to the
Effective Time (the "D&O Insurance") that is no less favorable than the existing
policy or, if substantially equivalent insurance coverage is unavailable, the
best available coverage; PROVIDED, HOWEVER, that Parent and the Surviving
Corporation shall not be required to pay an annual premium for the D&O Insurance
in excess of 200% of the annual premium currently paid by the Company for such
insurance, but in such case shall purchase as much such coverage as possible for
such amount.
The Merger Agreement provides that the foregoing provisions are intended to
benefit the Indemnified Parties and shall be binding on all successors and
assigns of Parent, Purchaser, the Company and the Surviving Corporation. Parent
has agreed to guarantee the performance by the Surviving Corporation of the
indemnified obligations set forth above, which guaranty is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the bankruptcy or insolvency of the Surviving Corporation or any
person. The Indemnified Parties shall be intended third-party beneficiaries of
the foregoing provisions on indemnification and insurance.
REPRESENTATIONS AND WARRANTIES. Pursuant to the Merger Agreement, the
Company has made customary representations and warranties to Parent and
Purchaser with respect to, among other things, its organization, capitalization,
subsidiaries, authority relative to the Merger Agreement, governmental approvals
with respect to the Merger Agreement, the absence of contractual or legal
violations resulting from the Agreement, securities filings, financial
statements, the absence of material adverse effects on the Company and certain
other events since June 30, 1999, the absence of undisclosed liabilities,
compliance with laws, governmental permits, litigation, material contracts,
employee benefit plans, taxes, intellectual property, disclosure documents,
labor matters, the absence of limitations on conduct of business, title to
property, leased premises, environmental matters, insurance, product liability
and recalls, customers, interested party transactions, finders and investment
bankers, fairness opinion, takeover statutes, full disclosure, year 2000
readiness, absence of rights agreements and absence of certain unlawful
payments.
REASONABLE BEST EFFORTS. Under the Merger Agreement, each of the Company,
Parent and Purchaser has agreed to use reasonable best efforts to take all
actions and to do all things necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions contemplated by the
Merger Agreement, including, but not limited to, (i) obtaining all consents from
governmental authorities and other third parties required for the consummation
of the Offer and the Merger and the transactions contemplated thereby and
(ii) timely making all necessary filings under the HSR Act. The Company, Parent
and Purchaser have also agreed to use reasonable best efforts to take all
actions and to do all things necessary to satisfy the other conditions of the
closing of the Merger.
31
PUBLIC ANNOUNCEMENTS. So long as the Merger Agreement is in effect, the
Company, on the one hand, and Parent and Purchaser, on the other, have agreed
not to issue or cause the publication of any press release or any other
announcement with respect to the Offer or the Merger or the transactions
contemplated thereby without the consent of the other party (such consent not to
be unreasonably withheld or delayed), except where such release or announcement
is required by applicable law or pursuant to any applicable listing agreement
with, or rules or regulations of, any stock exchange on which shares of the
capital stock of the Company or Tyco, as the case may be, are listed or the
NASD, or other applicable securities exchange, in which case the parties will
consult prior to making the announcement.
TERMINATION; FEES. The Merger Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval by the shareholders of
the Company of the Merger herein:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company if any Governmental Authority shall
have issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the consummation of the
transactions contemplated by the Merger Agreement and such order, decree or
ruling or other action shall have become final and nonappealable;
(c) by Parent if:
(i) the Company shall have breached or failed to perform in any
material respect any of its covenants or other agreements contained in
the Merger Agreement, which breach or failure to perform is incapable of
being cured or has not been cured within five days after the giving of
written notice thereof to the Company (but not later than the expiration
of the 20 business day period provided for the Offer above);
(ii) any representation or warranty of the Company shall not have
been true and correct when made (without for this purpose giving effect
to qualifications of materiality contained in such representation and
warranty), if such failure to be true and correct, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect;
(iii) any representation or warranty of the Company shall cease to be
true and correct at any later date (without for this purpose giving
effect to qualifications of materiality contained in such representation
and warranty) as if made on such date (other than representations and
warranties made as of a specified date) other than as a result of a
breach or failure to perform by the Company of any of its covenants or
agreements under the Merger Agreement if such failure to be true and
correct, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect; PROVIDED, HOWEVER, that such
representation or warranty is incapable of being cured or has not been
cured within five days after the giving of written notice thereof to the
Company (but not later than the expiration of the 20 business day period
provided for the Offer above);
PROVIDED, HOWEVER, that the right to terminate the Merger Agreement pursuant
to this clause (c) shall not be available to Parent if Purchaser or any
other affiliate of Parent shall acquire Shares pursuant to the Offer;
(d) by Parent if, whether or not permitted to do so by the Merger
Agreement, (i) the Board of Directors of the Company or any committee
thereof shall have withdrawn or modified in a manner adverse to Parent or
Purchaser its approval or recommendation of the Offer or any of the Company
Proposals; (ii) the Board of Directors of the Company or any committee
thereof shall have approved or recommended to the shareholders of the
Company any Company Takeover Proposal or Alternative Transaction; (iii) the
Board of Directors of the Company or any committee thereof shall have
approved or recommended that the shareholders of the Company tender their
Shares in any tender or exchange offer that is an Alternative Transaction;
(iv) the Board of Directors of the Company or any
32
committee thereof shall have taken any position or make any disclosures to
the Company's shareholders permitted pursuant to the "No Solicitation"
provisions of the Merger Agreement described above which has the effect of
any of the foregoing; or (v) the Board of Directors of the Company or any
committee thereof shall have resolved to take any of the foregoing actions;
(e) by either Parent or the Company if, as the result of the failure of
the Minimum Condition or any of the other conditions set forth in
Section 15, the Offer shall have terminated or expired in accordance with
its terms without Purchaser having purchased any Shares pursuant to the
Offer, PROVIDED that if the failure to satisfy any conditions set forth in
Section 15 shall be a basis for termination of the Merger Agreement under
any other clause of this section, a termination pursuant to this clause
shall be deemed a termination under such other clause;
(f) by either Parent or the Company if the Offer shall not have been
consummated on or before February 29, 2000, PROVIDED that the right to
terminate the Merger Agreement pursuant to this clause shall not be
available to any party whose failure to perform any of its obligations under
the Merger Agreement results in the failure of the Offer to be consummated
by such time;
(g) by the Company, if Parent or Purchaser shall have breached or failed
to perform in any material respect any of its representations, warranties,
covenants or other agreements contained in the Merger Agreement, which
breach or failure to perform is incapable of being cured or has not been
cured within five days after the giving of written notice thereof to Parent;
or
(h) by the Company, in order to accept a Superior Proposal, PROVIDED
that the Board of Directors of the Company reasonably determines in good
faith (after due consultation with independent counsel, which may be Stoel
Rives LLP), that it is or is reasonably likely to be required to accept such
proposal in order to discharge properly its fiduciary duties; the Company
has given Parent three business days' advance notice of the Company's
intention to accept such Superior Proposal; the Company shall in fact accept
such proposal; the Company shall have paid the fee and expenses contemplated
by the Merger Agreement; and the Company shall have complied in all respects
with the provisions of the section regarding "No Solicitation."
In the event of termination of the Merger Agreement and the abandonment of
the Offer or the Merger, the Merger Agreement (other than certain sections)
shall become void and of no effect with no liability on the part of any party
hereto (or of any of its directors, officers, employees, agents, legal or
financial advisors or other representatives); PROVIDED, HOWEVER, that no such
termination shall relieve any party thereto from any liability for any willful
breach of the Merger Agreement prior to termination. If the Merger Agreement is
terminated as provided herein, each party shall use all reasonable best efforts
to redeliver all documents, work papers and other material (including any copies
thereof) of any other party relating to the transactions contemplated thereby,
whether obtained before or after the execution hereof, to the party furnishing
the same.
The Company agrees that if the Merger Agreement is terminated pursuant to
(i) the provisions described in clause (d) above;
(ii) the provision described in clause (h) above; or
(iii) the provision described in clause (e) or (f) above and, with
respect to this clause (iii), (A) at the time of such termination, there
shall be outstanding a BONA FIDE Company Takeover Proposal which has been
made directly to the shareholders of the Company or has otherwise become
publicly known or there shall be outstanding an announcement by any credible
third party of a BONA FIDE intention to make an Acquisition Proposal (in
each case whether or not conditional and whether or not such proposal shall
have been rejected by the Board of Directors of the Company) or (B) an
Alternative Transaction shall be publicly announced by the Company or any
third party within 12 months following the date of such termination and such
transaction shall at any time thereafter be
33
consummated on substantially the terms theretofore announced, then the
Company shall pay to Parent the sum of $5 million. Any payment required by
this section shall be made as promptly as practicable but in no event later
than two business days following termination of the Merger Agreement in the
case of clause (i) above, upon termination of the Merger Agreement in the
case of clause (ii) above and, in the case of clause (iii) above, upon
consummation of such Company Takeover Proposal, and shall be made by wire
transfer of immediately available funds to an account designated by Parent.
The Company further agrees that if the Merger Agreement is terminated
pursuant to clause (c)(i) above,
(i) the Company will pay to Parent, as promptly as practicable but in
no event later than two business days following termination of the Merger
Agreement, the amount of all documented and reasonable costs and expenses
incurred by Parent, Purchaser and their affiliates (including but not
limited to fees and expenses of counsel and accountants and out-of-pocket
expenses (but not fees) of financial advisors) in an aggregate amount not to
exceed $500,000 in connection with the Merger Agreement or the transactions
contemplated hereby ("Parent Expenses"); and
(ii) in the event that the Company consummates a Company Takeover
Proposal (whether or not solicited in violation of the Merger Agreement)
which is publicly announced within one year from the date of termination of
the Merger Agreement, the Company will pay to Parent the sum of $5 million,
which payment shall be made not later than two business days following
consummation of such Company Takeover Proposal.
If the Merger Agreement is terminated pursuant to clause (c)(ii), the
Company will pay to Parent, as promptly as practicable but in no event later
than two business days following termination of the Merger Agreement, the Parent
Expenses.
GUARANTEE. Tyco has guaranteed the payment by Purchaser of the Per Share
Amount and any other amounts payable by Purchaser pursuant to the Merger
Agreement and has agreed to cause Purchaser to perform all of its other
obligations under the Merger Agreement in accordance with its terms.
SHAREHOLDER'S AGREEMENT
As an inducement to Parent and the Purchaser entering into the Agreement
with the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the "Shareholder"), who owns
approximately 53.0% of the Shares on a diluted basis, has entered into a
Shareholder's Agreement (the "Shareholder's Agreement") with Parent and the
Purchaser.
34
The following summary of certain provisions of the Shareholder's Agreement,
a copy of which is filed as an exhibit to the Schedule 14D-1, is qualified in
its entirety by reference to the text of the Shareholder's Agreement.
AGREEMENT TO TENDER. The Shareholder has agreed that he shall tender his
Shares in the Offer and that he shall not withdraw any Shares so tendered;
PROVIDED, HOWEVER, that if the Shareholder is unable to tender any Shares that
are pledged to KeyBank National Association ("KeyBank") the Shareholder shall
not be obligated to tender such Shares; PROVIDED FURTHER that the Shareholder
shall sell such Shares to Purchaser, and Purchaser shall purchase such Shares
from the Shareholder, at the Per Share Amount prior to the Effective Time
promptly upon termination of the pledge agreements between the Shareholder and
KeyBank relating to such Shares. Purchaser hereby agrees that, if the Offer is
consummated, it will satisfy the liabilities secured by the pledge of Shares to
KeyBank prior to the Effective Time.
The Shareholder shall tender his Shares (other than the Shares pledged to
KeyBank) not later than fourteen business days following commencement of the
Offer, other than with respect to the Shares subject to the CBL Insured Credit
Facility Agreement (the "CBL Agreement") which shall be tendered not later than
one business day prior to the initially scheduled expiration of the Offer;
PROVIDED, HOWEVER, that if the Shares subject to the CBL Agreement are not
tendered as aforesaid, any damages of Purchaser shall be limited to $5,000,000.
In connection therewith, the Company has agreed with, and covenanted to,
Parent that the Company shall not register the transfer of any certificate
representing any of the Shareholder's Shares, unless such transfer is made to
Parent or the Purchaser or otherwise in compliance with the Shareholder's
Agreement.
GRANT OF IRREVOCABLE PROXY. Subject to the provisions of the pledge
agreements with KeyBank, the Shareholder has irrevocably granted to, and
appointed, Parent and any individual designated by Parent as the Shareholder's
proxy and attorney-in-fact, to vote the Shareholder's Shares, or grant a consent
or approval in respect of the Shares, at any meeting of shareholders of the
Company or in any other circumstances upon which the Shareholder's vote, consent
or other approval is sought, against (i) any merger agreement or merger (other
than the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, joint venture, recapitalization,
dissolution, liquidation or winding up of or by the Company and (ii) any
amendment of the Company's Articles of Incorporation or Bylaws or other proposal
or transaction (including any consent solicitation to remove or elect any
directors of the Company) involving the Company or any of its subsidiaries,
which amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify, or result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under or with respect to, the Offer, the Merger, the Merger Agreement or any of
the other transactions contemplated by the Merger Agreement.
REPRESENTATIONS, WARRANTIES, COVENANTS AND OTHER AGREEMENTS. The
Shareholder has made certain representations and warranties in the Shareholder's
Agreement, including with respect to (i) ownership of his Shares, (ii) the
authority to enter into and perform his obligations under the Shareholder's
Agreement and the absence of required consents and statutory or contractual
conflicts or violations, (iii) the absence of liens, claims, security interests,
proxies, voting trusts or other arrangements or any other encumbrances on or in
respect of the Shares, except for those disclosed to Purchaser (iv) finder's
fees, and (v) an acknowledgment of ▇▇▇▇▇▇'s reliance upon the Shareholder's
execution of the Shareholder's Agreement in entering into, and causing Purchaser
to enter into, the Merger Agreement. In addition, the Shareholder has agreed not
to transfer, or consent to any transfer of any or all of the Shareholder's
Shares or any interest therein (except as contemplated by the Shareholder's
Agreement), enter into any contract, option or other agreement or understanding
with respect to any transfer of any or all of his Shares or any interest
therein, grant any proxy, power-of-attorney or other authorization or consent in
or with respect to the Shares or any interest therein except with respect to
election of directors at the Company's annual meeting, deposit the Shares into a
voting trust or enter into a voting arrangement or agreement with
35
respect to the Shares or take any other action that would in any way restrict,
limit or interfere with its obligations under the Shareholder's Agreement. The
Shareholder has also agreed, directly or indirectly, not to solicit, initiate or
encourage the submission of any Acquisition Proposal or participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Acquisition Proposal.
TERMINATION. The Shareholder's Agreement, and all rights and obligations
thereunder, shall terminate upon the earlier of (a) the date upon which the
Merger Agreement is terminated in accordance with its terms or (b) the date that
Parent or Purchaser shall have purchased and paid for the Shares of the
Shareholder pursuant to the terms of the Shareholder's Agreement; PROVIDED,
HOWEVER, that the termination of the Shareholder's Agreement shall not relieve
any party of liability for breach of such agreement prior to its termination.
14. DIVIDENDS AND DISTRIBUTIONS. As discussed in Section 13, the Merger
Agreement provides that the Company will not take certain actions such as paying
dividends on, or making any other distributions in respect of, any of its
capital stock, splitting, combining, or reclassifying any of its capital stock
or purchasing, redeeming, or otherwise acquiring any shares of capital stock of
the Company.
If on or after the date of the Merger Agreement and notwithstanding the
provisions thereof, the Company should (i) split, combine or otherwise change
the Shares or its capitalization, (ii) acquire presently outstanding Shares or
otherwise cause a reduction in the number of outstanding Shares or (iii) issue
or sell any shares of any class or any securities convertible into any such
shares, or any rights, warrants or options to acquire any such shares or
convertible securities (other than Shares issued pursuant to, and in accordance
with the terms in effect on the date of the Merger Agreement of, stock options,
warrants or convertible securities issued prior to such date), then, without
prejudice to Purchaser's rights under the Merger Agreement, Purchaser (subject
to the Merger Agreement), in its sole discretion, may make such adjustments in
the Offer price and other terms of the Offer as it deems appropriate to reflect
such action.
If, on or after the date of the Merger Agreement and notwithstanding the
provisions thereof, the Company should declare or pay any cash, non-cash or
stock dividend or other distribution on, or issue any rights with respect to,
the Shares, payable or distributable to shareholders of record on a date prior
to the transfer to the name of Purchaser or its nominees or transferees on the
Company's stock transfer records of the Shares purchased pursuant to the Offer,
then, without prejudice to Purchaser's rights under the Merger Agreement,
(i) the price per Share payable by Purchaser pursuant to the Offer may, subject
to the provisions of the Merger Agreement, in the sole discretion of Purchaser,
be reduced by the amount of any such cash dividend or distribution and (ii) any
non-cash dividend, distribution or right to be received by the tendering
shareholders will (a) be received and held by the tendering shareholders for the
account of Purchaser and will be required to be promptly remitted and
transferred by each tendering shareholder to the Depositary for the account of
Purchaser, accompanied by appropriate documentation of transfer or (b) at the
direction of Purchaser, be exercised for the benefit of Purchaser, in which case
the proceeds of such exercise will promptly be remitted to Purchaser. Pending
such remittance, Purchaser will be entitled, subject to applicable law, to all
rights and privileges as owner of any such non-cash dividend, distribution or
right or such proceeds and may withhold the entire purchase price or deduct from
the purchase price the amount or value thereof, as determined by Purchaser in
its sole discretion.
15. CERTAIN CONDITIONS OF THE OFFER. Notwithstanding any other term of the
Offer or the Merger Agreement, provided that no Shares have theretofore been
accepted for payment or paid for, Purchaser shall not be required to accept for
payment or pay for, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) of the Exchange Act, any Shares and may
terminate or amend the Offer, if (i) the conditions that there shall be validly
tendered and not withdrawn prior to the expiration of the Offer a number of
Shares which represents at least 51% of the total number of issued and
36
outstanding Shares on a fully diluted basis (excluding, however, shares of the
Company's common stock issuable (x) upon exercise of conversion rights pursuant
to the Deferral Agreement and (y) upon exercise of Company Options that are not
exercisable prior to March 1, 2000), shall not have been satisfied (the "Minimum
Condition") or (ii) any applicable waiting period under the HSR Act shall not
have expired or been terminated prior to the expiration of the Offer or
(iii) at any time after the date of the Merger Agreement and before the time of
payment for any such Shares (whether or not any Shares have theretofore been
accepted for payment or paid for pursuant to the Offer), any of the following
conditions exists:
(a) there shall be in effect an injunction or other order, decree,
judgment or ruling by a Governmental Authority of competent jurisdiction or
a Law shall have been promulgated, or enacted by a Governmental Authority of
competent jurisdiction which in any such case (i) restrains or prohibits the
making or consummation of the Offer or the consummation of the Merger,
(ii) prohibits or restricts the ownership or operation by Parent (or any of
its affiliates or subsidiaries) of any portion of the Company's business or
assets or Tyco's business or assets related to the printed circuit board
business, which is material to the printed circuit board business of all
such entities taken as a whole or which would substantially deprive Parent
and/or its affiliates or subsidiaries of the benefit of ownership of the
Company's business or assets, or compels Parent (or any of its affiliates or
subsidiaries) to dispose of or hold separate any portion of the Company's
business or assets, or Tyco's business or assets relating to the printed
circuit board business, which is material to the printed circuit board
business of all such entities taken as a whole or which would substantially
deprive Parent and/or its affiliates or subsidiaries of the benefit of
ownership of the Company's business or assets, (iii) imposes material
limitations on the ability of Purchaser effectively to acquire or to hold or
to exercise full rights of ownership of the Shares, including, without
limitation, the right to vote Shares purchased by Purchaser pursuant to the
Offer or the Merger on all matters properly presented to the shareholders of
the Company, or (iv) imposes any material limitations on the ability of
Parent and/or its affiliates or subsidiaries effectively to control in any
material respect the business and operations of the Company, or (v) seeks to
restrict any future business activity by Parent (or any of its affiliates)
relating to the printed circuit board business, including, without
limitation, by requiring the prior consent of any person or entity
(including any Governmental Authority) to future transactions by Parent (or
any of its affiliates); or
(b) there shall have been instituted, pending or threatened an action by
a Governmental Authority seeking to restrain or prohibit the making or
consummation of the Offer or the consummation of the Merger or to impose any
other restriction, prohibition or limitation referred to in the foregoing
paragraph (a); or
(c) the Merger Agreement shall have been terminated by the Company or
Parent in accordance with its terms; or
(d) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in the Shares on the NASDAQ, (ii) a
declaration of a banking moratorium or any general suspension of payments in
respect of banks in the United States or (iii) in the case of any of the
foregoing existing at the time of the execution of the Merger Agreement, a
material acceleration or worsening thereof; or
(e) Parent and the Company shall have agreed that Purchaser shall amend
the Offer to terminate the Offer or postpone the payment for Shares pursuant
thereto; or
(f) any of the representations and warranties made by the Company in the
Merger Agreement shall not have been true and correct in all material
respects when made, or shall thereafter have ceased to be true and correct
in all material respects as if made as of such later date (other than
representations and warranties made as of a specified date) (in each case
without for this purpose giving effect to qualifications of materiality
contained in such representation and warranty), or the Company shall not in
all material respects have performed each obligation and agreement and
37
complied with each covenant to be performed and complied with by it under
the Merger Agreement, if such failure to be true and correct or such failure
to perform, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect, PROVIDED, HOWEVER, that such breach or
failure to perform is incapable of being cured or has not been cured within
five days after the giving of written notice thereof to the Company,
PROVIDED, HOWEVER, that no such 5-day cure period shall require extension of
the Offer beyond the initial 20 business days provided in the Merger
Agreement; or
(g) the Company's Board of Directors shall have modified or amended its
recommendation of the Offer in any manner adverse to Parent or shall have
withdrawn its recommendation of the Offer, or shall have recommended
acceptance of any Company Takeover Proposal or shall have resolved to do any
of the foregoing; or
(h) (i) any new group shall have been formed which beneficially owns
more than 15% of the outstanding Shares and which does not tender the Shares
beneficially owned by it in the Offer; or (ii) any person/group (other than
Parent or one or more of its affiliates) shall have entered into an
agreement in principle or definitive agreement with the Company with respect
to a tender or exchange offer for any Shares or a merger, consolidation or
other business combination with or involving the Company; or
(i) any change, development, effect or circumstance shall have occurred
or be threatened that would reasonably be expected to have a Material
Adverse Effect with respect to the Company; or
(j) the Company shall commence a case under any chapter of Title XI of
the United States Code or any similar law or regulation; or a petition under
any chapter of Title XI of the United States Code or any similar law or
regulation is filed against the Company which is not dismissed within 2
business days.
The foregoing conditions are for the sole benefit of Parent and Purchaser
and may be asserted by Parent or Purchaser regardless of the circumstances
giving rise to any such condition and may be waived by Parent or Purchaser, in
whole or in part, at any time and from time to time, in the sole discretion of
Parent. The failure by Parent or Purchaser at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any right, the waiver of such
right with respect to any particular facts or circumstances shall not be deemed
a waiver with respect to any other facts or circumstances, and each right shall
be deemed an ongoing right which may be asserted at any time and from time to
time.
Should the Offer be terminated pursuant to the foregoing provisions, all
tendered Shares not theretofore accepted for payment shall forthwith be returned
to the tendering shareholders.
16. CERTAIN LEGAL MATTERS.
GENERAL. Except as described in this Section 16, based on a review of
publicly available filings by the Company with the Commision and other publicly
available information concerning the Company, neither Parent nor Purchaser is
aware of any license or regulatory permit that appears to be material to the
business of the Company and that might be adversely affected by Purchaser's
acquisition of Shares pursuant to the Offer, or of any approval or other action
by any governmental, administrative or regulatory agency or authority, domestic
or foreign, that would be required for the acquisition or ownership of Shares by
Purchaser pursuant to the Offer. Should any such approval or other action be
required, it is presently contemplated that such approval or action would be
sought, except as described below under "State Takeover Laws." While Purchaser
does not currently intend to delay acceptance for payment of Shares tendered
pursuant to the Offer pending the outcome of any such matter, there can be no
assurance that any such approval or other action, if required, would be obtained
without substantial conditions or that adverse consequences would not result to
the Company's business or that certain parts of the Company's business would not
have to be disposed of in the event that such approvals were not obtained or
such other actions were not taken or in order to obtain any such approval or
other action. If certain types of adverse
38
action are taken with respect to the matters discussed below, Purchaser may
decline to accept for payment or pay for any Shares tendered. See Section 15.
STATE TAKEOVER LAWS. The Company and certain of its subsidiaries conduct
business in a number of states throughout the United States, some of which have
adopted laws and regulations applicable to offers to acquire shares of
corporations that are incorporated or have substantial assets, shareholders
and/or a principal place of business in such states. In ▇▇▇▇▇ ▇. MITE CORP., the
Supreme Court of the United States held that the Illinois Business Takeover
Statute, which involved state securities laws that made the takeover of certain
corporations more difficult, imposed a substantial burden on interstate commerce
and was therefore unconstitutional. In CTS CORP. V. DYNAMICS CORP. OF AMERICA,
however, the Supreme Court of the United States held that a state may, as a
matter of corporate law and, in particular, those laws concerning corporate
governance, constitutionally disqualify a potential acquiror from voting on the
affairs of a target corporation without prior approval of the remaining
shareholders, PROVIDED that such laws were applicable only under certain
conditions, in particular, that the corporation has a substantial number of
shareholders in and is incorporated under the laws of such state.
The Company is incorporated under the laws of the State of Oregon. In
general, Sections 60.825-60.845 of the OBCA ("Section 60.825") prevent an
"interested shareholder" (including a person who owns or has the right to
acquire 15% or more of the corporation's outstanding voting stock) from engaging
in a "business combination" (defined to include mergers and certain other
actions) with an Oregon corporation for a period of three years following the
date such person became an interested shareholder. The Board of Directors of the
Company has taken all appropriate action so that neither Parent nor Purchaser is
an "interested shareholder" pursuant to Section 60.825.
The Company was subject to the Oregon Control Share Act (the "Control Share
Act"). The Control Share Act generally provides that a person (the "Acquiror")
who acquires voting stock of an Oregon corporation in a transaction (other than
a transaction in which voting shares are acquired from the issuing public
corporation) that results in the Acquiror holding more than 20%, 33 1/3% or 50%
of the total voting power of the corporation (a "Control Share Acquisition")
cannot vote the shares it acquires in the Control Share Acquisition except in
certain circumstances. The Company's Board of Directors, at its meeting on
October 25, 1999, amended the Company's Bylaws to provide that the Control Share
Act shall not apply to the Company.
Neither Parent nor Purchaser has determined whether any other state takeover
laws and regulations will by their terms apply to the Offer, and, except as set
forth above, neither Parent nor Purchaser has presently sought to comply with
any state takeover statute or regulation. Parent and Purchaser reserve the right
to challenge the applicability or validity of any state law or regulation
purporting to apply to the Offer or the Merger, and neither anything in this
Offer nor any action taken in connection herewith is intended as a waiver of
such right. In the event it is asserted that one or more state takeover statutes
is applicable to the Offer or the Merger and an appropriate court does not
determine that such statute is inapplicable or invalid as applied to the Offer
or the Merger, Parent or Purchaser might be required to file certain information
with, or to receive approval from, the relevant state authorities, and Purchaser
might be unable to accept for payment or pay for Shares tendered pursuant to the
Offer, or be delayed in consummating the Offer.
ANTITRUST. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission (the "FTC"), certain acquisition
transactions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and certain waiting period requirements have been
satisfied. The acquisition of Shares by Purchaser pursuant to the Offer is
subject to such requirements. See Section 15.
Under the provisions of the HSR Act applicable to the purchase of Shares
pursuant to the Offer, purchases may not be consummated until the expiration of
a 15-calendar day waiting period after the filing of certain required
information and documentary material with the Antitrust Division and the FTC
with
39
respect to the Offer (unless earlier terminated pursuant to a request therefor,
which Parent will make). If, within such 15-day waiting period, either the
Antitrust Division or the FTC requests additional information or documentary
material relevant to the Offer from Parent, the waiting period will be extended
for an additional period of 10 calendar days following the date of substantial
compliance with such request. Only one extension of the waiting period pursuant
to a request for additional information is authorized by the rules promulgated
under the HSR Act. Thereafter, such waiting period may be extended only by court
order or by agreement of Parent. A request for additional information issued to
the Company cannot extend the waiting period. Tyco, as the ultimate parent of
Purchaser, expects to file a Notification and Report Form with respect to the
Offer under the HSR Act on November 2, 1999, and, in such event, the required
waiting period with respect to the Offer will expire at 11:59 p.m., New York
City time, on November 17, 1999, unless Tyco receives a request for additional
information or documentary material or the Antitrust Division or the FTC
terminates the waiting period prior thereto.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed purchase of Shares by
Purchaser pursuant to the Offer. At any time before or after such purchase, the
Antitrust Division or the FTC could take such action under the antitrust laws as
it deems necessary or desirable in the public interest, including seeking to
enjoin the transaction or seeking divestiture of the Shares so acquired or
divestiture of substantial assets of Parent or its subsidiaries. Litigation
seeking similar relief could also be brought by private persons and the state
attorneys general.
Based upon an examination of publicly available information relating to the
businesses in which Tyco and the Company are engaged, Parent and Purchaser do
not believe that consummation of the Offer will result in violation of any
applicable antitrust laws. However, there can be no assurance that a challenge
to the Offer on antitrust grounds will not be made, or, if such a challenge is
made, what the result would be. See Section 15 for certain conditions to the
Offer, including conditions with respect to certain judicial or governmental
actions.
17. FEES AND EXPENSES. Purchaser has retained ▇▇▇▇▇▇ & Co., Inc. to act as
the Information Agent and ChaseMellon Shareholder Services, L.L.C. to act as the
Depositary in connection with the Offer. The Information Agent may contact
holders of Shares by mail, telephone, telex, telecopy and personal interview and
may request brokers, dealers and other nominee shareholders to forward the Offer
materials to beneficial owners. The Information Agent and the Depositary will
receive reasonable and customary compensation for services relating to the Offer
and will be reimbursed for certain out-of-pocket expenses. Purchaser and Parent
have also agreed to indemnify the Information Agent and the Depositary against
certain liabilities and expenses in connection with the Offer, including certain
liabilities under the federal securities laws.
Neither Parent nor Purchaser will pay any fees or commissions to any broker
or dealer or any other person (other than to the Information Agent) for
soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial
banks and trust companies will, upon request, be reimbursed by Purchaser for
customary mailing and handling expenses incurred by them in forwarding offering
materials to their customers.
18. MISCELLANEOUS. The Offer is being made to all holders of Shares.
Purchaser is not aware of any jurisdiction where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of Shares pursuant thereto, Purchaser will
make a good faith effort to comply with any such state statute or seek to have
such statute declared inapplicable to the Offer. If, after such good faith
effort, Purchaser cannot comply with any such state statute, the Offer will not
be made to (nor will tenders be accepted from or on behalf of) the holders of
Shares in such state. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer will be deemed to be made on behalf of Purchaser by one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
40
No person has been authorized to give any information or make any
representation on behalf of Parent, Purchaser or the Company not contained in
this Offer to Purchase or in the related Letter of Transmittal and, if given or
made, such information or representation must not be relied upon as having been
authorized.
Parent and Purchaser have filed with the Commission a Tender Offer Statement
on Schedule 14D-1, together with all exhibits thereto, pursuant to Rule 14d-3 of
the General Rules and Regulations under the Exchange Act, furnishing certain
additional information with respect to the Offer. Such Tender Offer Statement
and any amendments thereto, including exhibits, may be inspected and copies may
be obtained from the offices of the Commission in the manner set forth in
Section 8 (except that they will not be available at the regional offices of the
Commission).
T MERGER SUB (OR), INC.
November 1, 1999
41
ANNEX I
CERTAIN INFORMATION CONCERNING THE DIRECTORS
AND EXECUTIVE OFFICERS OF TYCO INTERNATIONAL LTD.
The following table sets forth the name, current business address, present
principal occupation or employment, and material occupations, positions, offices
or employment for the past five years of each director of Tyco, each executive
officer of Tyco and certain executive officers of Tyco's subsidiaries. Unless
otherwise indicated, positions held shown in the following table are positions
with Tyco. Except as set forth below, each such person is a citizen of the
United States of America. None of the listed persons, during the past five
years, has been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
PRESENT PRINCIPAL
OCCUPATION OR EMPLOYMENT
NAME AND POSITION HELD CURRENT BUSINESS ADDRESS AND FIVE-YEAR EMPLOYMENT HISTORY
---------------------- ------------------------------- ---------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇▇▇▇▇ has been Chairman of the
Chairman of the Board, Exeter, NH 03833 Board of Directors, Chief Executive
President and Chief Executive Officer and President of Tyco since
Officer July 1997. He was Chairman of the Board
of Directors of Tyco (US) from January
1993 to July 1997. He has been Chief
Executive Officer of Tyco (US) since
July 1992 and President of Tyco (US)
since 1989.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, P.O. Box 1598 ▇▇. ▇▇▇▇▇▇▇▇ has been Chairman of
Director Belize City, Belize Carlisle Holdings Limited (formerly BHI
Corporation) (services company) since
1987. He was Chairman of the Board of
Directors and Chief Executive Officer
of ADT Limited from 1984 to July 1997.
▇▇. ▇▇▇▇▇▇▇▇ is a citizen of Belize.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ has been counsel to the law
Director and Vice President New York, NY 10022 firm of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP (counselors at law) since April
1985. He has been Vice President of
Tyco since July 1997.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ has been Managing General
Director Suite 610 Partner of AT&T Ventures LLC (venture
Chevy Chase, MD 20815 capital) since May 1996. Previously, he
was Senior Vice President, Corporate
Strategy and Development, of AT&T
Corporation (communications) from
August 1990 to May 1996.
▇▇▇▇ ▇. ▇▇▇▇, III, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Mr. ▇▇▇▇ was Chairman of the Board and
Director Houston, TX 77098 Chief Executive Officer of Tyco (US)
from 1982 to 1992.
I-1
PRESENT PRINCIPAL
OCCUPATION OR EMPLOYMENT
NAME AND POSITION HELD CURRENT BUSINESS ADDRESS AND FIVE-YEAR EMPLOYMENT HISTORY
---------------------- ------------------------------- ---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇ has been Chairman, President
Director Hampton, NH 03842 and Chief Executive Officer of ▇▇▇▇
Manufacturing Company, Inc.
(manufacturer of synthetic fibers and
non-woven fabrics) since 1969.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ has been Co-Managing
Director 44th Floor Director of ▇.▇. ▇▇▇▇▇▇ & Co.
New York, NY 10022 (investment bank) since April 1997. He
was Chairman of ▇▇▇▇▇▇▇ Corporation
(investment bank) from October 1989 to
March 1997.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., 29 The Trillium ▇▇. ▇▇▇▇▇▇ has been Director of CSAM
Director Pittsburgh, PA 15238 Income Fund, Inc. (formerly BEA Income
Fund, Inc.) since 1988. He has been
Director of CSAM Strategic Global
Income Fund, Inc. (formerly BEA
Strategic Global Income Fund, Inc.)
since 1988. He has been Director of BT
Insurance Funds Trust since 1996,
Director of Education Management Corp.
since 1997, and Director of Warburg
Pincus Funds since July 1999.
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, One Citicorp Center ▇▇. ▇▇▇▇▇▇▇ has been the President of
Director Suite 5100 ▇▇▇▇▇▇▇ Associates, Inc. (investment
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ banking firm) since 1988.
New York, NY 10022
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ has been Chairman of the
Director Morristown, NJ 07962-1975 Sandyhill Foundation (charitable
organization) since August 1996.
Previously, he was Chairman of Wesray
Capital Corporation (investment firm)
from October 1989 to January 1996.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇▇▇ has been Executive Vice
Executive Vice President and Exeter, NH 03833 President and Chief Corporate Counsel
Chief Corporate Counsel of Tyco since September 1998.
Previously, he had been a senior
partner with the international law firm
of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ since 1987.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Three Tyco Park ▇▇. ▇▇▇▇▇▇▇ has been President of Tyco
President of Tyco Fire and Exeter, NH 03833 Fire and Security Services since August
Security Services 1993 and Vice President of Tyco (US)
since February 1996.
I-2
PRESENT PRINCIPAL
OCCUPATION OR EMPLOYMENT
NAME AND POSITION HELD CURRENT BUSINESS ADDRESS AND FIVE-YEAR EMPLOYMENT HISTORY
---------------------- ------------------------------- ---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇▇ has been President of Tyco
President of Tyco Submarine Exeter, NH 03833 Submarine Systems Ltd. since July 1997.
Systems Ltd. He was President of Simplex
Technologies, a subsidiary of Tyco,
from July 1995 to June 1997. He was
Vice President of Sales and Marketing
of Simplex Technologies, from June 1992
to July 1995,
▇▇▇▇▇▇ ▇. ▇▇▇▇, Three Tyco Park ▇▇. ▇▇▇▇ has been President of the Tyco
President of the Tyco Flow Exeter, NH 03833 Flow Control Products group since May
Control Products group 1993 and Vice President of Tyco (US)
since August 1993.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ One Tyco Park ▇▇. ▇▇▇▇▇▇ has been President of Tyco
President of Tyco Healthcare Exeter, NH 03833 Healthcare Group (formerly the ▇▇▇▇▇▇▇
Group Company) since 1995. He was Group
President of ▇▇▇▇▇▇▇ Healthcare
Products Company from 1991 to 1995.
▇▇▇▇ ▇. ▇▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇▇ has been Executive Vice
Executive Vice President and Exeter, NH 03833 President and Chief Financial Officer
Chief Financial Officer of Tyco since July 1997. He has been
Vice President and Chief Financial
Officer of Tyco (US) since 1995. From
1993 to 1995, he was Tyco (US)'s
Director of Mergers and Acquisitions.
I-3
▇▇▇▇▇ ▇▇
CERTAIN INFORMATION CONCERNING THE DIRECTORS
AND EXECUTIVE OFFICERS OF PARENT
The following table sets forth the name, current business address, present
principal occupation or employment, and material occupations, positions, offices
or employment for the past five years of each director and executive officer of
Parent. Each such person is a citizen of the United States of America. None of
the listed persons, during the past five years, has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or was a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which such person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of such
laws.
PRESENT PRINCIPAL
CURRENT BUSINESS OCCUPATION OR EMPLOYMENT
NAME AND POSITION HELD ADDRESS AND FIVE-YEAR EMPLOYMENT HISTORY
---------------------- ------------------------ -------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, One ▇▇▇▇ ▇▇▇▇ *
Director and Vice President Exeter, NH 03833
▇▇▇▇▇▇ ▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇ has been Senior Vice
Director and Vice President Exeter, NH 03833 President of Tyco (US) for more than
the past five years
▇. ▇▇▇▇ ▇▇▇▇▇ One Tyco Park ▇▇. ▇▇▇▇▇ has been Senior Vice
Director and Vice President Exeter, NH 03833 President-Investor Relations of Tyco
(US) since April 1998. From July 1995
to April 1998 he served as President
of Tyco Specialty Products. From 1991
to 1995 he served as Director of
Financial Planning and Development
for Tyco (US).
▇▇▇▇ ▇. ▇▇▇▇▇▇, One Tyco Park *
President Exeter, NH 03833
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, One Tyco Park *
Vice President Exeter, NH 03833
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇▇▇ has been President of
Vice President Exeter, NH 03833 Tyco Printed Circuit Group since
1996. Prior to that he was
Vice-President of Sales and Marketing
for Simplex Technologies.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, One Tyco Park ▇▇. ▇▇▇▇▇▇▇▇ has been Senior Vice
Vice President Exeter, NH 03833 President-Finance of Tyco (US) since
April 1999. From 1997 to 1999 he
served as Vice President-Mergers &
Acquisitions of Tyco (US). From 1994
to 1997 he served in various
positions in Tyco (US).
------------------------
* Please see the information set forth in Annex I.
II-1
ANNEX III
CERTAIN INFORMATION CONCERNING THE DIRECTORS
AND EXECUTIVE OFFICERS OF PURCHASER
The following table sets forth the name, current business address, present
principal occupation or employment, and material occupations, positions, offices
or employment for the past five years of each director and executive officer of
Purchaser. Each such person is a citizen of the United States of America. None
of the listed persons, during the past five years, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
was a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction as a result of which such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, federal or state securities laws or finding any violation
of such laws.
PRESENT PRINCIPAL
CURRENT BUSINESS OCCUPATION OR EMPLOYMENT
NAME AND POSITION HELD ADDRESS AND FIVE-YEAR EMPLOYMENT HISTORY
---------------------- ------------------------ ---------------------------------------
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, One Tyco Park *
Director Exeter, NH 03833
▇▇▇▇ ▇. ▇▇▇▇▇▇, One ▇▇▇▇ ▇▇▇▇ *
Director and Vice President Exeter, NH 03833
▇▇▇▇▇▇ ▇▇▇▇▇, One Tyco Park *
Director and Vice President Exeter, NH 03833
▇▇▇▇ ▇. ▇▇▇▇▇▇, One Tyco Park *
President Exeter, NH 03833
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, One Tyco Park *
Vice President Exeter, NH 03833
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, One Tyco Park *
Vice President Exeter, NH 03833
------------------------
* Please see the information set forth in Annex I and ▇▇▇▇▇ ▇▇.
III-1
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. Letters of Transmittal and certificates for Shares should be sent or
delivered by each shareholder of the Company or his broker, dealer, commercial
bank or trust company to the Depositary at one of its addresses set forth below:
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
BY MAIL: BY HAND: BY OVERNIGHT COURIER: BY FACSIMILE:
ChaseMellon Shareholder ChaseMellon Shareholder ChaseMellon Shareholder (For Eligible Institutions
Services, L.L.C. Services, L.L.C. Services, L.L.C Only)
P.O. Box ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇--▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇-- (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Mail Drop--Reorg. CONFIRM BY TELEPHONE:
Attn.: Reorganization Attn.: Reorganization Ridgefield Park, NJ 07660 (201) 296-4860
Department Department Attn.: Reorganization
Department
Any questions or requests for assistance may be directed to the Information
Agent at its address and telephone numbers set forth below. Requests for
additional copies of this Offer to Purchase and the Letter of Transmittal may be
directed to the Information Agent or the Depositary. Shareholders may also
contact their brokers, dealers, commercial banks or trust companies for
assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Call Collect (▇▇▇) ▇▇▇-▇▇▇▇
Banks and Brokerage Firms Please Call:
(▇▇▇) ▇▇▇-▇▇▇▇
SHAREHOLDERS PLEASE CALL (▇▇▇) ▇▇▇-▇▇▇▇