Offer to Purchase for Cash
All Outstanding Shares of Common Stock and Class A Common Stock
(Including the Associated Rights to Purchase Series A Junior Preferred Stock)
of
▇▇▇▇ Electronics Corp.
at
$35.00 Net Per Common Share
and
$32.965 Net Per Class A Common Share
by
▇▇▇▇ Acquisition Co.
a wholly owned subsidiary of
Framatome Connectors USA Holding Inc.
and an indirect wholly owned subsidiary of
Framatome Connectors International S.A.
------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON WEDNESDAY, SEPTEMBER 30, 1998, UNLESS THE OFFER IS EXTENDED.
------------------------------------------------------------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE
BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER
A NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE (THE "COMMON
SHARES"), CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE (THE "CLASS A
SHARES"), INCLUDING IN EACH CASE THE ASSOCIATED RIGHTS (AS DEFINED BELOW) (THE
COMMON SHARES, THE CLASS A SHARES AND THE ASSOCIATED RIGHTS ARE REFERRED TO
HEREIN COLLECTIVELY AS THE "SHARES") OF ▇▇▇▇ ELECTRONICS CORP. (THE "COMPANY")
WHICH, TOGETHER WITH ANY SHARES THEN BENEFICIALLY OWNED BY ▇▇▇▇ ACQUISITION
CO. ("PURCHASER") AND FRAMATOME CONNECTORS INTERNATIONAL S.A. ("PARENT"),
WOULD REPRESENT AT LEAST A MAJORITY OF THE SHARES OUTSTANDING ON A FULLY
DILUTED BASIS AND (2) ANY APPLICABLE WAITING PERIOD UNDER THE
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE
REGULATIONS THEREUNDER AND UNDER OTHER APPLICABLE ANTITRUST OR COMPETITION
LAWS WITH RESPECT TO THE OFFER AND THE MERGER (AS DEFINED BELOW) HAVING
EXPIRED OR BEEN TERMINATED. CERTAIN OTHER CONDITIONS TO CONSUMMATION OF THE
OFFER ARE DESCRIBED IN SECTION 16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE MERGER
AGREEMENT (AS DEFINED BELOW), THE OFFER AND THE MERGER AND DETERMINED THAT
THE MERGER AGREEMENT, THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST
INTERESTS OF, THE HOLDERS OF SHARES AND RECOMMENDS THAT HOLDERS OF SHARES
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
-------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such
stockholder's Shares should (1) complete and sign the Letter of Transmittal
(or facsimile thereof) in accordance with the instructions in the Letter of
Transmittal and deliver it with the certificate(s) representing tendered
Shares and all other required documents to the Depositary (as defined below),
(2) tender such Shares pursuant to the procedures for book-entry transfer set
forth in Section 3 or (3) request his or her broker, dealer, commercial bank,
trust company or other nominee to effect the transaction for him or her. A
stockholder having Shares registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such person if he
or she desires to tender such Shares. Unless the context requires otherwise,
all references to Shares herein shall include the associated Rights (as
defined below).
The associated Rights are presently evidenced by the
certificates for the Common Shares and the Class A Shares and a tender by a
stockholder of such stockholder's Common Shares or Class A Shares will also
constitute a tender of the associated Rights. Any stockholder who desires
to tender Shares and cannot deliver such Shares and all other required
documents to the Depositary by the expiration of the Offer or who cannot
comply with the procedures for book-entry transfer on a timely basis must
tender such Shares pursuant to the guaranteed delivery procedure set forth
in Section 3.
Questions and requests for assistance may be directed to the
Information Agent (as defined below) or to the Dealer Manager (as defined
below) at their respective addresses and telephone numbers 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 Dealer Manager for the Offer is:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
------------
September 2, 1998
TABLE OF CONTENTS
Page
INTRODUCTION.............................................................1
1. Terms of the Offer; Expiration Date......................................2
2. Acceptance for Payment and Payment.......................................3
3. Procedure for Tendering Shares...........................................3
4. Withdrawal Rights........................................................6
5. Certain Tax Considerations...............................................6
6. Price Range of Shares; Dividends.........................................7
7. Certain Information Concerning the Company...............................8
8. Certain Information Concerning Purchaser, Parent, FC USA and Framatome..10
9. Source and Amount of Funds..............................................11
10. Background of the Offer; Past Contacts, Transactions or Negotiations with
the Company.............................................................11
11. The Merger Agreement; the Stockholders Agreement; the Confidentiality
Agreement...............................................................12
12. Purpose of the Offer; Plans for the Company.............................21
13. Effect of the Offer on the Market for the Shares; Stock Exchange Listing;
Registration under the Exchange Act.....................................23
14. Distributions...........................................................24
15. Extension of Tender Period; Termination; Amendment......................24
16. Certain Conditions of the Offer.........................................25
17. Certain Legal Matters; Regulatory Approvals.............................26
18. Fees and Expenses.......................................................28
19. Miscellaneous...........................................................29
Schedule A Directors and Executive Officers of Parent, Purchaser, Framatome
S.A. and Framatome Connectors USA Holding Inc...................A-1
Schedule B Certain Employment Arrangements.................................B-1
Schedule C Agreement and Plan of Merger....................................C-1
To the Holders of Common Stock
and Class A Common Stock of
▇▇▇▇ ELECTRONICS CORP.:
INTRODUCTION
▇▇▇▇ Acquisition Co., a Delaware corporation ("Purchaser"), a
wholly owned subsidiary of Framatome Connectors USA Holding Inc., a New York
corporation ("FC USA"), and an indirect wholly owned subsidiary of Framatome
Connectors International S.A., a corporation organized under the laws of the
Republic of France ("Parent"), hereby offers to purchase all outstanding
shares of Common Stock, $0.01 par value per share (the "Common Shares"), of
▇▇▇▇ Electronics Corp., a Delaware corporation (the "Company"), at $35.00 per
Common Share, net to the seller in cash, and all outstanding shares of Class A
Common Stock, $0.01 par value per share (the "Class A Shares"), of the
Company, at $32.965 per Class A Share, net to the seller in cash, including in
each case the associated rights to purchase Series A Junior Preferred Stock
(the "Rights") issued pursuant to the Rights Agreement dated December 22, 1997
and amended August 27, 1998, between the Company and ▇▇▇▇▇▇ Trust and Savings
Bank (as amended, the "Rights Agreement"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements, constitute
the "Offer"). The Common Shares, the Class A Shares and the related Rights
are collectively referred to herein as the "Shares." Tendering stockholders
will not be obligated to pay brokerage fees or commissions or, except as set
forth in Instruction 6 of the Letter of Transmittal, transfer taxes on the
purchase of Shares pursuant to the Offer. Purchaser will pay all charges and
expenses of ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Dealer
Manager"), ▇▇▇▇▇▇ Trust and Savings Bank (the "Depositary") and ▇.▇. ▇▇▇▇ &
Co., Inc. (the "Information Agent") incurred in connection with the Offer.
See Section 18.
The Offer is conditioned upon, among other things, (1) there
being validly tendered and not withdrawn prior to the expiration of the Offer
a number of Shares which, together with any Shares then beneficially owned by
Purchaser and Parent, would represent at least a majority of the Shares
outstanding on a fully diluted basis (the "Minimum Tender Condition") and (2)
any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, and the regulations thereunder (the "HSR
Act") and under other applicable antitrust or competition laws with respect to
the Offer and the Merger (as defined below) having expired or been terminated.
Certain other conditions to consummation of the Offer are described in Section
16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE MERGER
AGREEMENT (AS DEFINED BELOW), THE OFFER AND THE MERGER AND DETERMINED THAT THE
MERGER AGREEMENT, THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST
INTERESTS OF, THE HOLDERS OF SHARES AND RECOMMENDS THAT HOLDERS OF SHARES
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, financial advisor to the
Company, has delivered to the Board of Directors of the Company its written
opinion to the effect that, as of the date of the Merger Agreement (as
hereinafter defined), the consideration to be received by the holders of
Common Shares pursuant to the Merger Agreement is fair from a financial point
of view to such holders. The full text of the written opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated containing the assumptions made, the matters
considered and the limitations of the review undertaken in rendering such
opinion is included with the Company's Solicitation/Recommendation Statement
on Schedule 14D-9, which is being mailed to stockholders concurrently
herewith. Stockholders are urged to and should read the full text of such
opinion in conjunction with this Offer.
According to the Company, as of August 24, 1998, (i) 39,398,204
Common Shares were issued and outstanding, (ii) 1,440,784 stock options were
granted and remained unexercised pursuant to the Option Plans, and (iii)
1,908,554 Class A Shares were issued and outstanding. Based upon the
foregoing, there were approximately 42,636,573 Shares outstanding on a fully
diluted basis. Accordingly, ▇▇▇▇▇▇▇▇▇ believes that the Minimum Tender
Condition would be satisfied if approximately 21,360,923 Shares are validly
tendered pursuant to the Offer and not withdrawn. Certain stockholders of the
Company, collectively owning approximately 9,207,158 Shares (approximately
21.59% of the Shares on a fully diluted basis), have entered into an agreement
(the "Stockholders Agreement") dated as of August 27, 1998 with Purchaser
pursuant to which such stockholders have agreed to tender the Shares
beneficially owned by them in the Offer and to vote such Shares in favor of the
Merger and the Merger Agreement. See Section 11.
The Offer is being made pursuant to an Agreement and Plan of
Merger dated as of August 27, 1998 (the "Merger Agreement") among the Company,
Parent and Purchaser. The Merger Agreement provides, among other things, that
as soon as practicable after the consummation of the Offer, Purchaser will be
merged with and into the Company (the "Merger"), with the Company continuing
as the surviving corporation (the "Surviving Corporation"). Pursuant to the
Merger, each outstanding Common Share (other than Common Shares held by Parent
or any wholly owned subsidiary of Parent and Common Shares held by
stockholders properly exercising appraisal rights under Delaware law) will be
converted into the right to receive $35.00 in cash, and each outstanding Class
A Share (other than Class A Shares held by Parent or any wholly owned
subsidiary of Parent and Class A Shares held by stockholders properly
exercising appraisal rights under Delaware law) will be converted into the
right to receive $32.965 in cash, in each case, without interest. The Merger
Agreement requires that Purchaser obtain the written consent of the Company
prior to amending or waiving the Minimum Tender Condition, decreasing the
price to be paid for Shares in the Offer, decreasing the number of Shares
sought, imposing additional conditions to the Offer, amending any term of the
Offer in a manner adverse to the holders of the Shares or extending the
Expiration Date (as defined below) of the Offer (subject to certain
exceptions). See Section 11. For a discussion of the treatment of stock
options in the Merger, see Section 11.
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.
1. Terms of the Offer; Expiration Date.
Upon the terms and subject to the conditions set forth in the
Offer, Purchaser will accept for payment and pay for all Shares that are
validly tendered on or prior to the Expiration Date and not withdrawn as
provided in Section 4. The term "Expiration Date" shall mean 12:00 Midnight,
New York City time, on Wednesday, September 30, 1998, unless Purchaser 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 subject to certain conditions set forth in Section
16, including satisfaction of the Minimum Tender Condition and the expiration
or termination of the waiting period applicable to Purchaser's acquisition of
Shares pursuant to the Offer under the HSR Act and under other applicable
antitrust or competition laws. If any such condition is not satisfied,
Purchaser is obligated to extend the Offer until the earlier of the date such
condition is satisfied and December 31, 1998 but reserves the right (but shall
not be obligated) to, subject to the terms of the Merger Agreement, (i) with
the consent of the Company, waive such condition and purchase all Shares
validly tendered on or prior to the Expiration Date and not withdrawn, (ii)
with the consent of the Company, terminate the Offer prior to such date and
return all tendered Shares to tendering stockholders, (iii) subject to
withdrawal rights as set forth in Section 4, retain all such Shares until the
expiration of the Offer as so extended or (iv) delay acceptance for payment or
payment for Shares, subject to applicable law and the Company's right to
terminate the Merger Agreement if the Offer has not been consummated by
December 31, 1998, until satisfaction or waiver of the conditions to the
Offer. For a description of Purchaser's right and obligation to extend the
period of time during which the Offer is open and to amend, delay or terminate
the Offer, see Sections 15 and 16.
The Company has provided Purchaser with the Company's
stockholder list and security position listings for the purpose of
disseminating the Offer to holders of Shares. This Offer to Purchase and the
related Letter of Transmittal will be mailed to record holders of Shares and
will be furnished to brokers, banks and similar persons whose names, or the
names of whose nominees, appear on the stockholder 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. Acceptance for Payment and Payment.
Upon the terms and subject to the conditions of the Offer,
Purchaser will accept for payment and pay for all Shares validly tendered on
or prior to the Expiration Date and not withdrawn as soon as practicable after
the later of the Expiration Date and the satisfaction or waiver of the
conditions set forth in Section 16; provided that Purchaser may extend the
Offer for 20 business days from the date that all conditions to the Offer have
been satisfied or waived if the number of Shares that have been tendered on or
prior to the Expiration Date and not withdrawn represents more than 50% but
less than 90% of the Shares outstanding on a fully diluted basis. In
addition, Purchaser reserves the right, in its sole discretion and subject to
applicable law, to delay the acceptance for payment or payment for Shares in
order to comply in whole or in part with any applicable law. For a
description of Purchaser's right to terminate the Offer and not accept for
payment or pay for Shares or to delay acceptance for payment or payment for
Shares, see Sections 15 and 16.
For purposes of the Offer, Purchaser shall be deemed to have
accepted for payment tendered Shares when, as and if Purchaser gives oral or
written notice to the Depositary of its acceptance of the tenders of such
Shares. Payment for Shares accepted for payment pursuant to the Offer will be
made by deposit of the purchase price with the Depositary, which will act as
agent for the tendering stockholders for the purpose of receiving payments from
Purchaser and transmitting such payments to tendering stockholders. In all
cases, payment for Shares accepted for payment pursuant to the Offer will be
made only after timely receipt by the Depositary of certificates for such
Shares (or of a confirmation of a book-entry transfer of such Shares into the
Depositary's account at the Book-Entry Transfer Facility (as defined in
Section 3)), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) and any other required documents. For a description of the
procedure for tendering Shares pursuant to the Offer, see Section 3.
Accordingly, payment may be made to tendering stockholders at different times
if delivery of the Shares and other required documents occur at different
times. Under no circumstances will interest be paid by Purchaser on the
consideration paid for Shares pursuant to the Offer, regardless of any delay
in making such payment.
If Purchaser increases the consideration to be paid for Common
Shares or Class A Shares pursuant to the Offer, Purchaser will pay such
increased consideration for all Common Shares or Class A Shares, as the case
may be, purchased pursuant to the Offer. In the event of any increase in the
price to be paid to holders of Common Shares, the price to be paid for Class A
Shares will be increased by an equal amount, and in the event of any increase
in the price to be paid to holders of Class A Shares, the price to be paid for
Common Shares will be increased by an equal amount.
Purchaser reserves the right to transfer or assign, in whole or
from time to time in part, to one or more of its affiliates the right to
purchase Shares tendered pursuant to the Offer, but any such transfer or
assignment will not relieve Purchaser of its obligations under the Offer or
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment.
If any tendered Shares are not purchased pursuant to the Offer
for any reason, or if certificates are submitted for more Shares than are
tendered, certificates for such unpurchased or untendered Shares will be
returned (or, in the case of Shares tendered by book-entry transfer, such
Shares will be credited to an account maintained at the Book-Entry Transfer
Facility), without expense to the tendering stockholder, as promptly as
practicable following the expiration or termination of the Offer.
3. Procedure for Tendering Shares.
To tender Shares pursuant to the Offer, either (a) a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) 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 and either certificates for the Shares to be tendered must
be received by the Depositary at one of such addresses or such Shares must be
delivered pursuant to the procedures for book-entry transfer described below
(and a confirmation of such delivery, including an Agent's Message (as defined
below), must be received by the Depositary if the tendering stockholder has
not delivered a Letter of Transmittal), in each case on or prior to the
Expiration Date, or (b) the guaranteed delivery procedure described below must
be complied with.
The term "Agent's Message" means a message transmitted by the
Book-Entry Transfer Facility (as defined below) to and received by the
Depositary and forming a part of a book-entry confirmation which states that
the Book-Entry Transfer Facility has received an express acknowledgment from
the participant in the Book-Entry Transfer Facility tendering the Shares which
are the subject of such book-entry confirmation that such participant has
received and agrees to be bound by the terms of the Letter of Transmittal and
that the Company may enforce such agreement against such participant.
Book Entry Delivery. The Depositary will establish an account
with respect to the Shares at The Depository Trust Company (the "Book-Entry
Transfer Facility") 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 the system of the Book-Entry Transfer Facility may make
delivery of Shares by causing the Book-Entry Transfer Facility to transfer
such Shares into the Depositary's account in accordance with the procedures of
the Book-Entry Transfer Facility. However, although delivery of Shares may be
effected through book-entry transfer, the Letter of Transmittal (or facsimile
thereof) properly completed and duly executed together with any required
signature guarantees or an Agent's Message and any other required documents
must, in any case, 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, or the guaranteed delivery procedure described below must be
complied with. Delivery of the Letter of Transmittal and any other required
documents to the Book-Entry Transfer Facility does not constitute delivery to
the Depositary.
Signature Guarantees. Except as otherwise provided below, all
signatures on a Letter of Transmittal must be guaranteed by a financial
institution (including most banks, savings and loan associations and brokerage
houses) which is a member of a recognized Medallion Program approved by The
Securities Transfer Association Inc., including the Securities Transfer Agents
Medallion Program (STAMP), the Stock Exchange Medallion Program (SEMP) and the
New York Stock Exchange, Inc. Medallion Signature Program (MSP) (an "Eligible
Institution"). Signatures on a Letter of Transmittal need not be guaranteed
(a) if the Letter of Transmittal is signed by the registered holder of the
Shares tendered therewith and such holder has not completed the box entitled
"Special Payment Instructions" on the Letter of Transmittal or (b) if such
Shares are tendered for the account of an Eligible Institution. See
Instructions 1 and 5 of the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares
pursuant to the Offer and cannot deliver such Shares and all other required
documents to the Depositary on or prior to the Expiration Date, or such
stockholder cannot complete the procedure for delivery by book-entry transfer
on a timely basis, such Shares may nevertheless be tendered if all of the
following conditions are met:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery substantially in the form provided by Purchaser is received
by the Depositary (as provided below) on or prior to the Expiration
Date; and
(iii) the certificates for such Shares (or a confirmation of a
book-entry transfer of such Shares into the Depositary's account at
the Book-Entry Transfer Facility), together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantee or an Agent's Message and any other
documents required by the Letter of Transmittal, are received by the
Depositary within three New York Stock Exchange, Inc. ("NYSE")
trading days after the date of execution of the Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or
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.
The method of delivery of Shares and all other required
documents, including through the Book-Entry Transfer Facility, is at the
option and risk of the tendering stockholder and the delivery will be deemed
made only when actually received by the Depositary. If certificates for
Shares are sent by mail, registered mail with return receipt requested,
properly insured, is recommended.
Under the federal income tax laws, the Depositary will be
required to withhold 31% of the amount of any payments made to certain
stockholders pursuant to the Offer. In order to avoid such backup
withholding, each tendering stockholder, and, if applicable, each other payee,
must provide the Depositary with such stockholder's or payee's correct
taxpayer identification number and certify that such stockholder or payee is
not subject to such backup withholding by completing the Substitute Form W-9
set forth in the Letter of Transmittal. In general, if a stockholder or payee
is an individual, the taxpayer identification number is the Social Security
number of such individual. If the Depositary is not provided with the correct
taxpayer identification number, the stockholder or payee may be subject to a
$50 penalty imposed by the Internal Revenue Service. Certain stockholders or
payees (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. In order to satisfy the Depositary that a foreign individual
qualifies as an exempt recipient, such stockholder or payee must submit a
statement, (Form W-8, Certificate of Foreign Status) signed under penalties of
perjury, attesting to that individual's exempt status.
By executing a Letter of Transmittal, a tendering stockholder
irrevocably appoints designees of Purchaser as such stockholder's proxies in
the manner set forth in the Letter of Transmittal to the full extent of such
stockholder's rights with respect to the Shares tendered by such stockholder
and accepted for payment by Purchaser (and any and all other Shares or other
securities issued or issuable in respect of such Shares on or after August 27,
1998). All such proxies shall be irrevocable and coupled with an interest in
the tendered Shares. Such appointment is effective only upon the acceptance
for payment of such Shares by Purchaser. Upon such acceptance for payment,
all prior proxies and consents granted by such stockholder with respect to
such Shares and other securities will, without further action, be revoked, and
no subsequent proxies may be given nor subsequent written consents executed by
such stockholder (and, if given or executed, will not be deemed to be
effective). Such designees of Purchaser will be empowered to exercise all
voting and other rights of such stockholder as they, in their sole discretion,
may deem proper at any annual, special or adjourned meeting of the Company's
stockholders, by written consent or otherwise. Purchaser reserves the right
to require that, in order for Shares to be validly tendered, immediately upon
Purchaser's acceptance for payment of such Shares, Purchaser is able to
exercise full voting rights with respect to such Shares and other securities
(including voting at any meeting of stockholders then scheduled or acting by
written consent without a meeting).
The tender of Shares pursuant to any one of the procedures
described above will constitute the tendering stockholder's acceptance of the
Offer, as well as the tendering stockholder's representation and warranty that
(a) such stockholder owns the Shares being tendered within the meaning of Rule
14e-4 promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (b) the tender of such Shares complies with Rule 14e-4, and
(c) such stockholder has the full power and authority to tender and assign the
Shares tendered, as specified in the Letter of Transmittal. Purchaser's
acceptance for payment of Shares tendered pursuant to the Offer will
constitute a binding agreement between the tendering stockholder and Purchaser
upon the terms and subject to the conditions of the Offer.
All questions as to the form of documents and the validity,
eligibility (including time of receipt) and acceptance for payment of any
tender of Shares will be determined by Purchaser, in its sole discretion, which
determination shall be final and binding. Purchaser reserves the absolute
right to reject any or all tenders of Shares determined by it not to be in
proper 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 of Shares.
None of Purchaser, the Dealer Manager, the Depositary, the Information Agent
or any other person will be under any duty to give notification of any defect
or irregularity in tenders or incur any liability for failure to give any such
notification.
4. Withdrawal Rights.
Tenders of Shares made pursuant to the Offer may be withdrawn
at any time prior to the Expiration Date. Thereafter, such tenders are
irrevocable, except that they may be withdrawn after October 31, 1998 unless
theretofore accepted for payment as provided in this Offer to Purchase. If
Purchaser extends the period of time during which the Offer is open, is
delayed in accepting for payment or paying for Shares or is unable to accept
for payment or pay for Shares pursuant to the Offer for any reason, then,
without prejudice to Purchaser's rights under the Offer, the Depositary may,
on behalf of Purchaser, retain all Shares tendered, and such Shares may not
be withdrawn except as otherwise provided in this Section 4.
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 and
must specify the name of the person who tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
such Shares, if different from that of the person who tendered such Shares.
If the Shares to be withdrawn have been delivered to the Depositary, a signed
notice of withdrawal with (except in the case of Shares tendered by an
Eligible Institution) signatures guaranteed by an Eligible Institution must be
submitted prior to the release of such Shares. In addition, such notice must
specify, in the case of Shares tendered by delivery of certificates, the name
of the registered holder (if different from that of the tendering stockholder)
and the serial numbers shown on the particular certificates evidencing the
Shares to be withdrawn or, in the case of Shares tendered by book-entry
transfer, the name and number of the account at the Book-Entry Transfer
Facility to be credited with the withdrawn Shares. Withdrawals may not be
rescinded, and Shares withdrawn will thereafter be deemed not validly tendered
for purposes of the Offer. However, withdrawn Shares may be retendered by
again following one of the procedures described in Section 3 at any time prior
to the Expiration Date.
All questions as to the form and validity (including time of
receipt) of any notice of withdrawal will be determined by Purchaser, in its
sole discretion, which determination shall be final and binding. None of
Purchaser, the Dealer Manager, the Depositary, the Information Agent or any
other person will be under any duty to give notification of any defect or
irregularity in any notice of withdrawal or incur any liability for failure to
give any such notification.
5. Certain Tax Considerations.
The receipt of cash pursuant to the Offer or the Merger will
constitute a taxable transaction for Federal income tax purposes under the
Internal Revenue Code of 1986, as amended (the "Code"), and may also
constitute a taxable transaction under applicable state, local, foreign and
other tax laws. As a result, a tendering stockholder will generally recognize
gain or loss for federal income tax purposes in an amount equal to the
difference between the amount of cash received by the stockholder pursuant to
the Offer or the Merger and such stockholder's aggregate adjusted tax basis in
the Shares tendered and purchased pursuant to the Offer (or canceled pursuant
to the Merger). Gain or loss will be calculated separately for each block of
Shares tendered and purchased pursuant to the Offer (or canceled pursuant to
the Merger). If tendered Shares are held by a tendering stockholder as
capital assets (within the meaning of Section 1221 of the Code), any gain or
loss recognized by the tendering stockholder will constitute capital gain or
loss, and will constitute long-term capital gain or loss if the tendering
stockholder held the underlying Shares for more than 12 months as of the date
of disposition.
Under the Internal Revenue Service Restructuring and Reform Act
of 1998, in the case of noncorporate stockholders, if the underlying Shares
have been held for more than 12 months as of the date of disposition, any
long-term capital gain recognized by a noncorporate stockholder generally will
be subject to federal income tax at a maximum rate of 20%. There are limits
on the deductibility of capital losses.
The foregoing discussion may not be applicable with respect to
Shares received pursuant to the exercise of employee stock options or
otherwise as compensation or with respect to holders of Shares who are subject
to special tax treatment under the Code, such as non-U.S. persons, life
insurance companies, tax-exempt organizations and financial institutions, and
may not apply to a holder of Shares in light of its individual circumstances.
THE SUMMARY OF TAX CONSEQUENCES SET FORTH ABOVE IS FOR GENERAL
INFORMATION ONLY AND IS BASED ON THE LAW AS CURRENTLY IN EFFECT. STOCKHOLDERS
ARE URGED TO CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX
CONSEQUENCES TO THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL
OR FOREIGN INCOME AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
6. Price Range of Shares; Dividends.
The Common Shares are listed and principally traded on the NYSE
under the symbol "BEI." There is no established public trading market for the
Class A Shares. The following table sets forth for the periods indicated the
high and low sales prices per Common Share on the NYSE Composite Tape, as
reported in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 (the "Company 1997 10-K") with respect to the years 1996 and
1997, and thereafter as reported in published financial sources. According to
the Company, the Company has not paid any cash dividends on any class of its
common stock since its incorporation in November 1992. Prior to March 1,
1996, there was no established public trading market for the Common Shares.
High Low
1996 -------- -------
First Quarter from March 1 - March 31....... $ 13 $ 11 3/16
Second Quarter.............................. 14 5/16 11 3/8
Third Quarter............................... 14 10 1/8
Fourth Quarter.............................. 16 1/4 12 9/16
1997
First Quarter............................... 15 15/16 13 5/8
Second Quarter.............................. 18 1/16 13 7/8
Third Quarter............................... 26 7/8 17 15/16
Fourth Quarter.............................. 28 31/32 18 1/2
1998
First Quarter............................... 28 11/16 22 10/16
Second Quarter.............................. 25 3/4 19 1/2
Third Quarter (through September 1, 1998)... 33 5/16 18 13/16
On August 26, 1998, the last full day of trading prior to
the announcement of the Offer and of the execution of the Merger Agreement,
the reported closing sales price per Share on the NYSE Composite Tape was
$21 9/16. On September 1, 1998, the last full day of trading prior to the
commencement of the Offer, the reported closing sales price per Share on
the NYSE Composite Tape was $33 5/16.
STOCKHOLDERS ARE URGED TO OBTAIN
CURRENT MARKET QUOTATIONS FOR THE COMMON SHARES.
7. Certain Information Concerning the Company.
The Company is a Delaware corporation with its principal
executive offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
According to the Company 1997 10-K, the Company is principally
engaged in the design, manufacturing and marketing of electronic connectors
and cable assembly products for applications primarily in the
telecommunications, computer and industrial markets.
The Company is a holding company that owns all of the
outstanding capital stock of ▇▇▇▇ Electronics Group, Inc. ("▇▇▇▇"). The
Company and ▇▇▇▇ were incorporated in Delaware in November 1992 by an investor
group led by ▇▇▇▇▇, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇, Muse") and ▇▇▇▇▇
& Partners, Inc. ("▇▇▇▇▇ & Partners") to facilitate the acquisition of the
Connector Systems Business of the Electronics Division of E.I. du Pont de
Nemours and Company in February 1993 (the "Initial Acquisition"). Subsequent
to the Initial Acquisition, the Company has made seven strategic acquisitions.
The most significant of these were the acquisitions of the Connector System
Business of the Microelectronics division of AT&T Corp. in May 1994 and the
connector business of Ericsson Telecom AB located in Sweden in December 1996.
The Company operates 23 principal manufacturing and research facilities and
other principal properties located in 13 different countries. In addition,
the Company maintains 26 sales and marketing facilities, all of which are
leased, including five located in the United States, three in India, two each
in Japan and the People's Republic of China and one each in Canada, Germany,
Italy, Sweden, Finland, France, the Netherlands, Spain, Switzerland, the
United Kingdom, Singapore, Hong Kong, Taiwan and Korea. The Company also
maintains an engineering office in the United States.
The following selected consolidated financial data relating to
the Company and its subsidiaries has been taken or derived from the audited
financial statements contained in the Company 1997 10-K, the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 (together with the
Company 1997 10-K, the "Company 10-Ks") and the unaudited financial statements
contained in the Company's quarterly reports on Form 10-Q for its fiscal
quarters ended June 30, 1998 and June 30, 1997 (the "Company 10-Qs"),
respectively. More comprehensive financial information is included in such
Company 10-Ks and Company 10-Qs and the other documents filed by the Company
with the Securities and Exchange Commission (the "Commission"), and the
financial data set forth below is qualified in its entirety by reference to
such reports and other documents including the financial statements contained
therein. Such reports and other documents may be examined and copies may be
obtained from the offices of the Commission in the manner set forth below.
▇▇▇▇ ELECTRONICS CORP.
SELECTED CONSOLIDATED FINANCIAL DATA
(In thousands, except Share and per Share data)
For the Years ended For the Six Months ended
December 31, June 30, (unaudited)
--------------------------------------- ---------------------------
1995 1996 1997 1997 1998
-------- -------- -------- -------- --------
Income Statement Data:
Net sales................................ $667,249 $704,669 $785,150 $391,016 $385,543
Income before income tax provision and
extraordinary items..................... 15,131 47,336 62,310 30,193 36,721
Extraordinary items - loss on early
extinguishment of debt, net of income
tax of $0, $12,443 and $3,734,
respectively............................ -- (18,664) (5,964) -- --
Net income............................... 9,329 10,281 32,226 18,491 22,766
Net income (loss) per common share -
diluted................................. (0.21) (0.44) 0.78 0.44 0.55
As of December 31, As of June 30, (unaudited)
----------------------- ---------------------------
1996 1997 1997 1998
Balance Sheet Data: -------- -------- -------- --------
Working capital......................................... $41,160 $42,705 $58,583 $79,635
Total assets............................................ 682,007 704,646 701,834 746,339
Long-term obligations, less current maturities.......... 324,646 316,544 324,008 356,592
Other long-term liabilities............................. 40,738 51,686 40,450 51,076
Total Stockholders' equity.............................. 138,892 135,884 143,446 159,014
The information concerning the Company contained herein has
been taken from or is based upon reports and other documents on file with
the Commission or otherwise publicly available. Although Purchaser does
not have any knowledge that would indicate that any statements contained
herein based upon such reports and documents are untrue, Purchaser does not
take any responsibility for the accuracy or completeness of the information
contained in such reports and other documents or for any failure by the
Company to disclose events that may have occurred and may affect the
significance or accuracy of any such information but that are unknown to
Purchaser.
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith files periodic reports, proxy
statements and other information with the Commission relating to its business,
financial condition and other matters. The Company is required to disclose in
such proxy statements certain 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. Such reports,
proxy statements and other information may be inspected at the public reference
facilities maintained by the Commission at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and should also be available for inspection and
copying at the regional offices of the Commission in New York (▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Federal Building, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇) and Chicago
(▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Building, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇). Copies of such material can also be obtained from the Public
Reference Section of the Commission in Washington, D.C. 20549, at prescribed
rates. Such material should also be available for inspection at the library
of the NYSE, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
In the course of the discussions between representatives of
Parent and the Company regarding the Offer and the Merger (see Section 10),
representatives of Parent were provided with certain projections of future
operations. The projections, and the assumptions underlying such projections,
were not prepared with a view to public disclosure or compliance with
published guidelines of the Commission or the guidelines established by the
American Institute of Certified Public Accountants regarding projections, and
are included in this Offer to Purchase only because they were provided to
Parent. None of Parent, Purchaser, the Company, any of their financial
advisors or the Dealer Manager assumes any responsibility for the accuracy of
these projections. These projections are based upon a variety of assumptions
relating to the businesses of the Company which may not be realized and are
subject to significant uncertainties and contingencies beyond the control of
the Company. There can be no assurance that the projections will be realized,
and actual results may vary materially from those shown. None of the Company,
Parent or Purchaser intends to update, revise or correct such projections if
they become inaccurate (even in the short term).
Set forth below is a summary of the projections. These
projections should be read together with the financial statements of the
Company referred to herein.
▇▇▇▇ Electronics Corp.
Summary Projected Financial Data
Fiscal Years Ended December 31,
-------------------------------------------------
1997A 1998 1999 2000
--------- -------- -------- --------
($ in millions)
Total Sales...... $785.2 $825.0 $944.5 $1,039.0
Gross Profit..... 279.5 296.0 340.2 375.1
Operating Income. 92.3 106.0 129.4 154.2
Net Income....... 38.3 50.4 65.5 81.5
EBITDA........... 157.1 177.4 206.9 236.7
------------
Earnings before interest, taxes, depreciation and amortization ("EBITDA")
includes operating income adjusted to exclude depreciation, amortization of
intangible assets and noncash net periodic post-retirement benefit charges.
The Company and its representatives provided Parent and its
representatives the following assumptions as underlying the foregoing
projections.
Sales: In 1998, sales are projected to increase 5.1% as a
result of volume increases which are offset partially by (i) the adverse
effects of currency in Europe and Asia and (ii) the adverse effects of the
Asian economy, particularly Korea, Japan, Taiwan and Singapore. Strong
telecom product demand in North America and Europe in 1998 and the favorable
impact of MEG-Array[Trademark] product line sales in the second half of 1998
are expected to compensate for relatively weaker demand in the remainder of
the computer market.
In 1999, sales are projected to increase 14.5% as a result of
new program opportunities plus the full year effect of the
MEG-Array[Trademark] program. Thereafter, sales are projected to increase at
approximately 10% as a result of strength in the Company's primary market,
telecom.
Gross margin: Gross margin is projected to increase from 35.6%
in 1997 to 35.9% in 1998 as a result of focused cost reduction and cost
containment efforts, plus the favorable effect of currencies on costs in
Europe and Asia. In 1999 and beyond, gross margin is projected to increase to
36.1% as the Company continues to use cost reduction activities to offset
price erosion.
8. Certain Information Concerning Purchaser, Parent, FC USA and Framatome
Purchaser is a Delaware corporation incorporated on August 26,
1998 and to date has engaged in no activities other than those incident to its
formation, the execution and delivery of the Merger Agreement and the
Stockholders Agreement and the commencement of the Offer. Purchaser is a
wholly-owned subsidiary of FC USA which, in its turn, is a wholly-owned
subsidiary of Parent. The principal executive offices of Purchaser are
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
FC USA is a New York corporation. It is, through its
subsidiaries, principally engaged in the design, manufacturing and sale of
electrical, optical and electronical connectors, interconnection systems and
the related application tooling. The principal executive offices of FC USA
are located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
Parent is a corporation organized under the laws of the
Republic of France. It is principally engaged in the design, manufacturing
and sales of electrical, optical and electronical connectors, interconnection
systems and the related application tooling. The principal executive offices
of Parent are located at Tour Framatome, ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. Parent is a wholly-owned subsidiary of Framatome S.A., a
corporation organized under the laws of the Republic of France ("Framatome").
Framatome is principally engaged in design and manufacturing of nuclear
reactors, fabrication and supply of nuclear fuel and supply of nuclear
services. Framatome is also, through its subsidiary, engaged in the
connectors business. Further, it has built up a mechanical engineering
business. The principal executive offices of Framatome are located at Tour
Framatome, ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. Framatome is
owned approximately 44% by Alcatel, 36% by CEA Industrie, 11% by Electricite
de France ("E.D.F."), 4% by CDR Participations and 5% by employees of
Framatome. Each of CEA Industrie, E.D.F. and CDR Participations are French
national companies.
The name, business address, principal occupation or employment,
five year employment history and citizenship of each director and executive
officer of Parent, Purchaser, Framatome and FC USA and certain other
information are set forth on Schedule A hereto.
Except as provided in the Merger Agreement, as disclosed in the
Schedule 13D to be filed by Parent, and as otherwise described in this Offer
to Purchase, (i) neither Framatome, Parent, FC USA or Purchaser (the
"Reporting Persons") nor, to the best of the knowledge of Purchaser, any of
the persons listed in Schedule A hereto, nor any associate or majority-owned
subsidiary of any of the foregoing beneficially owns, or has any right to
acquire, directly or indirectly, any Shares and (ii) none of the Reporting
Persons nor, to the best of their knowledge, any of the persons or entities
referred to above nor any director, executive officer or subsidiary of any of
the foregoing, has effected any transaction in the Shares during the past 60
days.
Except as described in this Offer to Purchase, none of the
Reporting Persons nor, to the best of the knowledge of Purchaser, any of the
persons listed in Schedule A hereto, 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 voting
of such securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of loans, guarantees, division of
profits or loss or the giving or withholding of proxies.
Except as set forth in this Offer to Purchase, since January 1,
1995, none of the Reporting Persons nor, to the best of the knowledge of
Purchaser, any of the persons listed in Schedule A hereto, has had any business
relationship or transaction with the Company or any of its executive officers,
directors, or affiliates that is required to be reported under the rules and
regulations of the Commission applicable to the Offer. Except as set forth in
this Offer to Purchase, since January 1, 1995, there have been no contacts,
negotiations or transactions between the Reporting Persons or any of their
subsidiaries or, to the best knowledge of Purchaser, any of the persons listed
in Schedule A hereto, on the one hand, and the Company or its affiliates, on
the other hand, concerning a merger, consolidation or acquisition, tender
offer or other acquisition of securities, an election of directors or a sale
or other transfer of a material amount of assets.
9. Source and Amount of Funds.
The total amount of funds required by Purchaser to purchase
Shares pursuant to the Offer and to pay related fees and expenses is estimated
to be approximately $1.5 billion. Depending upon the decision of Framatome,
Parent and Purchaser as to the most appropriate use of their liquid assets and
borrowing capacity, such funds will be provided to Purchaser by capital
contributions or loans from Framatome or Parent, through borrowings from banks
of the nature described below or through some combination thereof. Framatome
has committed to contribute to Parent 3,000M French francs.
On the basis of a letter from Credit Commercial de France and
Societe Generale, 6,000M French francs are expected to be available to Parent
on an unsecured basis for a term of four years at a floating rate of interest
equal to the Paris Inter Bank Offered Rate plus up to a maximum of 0.30%.
10. Background of the Offer; Past Contacts, Transactions or Negotiations
with the Company.
Parent expects to file a Schedule 13D with the Commission
reporting Shares that may be deemed to be beneficially owned by Parent and its
affiliates as a result of the Stockholders Agreement entered into by Purchaser
and certain stockholders of the Company listed on the signature pages thereto.
See Section 11.
In December 1997, representatives of Parent met with
representatives of the Company, at which time Parent indicated that it was
interested in pursuing a business combination with the Company. The Company
indicated to Parent that it was not for sale but that an attractive offer for
a negotiated transaction would have to be considered by the Company's Board of
Directors. No agreement was reached as to how to proceed.
On July 21, 1998, ▇▇▇▇▇▇ received a written invitation from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), acting on behalf of the
Company, to submit a written indication of interest in an acquisition of the
Company. On July 21, 1998, the Company and Parent entered into a
confidentiality agreement (the "Confidentiality Agreement"). See Section 11.
Parent submitted its indication of interest to the Company on July 28, 1998.
During the period following the submission of the indication of
interest, representatives of Parent conducted due diligence investigations
regarding the business and properties of the Company. In addition,
representatives of Parent met with senior management of the Company to discuss
the Company.
On August 24, 1998, Parent submitted a firm bid for the Company
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. During the period from August 25 through August 27, 1998,
representatives of Parent and the Company discussed the terms of a possible
acquisition and negotiated the terms of the Merger Agreement. On August 27,
1998, the Company agreed to the acquisition by Purchaser of the Company for a
price of $35.00 in cash per Common Share and a price of $32.965 in cash per
Class A Share, following which the Merger Agreement was executed.
11. The Merger Agreement; the Stockholders Agreement; the Confidentiality
Agreement.
The Merger Agreement. The following is a summary of the Merger
Agreement, a copy of which is included as Schedule C hereto. Such summary is
qualified in its entirety by reference to the Merger Agreement.
The Offer. The Merger Agreement provides for the making of the
Offer. The obligations of Purchaser to accept for payment and to pay for any
and all Shares validly tendered on or prior to the expiration of the Offer and
not withdrawn are subject to the satisfaction of the Minimum Tender Condition
and certain other conditions described in Section 16. Purchaser has agreed
not to amend or waive the Minimum Tender Condition, decrease the Offer Price
or decrease the number of Shares sought, or impose any additional conditions
to the Offer, or amend any term of the Offer in any manner adverse to the
holders of the Shares or extend the expiration date of the Offer, in each case
without the prior written consent of the Company. Notwithstanding the
foregoing, Purchaser has agreed to extend the Offer from time to time until
the date that all conditions to the Offer have been satisfied, if, and to the
extent that, at the initial expiration date of the Offer, or any extension
thereof, all conditions to the Offer have not been satisfied or waived,
subject to the right of the Company, Purchaser and Parent to terminate the
Offer on December 31, 1998.
Recommendation. The Company approves of and consents to the
Offer and represents that the Board of Directors, at a meeting duly called and
held, has with the affirmative vote of at least a majority of the members of
the Board of Directors (i) determined that the Merger Agreement and the
transactions contemplated thereby, including the Offer and the Merger, are
fair and in the best interests of the holders of the Shares and approved the
Merger Agreement and the transactions contemplated thereby, including the
Offer and the Merger, which approvals constitute approval of the Merger
Agreement, the Offer and the Merger for purposes of Section 203 of the General
Corporation Law of the State of Delaware (the "Delaware Law"), and (ii)
resolved to recommend that the stockholders of the Company accept the Offer,
tender their Shares thereunder to Purchaser and, if required, approve and
adopt the Merger Agreement and the Merger, which recommendation shall not be
withdrawn, modified or amended except as permitted by provisions described in
"Other Offers" hereof.
The Merger. The Merger Agreement provides that, upon the terms
and subject to the conditions thereof, at the time at which the Company and
Purchaser file a certificate of merger with the Secretary of State of the State
of Delaware (the "Certificate of Merger") and make all other filings or
recordings required by the Delaware Law in connection with the Merger,
Purchaser shall be merged with and into the Company in accordance with Delaware
Law. Should the merger of Purchaser with and into the Company give rise to
any material tax liability, at the election of Parent and subject to the
consent of the Company, such consent not to be unreasonably withheld, the
Merger may be structured so that the Company shall be merged with and into
Purchaser with the result that Purchaser shall be the Surviving Corporation.
The Merger shall become effective at such time as the Certificate of ▇▇▇▇▇▇ is
duly filed with the Secretary of State of the State of Delaware or such later
time as is specified in the Certificate of Merger (the "Effective Time"). As
a result of the Merger, the separate corporate existence of Purchaser will
cease and the Company will be the Surviving Corporation. The Merger shall
have the effects set forth in the Delaware Law.
At the Effective Time, (i) each share of the common stock of
Purchaser issued and outstanding immediately prior to the Effective Time shall
be converted into and become one fully paid and nonassessable share of common
stock of the Surviving Corporation and shall constitute the only outstanding
shares of capital stock of the Surviving Corporation; (ii) any Shares held by
the Company as treasury stock and any Shares owned by Parent, Purchaser or any
other wholly owned subsidiary of Parent immediately prior to the Effective
Time shall be canceled and retired and shall cease to exist and no
consideration shall be delivered in exchange therefor; (iii) each Common Share
issued and outstanding immediately prior to the Effective Time (other than
Common Shares to be canceled in accordance with (ii) hereof and any Shares as
to which appraisal rights have been perfected) shall be converted into the
right to receive $35.00 in cash, without interest; and (iv) each Class A Share
issued and outstanding immediately prior to the Effective Time (other than
Class A Shares to be canceled in accordance with (ii) hereof and any Class A
Shares as to which appraisal rights have been perfected) shall be converted
into the right to receive $32.965 in cash, without interest.
Company Option Plans. At the Effective Time, each then
outstanding option (collectively, the "Options") to purchase or acquire Common
Shares under the Company's 1993 Stock Option Plan, as amended, the Company's
1998 Incentive Compensation Plan and the director option to purchase 48,660
Common Shares (collectively, the "Option Plans"), whether or not then
exercisable or vested, shall be canceled and shall represent the right to
receive in cash an amount equal to the product of (i) the number of Common
Shares subject to each such Option and (ii) the excess of (A) $35.00 over (B)
the per share exercise price of such Option. Prior to the Effective Time, the
Company shall take all actions (including, if appropriate, obtaining any
consents from holders of Options or making any amendments to the terms of the
Option Plans) that are necessary to give effect to the transactions
contemplated by the Merger Agreement. Notwithstanding any other provision of
this paragraph, payment may be withheld in respect of any stock option until
necessary consents are obtained.
Board of Directors. The Merger Agreement provides that
promptly upon the purchase of and payment for Shares by Parent or any of its
subsidiaries which represent at least a majority of the outstanding Shares,
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 is equal to
the product of the total number of directors on such Board (giving effect to
any additional directors designated by Parent pursuant to this paragraph)
multiplied by the percentage that the aggregate number of Shares beneficially
owned by Purchaser, Parent and any of their affiliates (including Shares
accepted for payment) bears to the total number of Shares then outstanding.
Notwithstanding the foregoing, until the Effective Time, the Company shall
retain as members of its Board of Directors at least two directors who are
directors of the Company on the date of the Merger Agreement; provided, that
subsequent to the purchase of and payment for Shares pursuant to the Offer,
Parent shall always have its designees represent at least a majority of the
entire Board of Directors.
From and after the time, if any, that ▇▇▇▇▇▇'s designees
constitute a majority of the Company's Board of Directors, any amendment of
the Merger Agreement or the Certificate of Incorporation or By-Laws of the
Company, any termination of the Merger Agreement by the Company, any extension
of time for performance of any of the obligations of Parent or Purchaser
thereunder, any waiver of any condition or of the Company's rights thereunder
or other action by the Company in connection with the rights of the Company
thereunder may be effected only with the concurrence of a majority of the
directors of the Company then in office who were directors of the Company on
the date of the Merger Agreement.
Company Stockholder Meeting. Pursuant to the Merger Agreement,
the Company shall cause a meeting of its stockholders (the "Company
Stockholder Meeting") to be duly called and held as soon as practicable
following the acceptance for payment and purchase of Shares by Purchaser
pursuant to the Offer for the purpose of voting on the approval and adoption
of the Merger Agreement, unless a vote of stockholders by the Company is not
required by Delaware Law.
If a Company Stockholder Meeting is required, the Merger
Agreement provides that the Company will promptly prepare and file with the
Commission a preliminary proxy or information statement (the "Proxy
Statement") relating to the Merger and the Merger Agreement. The Company has
agreed, subject to the fiduciary duties of its Board of Directors as advised
by counsel and subject to other exceptions, to include in the Proxy Statement
the recommendation of the Board of Directors that the stockholders approve and
vote in favor of the adoption of the Merger Agreement and the Merger. Parent
has agreed to vote or cause to be voted all Shares then owned by it, Purchaser
or any of its other subsidiaries and affiliates, in favor of approval of the
Merger and the adoption of the Merger Agreement. In the event that Purchaser
acquires at least 90% of the outstanding shares of each class of capital stock
of the Company, pursuant to the Offer or otherwise, the parties to the Merger
Agreement agree to take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after such acquisition,
without a meeting of stockholders of the Company.
Covenants of the Company. The Company has agreed that, except
(i) as contemplated by the Merger Agreement, (ii) with regard to entering into
certain lease assignments and employee agreements regarding change of control
as disclosed in Section 5.1 of the Company Disclosure Schedule (as defined in
the Merger Agreement) and as described in part in Section 12 or (iii) as
agreed in writing by Parent, after the date of the Merger Agreement, and prior
to the time the directors of Purchaser have been elected to, and shall
constitute a majority of, the Board of Directors of the Company (the "Election
Date"):
(a) the business of the Company and its subsidiaries (as defined
in the Merger Agreement) shall be conducted only in the ordinary
course of business, consistent with past practices and, to the extent
consistent therewith, each of the Company and its subsidiaries shall
use its reasonable best efforts to preserve its business organization
intact and maintain its existing relations with customers, suppliers
and other third parties, and to keep available the services of their
present officers, employees and business associates;
(b) each of the Company and its subsidiaries will not, directly
or indirectly, (i) amend or propose any change to its Certificate of
Incorporation or By-laws or similar organizational documents or (ii)
split, combine or reclassify its outstanding capital stock;
(c) neither the Company nor any of its subsidiaries shall: (i)
declare, set aside or pay any dividend or other distribution (whether
payable in cash, stock or property or any combination thereof) with
respect to its capital stock (other than cash dividends from any
wholly-owned subsidiary of the Company to the Company or any other
subsidiary of the Company all of the capital stock of which is owned
directly or indirectly by the Company); (ii) issue or sell any
additional shares of, or securities convertible into or exchangeable
for, or options, warrants, calls, commitments or rights of any kind to
acquire, any shares of capital stock of any class of the Company or
its subsidiaries, other than issuances pursuant to the exercise of
Options (as defined in the Merger Agreement) outstanding on the date
hereof and disclosed on the Company Disclosure Schedule (as defined in
the Merger Agreement) or conversion of Class A Shares into Common
Shares in accordance with the terms thereof; (iii) sell, lease,
license (subject to the further restrictions of paragraph (vi) hereof)
or dispose of any assets or properties other than in the ordinary
course of business consistent with past practices which individually
or in the aggregate are in an amount in excess of $500,000; (iv)
incur, assume, prepay or modify any debt, other than in the ordinary
course of business consistent with past practices; (v) license or
sublicense (in each case subject to the further restrictions of
paragraph (vi) hereof) any asset or property of the Company or any
subsidiary of the Company except in the ordinary course of business
consistent with past practice on a basis that results in a positive
current royalty net of any royalties due by the Company or any
subsidiary on account of sales by the licensee or sublicensee; (vi)
license or sublicense any Intellectual Property (as defined in the
Merger Agreement) of the Company or any subsidiary; or (vii) redeem,
purchase or otherwise acquire, directly or indirectly, any of its or
its subsidiaries' capital stock (except as contemplated by any
employee benefit or stock plans or any employment or severance
agreement as in effect on the date of the Merger Agreement);
(d) neither the Company nor any of its subsidiaries shall
acquire (by merger, consolidation or acquisition of stock or assets)
any corporation, partnership or other business organization or
division thereof;
(e) neither the Company nor any of its subsidiaries shall make
any investment other than in readily marketable securities in any
amount in excess of $500,000 in the aggregate whether by purchase of
stock or securities, contributions to capital or any property
transfer;
(f) neither the Company nor any of its subsidiaries shall waive,
release, grant, or transfer any rights of value material to the
Company and its subsidiaries taken as a whole;
(g) neither the Company nor any of its subsidiaries shall,
except as may be required or contemplated by the Merger Agreement or
by applicable law, (i) enter into, adopt, materially amend or
terminate any Benefit Plans (as defined in the Merger Agreement), (ii)
enter into or amend any retention plan or stay bonus arrangement,
employment or severance agreement, (iii) increase in any manner the
compensation or other benefits of its officers or directors or (iv)
increase in any manner the compensation or other benefits of any other
employees (except, in the case of this clause (iv), for normal
increases in the ordinary course of business, consistent with past
practices);
(h) neither the Company nor any of its subsidiaries shall: (i)
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of
any other person (other than subsidiaries of the Company), except
pursuant to contractual indemnification agreements entered into in the
ordinary course of business, consistent with past practices; (ii)
make any loans, advances or capital contributions to, or investments
in, any other person (other than to subsidiaries of the Company and
payroll, travel and similar advances made in the ordinary course of
business consistent with past practices); (iii) revalue in any
material respect any of its assets, including, without limitation,
writing down the value of inventory in any material manner or write-
off of notes or accounts receivable in any material manner; or (iv)
authorize or make capital expenditures which exceed $2,500,000
individually or $20,000,000 in the aggregate;
(i) neither the Company nor any of its subsidiaries shall pay,
discharge or satisfy any material claims, liabilities or obligations
(whether absolute, accrued, asserted or unasserted, contingent or
otherwise) other than the payment, discharge or satisfaction in the
ordinary course of business, consistent with past practices, of
liabilities reflected or reserved against in the consolidated
financial statements of the Company or incurred since the most recent
date thereof pursuant to an agreement or transaction described in the
Merger Agreement (including the schedules thereto) or incurred in the
ordinary course of business, consistent with past practices;
(j) neither the Company nor any of its subsidiaries shall change
in any material respect any of the accounting methods, principles,
policies or procedures used by it unless required by generally
accepted accounting principles or applicable law;
(k) the Company will not amend, modify or terminate any Material
Agreement (as defined in the Merger Agreement) or enter into any new
agreement material to the business of the Company, other than in the
ordinary course of business consistent with past practices or with the
prior written consent of Parent, which consent shall not be
unreasonably withheld;
(l) neither the Company nor any subsidiary will amend or modify
any existing Affiliate Transaction (as defined in the Merger
Agreement) or enter into any new Affiliate Transaction other than with
the prior written consent of Parent;
(m) neither the Company nor any of its subsidiaries will take or
commit to take any action that would make any representation or
warranty of the Company thereunder inaccurate in any respect at, or as
of the time prior to, the Election Date; and
(n) neither the Company nor any of its subsidiaries will
authorize or enter into an agreement to do any of the foregoing.
Pursuant to the Company Disclosure Schedule, in addition to
execution of the amended employment agreements with respect to senior
management of the Company referenced below in Section 12, "Purpose of the
Offer; Plans for the Company", the Company, in connection with the execution
of the Merger Agreement, is permitted to enter into change of control
agreements with additional employees of the Company pursuant to which the
Company may be required to make certain payments to such employees upon the
consummation of the transactions contemplated by the Merger Agreement or
thereafter. The amount of such payments, other than those payments to be made
to the members of the senior management set forth in Schedule B hereto, equal
in the aggregate $2,646,493.
No Solicitation. Pursuant to the Merger Agreement, the
Company has agreed that from and after the date hereof, neither the Company
nor any of its subsidiaries shall, whether directly or indirectly through
advisors, agents or other intermediaries, nor shall the Company or any of its
subsidiaries authorize or permit any of its or their directors, officers,
advisors, agents or representatives, to (i) initiate, solicit, encourage or
facilitate, directly or indirectly, any Acquisition Proposal (as defined
below), (ii) engage in negotiations or discussions (other than, upon contact
initiated by a third party, to advise such third party of the existence of the
restrictions set forth in this section) with, or furnish any information or
data to, any third party relating to an Acquisition Proposal, or (iii) grant
any waiver or release under any standstill or similar agreement with respect
to any class of equity securities of the Company or any of its subsidiaries.
Notwithstanding anything to the contrary contained in this section or in any
other provision of the Merger Agreement, the Company and its Board of
Directors may participate in discussions or negotiations with or furnish
information to any third party making any Acquisition Proposal not solicited
in violation of this section (a "Potential Acquiror") or approve such an
Acquisition Proposal if the Company's Board of Directors is advised by its
financial advisor that such Potential Acquiror has the financial wherewithal
to be reasonably capable of consummating such an Acquisition Proposal, and the
Board determines in good faith (A) after receiving advice from its financial
advisor, that such third party has submitted to the Company an Acquisition
Proposal which is a Superior Proposal (as defined below), and (B) based upon
advice of outside legal counsel, that the failure to participate in such
discussions or negotiations or to furnish such information or approve an
Acquisition Proposal would violate the Board's fiduciary duties under
applicable law. The Company agreed that any non-public information furnished
to a Potential Acquiror will be pursuant to a confidentiality agreement
containing confidentiality and standstill provisions substantially similar to
the confidentiality and standstill provisions of the Confidentiality
Agreement, but in no event less favorable to the Company, in a material
respect. A copy of the confidentiality agreement entered into with the
Potential Acquiror shall be provided to Parent for informational purposes
only. In the event that the Company shall determine to provide any
information as described above, or shall receive any Acquisition Proposal, it
shall promptly inform Parent in writing as to the fact that information is to
be provided and shall furnish to Parent the identity of the recipient of such
information and/or the Potential Acquiror and the terms of any Acquisition
Proposal and shall continue to advise Parent after providing such information.
The Company will immediately cease and cause its advisors, agents and other
intermediaries to terminate any existing activities, discussions and
negotiations conducted prior to the execution of the Merger Agreement with
respect to any Acquisition Proposal and shall use its reasonable best efforts
to cause any parties in possession of confidential information about the
Company that was furnished by or on behalf of the Company to return or destroy
all such information in the possession of any such party or in the possession
of any agent or advisor of such party from and after the date of the Merger
Agreement.
(b) The Board of Directors of the Company shall not (i) withdraw or modify
or propose to withdraw or modify, in any manner adverse to Parent, the
approval or recommendation of such Board of Directors of the Merger Agreement,
the Offer or the Merger, (ii) approve or recommend, or propose to approve or
recommend, any Acquisition Proposal or (iii) cause or agree to cause the
Company to enter into any letter of intent, agreement in principle or
agreement related to any Acquisition Proposal unless, in each case, the Board
determines in good faith (A) after receiving advice from its financial advisor
that such Acquisition Proposal is a Superior Proposal and (B) based upon
advice of outside legal counsel that the failure to take such action would
violate the Board's fiduciary duties under applicable law.
(c) "Acquisition Proposal" shall mean any inquiry, proposal or offer,
whether in writing or otherwise, made by a third party (other than Parent)
relating to (i) any acquisition or purchase of 20% or more of the consolidated
assets of the Company and its subsidiaries or of 20% or more of any class of
equity securities of the Company or any of its subsidiaries, (ii) any tender
offer (including a self tender offer) or exchange offer that if consummated
would result in any third party beneficially owning 20% or more of any class
of equity securities of the Company or any of its subsidiaries, (iii) any
merger, consolidation, business combination, sale of assets, recapitalization,
liquidation, dissolution or similar transaction involving the Company or any
of its subsidiaries whose assets, individually or in the aggregate, constitute
more than 20% of the consolidated assets of the Company and its subsidiaries
or (iv) any other transaction the consummation of which would reasonably be
expected to interfere with in a material way, prevent or materially delay the
Merger or which would reasonably be expected to materially dilute the benefits
to Parent of the transactions contemplated by the Merger Agreement (but
excluding, in each case, the transactions contemplated by the Merger
Agreement).
(d) "Superior Proposal" means any bona fide Acquisition Proposal, which
proposal was not solicited by the Company after the date of the Merger
Agreement, made by a third party to acquire, directly or indirectly, for
consideration consisting of cash and/or securities, more than a majority of
the Shares then outstanding or all or substantially all the assets of the
Company, and otherwise on terms which the Board of Directors of the Company
determines in good faith to be more favorable to the Company and its
stockholders than the Offer and the Merger (based on advice of the Company's
financial advisor that the value of the consideration provided for in such
proposal is superior to the value of the consideration provided for in the
Offer and the Merger).
(e) "Third party" means any person, corporation, entity or "group," as
defined in Section 13(d) of the Exchange Act and the rules of the Commission
promulgated thereunder, other than Parent or any of its affiliates.
(f) Notwithstanding the foregoing, nothing contained in this section
entitled "No Solicitation" shall prohibit the Company from taking and
disclosing to its stockholders a position contemplated by Rule 14e-2(a)
promulgated under the Exchange Act or from making any disclosure to the
Company's stockholders which the Board of Directors of the Company determines
in good faith, on the basis of advice from outside legal counsel (who may be
the Company's regularly engaged outside legal counsel), that such action is
required in order to comply with the fiduciary duties of the Board of
Directors to the stockholders of the Company under applicable law.
Notwithstanding anything contained in the Merger Agreement to the contrary,
(i) any action by the Board of Directors permitted to be taken by this section
entitled "No Solicitation" shall not constitute a breach of the Merger
Agreement by the Company and (ii) any "stop-look-and-listen" communication
with respect to the Offer, the Merger or the Merger Agreement solely of the
nature contemplated by Rule 14d-9 under the Exchange Act made by the Company
as a result of an Acquisition Proposal shall in no event be deemed a
withdrawal or modification by the Board of Directors of its approval or
recommendation of the Offer, the Merger or the Merger Agreement.
Non-Solicitation and Non-Competition Agreements. Pursuant to
the terms of the Merger Agreement, the Company has agreed that it will, as
soon as practicable following the execution of the Merger Agreement, enter
into Non-Solicitation and Non-Competition Agreements substantially in the form
of the agreements or as otherwise set forth in the Company Disclosure Schedule
with the individuals and the entities listed in the Company Disclosure
Schedule, which includes in part ▇▇▇▇▇ & Partners and the individuals set
forth on Schedule B hereto.
Transition Services. Pursuant to the terms of the Merger
Agreement, the Company has agreed that it will enter into an agreement with
▇▇▇▇▇ & Partners pursuant to which, at the election of the Company, ▇▇▇▇▇ &
Partners will provide transition services to the Surviving Corporation for a
period of up to six months (as determined by the Company) following the
Effective Time at a cost that is equal to the cost to ▇▇▇▇▇ & Partners of
providing those services. For the purposes of this paragraph, "transition
services" means financial, treasury, accounting, tax, audit, benefit
administration, management information services and other related services,
and other similar administrative services currently provided to the Company or
its subsidiaries by ▇▇▇▇▇ & Partners.
Director and Officer Liability. Pursuant to the Merger
Agreement, the Company has agreed that it will, and from and after the
consummation of the Offer, Parent will or will cause the Surviving Corporation
or an affiliate of Parent to indemnify, defend and hold harmless the present
and former directors and officers of the Company and its subsidiaries (the
"Indemnified Parties") from and against all losses, expenses, claims, damages
or liabilities arising out of the transactions contemplated by the Merger
Agreement to the fullest extent provided under the Company's certificate of
incorporation and bylaws in effect on the date of the Merger Agreement;
provided that such indemnification shall be subject to any limitation imposed
from time to time under applicable law. All rights to indemnification and
exculpation existing in favor of the directors and officers of the Company as
provided in the Company's certificate of incorporation or by-laws, as in
effect as of the date of the Merger Agreement, with respect to matters
occurring through the Effective Time (including the right to advancement of
expenses), shall survive the Merger and shall not be amended, repealed or
otherwise modified for a period of six years after the consummation of the
Offer in any manner that would adversely affect the rights of the individuals
who at or prior to the consummation of the Offer were directors or officers of
the Company with respect to occurrences at or prior to the consummation of the
Offer and Parent shall cause the Surviving Corporation to honor all such
rights to indemnification. For a period of three years after the Effective
Time, Parent will cause the Surviving Corporation to use its reasonable best
efforts to provide directors and officers liability insurance issued by a
reputable insurer in respect of acts and omissions occurring prior to the
Effective Time covering each of the Indemnified Parties currently covered by
the Company's officers' and directors' liability insurance on terms with
respect to coverage and amount no less favorable than those of such policy in
effect on the date of the Merger Agreement; provided that in satisfying its
obligation under this paragraph, Parent shall not be obligated to cause the
Surviving Corporation to pay premiums in excess of 200% of the amount per
annum the Company paid in its last full fiscal year, which amount has been
disclosed to Parent.
Employee Benefits. Pursuant to the Merger Agreement, Parent
and Purchaser agreed that during the period commencing on the Effective Date
(as defined in the Merger Agreement) and ending on the date that is one year
from the Effective Date, the Surviving Corporation and its subsidiaries and
successors shall provide those persons who, immediately prior to the Effective
Time, were employees of the Company or its subsidiaries ("Retained Employees")
with employee plans and programs that provide benefits substantially
comparable in the aggregate to those provided to such Retained Employees
immediately prior to the Effective Time (disregarding for this purpose any
stock options or other equity based compensation provided to such employees
prior to the Effective Time). With respect to such employee plans and
programs provided by the Surviving Corporation and its subsidiaries and
successors, service accrued by such Retained Employees during employment with
the Company and its subsidiaries prior to the Effective Time shall be
recognized for all purposes, except to the extent necessary to prevent
duplication of benefits and except for benefit accrual under any defined
benefit pension plan maintained by Purchaser. Amounts paid before the
Effective Time by employees of the Company and its subsidiaries under any
medical plans of the Company shall after the Effective Time be taken into
account in applying deductible and out-of-pocket limits applicable under any
medical plan provided by Parent in substitution therefor to the same extent
as if such amounts had been paid under such Parent medical plan.
Representations and Warranties. The Merger Agreement contains
customary representations and warranties of the parties thereto including
representations by the Company as to the absence of certain changes or events
concerning its respective business, patents and other proprietary rights,
compliance with law, litigation, employee benefit plans, taxes, environmental
and other matters.
Redemption of Rights Plan. Pursuant to the Merger Agreement,
the Company represented that it had taken all action necessary to render the
Rights Agreement inapplicable to the Offer, the Merger, the Merger Agreement
and the transactions contemplated thereby.
Conditions to Certain Obligations. The obligations of the
Company, Purchaser and Parent to consummate the Merger are subject to the
satisfaction of the following conditions: (i) if required by Delaware Law, the
adoption by the stockholders of the Company of the Merger Agreement in
accordance with such law; (ii) any applicable waiting period under the HSR Act
and other applicable antitrust or competition laws relating to the Merger shall
have expired or been terminated; (iii) no judgment, statute, rule, regulation,
order, decree or injunction, shall have been enacted, promulgated or issued by
any Governmental Entity (as defined in the Merger Agreement) or court which
prohibits or restrains the consummation of the Merger; and (iv) Parent,
Purchaser or their affiliates shall have purchased Shares pursuant to the
Offer.
Termination. The Merger Agreement may be terminated and the
Merger contemplated therein may be abandoned at any time prior to the
Effective Time, whether before or after stockholder approval thereof: (a) by
the mutual consent of Parent, Purchaser and the Company; (b) by either of the
Company, on the one hand, or Parent and Purchaser on the other hand: (i) if
Shares shall not have been purchased pursuant to the Offer on or prior to
December 31, 1998; provided further, however, that the right to terminate the
Merger Agreement under this clause (b)(i) shall not be available to any party
whose failure to fulfill any obligation under the Merger Agreement has been
the cause of, or resulted in, the failure of Parent or Purchaser, as the case
may be, to purchase Shares pursuant to the Offer on or prior to such date; or
(ii) if there shall be any law or regulation that makes consummation of the
Merger illegal or otherwise prohibited or if any Governmental Entity shall
have issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the parties to the Merger Agreement shall use
their respective reasonable best efforts to lift), in each case restraining,
enjoining or otherwise prohibiting the transactions contemplated by the Merger
Agreement or prohibiting Parent to acquire or hold or exercise rights of
ownership of the Shares, and such order, decree, ruling or other action shall
have become final and non-appealable; (c) by the Company: (i) if, subject to
the provisions of the section entitled "No Solicitation" hereof and prior to
the purchase of Shares pursuant to the Offer, a third party shall have made an
Acquisition Proposal that the Board of Directors of the Company determines in
good faith, after consultation with its financial advisor, is a Superior
Proposal and the Company shall have executed a definitive agreement with such
third party in respect of such Superior Proposal; or (ii) if Parent or
Purchaser shall have terminated the Offer, or the Offer shall have expired,
without Parent or Purchaser, as the case may be, purchasing any Shares pursuant
thereto; provided that the Company may not terminate the Merger Agreement
pursuant to this clause (c)(ii) if the Company is in material breach of the
Merger Agreement; and (d) by Parent and Purchaser if, prior to the purchase
of Shares pursuant to the Offer, (i) the Board of Directors of the Company
shall have withdrawn, modified or changed in a manner adverse to Parent or
Purchaser its approval or recommendation of the Offer, the Merger Agreement or
the Merger; (ii) the Board of Directors of the Company shall have approved or
recommended an Acquisition Proposal or shall have executed an agreement in
principle or definitive agreement relating to an Acquisition Proposal or
similar business combination with a person or entity other than Parent,
Purchaser or their affiliates (or the Board of Directors of the Company
resolves to do any of the foregoing); or (iii) any person or group (as defined
in Section 13(d)(3) of the Exchange Act) (other than Parent or any of its
affiliates) shall have become the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of at least 50% of the outstanding Shares
or shall have acquired, directly or indirectly, at least 50% of the assets of
the Company.
Effect of Termination. (a) In the event of the termination of
the Merger Agreement as provided above, written notice thereof shall forthwith
be given to the other party or parties specifying the provision of the Merger
Agreement pursuant to which such termination is made, and the Merger Agreement
shall forthwith become null and void, and there shall be no liability on the
part of Parent, Purchaser or the Company or their respective directors,
officers, employees, stockholders, representatives, agents or advisors other
than, with respect to Parent, Purchaser and the Company, the obligations
pursuant to, among others, this section entitled "Effect of Termination",
sections hereof on "Transition Services", "Waivers", "Fees and Expenses" and
the agreement by Parent to hold confidential any non-public information
received in accordance with the provisions of the Confidentiality Agreement
dated July 21, 1998. Nothing contained in this section entitled "Effect of
Termination" shall relieve Parent, Purchaser or the Company from liability for
willful breach of the Merger Agreement.
(b) In the event that the Merger Agreement is terminated by the Company
pursuant to clause (c)(i) above under "Termination" or by Parent and Purchaser
pursuant to clause (d) above under "Termination", the Company shall pay to
Parent by wire transfer of immediately available funds to an account
designated by Parent on the next business day following such termination, an
amount equal to $65,000,000 (the "Termination Fee").
(c) The Company acknowledged that the agreements contained in this section
entitled "Effect of Termination" are an integral part of the transactions
contemplated by the Merger Agreement, and that, without these agreements,
Parent would not enter into the Merger Agreement; accordingly, if the Company
fails to promptly pay the Termination Fee, and, in order to obtain such
payment, the other party commences a suit which results in a judgment against
the Company for the Termination Fee, the Company shall also pay to Parent its
costs and expenses incurred in connection with such litigation.
Fees and Expenses. Except as set forth in the section entitled
"Effect of Termination" hereof, all costs and expenses incurred in connection
with the Offer, the Merger, the Merger Agreement and the consummation of the
transactions contemplated thereby shall be paid by the party incurring such
costs and expenses.
Waivers. Except as otherwise provided in the Merger Agreement,
any failure of any of the parties to comply with any obligation, covenant,
agreement or condition in the Merger Agreement may be waived by the party or
parties entitled to the benefits thereof only by a written instrument signed
by the party granting such waiver, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure. No failure or delay by any party in exercising any right,
power or privilege under the Merger Agreement shall operate as a waiver
thereof. The rights and remedies provided in the Merger Agreement shall be
cumulative and not exclusive of any rights or remedies provided by law.
The Stockholders Agreement. The following is a summary of the
Stockholders Agreement, a copy of which is filed as an Exhibit to the Schedule
14D-1. Such summary is qualified in its entirety by reference to the
Stockholders Agreement.
Voting Agreement. Pursuant to the Stockholders Agreement, each
of the holders of capital stock of the Company party to the Stockholders
Agreement (the "Stockholders") agrees to vote all Shares that such Stockholder
is entitled to vote at the time of any vote to approve and adopt the Merger
Agreement, the Merger and all agreements related to the Merger and any actions
related thereto at any meeting of the stockholders of the Company, and at any
adjournment thereof, at which such Merger Agreement and other related
agreements (or any amended version thereof), or such other actions, are
submitted for the consideration and vote of the stockholders of the Company.
Each Stockholder also agrees that it will not vote any Shares in favor of the
approval of any (i) Acquisition Proposal, (ii) reorganization,
recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company, (iii) corporate action the
consummation of which would frustrate the purposes, or prevent or delay the
consummation, of the transactions contemplated by the Merger Agreement or (iv)
other matter relating to, or in connection with, any of the foregoing matters.
Agreement to Tender. Pursuant to the Stockholders Agreement,
each Stockholder agrees to tender, upon the request of ▇▇▇▇▇▇▇▇▇ (and agrees
that it will not withdraw), pursuant to and in accordance with the terms of the
Offer, the Shares. Within five business days after the commencement of the
Offer, each Stockholder shall deliver to the depositary designated in the
Offer (i) a letter of transmittal with respect to the Shares complying with
the terms of the Offer, (ii) certificates representing the Shares and (iii)
all other documents or instruments required to be delivered pursuant to the
terms of the Offer.
Other Offers. In accordance with the Stockholders Agreement,
each Stockholder and its subsidiaries shall not, and will use their reasonable
best efforts to cause their officers, directors, employees or other agents not
to, directly or indirectly, (i) take any action to solicit or initiate any
Acquisition Proposal or (ii) engage in negotiations with, or disclose any
nonpublic information relating to the Company or any of its subsidiaries or
afford access to the properties, books or records of the Company or any of its
subsidiaries to, any person that may be considering making, or has made, an
Acquisition Proposal or has agreed to endorse an Acquisition Proposal. Each
Stockholder will promptly notify Purchaser after receipt of an Acquisition
Proposal or any indication that any person is considering making an
Acquisition Proposal or any request for nonpublic information relating to the
Company or any of its subsidiaries or for access to the properties, books or
records of the Company or any of its subsidiaries by any person that may be
considering making, or has made, an Acquisition Proposal and will keep
Purchaser fully informed of the status and details of any such Acquisition
Proposal, indication or request.
Grant of Proxy. Pursuant to the Stockholders Agreement, each
Stockholder has granted an irrevocable proxy appointing Purchaser as such
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in such Stockholder's name, to vote, express consent or dissent, or
otherwise to utilize such voting power in the manner contemplated by the
voting agreement as Purchaser or its proxy or substitute shall, in Purchaser's
sole discretion, deem proper with respect to the Shares.
Representations and Warranties. The Stockholders Agreement
contains customary representations and warranties of the parties thereto.
No Proxies for or Encumbrances on Shares. Except pursuant to
the terms of the Stockholders Agreement, no Stockholder shall, without the
prior written consent of Purchaser, directly or indirectly, (i) grant any
proxies or enter into any voting trust or other agreement or arrangement with
respect to the voting of any Shares or (ii) acquire, sell, assign, transfer,
encumber or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the direct or indirect
acquisition or sale, assignment, transfer, encumbrance or other disposition
of, any Shares during the term of the Stockholders Agreement.
No Shopping. Stockholders shall not seek or solicit any such
acquisition or sale, assignment, transfer, encumbrance or other disposition or
any such contract, option or other arrangement or understanding and agree to
notify Purchaser promptly, and to provide all details requested by Purchaser,
if approached or solicited, directly or indirectly, by any person with respect
to any of the foregoing.
Appraisal Rights. Each Stockholder agrees not to exercise any
rights (including, without limitation, under Section 262 of the General
Corporation Law of the State of Delaware) to demand appraisal of any Shares
which may arise with respect to the Merger.
Amendments; Termination. Any provision of the Stockholders
Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party or in
the case of a waiver, by the party against whom the waiver is to be effective.
The Stockholders Agreement shall terminate on the later to occur of the
termination of the Merger Agreement in accordance with its terms or April 1,
1999.
The Confidentiality Agreement. The following is a summary of
the Confidentiality Agreement, a copy of which is filed as an Exhibit to the
Schedule 14D-1. Such summary is qualified in its entirety by reference to the
Confidentiality Agreement.
The Confidentiality Agreement contains customary provisions
pursuant to which, among other matters, Parent agreed to keep confidential all
nonpublic, confidential or proprietary information furnished to it by the
Company relating to the Company, subject to certain exceptions (the
"Confidential Information"), and to use the Confidential Information solely in
connection with evaluating a possible transaction involving the Company and
Parent and not in any manner detrimental to the Company. Parent has agreed in
the Confidentiality Agreement that for a period of eighteen months from the
date of the Confidentiality Agreement, neither it nor any of its affiliates
will, among other things, directly or indirectly, acquire or agree or offer to
acquire any securities or assets of the Company, solicit proxies with respect
to the Company's securities, or propose to enter into any transaction
involving the Company unless such proposal is directed and disclosed solely to
the management of the Company. Parent further agreed that, for a period of
two years from the date of the Confidentiality Agreement, neither Parent nor
any of its affiliates will, without the written consent of the Company,
solicit the employment of any officer or general manager of the Company,
subject to certain exceptions.
12. Purpose of the Offer; Plans for the Company.
The purpose of the Offer is to acquire control of, and an
equity interest in, the Company. The purpose of the Merger is to acquire all
outstanding Shares not tendered and purchased pursuant to the Offer. The
Offer is being made pursuant to the Merger Agreement and the purchase of the
Shares pursuant to the Offer will increase the likelihood that the Merger will
be effected. If the Offer is successful, the Shares not acquired by Purchaser
pursuant to the Offer will be converted (except with respect to Shares owned
by Parent or any subsidiary of Parent and Shares as to which appraisal rights
have been perfected), subject to the terms of the Merger Agreement, into the
right to receive cash in an amount equal to the price per share paid pursuant
to the Offer.
The Board of Directors of the Company has approved the Merger
and adopted the Merger Agreement. Depending upon the number of Shares
purchased by Purchaser pursuant to the Offer, the Board may be required to
submit the Merger Agreement to the Company's stockholders for approval at a
stockholder's meeting convened for that purpose in accordance with Delaware
Law. If stockholder approval is required, the Merger Agreement must be
approved by a majority of all votes entitled to be cast at such meeting.
If the Minimum Tender Condition is satisfied, Purchaser will
have sufficient voting power to approve the Merger Agreement at the
stockholders' meeting without the affirmative vote of any other stockholder.
If Purchaser acquires 90% of the Shares pursuant to the Offer,
the Merger may be consummated without a stockholders' meeting and without the
approval of the Company's stockholders. The Merger Agreement provides that
Purchaser will be merged with and into the Company following the Offer, and
that the certificate of incorporation of Purchaser will be the certificate of
incorporation of the Surviving Corporation following the Merger.
Under Delaware Law, holders of Shares do not have appraisal
rights as a result of the Offer. In connection with the Merger, however,
stockholders of the Company may have the right to dissent and demand appraisal
of their Shares under Delaware Law. Dissenting stockholders who comply with
the applicable statutory procedures under Delaware Law will be entitled to
receive a judicial determination of the fair value of their Shares (exclusive
of any element of value arising from the accomplishment or expectation of such
merger or similar business combination) and to receive payment of such fair
value in cash. Any such judicial determination of the fair value of the
Shares could be based upon considerations other than or in addition to the
price paid in the Merger and the market value of the Shares. In ▇▇▇▇▇▇▇▇▇▇ v.
UOP, Inc., the Delaware Supreme Court stated, among other things, that "proof
of value by any techniques or methods which are generally considered
acceptable in the financial community and otherwise admissible in court"
should be considered in an appraisal proceeding. Stockholders should
recognize that the value so determined could be higher or lower than the price
per Share paid pursuant to the Offer or the consideration per Share paid in
such a merger or other similar business combination. Moreover, Purchaser may
argue in an appraisal proceeding that, for purposes of such a proceeding, the
fair value of the Shares is less than the price paid in the Offer.
In addition, several decisions by Delaware courts have held
that, in certain circumstances a controlling stockholder of a company involved
in a merger has a fiduciary duty to other stockholders which requires that the
merger be fair to such other stockholders. In determining whether a merger is
fair to minority stockholders, Delaware courts have considered, among other
things, the type and amount of consideration to be received by the
stockholders and whether there was fair dealing among the parties. The
Delaware Supreme Court stated in ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ v. ▇▇▇▇▇▇ ▇. ▇▇▇▇
Chemical Corp. that the remedy ordinarily available to minority stockholders
in a cash-out merger is the right to appraisal described above. However, a
damages remedy or injunctive relief may be available if a merger is found to
be the product of procedural unfairness, including fraud, misrepresentation or
other misconduct.
If Purchaser purchases Shares pursuant to the Offer and the
Merger is consummated more than one year after the completion of the Offer or
if an alternative merger transaction were to provide for the payment of
consideration less than that paid pursuant to the Offer, compliance by
Purchaser with Rule 13e-3 under the Exchange Act would be required, unless the
Shares were to be deregistered under the Exchange Act prior to such
transaction. Rule 13e-3 requires, among other things, that certain financial
information concerning the Company and certain information relating to the
fairness of the proposed merger transaction and the consideration offered to
minority stockholders therein be filed with the Commission and disclosed to
minority stockholders prior to consummation of the merger transaction.
Plans for the Company. Except as described below or elsewhere
in this Offer to Purchase, based on its current knowledge of the Company,
Purchaser has no present plans or proposals which relate to or would result
in any extraordinary corporate transaction, such as a merger, reorganization,
liquidation, or sale or transfer of a material amount of assets involving the
Company or any of its subsidiaries, or any material changes in the Company's
capitalization, dividend policy, corporate structure or business or the
composition of its board of directors or business. However, Purchaser is
continuing its review of the Company and its assets, corporate structure,
capitalization, operations, properties, policies, management and personnel.
After the completion of such review, Purchaser may propose or develop
alternative plans or proposals, including mergers, transfers of a material
amount of assets or other transactions or changes of the nature described
above. Purchaser reserves the right to effect any such plans and proposals.
Parent expects that following the Effective Time (as defined in
Section 11) (or at any earlier time permitted by the Merger Agreement) it will
cause its designees to constitute a majority of the members of the Board of
Directors. In the event the Offer is consummated, Parent may designate a
number of members to the Company's Board of Directors (as contemplated by the
Merger Agreement), equal to the product of (i) the total number of directors
on the Board of Directors (giving effect to the election of any additional
directors designated by Parent) and (ii) the percentage that the number of
shares then owned by Parent bears to the total number of Shares outstanding;
provided that the Company shall be entitled to retain as members of the Board
of Directors at least two directors who were directors of the Company on the
date of the Merger Agreement. The persons who may be designated by Parent are
listed on Schedule A hereto.
The Company has indicated to Purchaser that it expects, upon
consummation of the Merger, that the following members of senior management
will resign from their positions with the Company: (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇ (Chairman
of the Board of Directors and Chief Executive Officer of the Company), (ii)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (President and Chief Operating Officer of the Company),
(iii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (Senior Vice President and Chief Financial Officer of
the Company), (iv) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Chief Accounting Officer of the
Company), (v) ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Secretary and General Counsel of the Company),
(vi) ▇▇▇▇▇ ▇. ▇▇▇▇▇ (Senior Vice President of the Company), and (vii) ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (Senior Vice-President of the Company). Pursuant to the terms of the
Company's employment arrangements with certain of these individuals, as
amended in connection with the execution of the Merger Agreement, each will
receive payments from the Company upon resignation and consummation of the
Merger in the amount on Schedule B. In addition to the amounts set forth on
Schedule B, the Company has indicated to Purchaser that these individuals are
expected to receive prorated bonuses under the Key Management Incentive
Compensation Plan or the 1998 Senior Executive Incentive Compensation Plan, as
applicable. The aggregate payments expected to be made to these individuals
pursuant to such plans total approximately $1,236,588.
13. Effect of the Offer on the Market for the Shares; Stock Exchange
Listing; Registration under the Exchange Act.
The purchase of Common Shares pursuant to the Offer will reduce
the number of Common Shares that might otherwise trade publicly and may reduce
the number of holders of Common Shares, which could adversely affect the
liquidity and market value of the remaining Common Shares held by stockholders
other than Purchaser. Purchaser cannot predict whether the reduction in the
number of Common Shares that might otherwise trade publicly would have an
adverse or beneficial effect on the market price for, or marketability of, the
Common Shares or whether such reduction would cause future market prices to be
greater or less than the Offer price.
Depending upon the number of Common Shares purchased pursuant
to the Offer, the Common Shares may no longer meet the requirements of the
NYSE for continued listing and may, therefore, be delisted from such exchange.
According to the NYSE's published guidelines, the NYSE would consider
delisting the Common Shares if, among other things, the number of
publicly-held Common Shares (excluding Common Shares held by officers,
directors, their immediate families and other concentrated holdings of 10% or
more) were less than 600,000, there were less than 1,200 holders of at least
100 shares or the aggregate market value of the publicly-held Common Shares
were less than $5 million. According to the Company 1997 10-K, there were
approximately 286 holders of record of Common Shares as of December 31 , 1997.
If, as a result of the purchase of Common Shares pursuant to the Offer, the
Common Shares no longer meet the requirements of the NYSE for continued
listing and the listing of Common Shares is discontinued, the market for the
Common Shares could be adversely affected.
If the NYSE were to delist the Common Shares (which Purchaser
intends to cause the Company to seek if it acquires control of the Company and
the Common Shares no longer meet the NYSE listing requirements), it is
possible that the Common Shares would trade on another securities exchange or
in the over-the-counter market and that price quotations for the Common Shares
would be reported by such exchange or through the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") or other sources.
The extent of the public market for the Common Shares and availability of such
quotations would, however, depend upon such factors as the number of holders
and/or the aggregate market value of the publicly-held Common Shares at such
time, the interest in maintaining a market in the Common Shares on the part of
securities firms, the possible termination of registration of the Common
Shares under the Exchange Act and other factors.
The Common 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 the collateral of such Common Shares. Depending
upon factors similar to those described above regarding listing and market
quotations, the Common Shares might no longer constitute "margin securities"
for the purposes of the Federal Reserve Board's margin regulations and,
therefore, could no longer be used as collateral for loans made by brokers.
The Common Shares are currently registered under the Exchange
Act. Such registration may be terminated upon application of the Company to
the Commission if the Common Shares are neither listed on a national
securities exchange nor held by 300 or more holders of record. Termination of
the registration of the Common Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company
to holders of Common Shares 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), the requirement of furnishing a proxy statement
pursuant to Section 14(a) in connection with a stockholder's meeting and the
related requirement of an annual report to stockholders and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions, no longer applicable to the Common Shares. Furthermore,
"affiliates" of the Company and persons holding "restricted securities" of the
Company may be deprived of the ability to dispose of such securities pursuant
to Rule 144 promulgated under the Securities Act of 1933 (the "Securities
Act"). If registration of the Common Shares under the Exchange Act were
terminated, the Common Shares would no longer be "margin securities" or
eligible for listing or NASDAQ reporting. Purchaser intends to seek to cause
the Company to terminate registration of the Common Shares under the Exchange
Act as soon after consummation of the Offer as the requirements for
termination of registration of the Common Shares are met.
14. Distributions.
If on or after August 27, 1998, the Company should (i) split,
combine or otherwise change the Shares or its capitalization, (ii) acquire or
otherwise cause a reduction in the number of outstanding Shares or (iii) issue
or sell any additional Shares (other than Shares issued pursuant to and in
accordance with the terms in effect on August 27, 1998 of employee stock
options and convertible securities outstanding prior to such date), shares of
any other class or series of capital stock, other voting securities or any
securities convertible into, or options, rights, or warrants, conditional or
otherwise, to acquire, any of the foregoing, then, without prejudice to
Purchaser's rights under Sections 15 or 16, Purchaser may, in its sole
discretion, make such adjustments in the purchase price and other terms of the
Offer as it deems appropriate including the number or type of securities to be
purchased.
15. Extension of Tender Period; Termination; Amendment.
Purchaser reserves the right, at any time or from time to time,
in its sole discretion and regardless of whether or not any of the conditions
specified in Section 16 shall have been satisfied (i) subject to the Merger
Agreement, to extend the period of time during which the Offer is open by
giving oral or written notice of such extension to the Depositary and by
making a public announcement of such extension or (ii) subject to the Merger
Agreement, to amend the Offer in any respect by making a public announcement
of such amendment. There can be no assurance that Purchaser will exercise its
right to extend or amend the Offer.
If Purchaser decreases the percentage of Shares being sought or
increases or decreases the consideration to be paid for Shares pursuant to the
Offer and the Offer is scheduled to expire at any time before the expiration of
a period of 10 business days from, and including, the date that notice of such
increase or decrease is first published, sent or given in the manner specified
below, the Offer will be extended until the expiration of such period of 10
business days. If Purchaser makes a material change in the terms of the Offer
(other than a change in price or percentage of securities sought) or in the
information concerning the Offer, or waives a material condition of the Offer,
Purchaser will extend the Offer, if required by applicable law, for a period
sufficient to allow stockholders to consider the amended terms of the Offer.
In a published release, the Commission has stated that in its view an offer
must remain open for a minimum period of time following a material change in
the terms of such offer and that the waiver of a condition such as the Minimum
Tender Condition is a material change in the terms of an offer. The release
states that 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
securityholders, and that if material changes are made with respect to
information that approaches the significance of price and share levels, a
minimum of 10 business days may be required to allow adequate dissemination
and investor response. The term "business day" shall mean any day other than
Saturday, Sunday or a federal holiday and shall consist of the time period from
12:01 A.M. through 12:00 Midnight, New York City time.
Purchaser also reserves the right, in its sole discretion, in
the event any of the conditions specified in Section 16 shall not have been
satisfied and so long as Shares have not theretofore been accepted for
payment, to delay (except as otherwise required by applicable law) acceptance
for payment of or payment for Shares or to terminate the Offer and not accept
for payment or pay for Shares.
If Purchaser extends the period of time during which the Offer
is open, is delayed in accepting for payment or paying for Shares or is unable
to accept for payment or pay for Shares pursuant to the Offer for any reason,
then, without prejudice to Purchaser's rights under the Offer, the Depositary
may, on behalf of Purchaser, retain all Shares tendered, and such Shares may
not be withdrawn except as otherwise provided in Section 4. The reservation
by Purchaser of the right to delay acceptance for payment of or payment for
Shares is subject to applicable law, which requires that Purchaser pay the
consideration offered or return the Shares deposited by or on behalf of
stockholders promptly after the termination or withdrawal of the Offer.
Any extension, termination or amendment of the Offer will be
followed as promptly as practicable by a public announcement thereof. Without
limiting the manner in which Purchaser may choose to make any public
announcement, Purchaser will have no obligation (except as otherwise required
by applicable law) to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow ▇▇▇▇▇ News
Service. In the case of an extension of the Offer, Purchaser will make a
public announcement of such extension no later than 9:00 A.M., New York City
time, on the next business day after the previously scheduled Expiration Date.
16. Certain Conditions of the Offer.
Notwithstanding any other provision of the Offer, subject to
the provisions of the Merger Agreement, Parent and Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including Rule 14e-1(c) under the Exchange Act
(relating to Purchaser's obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for, and may delay
the acceptance for payment of or, subject to the restriction referred to
above, the payment for, any tendered Shares, and may terminate the Offer and
not accept for payment any tendered Shares if, subsequent to December 31, 1998,
(i) any applicable waiting period under the HSR Act or under other applicable
antitrust or competition laws has not expired or been terminated prior to the
expiration of the Offer, (ii) the Minimum Tender Condition has not been
satisfied, or (iii) at any time on or after August 27, 1998, and before the
time of acceptance of Shares for payment pursuant to the Offer, any of the
following shall exist:
(a) there shall be instituted or pending any action or
proceeding by any government or governmental authority or agency, domestic or
foreign, before any court or governmental authority or agency, domestic or
foreign, that has reasonable likelihood of success (i) challenging or seeking
to make illegal, to delay materially or otherwise directly or indirectly to
restrain or prohibit the making of the Offer, the acceptance for payment of or
payment for some of or all the Shares by Parent or the consummation by Parent
of the Merger, or seeking to obtain material damages in connection with the
transactions contemplated by the Offer or the Merger, (ii) seeking to restrain
or prohibit Parent's ownership or operation (or that of its respective
subsidiaries or affiliates) of all or any material portion of the business or
assets of the Company and its subsidiaries, taken as a whole, or of Parent and
its subsidiaries, taken as a whole, or to compel Parent or any of its
subsidiaries or affiliates to dispose of or hold separate all or any material
portion of the business or assets of the Company and its subsidiaries, taken
as a whole, or of Parent and its subsidiaries, taken as a whole, (iii) seeking
to impose or confirm material limitations on the ability of Parent or any of
its subsidiaries or affiliates effectively to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote any
Shares acquired or owned by Parent or any of its subsidiaries or affiliates on
all matters properly presented to the Company's stockholders, or (iv) seeking
to require divestiture by Parent or any of its subsidiaries or affiliates of
all or any material portion of the business or assets of the Company and its
subsidiaries, taken as a whole; or
(b) there shall be any statute, rule, regulation, order, decree
or injunction enacted, promulgated or issued by any court, government or
governmental authority or agency that is reasonably likely, directly or
indirectly, to result in any of the consequences referred to in clauses (i)
through (iv) of paragraph (a) above;
(c) the representations and warranties of the Company set forth
in the Merger Agreement shall not be true and accurate in all material
respects as of the date of consummation of the Offer as though made on or as
of such date (except for those representations and warranties that address
matters only as of a particular date or only with respect to a specific period
of time which need only be true and accurate as of such date or with respect
to such period);
(d) the Company shall have breached or failed to perform or
comply with, in any material respects, any obligation, agreement or covenant
under the Merger Agreement;
(e) the Merger Agreement shall have been terminated in
accordance with its terms;
(f) the Board of Directors of the Company shall have withdrawn
or modified or changed in a manner adverse to Parent or Purchaser its approval
or recommendation of the Offer, the Merger Agreement or the Merger or shall
have recommended an Acquisition Proposal or shall have executed an agreement
in principle or definitive agreement relating to an Acquisition Proposal or
similar business combination with a person or entity other than Parent,
Purchaser or their affiliates or the Board of Directors of the Company shall
have adopted a resolution to do any of the foregoing.
The foregoing conditions are for the sole benefit of Purchaser
and Parent (or their permitted assignees) and, subject to the Merger
Agreement, may be asserted by either of them or 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 or Purchaser. The failure by Parent or Purchaser at any
time to exercise any such rights shall not be deemed a waiver of any right and
each right shall be deemed an ongoing right which may be asserted at any time
and from time to time.
17. Certain Legal Matters; Regulatory Approvals.
General. Based on its examination of publicly available
information filed by the Company with the Commission and other publicly
available information concerning the Company, Purchaser is not aware of any
governmental license or regulatory permit that appears to be material to the
Company's business that might be adversely affected by Purchaser's acquisition
of Shares as contemplated herein or, except as set forth below, of any
approval or other action by any government or governmental administrative or
regulatory authority or agency, domestic or foreign, that would be required
for the acquisition or ownership of Shares by Purchaser as contemplated
herein. Should any such approval or other action be required, Purchaser
currently contemplates that such approval or other action will be sought.
There can be no assurance that any such approval or other action, if needed,
would be obtained or would be obtained without substantial conditions or that
if such approvals were not obtained or such other actions were not taken
adverse consequences might not result to the Company's business or certain
parts of the Company's business might not have to be disposed of, any of which
could cause Purchaser to elect to terminate the Offer without the purchase of
Shares thereunder. Purchaser's obligation under the Offer to accept for
payment and pay for Shares is subject to certain conditions. See Section 16.
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 purchase of Shares pursuant to the Offer is subject to
such requirements.
Pursuant to the requirements of the HSR Act, Framatome expects
to file a Notification and Report Form with respect to the Offer and Merger
with the Antitrust Division and the FTC on or about September 2, 1998. As a
result, assuming such filing is made on September 2, 1998, the waiting period
applicable to the purchase of Shares pursuant to the Offer is scheduled to
expire at 11:59 P.M., New York City time, on Thursday, September 17, 1998.
However, prior to such time, the Antitrust Division or the FTC may extend the
waiting period by requesting additional information or documentary material
related to the Offer from Framatome. If such a request is made, the waiting
period will be extended until 11:59 P.M., New York City time, on the tenth day
after substantial compliance by Framatome with such request. Thereafter, such
waiting period can be extended only by court order or agreement by Purchaser
and Seller.
A request is being made pursuant to the HSR Act for early
termination of the waiting period applicable to the Offer. There can be no
assurance, however, that the applicable 15-day HSR Act waiting period will be
terminated early. Shares will not be accepted for payment or paid for
pursuant to the Offer until the expiration or earlier termination of the
applicable waiting period under the HSR Act. See Section 16. Any extension
of the waiting period will not give rise to any withdrawal rights not
otherwise provided for by applicable law. See Section 4. If Purchaser's
acquisition of Shares is delayed pursuant to a request by the Antitrust
Division or the FTC for additional information or documentary material
pursuant to the HSR Act, Purchaser has agreed to extend the Offer until the
earlier of December 31, 1998 or the date the HSR Act requirements are
satisfied.
The Antitrust Division and the FTC frequently scrutinize the
legality under the antitrust laws of transactions such as the acquisition of
Shares by Purchaser pursuant to the Offer. At any time before or after the
consummation of any such transactions, 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 purchase of Shares
pursuant to the Offer or seeking divestiture of the Shares so acquired or
divestiture of substantial assets of Purchaser or the Company. Private
parties (including individual states) may also bring legal actions under the
antitrust laws. Purchaser does not believe that the consummation of the Offer
will result in a 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 will be. See
Section 16 for certain conditions to the Offer, including conditions with
respect to litigation and certain governmental actions and Section 11 for
certain termination rights in connection with antitrust suits.
European Antitrust Law. Under EEC Regulation n(o) 4064/89, as
amended by Regulation n(o) 1310/97 (the "European Merger Regulation"),
notification of certain acquisitions and mergers must be made to the European
Commission and such acquisitions and mergers may not be consummated unless a
clearance decision has been adopted by the European Commission. However,
public bids duly notified to the European Commission may be implemented
immediately, provided that the acquirer does not exercise the voting rights
attached to the securities.
Pursuant to the requirements of the European Merger Regulation,
Purchaser expects to file a notification with respect to the Offer and Merger
with the European Commission on or about September 7, 1998. Shares will not
be accepted for payment or paid for pursuant to the Offer until the European
Commission has adopted a clearance decision with respect to the Offer and
Merger.
Further to the completion of the notification, the European
Commission will have a one month period (which may be extended up to six weeks
in certain conditions) to make a clearance decision. However, at the
expiration of said one month period, the European Commission may, if it finds
that the Offer or ▇▇▇▇▇▇ raises "serious doubts as to its compatibility with
the common market", open an in-depth investigation, which can last up to four
months.
The European Commission may prohibit a merger if the effect of
the merger would be to create or strengthen a dominant position, thus
significantly impeding effective competition in the Common market or a
substantial part of such market. In the alternative, the European Commission
may impose conditions upon the implementation of a merger in order to diminish
its harmful effects. A prohibition by the European Commission would be an
exceptional measure and would only be made if the possible changes to be made
by the parties are deemed insufficient to maintain competition.
Purchaser does not believe that consummation of the Offer and
Merger will result in a violation of the European Merger Regulation. However,
there can be no assurance that a challenge to the Offer or Merger on European
antitrust grounds will not be made, or if such a challenge is made, what the
result would be. See Section 16 for certain conditions to the Offer including
conditions with respect to litigation and certain governmental actions and
Section 11 for certain termination rights in connection with antitrust suits.
Other Governmental Approvals. Based upon Purchaser's
examination of publicly available information concerning the Company, it
appears that the Company and its subsidiaries own property and conduct
business in a number of foreign countries. In connection with the acquisition
of Shares pursuant to the Offer, the laws of certain of these foreign
countries may require the filing of information with, or the obtaining of the
approval of, governmental authorities therein. After commencement of the
Offer, Purchaser will seek further information regarding the applicability of
any such laws and currently intends to take such action as they may require,
but no assurance can be given that such approvals will be obtained. If any
action is taken prior to completion of the Offer by any such government or
governmental authority, Purchaser may not be obligated to accept for payment
or pay for any tendered Shares. See Section 16.
Appraisal Rights. If the Merger is consummated, stockholders
of the Company may have the right to dissent and demand appraisal of their
Shares under Delaware Law. Under Delaware Law, dissenting stockholders who
comply with the applicable statutory procedures will be entitled to receive a
judicial determination of the fair value of their Shares (exclusive of any
element of value arising from the accomplishment or expectation of the Merger)
and to receive payment of such fair value in cash, together with a fair rate
of interest, if any. Any such judicial determination of the fair value of the
Shares could be based upon considerations other than or in addition to the
price paid in the Offer, the consideration per Share to be paid in the Merger
and the market value of the Shares, including asset values and the investment
value of the Shares. Stockholders should recognize that the value so
determined could be higher or lower than the price per Share paid pursuant to
the Offer or the consideration per Share to be paid in the Merger.
18. Fees and Expenses.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (" ▇▇▇▇▇▇▇
▇▇▇▇▇") is acting as financial advisor to Purchaser and is acting as Dealer
Manager in connection with the Offer. ▇▇▇▇▇▇▇▇▇ has agreed to pay ▇▇▇▇▇▇▇
▇▇▇▇▇ as compensation for its services as financial advisor and as Dealer
Manager in connection with the Offer a fee of $2.1 million at the commencement
of the Offer and a fee of $6.1 million payable upon consummation of the Offer
(against which the $2.1 million commencement fee will be credited). ▇▇▇▇▇▇▇▇▇
has also agreed to reimburse ▇▇▇▇▇▇▇ ▇▇▇▇▇ for certain reasonable
out-of-pocket expenses incurred in connection with the Offer (including the
fees and disbursements of outside counsel) and to indemnify ▇▇▇▇▇▇▇ ▇▇▇▇▇
against certain liabilities, including certain liabilities under the federal
securities laws.
Purchaser has retained ▇. ▇. ▇▇▇▇ & Co., Inc. to act as the
Information Agent and ▇▇▇▇▇▇ Trust and Savings Bank to act as the Depositary
in connection with the Offer. The Information Agent may contact holders of
Shares by mail, telephone, telex, telegraph and personal interviews and may
request brokers, dealers and other nominee stockholders to forward materials
relating to the Offer to beneficial owners. The Information Agent and the
Depositary each will receive reasonable and customary compensation for their
respective services, will be reimbursed for certain reasonable out-of-pocket
expenses and will be indemnified against certain liabilities in connection
therewith, including certain liabilities under the federal securities laws.
Purchaser will not pay any fees or commissions to any broker or
dealer or any other person (other than the Dealer Manager and the Depository)
for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers,
commercial banks and trust companies will, upon request, be reimbursed by
Purchaser for reasonable and necessary costs and expenses incurred by them in
forwarding materials to their customers.
19. Miscellaneous.
The Offer is not being made to, nor will tenders be accepted
from or on behalf of, holders of Shares in any jurisdiction in which the
making of the Offer or acceptance thereof would not be in compliance with the
laws of such jurisdiction. However, Purchaser may, in its discretion, take
such action as it may deem necessary to make the Offer in any such
jurisdiction and extend the Offer to holders of Shares in such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR
MAKE ANY REPRESENTATION ON BEHALF OF PURCHASER NOT CONTAINED IN THIS OFFER
TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
Purchaser has filed with the Commission a Tender Offer
Statement on Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 of
the General Rules and Regulations under the Exchange Act, furnishing certain
additional information with respect to the Offer. The Schedule 14D-1 and any
amendments thereto, including exhibits, may be examined and copies may be
obtained from the offices of the Commission in the manner set forth in Section
7 of this Offer to Purchase (except that such information will not be
available at the regional offices of the Commission).
▇▇▇▇ Acquisition Co.
September 2, 1998
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS
1. Directors and Executive Officers of Parent. The name, business
address, present principal occupation or employment and five-year employment
history of each director and executive officer of Parent and certain other
information are set forth below. Unless otherwise indicated below, the
address of each director and officer is ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to employment with
Parent. Previous positions during the last five years with the same
organization are not specifically disclosed. All directors and officers
listed below are citizens of France, except for ▇▇▇▇ ▇. ▇▇▇▇ who is a citizen
of the United States.
Name and Business Address Present Principal Occupation or Employment and Five-Year Employment History
------------------------- ---------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇* Chairman and President. June 1996-June 1997: BES Group
Managing Director for CEGELEC (a projects, services and
equipment manufacturing business), Le Sextant ▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇. January 1990-June 1996: BEI
Group Managing Director for CEGELEC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Chief Executive Officer.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Chief Operating Officer. August 1990-October 1993: Vice President,
PC division for Unisys USA (computers), San Jose, California.
October 1993-December 1994: Vice President, Retail Delivery
Products for Unisys France, Cergy, France.
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ Chief Administration Officer
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇* See information under "Directors and Executive Officers of
Framatome S.A."
▇▇▇▇▇▇▇ ▇▇▇▇▇▇* Chief Financial Officer for Framatome ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇* Group General Counsel for Framatome ▇.▇.
▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇* See information under "Directors and Executive Officers of
Framatome S.A."
▇▇▇▇▇▇ ▇▇▇▇▇ Vice President and General Manager, Electronics
▇▇▇▇ ▇. ▇▇▇▇ Vice President and General Manager, Electrical
▇▇▇▇▇ ▇▇▇▇▇ Vice President and General Manager, Automotive
▇▇▇ ▇▇▇▇▇▇ Vice President and General Manager, Interconnections. 1992-1994:
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Vice President and General Manager, Microelectronics
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
*Member, Conseil d'Administration.
2. Directors and Executive Officers of Purchaser. The name, business
address, present principal occupation or employment and five-year employment
history of each director and executive officer of Purchaser and certain other
information are set forth below. Unless otherwise indicated below, the
address of each director and officer is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇. Unless otherwise indicated, each occupation set forth opposite
an individual's name refers to employment with Purchaser. Previous positions
during the last five years with the same organization are not specifically
disclosed. All directors and officers listed below are citizens of France,
except for ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇ ▇▇▇▇▇ who are citizens of the United
States.
Name and Business Address Present Principal Occupation or Employment and Five-Year Employment History
------------------------- ---------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇* Chairman of the Board and President. See also information under
▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ "Directors and Executive Officers of Parent".
Tour Framatome
92084 Paris La Defense
FRANCE
▇▇▇▇▇▇ ▇▇▇▇▇▇* Chief Executive Officer.
1, Place de la Coupole
Tour Framatome
92084 Paris La Defense
FRANCE
▇▇▇▇ ▇. ▇▇▇▇▇* Vice President, Chief Financial Officer and Treasurer.
▇. ▇▇▇▇ ▇▇▇▇▇ Vice President, Counsel and Secretary
------------------
*Director
3. Directors and Executive Officers of Framatome S.A. The name, business
address, present principal occupation or employment and five-year employment
history of each director and executive officer of Framatome S.A. and certain
other information are set forth below. Unless otherwise indicated below, the
address of each director and officer is ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to employment with
Framatome S.A. Previous positions during the last five years with the same
organizations are not specifically disclosed. All directors and officers
listed below are citizens of France.
Name and Business Address Present Principal Occupation or Employment and Five-Year Employment History
------------------------- ---------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇* Chairman and Chief Executive Officer
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group General Counsel
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President and Corporate Chief Administrative Officer
▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ Senior Vice President, International. October 1990-January 1996:
General Director for CNES (French space agency)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Vice President, Human Resources and Communications
▇▇▇▇▇▇▇ ▇▇▇▇▇ Director of Finance and Accounting
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇* Director, Real Estate, Insurance and General Services at Alcatel
Alcatel (telecom business). March 1990 - December 1995: Director, Real
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇ Estate, Insurance and General Services at Total ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
France
CDR Participations* (represented by CDR Participations is a French "societe anonyme" acting as
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) defeasance structure with respect to the assets of the Credit Lyonnais
▇▇-▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇.
75431 Paris Cedex
France
CEA Industrie CEA Industrie (Societe des Participations du Commissariat a
(represented by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇) l'Energie Atomique) is a holding company grouping all the shares
▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and stocks that CEA holds in various industrial companies in France
75752 Paris Cedex 15 and abroad.
France
▇▇▇▇▇▇▇ ▇▇▇▇▇* Advisor to the Chairman of Alcatel (telecom business)
Alcatel
▇▇, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇* Administrateur General of CEA Industrie (nuclear business)
CEA Industrie
▇▇-▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇* Director General of E.D.F. (electricity business)
E.D.F.
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇* Senior Executive Vice President for Alcatel (telecom business).
Alcatel January 1992 - July 1995: Managing Director of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ (provider of all information services, assistance and advice services
75008 Paris for the investment of capital in companies), ▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇* Chairman and Chief Executive for COGEMA (nuclear fuel cycle
COGEMA business)
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇▇ ▇▇ ▇▇▇▇* Engineer, Nuclear
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Executive Vice President, Nuclear Fuel
▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Executive Vice President, Mechanical Engineering and Manufacturing
▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President, Nuclear Operations
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President, Nuclear Services. march 1993 - July 1996: Jeumont
Industries (nuclear and Electromechanical equipment, nuclear
services), ▇▇ ▇▇▇ ▇▇ ▇'▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇, ▇▇▇▇▇ Jeumont Cedex
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Member of the Connectors Management Committee. See also
information under "Directors and Officers of Parent"
▇▇▇▇▇▇ ▇▇▇▇▇▇ Member of the Connectors Management Committee.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Member of the Connectors Management Committee. See also
information under "Directors and Officers of Parent"
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ Member of the Connectors Management Committee.
------------------
* Member, Conseil d'Administration.
4. Directors and Executive Officers of Framatome Connectors USA Holding
Inc. The name, business address, present principal occupation or employment
and five-year employment history of each director and executive officer of
Framatome Connectors USA Holding Inc. and certain other information are set
forth below. Unless otherwise indicated below, the business address of each
director and officer is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to employment with Framatome Connectors USA Holding Inc. Previous
positions during the last five years with the same organization are not
specifically disclosed. All directors and officers listed below are citizens
of France, except for ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ who are
citizens of the United States.
Name and Business Address Present Principal Occupation or Employment and Five-Year Employment History
------------------------- ---------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇* See information under "Directors and Executive Officers of Parent."
▇, ▇▇▇▇▇ de la Coupole
Tour Framatome
92084 Paris La Defense
France
▇▇▇▇▇▇ ▇▇▇▇▇▇* Senior Vice President and Assistant Secretary
▇, ▇▇▇▇▇ ▇▇ ▇▇ Coupole
Tour Framatome
92084 Paris La Defense
France
▇▇▇▇ ▇. ▇▇▇▇▇* Vice President, Chief Financial Officer and Treasurer
▇. ▇▇▇▇ ▇▇▇▇▇ Vice President, Counsel and Secretary
▇▇▇▇▇▇▇ ▇▇▇▇▇* See information under Directors and Executive Officers of Parent.
▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇
Tour Framatome
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇* General Manager, Electrical for Parent
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. 03109
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇* Chief Financial Officer for Framatome S.A.
▇, ▇▇▇▇▇ de la Coupole
Tour Framatome
92084 Paris La Defense
France
▇▇▇▇▇▇▇▇ ▇▇▇▇▇* Vice President, Human Resources and Public Relations for
▇, ▇▇▇▇▇ de la Coupole Framatome S.A.
Tour Framatome
92084 Paris La Defense
France
▇▇▇▇▇▇ ▇▇▇▇▇* General Manager, Electronics for Parent
▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇
Tour Framatome
92084 Paris La Defense
France
------------------
*Member, Conseil d'Administration.
5. Persons Who May Be Designated by Parent to Serve as Directors on the
Company's Board of Directors. The name, business address, present principal
occupation or employment, five-year employment history and beneficial
ownership of Shares (if any) of each person who may be designated by Parent to
serve as directors on the Company's Board of Directors is set forth below.
Unless otherwise indicated, the address of each director and officer is ▇,
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. All
directors listed below are citizens of France except ▇▇▇▇ ▇. ▇▇▇▇▇, ▇. ▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇ who are citizens of the United States.
Name and Business Address Age Present Principal Occupation or Employment and Five-Year Employment History
---------------------------- --- ---------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 48 See information under "Directors and Officers of Parent"
▇▇▇▇▇▇ ▇▇▇▇▇▇ 47 See information under "Directors and Officers of Parent"
▇▇▇▇ ▇. ▇▇▇▇▇ 54 See information under "Directors and Officers of Purchaser"
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇ 53 See information under "Directors and Officers of Purchaser"
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ 49 See information under "Directors and Officers of Parent"
▇▇▇▇▇▇▇ ▇▇▇▇▇ 49 See information under "Directors and Officers of Parent"
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ 48 See information under "Directors and Officers of Parent"
▇▇▇▇▇▇ ▇▇▇▇▇ 64 See information under "Directors and Officers of Parent"
▇▇▇▇▇ ▇▇▇▇▇ 55 See information under "Directors and Officers of Parent"
SCHEDULE B
CERTAIN EMPLOYMENT ARRANGEMENTS
Upon consummation of the Merger, the Company expects that,
pursuant to the terms of the following individual's employment arrangements
with the Company, as amended in each case in connection with the execution of
the Merger Agreement, the following individuals will receive the following
payments from the Company.
Employee Payment
-------- -------
▇▇▇▇▇ ▇. ▇▇▇▇▇ $2,974,647
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Not applicable
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,013,063
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 210,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ 676,465
▇▇▇▇▇ ▇. ▇▇▇▇▇ 653,135
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 513,341
SCHEDULE C
AGREEMENT AND PLAN OF MERGER
by and among
FRAMATOME CONNECTORS INTERNATIONAL ▇.▇.
▇▇▇▇▇ ACQUISITION CO.
and
▇▇▇▇ ELECTRONICS CORP.
August 27, 1998
TABLE OF CONTENTS
-------------
Page
ARTICLE 1
The Offer and Merger
Section 1.1. The Offer...................................................C-5
Section 1.2. Company Actions.............................................C-7
Section 1.3. Directors...................................................C-7
Section 1.4. The Merger..................................................C-8
Section 1.5. Effective Time..............................................C-8
Section 1.6. Closing.....................................................C-8
Section 1.7. Directors and Officers of the Surviving Corporation.........C-9
Section 1.8. Stockholders' Meeting.......................................C-9
Section 1.9. Merger Without Meeting of Stockholders......................C-9
ARTICLE 2
Conversion of Securities
Section 2.1. Conversion of Capital Stock................................C-10
Section 2.2. Exchange of Certificates...................................C-10
Section 2.3. Dissenting Shares..........................................C-11
Section 2.4. Company Option Plans.......................................C-11
ARTICLE 3
Representations and Warranties of the Company
Section 3.1. Organization; Subsidiaries.................................C-12
Section 3.2. Capitalization.............................................C-12
Section 3.3. Authorization; Validity of Agreement; Company Action.......C-13
Section 3.4. Consents and Approvals; No Violations......................C-14
Section 3.5. SEC Reports and Financial Statements ......................C-14
Section 3.6. No Undisclosed Liabilities.................................C-14
Section 3.7. Absence of Certain Changes.................................C-15
Section 3.8. Contracts..................................................C-16
Section 3.9. Employee Benefit Plans; ERISA..............................C-16
Section 3.10. Litigation.................................................C-17
Section 3.11. Permits; No Default; Compliance with Applicable Laws.......C-17
Section 3.12. Taxes......................................................C-18
Section 3.13. Real and Personal Property.................................C-18
Section 3.14. Intellectual Property......................................C-19
Section 3.15. Environmental Matters......................................C-19
Section 3.16. Employee and Labor Matters.................................C-20
Section 3.17. Information in Offer Documents.............................C-20
Section 3.18. Brokers or Finders.........................................C-20
Section 3.19. Insurance..................................................C-20
Section 3.20. Opinion of Financial Advisor...............................C-20
Section 3.21. Rights Plan; Takeover Laws.................................C-20
Section 3.22. Termination Agreement......................................C-21
Section 3.23. Exon-▇▇▇▇▇▇................................................C-21
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE Purchaser
Section 4.1. Organization...............................................C-21
Section 4.2. Authorization; Validity of Agreement; Necessary Action.....C-22
Section 4.3. Consents and Approvals; No Violations......................C-22
Section 4.4. Information in Offer Documents; Proxy Statement............C-22
Section 4.5. Sufficient Funds...........................................C-22
Section 4.6. Share Ownership............................................C-23
Section 4.7. Purchaser's Operations.....................................C-23
ARTICLE 5
Covenants
Section 5.1. Interim Operations of the Company..........................C-23
Section 5.2. Access to Information......................................C-24
Section 5.3. Employee Benefits..........................................C-25
Section 5.4. No Solicitation............................................C-25
Section 5.5. Publicity..................................................C-26
Section 5.6. Indemnification; D&O Insurance.............................C-27
Section 5.7. Approvals and Consents; Cooperation; Notification..........C-27
Section 5.8. Reasonable Best Efforts; Further Assurances................C-28
Section 5.9. Shareholder Litigation.....................................C-28
Section 5.10. Fair Price Statute.........................................C-28
Section 5.11. Non-solicitation and Non-Competition Agreements............C-28
Section 5.12. Transition Services........................................C-28
ARTICLE 6
Conditions
Section 6.1. Conditions to Each Party's Obligation to Effect the Merger.C-28
Section 6.2. Conditions to the Obligations of the Company to Effect the
Merger.....................................................C-29
Section 6.3. Conditions to the Obligations of Parent and the Purchaser
to Effect the Merger.......................................C-29
Section 6.4. Exception..................................................C-29
ARTICLE 7
Termination
Section 7.1. Termination................................................C-29
Section 7.2. Effect of Termination......................................C-30
ARTICLE 8
Miscellaneous
Section 8.1. Amendment and Modification.................................C-31
Section 8.2. Nonsurvival of Representations and Warranties..............C-31
Section 8.3. Notices....................................................C-31
Section 8.4. Interpretation.............................................C-32
Section 8.5. Counterparts...............................................C-32
Section 8.6. Entire Agreement; Third Party Beneficiaries................C-32
Section 8.7. Severability...............................................C-32
Section 8.8. Governing Law..............................................C-32
Section 8.9. Specific Performance.......................................C-33
Section 8.10. Assignment.................................................C-33
Section 8.11. Expenses...................................................C-33
Section 8.12. Headings...................................................C-33
Section 8.13. Waivers....................................................C-33
Section 8.14. Disclosure.................................................C-33
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 27, 1998 (this
"Agreement"), by and among FRAMATOME CONNECTORS INTERNATIONAL S.A., a
corporation organized under the laws of the Republic of France ("Parent"),
BRAVO ACQUISITION CO., a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (the "Purchaser"), and ▇▇▇▇ ELECTRONICS CORP., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, the Boards of Directors of Parent, the Purchaser and
the Company have approved, and deem it advisable and in the best interests of
their respective stockholders to consummate, the acquisition of the Company
by Parent and the Purchaser upon the terms and subject to the conditions set
forth herein;
WHEREAS, the Company, Parent and Purchaser desire to make
certain representations, warranties, covenants and agreements in connection
with this Agreement and to prescribe certain conditions to the transactions
contemplated hereby;
WHEREAS, to satisfy a condition to Parent and Purchaser
entering into this Agreement and incurring the obligations set forth herein,
concurrently with the execution and delivery of this Agreement, certain
stockholders of the Company have entered into a Stockholders Agreement (the
"Stockholders Agreement") with Purchaser pursuant to which such stockholders
have agreed, on the terms and subject to the conditions thereof, to tender
their Shares in the Offer (as defined below); and
WHEREAS, to satisfy a condition to Parent and Purchaser
entering into this Agreement and incurring the obligations set forth herein,
as soon as practicable following the execution and delivery of this Agreement,
▇▇▇▇▇ & Partners and certain employees of the Company will enter into
Non-Competition and Non-Solicitation Agreements (the "Non-Competition and
Non-Solicitation Agreements") with the Company pursuant to which such employees
and ▇▇▇▇▇ & Partners will agree, on the terms and subject to the conditions
thereof, to certain non-competition and non-solicitation arrangements with the
Company.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
The Offer and Merger
Section 1.1. The Offer. (a) Provided that nothing shall have
occurred that, had the Offer referred to below been commenced, would give rise
to a right to terminate the Offer pursuant to any of the conditions set forth
in Annex A hereto, as promptly as practicable after the date hereof (but in no
event later than five business days from the public announcement of the
execution hereof), the Purchaser shall, and Parent shall cause the Purchaser
to, commence (within the meaning of Rule 14d-2 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), an offer (the "Offer") to
purchase for cash any and all of the issued and outstanding shares of (i)
Common Stock, par value $0.01 per share, of the Company (referred to herein as
either the "Common Shares" or "Company Common Stock") at a price of $35.00 per
Common Share, net to the seller in cash (such price, or such higher price per
Common Share as may be paid in the Offer, being referred to herein as the
"Common Offer Price," provided that Purchaser shall not be required to
increase the Common Offer Price) and (ii) Class A Common Stock, par value
$0.01 per share, of the Company (referred to herein as either the "Class A
Shares" or "Company Class A Common Stock" and, together with the Common
Shares, as the "Shares" or "Company Stock," which references include for all
purposes the related Preferred Stock Purchase Rights (the "Rights") issued
pursuant to the Rights Agreement between the Company and ▇▇▇▇▇▇ Trust and
Savings Bank, dated as of December 22, 1997) at a price of $32.965 per Class A
Share, net to the seller in cash (such price, or such higher price per Class A
Share as may be paid in the Offer, being referred to herein as the "Class A
Offer Price," provided that Purchaser shall not be required to increase the
Class A Offer Price, and, together with the Common Offer Price, as the "Offer
Price"). The Purchaser shall, on the terms and subject to the prior
satisfaction or waiver of the conditions of the Offer, accept for payment and
pay for Shares tendered as soon as it is legally permitted to do so under
applicable law; provided that, if the number of Shares that have been
physically tendered and not withdrawn are more than 50% of the Shares
outstanding on a fully diluted basis but less than 90% of the outstanding
shares of each class of capital stock of the Company, the Purchaser may extend
the Offer for up to 20 business days from the date that all conditions to the
Offer shall first have been satisfied or waived. The obligations of the
Purchaser to accept for payment and to pay for any and all Shares validly
tendered on or prior to the expiration of the Offer and not withdrawn shall be
subject only to there being validly tendered in accordance with the terms of
the Offer and not withdrawn prior to the expiration date of the Offer, that
number of Shares which, together with any Shares beneficially owned by Parent
or the Purchaser, represent at least a majority of the Shares outstanding on a
fully diluted basis (the "Minimum Condition") and the other conditions set
forth in Annex A hereto. The Offer shall be made by means of an offer to
purchase (the "Offer to Purchase") containing the terms set forth in this
Agreement, the Minimum Condition and the other conditions set forth in Annex A
hereto. The Purchaser shall not amend or waive the Minimum Condition,
decrease the Offer Price or decrease the number of Shares sought, or impose
any additional conditions to the Offer, or amend any term of the Offer in any
manner adverse to the holders of the Shares or extend the expiration date of
the Offer (except for such extensions as are contemplated below), in each case
without the prior written consent of the Company (such consent to be
authorized by the Board of Directors of the Company or a duly authorized
committee thereof). Notwithstanding the foregoing, the Purchaser shall, and
Parent agrees to cause the Purchaser to, extend the Offer from time to time
until the date that all conditions to the Offer have been satisfied, subject
to the provisions of Section 7.01(b)(i) hereof if, and to the extent that, at
the initial expiration date of the Offer, or any extension thereof, all
conditions to the Offer have not been satisfied or waived. In addition, the
Offer Price may be increased and the Offer may be extended to the extent
required by law in connection with such increase, in each case without the
consent of the Company. In the event of any increase in the Common Offer
Price, the Class A Offer Price will be increased by an equal amount, and in
the event of any increase in the Class A Offer Price, the Common Offer Price
will be increased by an equal amount.
(b) As soon as practicable on the date the Offer is commenced, Parent
and the Purchaser shall file with the United States Securities and Exchange
Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect
to the Offer (together with all amendments and supplements thereto and
including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1
will include, as exhibits, the Offer to Purchase and a form of letter of
transmittal and summary advertisement (collectively, together with any
amendments and supplements thereto, the "Offer Documents"). The Offer
Documents when filed will comply as to form in all material respects with the
provisions of applicable federal securities laws and, on the date filed with
the SEC and on the date first published, sent or given to the Company's
stockholders, shall not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that no representation is made by
Parent or the Purchaser with respect to omissions or information supplied in
writing for inclusion in the Offer Documents, in each case by the Company.
Each of Parent and the Purchaser further agrees to take all steps necessary to
cause the Offer Documents to be filed with the SEC and to be disseminated to
holders of Shares, in each case as and to the extent required by applicable
federal securities laws. Each of Parent and the Purchaser, on the one hand,
and the Company, on the other hand, agrees promptly to correct any information
provided by it for use in the Offer Documents if and to the extent that such
information shall have become false or misleading in any material respect and
each of Parent and the Purchaser further agrees to take all steps necessary to
cause the Offer Documents as so corrected to be filed with the SEC and to be
disseminated to holders of Shares, in each case as and to the extent required
by applicable federal securities laws. The Company and its counsel shall be
given a reasonable opportunity to review the initial Schedule 14D-1 before it
is filed with the SEC. In addition, Parent and the Purchaser agree to provide
the Company and its counsel in writing with any comments or other
communications that Parent, the Purchaser or their counsel may receive from
time to time from the SEC or its staff with respect to the Offer Documents
promptly after the receipt of such comments or other communications.
Section 1.2. Company Actions. (a) The Company hereby approves
of and consents to the Offer and represents that the Board of Directors, at a
meeting duly called and held, has with the affirmative vote of at least a
majority of the members of the Board of Directors (i) determined that this
Agreement and the transactions contemplated hereby, including the Offer and
the Merger (as defined in Section 1.04), are fair and in the best interests of
the holders of the Shares and approved the Agreement and the transactions
contemplated hereby, including the Offer and the Merger, which approvals
constitute approval of this Agreement, the Offer and the Merger for purposes
of Section 203 of the General Corporation Law of the State of Delaware (the
"DGCL"), and (ii) resolved to recommend that the stockholders of the Company
accept the Offer, tender their Shares thereunder to the Purchaser and approve
and adopt this Agreement and the Merger, which recommendation shall not be
withdrawn, modified or amended except as permitted by Section 5.04(b) hereof.
(b) As soon as practicable after the time the Offer is commenced, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto and
including the exhibits thereto, the "Schedule 14D-9") which shall, subject to
the provisions of Section 5.04(b) of this Agreement, contain the
recommendation referred to in clause (ii) of Section 1.02(a) hereof. The
Company will use its reasonable best efforts to cause the Schedule 14D-9 to be
filed on the same date that the Schedule 14D-1 is filed; provided, however,
that in any event the Schedule 14D-9 will be filed no later than ten business
days following the commencement of the Offer. The Schedule 14D-9 when filed
will comply as to form in all material respects with the provisions of
applicable federal securities laws and, on the date filed with the SEC and on
the date first published, sent or given to the Company's stockholders, shall
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representation is made by the Company with
respect to omissions or information supplied in writing for inclusion in the
Schedule 14D-9, in each case by Parent or the Purchaser. The Company further
agrees to take all steps necessary to cause the Schedule 14D-9 to be filed
with the SEC and to be disseminated to holders of Shares, in each case as and
to the extent required by applicable federal securities laws. Each of the
Company, on the one hand, and Parent and the Purchaser, on the other hand,
agrees promptly to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that such information shall have become
false or misleading in any material respect and the Company further agrees to
take all steps necessary to cause the Schedule 14D-9 as so corrected to be
filed with the SEC and to be disseminated to holders of the Shares, in each
case as and to the extent required by applicable federal securities laws.
Each of Parent, the Purchaser and its counsel shall be given a reasonable
opportunity to review the initial Schedule 14D-9 before it is filed with the
SEC. In addition, the Company agrees to provide Parent, the Purchaser and
their counsel in writing with any comments or other communications that the
Company or its counsel may receive from time to time from the SEC or its staff
with respect to the Schedule 14D-9 promptly after the receipt of such comments
or other communications.
(c) In connection with the Offer, the Company will promptly furnish or
cause to be furnished to the Purchaser mailing labels, security position
listings and any available listing or computer file containing the names and
addresses of the record holders of the Shares as of a recent date (which shall
in no event be more than ten days prior to the date hereof), and shall furnish
the Purchaser with such additional information (including updated lists of
holders of Shares and their addresses, mailing labels and lists of security
positions) and such other assistance as the Purchaser or its agents may
reasonably request in communicating the Offer to the record and beneficial
stockholders of the Company. Except for such steps as are necessary to
disseminate the Offer Documents, Parent and the Purchaser and each of their
affiliates, associates, partners, employees, agents and advisors shall hold in
confidence the information contained in any of such labels and lists and the
additional information referred to in the preceding sentence, will use such
information only in connection with the Offer, and, if this Agreement is
terminated, will upon request of the Company deliver or cause to be delivered
to the Company all copies of such information then in its possession or the
possession of its agents or representatives.
Section 1.3. Directors. (a) Promptly upon the purchase of and
payment for Shares by Parent or any of its subsidiaries which represent at
least a majority of the outstanding shares of Company Stock (on a fully diluted
basis), 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 is equal to the product of the total number of directors on such Board
(giving effect to any additional directors designated by Parent pursuant to
this Section) multiplied by the percentage that the aggregate number of Shares
beneficially owned by the Purchaser, Parent and any of their affiliates
(including Shares accepted for payment) bears to the total number of shares of
Company Stock then outstanding. The Company shall, upon request of and as
specified by the Purchaser or Parent, on the date of such request, either
increase the size of its Board of Directors or secure the resignations of such
number of its incumbent directors as is necessary, consistent with the request
of Purchaser or Parent, to enable Parent's designees to be so elected to the
Company's Board of Directors, and shall take all actions necessary to cause
Parent's designees to be so elected or appointed. At such times, the Company
will use its reasonable best efforts to cause individuals designated by Parent
to constitute the same percentage as such individuals represent on the
Company's Board of Directors of each committee of the Board (other than any
committee of the Board established to take action under this Agreement), each
board of directors of each Subsidiary (as defined in Section 3.01) and each
committee of each such board. Notwithstanding the foregoing, until the
Effective Time, the Company shall retain as members of its Board of Directors
at least two directors who are directors of the Company on the date hereof;
provided, that subsequent to the purchase of and payment for Shares pursuant
to the Offer, Parent shall always have its designees represent at least a
majority of the entire Board of Directors. The Company's obligations under
this Section 1.03(a) shall be subject to Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder. The Company shall promptly take all
actions required pursuant to such Section 14(f) and Rule 14f-1 in order to
fulfill its obligations under this Section 1.03(a), including without
limitation mailing to stockholders the information required by such Section
14(f) and Rule 14f-1 as is necessary to enable Parent's designees to be
elected to the Company's Board of Directors. Parent or the Purchaser will
supply the Company any information with respect to either of them and their
nominees, officers, directors and affiliates required by such Section 14(f)
and Rule 14f-1.
(b) From and after the time, if any, that ▇▇▇▇▇▇'s designees constitute
a majority of the Company's Board of Directors, any amendment of this
Agreement or the Certificate of Incorporation or By-Laws of the Company, any
termination of this Agreement by the Company, any extension of time for
performance of any of the obligations of Parent or the Purchaser hereunder,
any waiver of any condition or any of the Company's rights hereunder or other
action by the Company in connection with the rights of the Company hereunder
may be effected only with the concurrence of a majority of the directors of
the Company then in office who were directors of the Company on the date
hereof.
Section 1.4. The Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time (as defined in Section 1.05 hereof)
the Company and the Purchaser shall consummate a merger (the "Merger")
pursuant to which (a) the Purchaser shall be merged with and into the Company
and the separate corporate existence of the Purchaser shall thereupon cease,
(b) the Company shall be the successor or surviving corporation in the Merger
(the "Surviving Corporation") and shall continue to be organized under the
laws of the State of Delaware, and (c) the separate corporate existence of the
Company with all its rights, privileges, immunities, powers and franchises
shall continue unaffected by the Merger. Should the merger of the Purchaser
with and into the Company give rise to any material tax liability, at the
election of Parent and subject to the consent of the Company, such consent not
to be unreasonably withheld, the Merger may be structured so that the Company
shall be merged with and into Purchaser with the result that Purchaser shall
be the Surviving Corporation. Pursuant to the Merger, (x) the Certificate of
Incorporation of the Purchaser, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided by law and such Certificate
of Incorporation, and (y) the By-laws of the Purchaser, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended as provided by law, the Certificate of
Incorporation and such By-laws. The Merger shall have the effects set forth
in the DGCL.
Section 1.5. Effective Time. On the date of the Closing (as
defined in Section 1.06 hereof) (or on such other date as the parties may
agree), the Company and Purchaser shall file with the Delaware Secretary of
State a certificate of merger or other appropriate document (in any such case,
the "Certificate of Merger") executed in accordance with the relevant
provisions of the DGCL, and shall make all other filings, recordings and
publications required by the DGCL with respect to the Merger. The Merger
shall become effective at such time as the certificate of merger is duly filed
with the Delaware Secretary of State or such later time as is specified in the
Certificate of Merger (the time the Merger becomes effective is hereinafter
referred to as the "Effective Time").
Section 1.6. Closing. The closing of the Merger (the
"Closing") will take place at 11:00 a.m. on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction or waiver of all of the conditions set forth in Article 6 hereof
(the "Closing Date"), at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, unless another date or place
is agreed to in writing by the parties hereto.
Section 1.7. Directors and Officers of the Surviving
Corporation. The directors of the Purchaser immediately prior to the
Effective Time shall, from and after the Effective Time, be the directors of
the Surviving Corporation until their successors shall have been duly elected
or appointed and qualified or until their earlier death, resignation or
removal in accordance with the Surviving Corporation's Certificate of
Incorporation and By-laws. The officers of the Company immediately prior to
the Effective Time shall, from and after the Effective Time, be the officers
of the Surviving Corporation until their successors shall have been duly
elected or appointed and qualified or until their earlier death, resignation
or removal in accordance with the Surviving Corporation's Certificate of
Incorporation and By-laws.
Section 1.8. Stockholders' Meeting. (a) If the Purchaser owns
less than 90% of the Shares following the purchase of Shares by the Purchaser
pursuant to the Offer, the Company, acting through its Board of Directors,
shall, in accordance with applicable law:
(i) duly call, give notice of, convene and hold a special meeting
of its stockholders (the "Special Meeting") as soon as practicable
following the acceptance for payment and purchase of Shares by the
Purchaser pursuant to the Offer for the purpose of voting, considering
and taking action upon this Agreement and the Merger;
(ii) promptly prepare and file with the SEC a preliminary proxy or
information statement relating to the Merger and this Agreement,
obtain and furnish the information required by the SEC to be included
in the Proxy Statement (as hereinafter defined) and, after
consultation with Parent, respond promptly to any comments made by the
SEC with respect to the preliminary proxy or information statement,
use its reasonable best efforts to have cleared by the SEC and cause a
definitive proxy or information statement and all other proxy
materials for such meeting (the "Proxy Statement") to be mailed to its
stockholders and use its reasonable best efforts to obtain the
necessary adoption of this Agreement and the transactions contemplated
hereby by its stockholders and will otherwise comply with all legal
requirements applicable to such meeting; and
(iii) subject to the fiduciary obligations of the Board under
applicable law as advised by the Company's outside counsel and subject
to Section 5.04(b) hereof, include in the Proxy Statement the
recommendation of the Board that stockholders of the Company approve
and vote in favor of the adoption of this Agreement and the Merger.
(b) ▇▇▇▇▇▇ agrees that it will provide the Company with the information
concerning Parent and the Purchaser required to be included in the Proxy
Statement and will vote, or cause to be voted, all of the Shares then owned by
Parent, the Purchaser or any of its other subsidiaries and affiliates in favor
of the approval of the Merger and the adoption of this Agreement.
Section 1.9. Merger Without Meeting of Stockholders.
Notwithstanding Section 1.08 hereof, in the event that the Purchaser shall
acquire at least 90% of the outstanding shares of each class of capital stock
of the Company, pursuant to the Offer or otherwise, the parties hereto agree
to take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after such acquisition, without a meeting of
stockholders of the Company.
ARTICLE 2
Conversion of Securities
Section 2.1. Conversion of Capital Stock. As of the Effective
Time, by virtue of the Merger and without any action on the part of the
holders of any shares of Company Common Stock or common stock of the Purchaser
(the "Purchaser Common Stock"):
(a) Each share of the Purchaser Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into and become one
fully paid and nonassessable share of common stock of the Surviving
Corporation and shall constitute the only outstanding shares of capital stock
of the Surviving Corporation.
(b) Any shares of Company Stock held by the Company as treasury stock
and any shares of Company Stock owned by Parent, the Purchaser or any other
wholly owned Subsidiary (as defined in Section 3.01 hereof) of Parent
immediately prior to the Effective Time shall be cancelled and retired and
shall cease to exist and no consideration shall be delivered in exchange
therefor.
(c) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time (other than Common Shares to be
cancelled in accordance with Section 2.01(b) hereof and any Dissenting Shares
(if applicable and as defined in Section 2.03 hereof)) shall be converted into
the right to receive the Common Offer Price, payable to the holder thereof,
without interest (the "Common Stock Merger Consideration"), upon surrender of
the certificate formerly representing such share of Company Common Stock in
the manner provided in Section 2.02 hereof.
(d) Each share of Company Class A Common Stock issued and outstanding
immediately prior to the Effective Time (other than Class A Shares to be
cancelled in accordance with Section 2.01(b) hereof and any Dissenting Shares
(if applicable and as defined in Section 2.03 hereof)) shall be converted into
the right to receive the Class A Offer Price, payable to the holder thereof,
without interest (the "Class A Common Stock Merger Consideration" and,
together with the Common Stock Merger Consideration, the "Merger
Consideration"), upon surrender of the certificate formerly representing such
share of Company Class A Common Stock in the manner provided in Section 2.02
hereof.
(e) All such shares of Company Stock, when so converted in accordance
with Sections 2.01(c) and 2.1(d) hereof, shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to exist, and
each holder of a certificate representing any such shares shall cease to have
any rights with respect thereto, except the right to receive the Merger
Consideration therefor upon the surrender of such certificate in accordance
with Section 2.02 hereof, without interest, or to perfect any rights of
appraisal as a holder of Dissenting Shares (as hereinafter defined) that such
holder may have pursuant to Section 262 of the DGCL.
Section 2.2. Exchange of Certificates. (a) Parent shall
designate a bank or trust company, or an affiliate thereof, of nationally
recognized standing to act as agent for the holders of shares of Company Stock
in connection with the Merger (the "Paying Agent") for the purpose of
exchanging certificates representing Shares and to receive the funds to which
holders of shares of Company Stock shall become entitled pursuant to Sections
2.01(c) and 2.1(d) hereof. Prior to the Effective Time, Parent shall take all
steps necessary to deposit or cause to be deposited with the Paying Agent such
funds for timely payment hereunder. Such funds shall be invested by the
Paying Agent as directed by Parent or the Surviving Corporation.
(b) As soon as reasonably practicable after the Effective Time but in no
event more than three business days thereafter, the Paying Agent shall mail to
each holder of record of a certificate or certificates, which immediately
prior to the Effective Time represented outstanding shares of Company Stock
(the "Certificates"), whose shares were converted pursuant to Section 2.01
hereof into the right to receive the Merger Consideration (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Paying Agent and shall be in such form and have such other
provisions as Parent and the Company may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for payment of the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Paying Agent or to such other agent or
agents as may be appointed by ▇▇▇▇▇▇, together with such letter of
transmittal, duly executed and properly completed, the holder of such
Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each share of Company Stock formerly represented by such
Certificate and the Certificate so surrendered shall forthwith be cancelled.
If payment of any portion of the Merger Consideration is to be made to a
person other than the person in whose name the surrendered Certificate is
registered, it shall be a condition of payment that the Certificate so
surrendered shall be properly endorsed or shall be otherwise in proper form
for transfer and that the person requesting such payment shall have paid any
transfer and other taxes required by reason of the payment of the Merger
Consideration to a person other than the registered holder of the Certificate
surrendered or shall have established to the satisfaction of the Surviving
Corporation that such tax either has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.02, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive the Merger Consideration in cash as contemplated by this Section 2.02.
(c) At the Effective Time, the stock transfer books of the Company shall
be closed and thereafter there shall be no further registration of transfers
of shares of Company Stock on the records of the Company. From and after the
Effective Time, the holders of Certificates evidencing ownership of shares of
Company Stock outstanding immediately prior to the Effective Time shall cease
to have any rights with respect to such Shares, except as otherwise provided
for herein or by applicable law. If, after the Effective Time, Certificates
are presented to the Surviving Corporation for any reason, they shall be
cancelled and exchanged as provided in this Article 11.
(d) At any time following six months after the Effective Time, the
Surviving Corporation shall be entitled to require the Paying Agent to deliver
to it any funds (including any interest received with respect thereto) which
had been made available to the Paying Agent and which have not been disbursed
to holders of Certificates, and thereafter such holders shall be entitled to
look to the Surviving Corporation (subject to abandoned property, escheat or
other similar laws) only as general creditors thereof with respect to the
Merger Consideration payable upon due surrender of their Certificates, without
any interest thereon. Notwithstanding the foregoing, neither the Surviving
Corporation nor the Paying Agent shall be liable to any holder of a
Certificate for Merger Consideration delivered to a public official pursuant
to any applicable abandoned property, escheat or similar law. Any amounts
remaining unclaimed by holders of Shares two years after the Effective Time
(or such earlier date immediately prior to such time as such amounts would
otherwise escheat to or become property of any governmental entity) shall, to
the extent permitted by applicable law, become the property of Parent free and
clear of any claims or interest of any person previously entitled thereto.
(e) Any portion of the Merger Consideration made available to the Paying
Agent pursuant to Section 2.02(a) hereof to pay for Shares for which appraisal
rights have been perfected shall be returned to Parent upon demand.
Section 2.3. Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, Shares outstanding immediately prior to the
Effective Time and held by a holder who has not voted in favor of the Merger
or consented thereto in writing and who has demanded appraisal for such Shares
in accordance with the DGCL ("Dissenting Shares") shall not be converted into
a right to receive the Merger Consideration, unless and until such holder
fails to perfect or withdraws or otherwise loses his or her right to
appraisal. If after the Effective Time such holder fails to perfect or
withdraws or loses his right to appraisal, such Shares shall be treated as if
they had been converted as of the Effective Time into a right to receive the
Merger Consideration, without interest thereon. The Company shall give Parent
prompt notice of any demands received by the Company for appraisal of Shares,
and Parent shall have the right to participate in all negotiations and
proceedings with respect to such demands. The Company shall not, except with
the prior written consent of Parent, make any payment with respect to, or
settle or offer to settle, any such demands.
Section 2.4. Company Option Plans. At the Effective Time,
each then outstanding option (collectively, the "Options") to purchase or
acquire shares of Company Common Stock under the Company's 1993 Stock Option
Plan, as amended, the Company's 1998 Incentive Compensation Plan and the
director option to purchase 48,660 shares of Company Common Stock
(collectively, the "Option Plans"), whether or not then exercisable or vested,
shall be cancelled and shall represent the right to receive in cash an amount
equal to the product of (i) the number of shares of Company Common Stock
subject to each such Option and (ii) the excess of (A) the Common Stock Merger
Consideration over (B) the per share exercise price of such Option. Prior to
the Effective Time, the Company shall take all actions (including, if
appropriate, obtaining any consents from holders of Options or making any
amendments to the terms of the Option Plans) that are necessary to give effect
to the transactions contemplated by this Section. Notwithstanding any other
provision of this Section, payment may be withheld in respect of any stock
option until necessary consents are obtained.
ARTICLE 3
Representations and Warranties of the Company
The Company represents and warrants to Parent and Purchaser as
follows:
Section 3.1. Organization; Subsidiaries. (a) Each of the
Company and its Subsidiaries is a corporation or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization and has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business as it is now being conducted, except where the failure to be in good
standing would not reasonably be expected to have a Company Material Adverse
Effect (as hereinafter defined). Each of the Company and its Subsidiaries is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the property owned or leased by
it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to be so duly qualified and in good
standing would not reasonably be expected to have a Company Material Adverse
Effect. As used in this Agreement, the word "Subsidiary" means, with respect
to any party, any corporation, partnership or other entity or organization,
whether incorporated or unincorporated, of which (i) such party or any other
Subsidiary of such party is a general partner (excluding such partnerships
where such party or any Subsidiary of such party does not have a majority of
the voting interest in such partnership) or (ii) at least a majority of the
securities or other interests having by their terms ordinary voting power to
elect a majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization is directly
or indirectly owned or controlled by such party or by any one or more of its
Subsidiaries, or by such party and one or more of its Subsidiaries. As used
in this Agreement, "Company Material Adverse Effect" means any change in or
effect on the business of the Company and its Subsidiaries that is materially
adverse to the business, financial condition, assets or results of operations
of the Company and its Subsidiaries taken as a whole, but excluding (i) any
change resulting from general economic or industry conditions and (ii) any
circumstance arising from any act or omission on the part of the Parent or the
Purchaser not otherwise contemplated by this Agreement. Section 3.1 of the
disclosure schedules delivered to Parent by the Company on or prior to
entering into this Agreement (the "Company Disclosure Schedule") sets forth a
complete and correct list of all of the Company's Subsidiaries and their
respective jurisdictions of incorporation or organization. Except as set
forth in Section 3.1 of the Company Disclosure Schedule, neither the Company
nor any Company Subsidiary holds any interest in a partnership or joint
venture of any kind.
(b) Except as set forth in Section 3.1(b) of the Company Disclosure
Schedule, the Company has heretofore delivered to Parent a complete and
correct copy of each of its Certificate of Incorporation and By-laws, as
currently in effect, and has heretofore made available to Parent a complete
and correct copy of the charter and by-laws of each of its Subsidiaries, as
currently in effect. In all material respects, the minute books of the Company
and the Company Subsidiaries contain accurate records of all meetings and
accurately reflect all other actions taken by the stockholders, the boards of
directors and all committees of the boards of directors of the Company and the
Company Subsidiaries. Complete and accurate copies of all such minute books
and of the stock register of the Company and each Company Subsidiary have been
made available by the Company to Parent.
(c) To the knowledge of the Company, Substrate Technologies Inc. and TVS
▇▇▇▇ Ltd. are currently operating with all necessary permits and licenses and
are in compliance with all applicable laws and regulations, except where the
failure to be in compliance with such laws and regulations would not,
individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
Section 3.2. Capitalization. (a) As of the date hereof, the
authorized capital stock of the Company consists of 120,000,000 shares of
Company Common Stock, 7,000,000 shares of Company Class A Common Stock, and
28,500,000 shares of preferred stock, par value $.01 per share (the "Company
Preferred Stock"), of which 670,000 shares are designated as Series A Junior
Preferred Stock. As of August 24, 1998, (i) 39,398,204 shares of Company
Common Stock were issued and outstanding, (ii) 2,348,497 shares of Company
Common Stock were reserved for issuance upon exercise of Options granted
pursuant to the Option Plans, (iii) 1,440,784 Options were granted and
remained unexercised pursuant to the Option Plans, (iv) 1,908,554 shares of
Company Common Stock were reserved for issuance upon conversion of outstanding
shares of Company Class A Common Stock, (v) 255,500 shares of Company Common
Stock were issued and held in the treasury of the Company, (vi) 1,908,554
shares of Company Class A Common Stock were issued and outstanding, (vii)
there were no shares of Company Preferred Stock issued and outstanding and
(viii) 670,000 shares of Series A Junior Preferred Stock were reserved for
issuance upon exercise of the Rights. All the outstanding shares of the
Company's capital stock are duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights. Since August 24, 1998, no
additional shares of capital stock or securities convertible into or
exchangeable for such capital stock, have been issued other than any shares of
Company Common Stock issued upon exercise of the Options granted under the
Option Plans or upon conversion of outstanding shares of Company Class A
Common Stock, and no shares of Company Preferred Stock have been issued.
Section 3.2(a) of the Company Disclosure Schedule identifies (i) the holders
of each of the Options, (ii) the number of Options vested for each holder,
(iii) the Option Plan under which each Option was issued, (iv) the number of
Options held by such holder and (v) the exercise price of each of the Options.
All shares of Company Common Stock subject to issuance as aforesaid, upon
issuance prior to the Effective Time on the terms and conditions specified in
the instruments pursuant to which they are issuable, will be duly authorized,
validly issued, fully paid, nonassessable and free of preemptive rights.
Except for shares of Company Common Stock issuable upon exercise of the
Options described in Section 3.2(a) of the Company Disclosure Schedule or upon
conversion of outstanding shares of Company Class A Common Stock, or as
otherwise set forth in Section 3.2(a) of the Company Disclosure Schedule,
there are no (i) options, warrants, calls, subscriptions or other rights,
convertible securities, agreements or commitments of any character obligating
the Company or any Company Subsidiary to issue, transfer or sell any shares of
capital stock or other equity interest in, the Company or any Company
Subsidiary or securities convertible into or exchangeable for such shares or
equity interests, (ii) outstanding contractual obligations or commitments of
any character of the Company or any Company Subsidiary to repurchase, redeem
or otherwise acquire any capital stock of the Company or any Company
Subsidiary, (iii) outstanding contractual obligations or commitments of any
character restricting the transfer of, or requiring the registration for sale
of, any capital stock of the Company or any Company Subsidiary, (iv)
outstanding contractual obligations or commitments of any character granting
any preemptive or antidilutive right with respect to, any capital stock of the
Company or any Company Subsidiary or (v) voting trusts or similar agreements
to which the Company or any Company Subsidiary is a party with respect to the
voting of the capital stock of the Company or any Company Subsidiary. Except
as set forth in Section 3.2(a) of the Company Disclosure Schedule, there are
no outstanding contractual obligations of the Company or any Company
Subsidiary to provide funds to, or make any investment (in the form of a loan,
capital contribution or otherwise) in, any Company Subsidiary or any other
person, other than guarantees by the Company of any indebtedness of any
Company Subsidiary.
(b) Each outstanding share of capital stock of each Company
Subsidiary is duly authorized, validly issued, fully paid, nonassessable and
free of preemptive rights. Except as disclosed in Section 3.2(b) of the
Company Disclosure Schedule, all of the outstanding shares of capital stock of
each Company Subsidiary are owned of record and beneficially, directly or
indirectly, by the Company, free and clear of all mortgages, security
interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on the Company's or such other Company Subsidiary's
voting rights, charges and other material encumbrances of any nature
whatsoever.
Section 3.3. Authorization; Validity of Agreement; Company
Action. The Company has full corporate power and authority to execute and
deliver, and to perform its obligations under, this Agreement and to consummate
the transactions contemplated hereby. The execution, delivery and performance
by the Company of this Agreement, and the consummation by it of the
transactions contemplated hereby, have been duly authorized by its Board of
Directors and no other corporate action on the part of the Company is
necessary to authorize the execution and delivery by the Company of this
Agreement and the consummation by it of the transactions contemplated hereby,
except, in the case of the Merger, for the requisite approval of stockholders
contemplated by Section 1.08 hereof, if applicable. This Agreement has been
duly executed and delivered by the Company and (assuming due and valid
authorization, execution and delivery hereof by Parent and Purchaser) is a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting creditors' rights generally and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
Section 3.4. Consents and Approvals; No Violations. Except as
disclosed in Section 3.4 of the Company Disclosure Schedule and except, with
respect to paragraphs (iv) and (v) hereof, for (a) filings pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and other applicable antitrust or competition laws, (b) applicable
requirements under the Exchange Act, (c) the filing of the Certificate of
Merger, (d) applicable requirements under "takeover" or "blue sky" laws of
various states, and (e) matters specifically described in this Agreement,
neither the execution, delivery or performance of this Agreement by the
Company nor the consummation by the Company of the transactions contemplated
hereby will (i) violate or conflict with any provision of the Certificate of
Incorporation or By-laws of the Company or the charter or by-laws of any of its
Subsidiaries, (ii) result in a violation or breach of, or result in any loss
of benefit or constitute (with or without due notice or lapse of time or both)
a default (or give rise to any right of termination, cancellation,
acceleration or modification) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, permit,
contract, agreement or other instrument or obligation to which the Company or
any of its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound, (iii) violate or conflict with any order,
writ, judgment, injunction or decree binding upon or applicable to the
Company, any of its Subsidiaries or any of their properties or assets, (iv)
violate or conflict with any law, statute, rule or regulation binding upon or
applicable to the Company, any of its Subsidiaries or any of their properties
or assets, (v) require on the part of the Company or any of its Subsidiaries
any action by or in respect of any filing or registration with, notification
to, or authorization, consent or approval of, any court, legislative,
executive or regulatory authority or agency (a "Governmental Entity") or (vi)
result in the creation or imposition of any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind on any asset of the Company or
any of its Subsidiaries, except in the case of clauses (ii), (iv), (v) or
(vi) for such violations, breaches or defaults which, or filings,
registrations, notifications, authorizations, consents or approvals the
failure of which to obtain, would not reasonably be expected to have a Company
Material Adverse Effect or would not materially adversely affect the ability
of the Company to consummate the transactions contemplated by this Agreement.
Section 3.5. SEC Reports and Financial Statements. The
Company has filed all reports required to be filed by it with the SEC pursuant
to the Exchange Act and the Securities Act of 1933, as amended (the "Securities
Act"), since January 1, 1997 (as such documents have been amended since the
date of their filing, collectively, the "Company SEC Documents"). The Company
SEC Documents (a) were prepared in accordance with the requirements of the
Securities Act or the Exchange Act, as the case may be, and (b) as of their
respective filing dates, or if amended, as of the date of the last such
amendment, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading. Each of the historical consolidated balance sheets
(including the related notes) included in the Company SEC Documents fairly
presents in all material respects the financial position of the Company and
its consolidated Subsidiaries as of the date thereof, and the other related
historical statements (including the related notes) included in the Company
SEC Documents fairly present in all material respects the results of
operations and cash flows of the Company and its consolidated Subsidiaries for
the respective periods or as of the respective dates set forth therein. Each
of the historical consolidated balance sheets and historical statements of
operations and cash flow (including the related notes) included in the Company
SEC Documents has been prepared in accordance with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis during
the periods involved, except as otherwise noted therein and, in the case of
unaudited interim financial statements, subject to normal year-end adjustments
and except as permitted by Form 10-Q of the SEC. The books and records of the
Company and its Subsidiaries have been, and are being, maintained, in all
material respects, in accordance with GAAP and any other applicable legal and
accounting requirements.
Section 3.6. No Undisclosed Liabilities. Except (a) for
liabilities and obligations incurred in the ordinary course of business
consistent with past practices since December 31, 1997, (b) for liabilities
and obligations disclosed in the Company SEC Documents filed prior to the date
hereof, (c) for liabilities and obligations incurred in connection with the
Offer and the Merger or otherwise as contemplated by this Agreement and (d) as
disclosed in Section 3.6 of the Company Disclosure Schedule, neither the
Company nor any of its Subsidiaries has incurred any liabilities or
obligations of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, except for such liabilities or
obligations which would not have a Company Material Adverse Effect.
Section 3.7. Absence of Certain Changes. Changes. Except as
(a) disclosed in the Company SEC Documents filed prior to the date hereof, (b)
disclosed in Section 3.7 of the Company Disclosure Schedule, or (c)
contemplated by this Agreement, since December 31, 1997, the Company has
conducted its business in the ordinary and usual course, consistent with past
practices, and there has not been:
(i) any transaction, commitment, dispute or other event,
occurrence, development of a state of circumstances or facts or
condition (financial or otherwise) of any character (whether or not in
the ordinary course of business consistent with past practices) which,
alone or in the aggregate, has had or would reasonably be expected to
have a Company Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of the
Company or any repurchase, redemption or other acquisition by the
Company or any of its Subsidiaries of any outstanding shares of
capital stock or other securities of, or other ownership interests in,
the Company or such Subsidiary;
(iii) any amendment of any material term of any outstanding security
of the Company or any of its Subsidiaries;
(iv) any incurrence, assumption or guarantee by the Company or any
of its Subsidiaries of any indebtedness for borrowed money other than
in the ordinary course of business consistent with past practices and
in amounts and on terms consistent with past practices;
(v) any acquisition, sale or transfer of any material assets of
the Company or any of its Subsidiaries;
(vi) any creation or assumption by the Company or any of its
Subsidiaries of any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind on any material asset other than in the
ordinary course of business consistent with past practices;
(vii) any transaction or commitment made or any contract or
agreement entered into by the Company or any of its Subsidiaries or
any relinquishment by the Company or any of its Subsidiaries of any
contract or other right or any amendment or termination of, or default
under, any Material Agreement (as defined in Section 3.08), in each
case, material to the Company and its Subsidiaries, taken as a whole,
other than transactions and commitments in the ordinary course of
business consistent with past practices;
(viii) any making of any loan, advance or capital contribution to or
investment in any Person other than loans, advances or capital
contributions to or investments in wholly-owned Subsidiaries of the
Company made in the ordinary course of business consistent with past
practices and payroll, travel and similar advances made in the
ordinary course of business consistent with past practices;
(ix) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company
or any of its Subsidiaries which, individually or in the aggregate,
has had or would reasonably be expected to have a Company Material
Adverse Effect;
(x) any transaction, agreement or understanding between the
Company or its Subsidiaries on the one hand and any current director
or officer of the Company or any Subsidiary or any transaction which
would be subject to proxy statement disclosure under the Exchange Act
pursuant to the requirements of Item 404 of Regulation S-K (an
"Affiliate Transaction");
(xi) any material change in any method of accounting or accounting
practice by the Company or any of its Subsidiaries, except as required
by reason of a concurrent change in GAAP; or
(xii) any (x) increase in compensation, bonus or other benefits
payable (including any retention or stay bonus) to directors, officers
or employees of the Company or any of its Subsidiaries, other than in
the ordinary course of business consistent with past practices, (y)
grant of, or increase in benefits payable under, any severance or
termination pay to any director, officer or employee of the Company or
any of its Subsidiaries or (z) entering into of any employment,
deferred compensation or other similar agreement (or any amendment to
any such existing agreement) with any director, officer or employee of
the Company or any of its Subsidiaries.
Section 3.8. Contracts. Except as disclosed in or attached as
exhibits to the Company SEC Documents or as disclosed in Section 3.8(a) of the
Company Disclosure Schedule, neither the Company nor any of the Company
Subsidiaries is a party to or bound by any contract required to be described
in or filed as an exhibit to the Company's SEC filings (collectively with the
documents disclosed in Section 3.8(b) of the Company Disclosure Schedule, the
"Material Agreements"). The Company has previously made available to Parent
true and correct copies of the Material Agreements. Neither the Company nor
any Company Subsidiary knows of, or has received notice of, any violation or
default under (nor does there exist any condition which with the passage of
time or the giving of notice would cause such a violation of or default under)
any Material Agreement except for violations or defaults that would not,
individually or in the aggregate, reasonably be expected to result in a
Company Material Adverse Effect.
Section 3.9. Employee Benefit Plans; ERISA.
(a) Pension and Multiemployer Plans. The Company and its Subsidiaries
have not during the preceding six years made or had an obligation to make
contributions to any pension plan subject to Title IV of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or described in
Section 3(37), 4063 or 4064 of ERISA with respect to their employees. With
respect to any Benefit Plan that is a defined benefit plan, as of the date
hereof, all funding requirements have been met in accordance with the law of
the relevant jurisdiction, and the Company has accounted for such plans in
accordance with GAAP, except as would not have a Company Material Adverse
Effect.
(b) Tax Qualification. The Benefit Plans (as defined below) and their
related trusts intended to qualify under Sections 401 and 501(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), respectively, have
been determined by the Internal Revenue Service (the "IRS") to qualify under
such sections, as amended by the Tax Reform Act of 1986, and to the knowledge
of the Company nothing has occurred since the date of such determination
letters which could not be corrected or otherwise remedied without having a
Company Material Adverse Effect.
(c) Compliance with Laws. The Benefit Plans have been maintained in
accordance with their terms and applicable laws, except for any noncompliance
as would not reasonably be expected to result in a Company Material Adverse
Effect.
(d) Claims. Except as disclosed in Section 3.9(d) of the Company
Disclosure Schedule, there are no pending or to the knowledge of the Company
threatened actions, claims or proceedings against any Benefit Plan or its
assets, plan sponsor, plan administrator or fiduciaries with respect to the
operation of such plan (other than routine benefit claims) which would
reasonably be expected to have a Company Material Adverse Effect.
(e) Change in Control. Except as disclosed in Section 3.9(e) of the
Company Disclosure Schedule or in connection with the Options, neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (i) result in any payment becoming due
to any employee (current, former or retired) of the Company and its
Subsidiaries, (ii) increase any benefits under any Benefit Plan or (iii)
result in the acceleration of the time of payment or vesting of any such
benefits.
(f) Benefit Plans. For purposes hereof, "Benefit Plans" means all
"employee benefit plans," as defined in Section 3(3) of ERISA, and all bonus
or other incentive compensation, deferred compensation, disability, severance,
stock award, stock option, stock purchase, tuition assistance plans or
policies and each employment or other similar contract, each plan or
arrangement providing for insurance coverage (including any self-insured
arrangements), supplemental unemployment benefits, vacation benefits,
retirement benefits, profit-sharing, stock appreciation or post-retirement
insurance or benefits, in each case which the Company or any of its affiliates
maintains or to which the Company or any of its affiliates makes or has an
obligation to make contributions with respect to current or former employees
or directors of the Company or any of its affiliates. For purposes of this
Section 3.09, "affiliate" of any Person means any other Person which, together
with such Person, would be treated as a single employer under Section 414 of
the Code.
(g) Disclosure. Section 3.9(g) of the Company Disclosure Schedule
contains a list of all of the Benefit Plans. Other than Benefit Plans for
foreign Subsidiaries, copies of the Benefit Plans (and, if applicable, related
trust agreements) and all amendments thereto and written interpretations
thereof have been made available to Purchaser together with, if applicable,
(A) the most recent annual reports (Form 5500 including, if applicable,
Schedule B thereto) prepared in connection with any such plan and (B) the most
recent actuarial valuation report prepared in connection with any such plan.
The Company has made available to the Purchaser copies of the most recent
Internal Revenue Service determination letters with respect to each Benefit
Plan which is intended to be qualified under Section 401(a) of the Code.
(h) Unions. Except as set forth in Section 3.9(h) of the Company
Disclosure Schedule, neither the Company nor any Subsidiary is a party to or
subject to any union contract or collective bargaining agreement for U.S.
employees.
Section 3.10. Litigation. Except as disclosed in Section 3.10
of the Company Disclosure Schedule or as disclosed in the Company SEC
Documents filed prior to the date hereof or for shareholder suits against the
Company related to, arising out of or resulting from the transactions
contemplated by this Agreement, there is no action, suit, proceeding, audit or
investigation pending or, to the knowledge of the Company, threatened against
or involving the Company or any of its Subsidiaries or any of their respective
properties, by or before any court, governmental or regulatory authority,
arbitrator or by any third party that could prevent, enjoin, or materially
alter or delay any of the transactions contemplated by this Agreement or that,
if adversely determined, would reasonably be expected to have a Company
Material Adverse Effect. Except as disclosed in Section 3.10 of the Company
Disclosure Schedule or as disclosed in the Company SEC Documents filed prior
to the date hereof, neither the Company nor any of its Subsidiaries is subject
to any outstanding order, writ, injunction or decree which has had or,
individually or in the aggregate, would reasonably be expected to have a
Company Material Adverse Effect.
Section 3.11. Permits; No Default; Compliance with Applicable
Laws. Each of the Company and the Company Subsidiaries is in possession of
all material franchises, grants, authorizations, licenses, permits, easements,
variances, exceptions, consents, certificates, approvals, clearances and
orders of any Governmental Entity necessary for the Company or any Company
Subsidiary to own, lease and operate its properties or to carry on their
respective businesses substantially in the manner described in the Company SEC
Documents and as it is now being conducted (the "Company Permits"), and all
such Company Permits are valid, and in full force and effect, and no suspension
or cancellation of any of the Company Permits is pending or, to the knowledge
of the Company, threatened and no condition exists that with notice or lapse
of time or both would constitute a material default under the Company Permits,
and none of the Company Permits will be terminated or impaired or become
terminable, in whole or in part, as a result of the transactions contemplated
hereby. The business of the Company and each of its Subsidiaries is not in
default or violation of, and has not since January 1, 1998 defaulted on or
violated, and to the knowledge of the Company none is under investigation with
respect to or has been threatened to be charged with or given notice of any
default or violation of, any term, condition or provision of any statute, law,
rule, regulation, judgment, decree, order, permit, license or other
governmental authorization or approval (including any Company Permit)
applicable to the Company or any of its Subsidiaries or by which any property,
asset or operation of the Company or any of its Subsidiaries is bound or
affected, including, laws, rules and regulations relating to occupational
health and safety, employee benefits, wages, workplace safety, equal
employment opportunity and race, religious or sex discrimination, excluding
defaults or violations which are disclosed in the Company SEC Documents or
which would not reasonably be expected to have a Company Material Adverse
Effect.
Section 3.12. Taxes. (a) Except as disclosed in Section 3.12
of the Company Disclosure Schedule: (i) all material Tax Returns required to
be filed by or with respect to the Company and each of its Subsidiaries have
been filed and such Tax Returns were true and correct in all material
respects; (ii) the Company and each of its Subsidiaries has paid (or there has
been paid on its behalf) all material Taxes that are due whether or not shown
on any Tax Return, except for Taxes being contested in good faith by
appropriate proceedings and for which adequate reserves have been established
in the Company's financial statements (as of the date thereof); and (iii) none
of the material Tax Returns filed by the Company and its Subsidiaries is
currently the subject of an audit.
(b) Except as disclosed in Section 3.12 of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries, (i) currently is
the beneficiary of any extension of time within which to file any material Tax
Return; (ii) has filed a consent under Section 341(f) of the Code concerning
collapsible corporations; (iii) has made any payments, is obligated to make
any payments, or is a party to any agreement that under certain circumstances
could obligate it to make any payments that will not be deductible under
Section 280G of the Code; (iv) has been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code during the
five-year period ending on the date the Offer commences; (v) neither the
Company nor any of its Subsidiaries is a party to any material tax allocation
or sharing agreement; (vi) has any liability for the taxes of any person (other
than any of the Company and its Subsidiaries) under Treasury Regulation
1.1502-6 (or any similar provision of state, local, or foreign law), as a
transferee or successor, by contract, or otherwise; or (vii) has waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a tax assessment or deficiency.
(c) Section 3.12 of the Company Disclosure Schedule lists all material
federal, state, local, and foreign Tax Returns filed with respect to any of
the Company and its Subsidiaries for taxable periods ending after December 31,
1992, indicates those Tax Returns that have been audited, and indicates those
Tax Returns that currently are the subject of audit. The Company has delivered
to Purchaser correct and complete copies of all Tax Returns, examination
reports, and statements of deficiencies assessed against or agreed to by any
of the Company and its Subsidiaries for taxable periods ending after December
31, 1992.
(d) Prior to the Closing Date, the Company shall provide Purchaser with
a U.S. tax balance sheet for the Company for the taxable periods ending
December 31, 1997, such U.S. tax balance sheet having been prepared in a
manner consistent with the U.S. tax balance sheet for the Company for the
taxable period ending December 31, 1996 that was previously provided to
Purchaser by the Company.
(e) As soon as practicable after the execution of this Agreement, the
Company shall provide to Purchaser the taxable income and net operating
loss carryovers to 1998 that the Company expects to report on its Tax
Returns for the taxable periods ending December 31, 1997 and such reported
amounts will not differ materially from those amounts actually reported on
the Company's Tax Returns for the taxable periods ending December 31, 1997.
(f) The term "Taxes" shall mean all taxes, charges, fees, levies, or
other similar assessments or liabilities imposed by the United States of
America, or by any state, local, or foreign government, or any subdivision,
agency, or other similar person of the United States or any such government,
including without limitation (i) income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Section 59A of the Code), customs duties,
capital stock franchise, profits, withholding, social security, unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, and estimated taxes
and (ii) any interest, penalties or additions thereto, whether disputed or
not.
(g) The term "Tax Returns" shall mean any report, return, declaration,
claim for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any amendment
thereof.
Section 3.13. Real and Personal Property. The Company and its
Subsidiaries, as the case may be, have good and marketable title to all of
their respective real property and good title to all of their respective
leasehold interests and other properties, as reflected in the most recent
balance sheet included in the Company SEC Documents, except for properties and
assets that have been disposed of in the ordinary course of business consistent
with past practices since the date of such balance sheet, free and clear of
all mortgages, liens, pledges, charges or encumbrances of any nature
whatsoever, except (i) any lien for current Taxes, payments of which are not
yet delinquent, (ii) such imperfections in title and easements and
encumbrances, if any, as are not substantial in character, amount or extent
and do not materially detract from the value, or interfere with the present
use of the property subject thereto or affected thereby, or otherwise
materially impair the Company's business operations (in the manner presently
carried on by the Company) or (iii) as disclosed in the Company SEC Documents.
All leases under which the Company leases any real or personal property are in
good standing, valid and effective in accordance with their respective terms,
and there is not, under any of such leases, any existing default, breach or
event which with notice or lapse of time or both would become a default or
breach which could reasonably be expected to have a Company Material Adverse
Effect.
Section 3.14. Intellectual Property. The Company and the
Subsidiaries own or possess adequate licenses or other rights to use all
Intellectual Property Rights necessary to conduct the business now operated by
them, except where the failure to own or possess such licenses or rights has
not had and would not reasonably be expected to have a Company Material
Adverse Effect. To the knowledge of the Company, the Intellectual Property
Rights of the Company and the Subsidiaries do not conflict with or infringe
upon any Intellectual Property Rights of others to the extent that, if
sustained, such conflict or infringement has had and would reasonably be
expected to have a Company Material Adverse Effect. For purposes of this
Agreement, "Intellectual Property Right" means any trademark, service mark,
trade name, copyright, patent, software license, invention, trade secret,
know-how or other similar proprietary intellectual property right (including
any registrations or applications for registration of any of the foregoing).
Section 3.15. Environmental Matters. Except as disclosed in
Section 3.15 of the Company Disclosure Schedule or as disclosed in the Company
SEC Documents:
(i) the Company and its Subsidiaries are in compliance with
applicable laws, regulations, judicial decisions, ordinances,
judgments, orders, permits, rules or governmental requirements
relating to the environment, the effect of the environment on human
health and safety, or pollutants, contaminants or any toxic,
radioactive, ignitable, corrosive, reactive or otherwise hazardous
substances, wastes or materials (collectively, "Environmental Laws"),
except for any noncompliance that individually or in the aggregate
would not reasonably be expected to have a Company Material Adverse
Effect;
(ii) there are no outstanding notices of violation, notices,
requests for information, orders, complaints, or penalties against the
Company or any of its Subsidiaries under or pursuant to Environmental
Laws which individually or in the aggregate would reasonably be
expected to have a Company Material Adverse Effect;
(iii) there are no judicial or administrative proceedings,
investigations or actions pending or, to the knowledge of the Company
or any of its Subsidiaries, threatened, which allege the violation of
or liability under any Environmental Law which individually or in the
aggregate would have reasonably be expected to have a Company Material
Adverse Effect;
(iv) there are no liabilities of or relating to the Company or any
of its Subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, arising
under or relating to any Environmental Law which individually or in
the aggregate would reasonably be expected to have a Company Material
Adverse Effect, and there are no known facts, conditions, situations
or sets of circumstances which could reasonably be expected to result
in or be the basis for any such liability which would have a Company
Material Adverse Effect;
(v) any operations conducted in, and each facility or real
property owned, leased or operated by the Company or any of its
Subsidiaries in the State of New Jersey satisfy the requirements of
the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.
("ISRA"), and the regulations implemented thereunder, including but
not limited to N.J.A.C. 7:26B-2.3, except where the failure to satisfy
such requirements would not reasonably be expected to have a Company
Material Adverse Effect; and
(vi) consummation of the Offer, the Merger and the transactions
contemplated by this Agreement will not require compliance with the
Connecticut Hazardous Waste Establishment Transfer Act (General
Statutes Section 22a-134, et seq.), as amended, and any rules or
regulations promulgated thereunder ("CTA"), except for any non-
compliance that would not reasonably be expected to have a Company
Material Adverse Effect.
Section 3.16. Employee and Labor Matters. (a) Except as set
forth in Section 3.16 of the Company Disclosure Schedule: (i) since January
1, 1997 there has been no labor strike or work stoppage against, or lockout
by, the Company or any of its Subsidiaries or, to the Company's knowledge, any
activity or proceeding by a labor union or representative thereof to organize
any employees of the Company or any of its Subsidiaries, which employees were
not subject to collective bargaining agreement at December 31, 1997, (ii)
there is no unfair labor practice charge or complaint against the Company or
any of its Subsidiaries pending before, or, to the knowledge of the Company,
threatened by, the National Labor Relations Board, and (iii) there is no
pending or, to the knowledge of the Company, threatened union grievance
against the Company or any of its Subsidiaries that would reasonably be
expected to have a Company Material Adverse Effect.
Section 3.17. Information in Offer Documents. None of the
information supplied or to be supplied by the Company or any of its
Subsidiaries, or any of their officers, directors, employees, representatives
or agents for inclusion or incorporation by reference in the Offer Documents
or the Schedule 14D-9, including any amendments or supplements thereto,
contains or, with respect to the information included or incorporated by
reference into the Offer Documents or the Schedule 14D-9, will contain at the
respective times the Offer Documents and the Schedule 14D-9 are filed with the
SEC or first published, sent or given to the Company's stockholders, any
statement which, at such time and in light of the circumstances under which it
is made, is false or misleading with respect to any material fact, or omit to
state any material fact necessary in order to make the statements therein not
false or misleading. Notwithstanding the foregoing, the Company does not make
any representation or warranty with respect to the information that has been
or will be supplied by Parent or the Purchaser or their officers, directors,
employees, representatives or agents for inclusion or incorporation by
reference in any of the foregoing documents. The Schedule 14D-9 and any
amendments or supplements thereto will comply in all material respects with the
applicable provisions of the Exchange Act and the rules and regulations
thereunder.
Section 3.18. Brokers or Finders. The Company represents, as
to itself, its Subsidiaries and its affiliates, that no agent, broker,
investment banker, financial advisor or other firm or person is or will be
entitled to any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement,
except ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), the fees and expenses
of which will be paid by the Company in accordance with the Company's
agreement with such firm, a true and complete copy of which has heretofore
been furnished to Parent. The Company has no obligations or commitments to
any investment banker or financial advisor in connection with any future
transactions that may be considered or entered into by the Company after the
Effective Time.
Section 3.19. Insurance. The Company maintains insurance
coverage with reputable insurers in such amounts and covering such risks as
are in accordance with normal industry practice for companies engaged in
businesses similar to that of the Company (taking into account the cost and
availability of such insurance).
Section 3.20. Opinion of Financial Advisor. The Company has
received the written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to the effect that, as of the
date hereof, the consideration to be received by the holders of the Common
Shares in the Offer and the Merger is fair from a financial point of view to
such holders. A copy of such opinion has been provided to the Purchaser.
Section 3.21. Rights Plan; Takeover Laws. (a) The Company and
its Board of Directors have amended the Rights Agreement between the Company
and ▇▇▇▇▇▇ Trust and Savings Bank dated December 22, 1997 (the "Rights
Agreement") (without redeeming the Rights issued thereunder), which amendment
has been provided to Parent, so that neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby
will (i) cause any Rights issued pursuant to the Rights Agreement to become
exercisable, to be triggered or to separate from the Shares to which they are
attached, (ii) cause the Parent or the Purchaser or any of their affiliates to
be an Acquiring Person (as defined in the Rights Agreement) in connection with
the transactions contemplated hereby or (iii) trigger other provisions of the
Rights Agreement, including giving rise to a Distribution Date (as defined in
the Rights Agreement) in connection with the transactions contemplated hereby,
and such amendment shall remain in full force and effect from and after the
date hereof.
(b) The Company has taken all action required by it in order to exempt
this Agreement and the Stockholders Agreement and the transactions
contemplated hereby and thereby from, and this Agreement and the Stockholders
Agreement and the transactions contemplated hereby and thereby are exempt
from, the requirements of any "moratorium", "control share", "fair price" or
other anti-takeover laws and regulations (collectively, "Takeover Laws") of
the State of Delaware and any other state.
Section 3.22. Termination Agreement. The Company has entered
into a Termination Agreement (the "Termination Agreement") with ▇▇▇▇▇, Muse &
Co. Partners, L.P. Incorporated ("HM&Co") providing for the termination of
that certain Amended and Restated Monitoring and Oversight Agreement dated as
of March 6, 1996 among the Company, ▇▇▇▇ Electronics Group, Inc. and HM&Co
(the "Oversight Agreement"). A copy of the Termination Agreement has been
provided to Parent.
Section 3.23. Exon-▇▇▇▇▇▇. Except as disclosed in Section
3.23 of the Company Disclosure Schedule, to the knowledge of the Company,
neither the Company nor any of its Subsidiaries:
(i) has, or has had within the past three yeas, any contract with
an agency of the Government of the United States with national defense
responsibilities, including any component of the Department of
Defense;
(ii) has, or has had within the past five years, any contract with
any agency of the Government of the United States involving any
information, technology or data which is classified under Executive
Order 12356 of April 2, 1982 or Executive Order 12958 of April 17,
1995;
(iii) is a supplier to any of the military services of the United
States or the Department of Defense of any products or services
(including research and development) as a prime contractor or a first
tier subcontractor or, if known, a subcontractor at any level or a
seller to any such prime contractor or subcontractor;
(iv) has technology which has military applications;
(v) produces products or technical data subject to validated
licenses or under general license GTDR pursuant to the U.S. Export
Administration Regulations (15 C.F.R. Part 730 et seq.); or
(vi) produces defense articles or technical data or defense
services subject to the International Traffic in Arms Regulations (22
C.F.R. Subchapter M).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE Purchaser
Parent and the Purchaser jointly and severally represent and
warrant to the Company as follows:
Section 4.1. Organization. Each of Parent and the Purchaser
is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
Section 4.2. Authorization; Validity of Agreement; Necessary
Action. Each of Parent and the Purchaser has full corporate power and
authority to execute and deliver, and to perform its obligations under, this
Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance by ▇▇▇▇▇▇ and the Purchaser of this
Agreement, and the consummation of the transactions contemplated hereby, have
been duly authorized by their respective Boards of Directors and no other
corporate action on the part of Parent and the Purchaser is necessary to
authorize the execution and delivery by Parent and the Purchaser of this
Agreement and the consummation by them of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Parent and the
Purchaser and (assuming due and valid authorization, execution and delivery
hereof by the Company) is a valid and binding obligation of each of Parent and
the Purchaser, enforceable against them in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
Section 4.3. Consents and Approvals; No Violations. Except,
with respect to paragraphs (iv) and (v) hereof, for (a) filings pursuant to
the HSR Act and other applicable antitrust or competition laws, (b) applicable
requirements under the Exchange Act, (c) the filing of the Certificate of
Merger, (d) applicable requirements under "takeover" or "blue sky" laws of
various states, and (e) as described in this Agreement, neither the execution,
delivery or performance of this Agreement by Parent and the Purchaser nor the
consummation by Parent and the Purchaser of the transactions contemplated
hereby will (i) violate or conflict with any provision of the charter or
by-laws or other comparable constituent documents of Parent or the Purchaser,
(ii) result in a violation or breach of, or result in any loss of benefit or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, acceleration or
modification) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which Parent or the Purchaser is a party or by
which any of them or any of their properties or assets may be bound, (iii)
violate or conflict with any order, writ, judgment, injunction or decree
applicable to or binding upon Parent or the Purchaser or any of their
properties or assets, (iv) violate or conflict with any law, statute, rule or
regulation applicable to or binding upon Parent or the Purchaser or any of
their properties or assets, (v) require on the part of Parent or the Purchaser
any action by or in respect of filing or registration with, notification to, or
authorization, consent or approval of, any Governmental Entity or (vi) result
in the creation or imposition of any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind on any asset of the Parent or the
Purchaser, except in the case of clauses (ii), (iv), (v) or (vi) for such
violations, breaches or defaults which, or filings, registrations,
notifications, authorizations, consents or approvals the failure of which to
obtain, would not materially adversely affect the ability of Parent and the
Purchaser to consummate the transactions contemplated by this Agreement.
Section 4.4. Information in Offer Documents; Proxy Statement.
None of the information supplied or to be supplied by Parent or the Purchaser,
or any of their officers, directors, employees, representatives or agents for
inclusion or incorporation by reference in the Offer Documents, the Schedule
14D-9 or the Proxy Statement, including any amendments or supplements thereto,
will, in the case of the Offer Documents and the Schedule 14D-9, at the
respective times the Offer Documents and the Schedule 14D-9 are filed with the
SEC or first published, sent or given to the Company's stockholders, or, in
the case of the Proxy Statement, at the date the Proxy Statement is first
mailed to the Company's stockholders or at the time of the Special Meeting,
contain any statement which, at such time and in light of the circumstances
under which it is made, is false or misleading with respect to any material
fact, or omit to state any material fact necessary in order to make the
statements therein not false or misleading. Notwithstanding the foregoing,
Parent and the Purchaser do not make any representation or warranty with
respect to the information that has been supplied by the Company or any of its
Subsidiaries or their officers, directors, employees, representatives or
agents for inclusion or incorporation by reference in any of the foregoing
documents. The Offer Documents and the Proxy Statement, in each case, when
filed, and any amendments or supplements thereto, in each case, when filed,
will comply in all material respects with the applicable provisions of the
Exchange Act and the rules and regulations thereunder.
Section 4.5. Sufficient Funds. Either Parent or the Purchaser
has sufficient funds available to purchase all of the Shares outstanding on a
fully diluted basis, to repay all outstanding indebtedness of the Company and
the Company Subsidiaries that may become due in connection with the
transaction contemplated hereby and to pay all fees and expenses related to
the transactions contemplated by this Agreement.
Section 4.6. Share Ownership. None of Parent, the Purchaser
or any of their respective affiliates beneficially owns any Shares.
Section 4.7. Purchaser's Operations. The Purchaser is a
wholly owned Subsidiary of Parent which was formed solely for the purpose of
engaging in the transactions contemplated hereby and has not engaged in any
business activities or conducted any operations other than in connection with
the transactions contemplated hereby.
ARTICLE 5
Covenants
Section 5.1. Interim Operations of the Company. The Company
covenants and agrees that, except (i) as contemplated by this Agreement, (ii)
as disclosed in Section 5.1 of the Company Disclosure Schedule or (iii) as
agreed in writing by ▇▇▇▇▇▇, after the date hereof, and prior to the time the
directors of the Purchaser have been elected to, and shall constitute a
majority of, the Board of Directors of the Company pursuant to Section 1.03
(the "Election Date"):
(a) the business of the Company and its Subsidiaries shall be conducted
only in the ordinary course of business, consistent with past practices and,
to the extent consistent therewith, each of the Company and its Subsidiaries
shall use its reasonable best efforts to preserve its business organization
intact and maintain its existing relations with customers, suppliers and other
third parties, and to keep available the services of their present officers,
employees and business associates;
(b) each of the Company and its Subsidiaries will not, directly or
indirectly, (i) amend or propose any change to its Certificate of
Incorporation or By-laws or similar organizational documents or (ii) split,
combine or reclassify its outstanding capital stock;
(c) neither the Company nor any of its Subsidiaries shall: (i) declare,
set aside or pay any dividend or other distribution (whether payable in cash,
stock or property or any combination thereof) with respect to its capital
stock (other than cash dividends from any wholly-owned Subsidiary of the
Company to the Company or any other Subsidiary of the Company all of the
capital stock of which is owned directly or indirectly by the Company); (ii)
issue or sell any additional shares of, or securities convertible into or
exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of capital stock of any class of the Company or its
Subsidiaries, other than issuances pursuant to the exercise of Options
outstanding on the date hereof and disclosed on Schedule 3.02(a) hereto or
conversion of Class A Shares into Common Shares in accordance with the terms
thereof; (iii) sell, lease, license (subject to the further restrictions of
paragraph (vi) hereof) or dispose of any assets or properties other than in
the ordinary course of business consistent with past practices which
individually or in the aggregate are in an amount in excess of $500,000; (iv)
incur, assume, prepay or modify any debt, other than in the ordinary course of
business consistent with past practices; (v) license or sublicense (in each
case subject to the further restrictions of paragraph (vi) hereof) any asset
or property of the Company or any Subsidiary of the Company except in the
ordinary course of business consistent with past practice on a basis that
results in a positive current royalty net of any royalties due by the Company
or any Subsidiary on account of sales by the licensee or sublicensee; (vi)
license or sublicense any Intellectual Property of the Company or any
Subsidiary; or (vii) redeem, purchase or otherwise acquire, directly or
indirectly, any of its or its Subsidiaries' capital stock (except as
contemplated by any employee benefit or stock plans or any employment or
severance agreement as in effect on the date hereof);
(d) neither the Company nor any of its Subsidiaries shall acquire (by
merger, consolidation or acquisition of stock or assets) any corporation,
partnership or other business organization or division thereof;
(e) neither the Company nor any of its Subsidiaries shall make any
investment other than in readily marketable securities in an amount in excess
of $500,000 in the aggregate whether by purchase of stock or securities,
contributions to capital or any property transfer;
(f) neither the Company nor any of its Subsidiaries shall waive,
release, grant, or transfer any rights of value material to the Company and
its Subsidiaries taken as a whole;
(g) neither the Company nor any of its Subsidiaries shall, except as may
be required or contemplated by this Agreement or by applicable law, (i) enter
into, adopt, materially amend or terminate any Benefit Plans, (ii) enter into
or amend any retention plan or stay bonus arrangement, employment or severance
agreement, (iii) increase in any manner the compensation or other benefits of
its officers or directors or (iv) increase in any manner the compensation or
other benefits of any other employees (except, in the case of this clause
(iv), for normal increases in the ordinary course of business, consistent with
past practices);
(h) neither the Company nor any of its Subsidiaries shall: (i) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other person
(other than Subsidiaries of the Company), except pursuant to contractual
indemnification agreements entered into in the ordinary course of business,
consistent with past practices; (ii) make any loans, advances or capital
contributions to, or investments in, any other person (other than to
Subsidiaries of the Company and payroll, travel and similar advances made in
the ordinary course of business consistent with past practices); (iii) revalue
in any material respect any of its assets, including, without limitation,
writing down the value of inventory in any material manner or write-off of
notes or accounts receivable in any material manner; or (iv) authorize or make
capital expenditures which exceed $2,500,000 individually or $20,000,000 in
the aggregate;
(i) neither the Company nor any of its Subsidiaries shall pay, discharge
or satisfy any material claims, liabilities or obligations (whether absolute,
accrued, asserted or unasserted, contingent or otherwise) other than the
payment, discharge or satisfaction in the ordinary course of business,
consistent with past practices, of liabilities reflected or reserved against
in the consolidated financial statements of the Company or incurred since the
most recent date thereof pursuant to an agreement or transaction described in
this Agreement (including the schedules hereto) or incurred in the ordinary
course of business, consistent with past practices;
(j) neither the Company nor any of its Subsidiaries shall change in any
material respect any of the accounting methods, principles, policies or
procedures used by it unless required by GAAP or applicable law;
(k) the Company will not amend, modify or terminate any Material
Agreement or enter into any new agreement material to the business of the
Company, other than in the ordinary course of business consistent with past
practices or with the prior written consent of Parent, which consent shall not
be unreasonably withheld;
(l) neither the Company nor any Subsidiary will amend or modify any
existing Affiliate Transaction or enter into any new Affiliate Transaction
other than with the prior written consent of Parent;
(m) neither the Company nor any of its Subsidiaries will take or commit
to take any action that would make any representation or warranty of the
Company hereunder inaccurate in any respect at, or as of any time prior to,
the Election Date; and
(n) neither the Company nor any of its Subsidiaries will authorize or
enter into an agreement to do any of the foregoing.
Section 5.2. Access to Information. (a) Upon reasonable
notice, the Company shall (and shall cause each of its Subsidiaries to) afford
to the officers, employees, accountants, counsel, financing sources and other
representatives of Parent, reasonable access, during the period prior to the
Closing Date, to all its offices, properties, books, contracts, commitments
and records and, during such period, the Company shall (and shall cause each of
its Subsidiaries to) furnish promptly to Parent, its officers, employees,
accountants, counsel, financing sources and other representatives (i) a copy
of each report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of federal
securities laws or regulatory boards or agencies and (ii) all other
information concerning its business, properties and personnel as Parent may
reasonably request. Unless otherwise required by law and until the Closing
Date, Parent will hold any such information which is nonpublic in confidence
in accordance with the provisions of the Confidentiality Agreement between the
Company and Parent, dated as of July 21, 1998 (the "Confidentiality
Agreement").
(b) The Company (i) shall confer on a regular and frequent basis with
one or more designated representatives of Parent to report operational matters
of materiality, the general status of ongoing operations and such other
matters as Purchaser may reasonably request and (ii) shall provide Parent
access to customers and suppliers of the Company and its Subsidiaries.
Section 5.3. Employee Benefits. Parent and the Purchaser
agree that during the period commencing on the Effective Date and ending on
the date that is one year from the Effective Date, the Surviving Corporation
and its Subsidiaries and successors shall provide those persons who,
immediately prior to the Effective Time, were employees of the Company or its
Subsidiaries ("Retained Employees") with employee plans and programs that
provide benefits substantially comparable in the aggregate to those provided
to such Retained Employees immediately prior to the Effective Time
(disregarding for this purpose any stock options or other equity based
compensation provided to such employees prior to the Effective Time). With
respect to such employee plans and programs provided by the Surviving
Corporation and its Subsidiaries and successors, service accrued by such
Retained Employees during employment with the Company and its Subsidiaries
prior to the Effective Time shall be recognized for all purposes, except to
the extent necessary to prevent duplication of benefits and except for benefit
accrual under any defined benefit pension plan maintained by Purchaser.
Amounts paid before the Effective Time by employees of the Company and its
Subsidiaries under any medical plans of the Company shall after the Effective
Time be taken into account in applying deductible and out-of-pocket limits
applicable under any medical plan provided by Parent in substitution therefor
to the same extent as if such amounts had been paid under such Parent medical
plan.
Section 5.4. No Solicitation. (a) From and after the date
hereof, neither the Company nor any of its Subsidiaries shall (whether
directly or indirectly through advisors, agents or other intermediaries), nor
shall the Company or any of its Subsidiaries authorize or permit any of its or
their directors, officers, advisors, agents or representatives, to (i)
initiate, solicit, encourage or facilitate, directly or indirectly, any
Acquisition Proposal (as defined in Section 5.04(c) hereof), (ii) engage in
negotiations or discussions (other than, upon contact initiated by a third
party, to advise such third party of the existence of the restrictions set
forth in this Section 5.04) with, or furnish any information or data to, any
third party relating to an Acquisition Proposal, or (iii) grant any waiver or
release under any standstill or similar agreement with respect to any class of
equity securities of the Company or any of its Subsidiaries. Notwithstanding
anything to the contrary contained in this Section 5.04 or in any other
provision of this Agreement, the Company and its Board of Directors may
participate in discussions or negotiations with or furnish information to any
third party making an Acquisition Proposal not solicited in violation of this
Section 5.04 (a "Potential Acquiror") or approve such an Acquisition Proposal
if the Company's Board of Directors is advised by its financial advisor that
such Potential Acquiror has the financial wherewithal to be reasonably capable
of consummating such an Acquisition Proposal, and the Board determines in good
faith (A) after receiving advice from its financial advisor, that such third
party has submitted to the Company an Acquisition Proposal which is a Superior
Proposal (as defined in Section 5.04(d) hereof), and (B) based upon advice of
outside legal counsel, that the failure to participate in such discussions or
negotiations or to furnish such information or approve an Acquisition Proposal
would violate the Board's fiduciary duties under applicable law. The Company
agrees that any non-public information furnished to a Potential Acquiror will
be pursuant to a confidentiality agreement containing confidentiality and
standstill provisions substantially similar to the confidentiality and
standstill provisions of the Confidentiality Agreement, but in no event less
favorable to the Company, in a material respect. A copy of the
confidentiality agreement entered into with the Potential Acquiror shall be
provided to Parent for informational purposes only. In the event that the
Company shall determine to provide any information as described above, or
shall receive any Acquisition Proposal, it first shall promptly inform Parent
in writing as to the fact that information is to be provided and shall furnish
to Parent the identity of the recipient of such information and/or the
Potential Acquiror and the terms of any such Acquisition Proposal and shall
continue to advise Parent after providing such information. The Company will
immediately cease and cause its advisors, agents and other intermediaries to
terminate any existing activities, discussions and negotiations conducted
heretofore with respect to any Acquisition Proposal and shall use its
reasonable best efforts to cause any parties in possession of confidential
information about the Company that was furnished by or on behalf of the
Company to return or destroy all such information in the possession of any
such party or in the possession of any agent or advisor of such party.
(b) The Board of Directors of the Company shall not (i) withdraw or
modify or propose to withdraw or modify, in any manner adverse to Parent, the
approval or recommendation of such Board of Directors of this Agreement, the
Offer or the Merger, (ii) approve or recommend, or propose to approve or
recommend, any Acquisition Proposal or (iii) cause or agree to cause the
Company to enter into any letter of intent, agreement in principle or
agreement related to any Acquisition Proposal unless, in each case, the Board
determines in good faith (A) after receiving advice from its financial advisor
that such Acquisition Proposal is a Superior Proposal and (B) based upon
advice of outside legal counsel that the failure to take such action would
violate the Board's fiduciary duties under applicable law.
(c) For purposes of this Agreement, "Acquisition Proposal" shall mean
any inquiry, proposal or offer, whether in writing or otherwise, made by a
third party (other than Parent) relating to (i) any acquisition or purchase
of 20% or more of the consolidated assets of the Company and its Subsidiaries
or of 20% or more of any class of equity securities of the Company or any of
its Subsidiaries, (ii) any tender offer (including a self tender offer) or
exchange offer that if consummated would result in any third party
beneficially owning 20% or more of any class of equity securities of the
Company or any of its Subsidiaries, (iii) any merger, consolidation, business
combination, sale of assets, recapitalization, liquidation, dissolution or
similar transaction involving the Company or any of its Subsidiaries whose
assets, individually or in the aggregate, constitute more than 20% of the
consolidated assets of the Company and its Subsidiaries or (iv) any other
transaction the consummation of which would reasonably be expected to
interfere with in a material way, prevent or materially delay the Merger or
which would reasonably be expected to materially dilute the benefits to Parent
of the transactions contemplated hereby (but excluding, in each case, the
transactions contemplated hereby).
(d) For purposes of the Agreement, the term "Superior Proposal" means
any bona fide Acquisition Proposal, which proposal was not solicited by the
Company after the date of this Agreement, made by a third party to acquire,
directly or indirectly, for consideration consisting of cash and/or
securities, more than a majority of the Shares then outstanding or all or
substantially all the assets of the Company, and otherwise on terms which the
Board of Directors of the Company determines in good faith to be more
favorable to the Company and its stockholders than the Offer and the Merger
(based on advice of the Company's financial advisor that the value of the
consideration provided for in such proposal is superior to the value of the
consideration provided for in the Offer and the Merger).
(e) For purposes of the Agreement, the term "third party" means any
person, corporation, entity or "group," as defined in Section 13(d) of the
Exchange Act and the rules of the Commission promulgated thereunder, other
than Parent or any of its affiliates.
(f) Notwithstanding the foregoing, nothing contained in this Section
5.04 shall prohibit the Company from taking and disclosing to its stockholders
a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or
from making any disclosure to the Company's stockholders which the Board of
Directors of the Company determines in good faith, on the basis of advice from
outside legal counsel (who may be the Company's regularly engaged outside
legal counsel), that such action is required in order to comply with the
fiduciary duties of the Board of Directors to the stockholders of the Company
under applicable law. Notwithstanding anything contained in this Agreement to
the contrary, (i) any action by the Board of Directors permitted to be taken
by this Section 5.04 shall not constitute a breach of this Agreement by the
Company and (ii) any "stop-look-and-listen" communication with respect to the
Offer, the Merger or this Agreement solely of the nature contemplated by Rule
14d-9 under the Exchange Act made by the Company as a result of an Acquisition
Proposal shall in no event be deemed a withdrawal or modification by the Board
of Directors of its approval or recommendation of the Offer, the Merger or
this Agreement.
Section 5.5. Publicity. The initial press releases with
respect to the execution of this Agreement shall be approved in advance by
both Parent and the Company. Thereafter, so long as this Agreement is in
effect, neither the Company, Parent nor any of their respective affiliates
shall issue or cause the publication of any press release or statement with
respect to the Merger, this Agreement or the other transactions contemplated
hereby without prior consultation with the other party, except as may be
required by law or by any listing agreement with a national securities
exchange or national securities quotation system.
Section 5.6. Indemnification; D&O Insurance. (a) The Company
shall, and from and after the consummation of the Offer, Parent shall or shall
cause the Surviving Corporation or an affiliate of Parent to indemnify, defend
and hold harmless the present and former directors and officers of the Company
and its Subsidiaries (the "Indemnified Parties") from and against all losses,
expenses, claims, damages or liabilities arising out of the transactions
contemplated by this Agreement to the fullest extent provided under the
Company's certificate of incorporation and bylaws in effect on the date
hereof; provided that such indemnification shall be subject to any limitation
imposed from time to time under applicable law. All rights to indemnification
and exculpation existing in favor of the directors and officers of the Company
as provided in the Company's Certificate of Incorporation or By-laws, as in
effect as of the date hereof, with respect to matters occurring through the
Effective Time (including the right to advancement of expenses), shall survive
the Merger and shall not be amended, repealed or otherwise modified for a
period of six years after the consummation of the Offer in any manner that
would adversely affect the rights of the individuals who at or prior to the
consummation of the Offer were directors or officers of the Company with
respect to occurrences at or prior to the consummation of the Offer and Parent
shall cause the Surviving Corporation to honor all such rights to
indemnification.
(b) For a period of three years after the Effective Time, Parent will
cause the Surviving Corporation to use its reasonable best efforts to provide
directors and officers liability insurance issued by a reputable insurer in
respect of acts and omissions occurring prior to the Effective Time covering
each of the Indemnified Parties currently covered by the Company's officers'
and directors' liability insurance on terms with respect to coverage and
amount no less favorable than those of such policy in effect on the date
hereof; provided that in satisfying its obligation under this Section 5.06,
Parent shall not be obligated to cause the Surviving Corporation to pay
premiums in excess of 200% of the amount per annum the Company paid in its
last full fiscal year, which amount has been disclosed to Parent.
Section 5.7. Approvals and Consents; Cooperation;
Notification. (a) The parties hereto shall use their respective reasonable
best efforts, and cooperate with each other, to (i) determine as promptly as
practicable all governmental and third party authorizations, approvals,
consents or waivers, including, pursuant to the HSR Act and other applicable
antitrust or competition laws, advisable (in Parent's and Purchaser's
discretion) or required in order to consummate the transactions contemplated
by this Agreement, including, the Offer and the Merger, (ii) obtain such
authorizations, approvals, consents or waivers as promptly as practicable and
(iii) prepare the Proxy Statement and the Offer Documents.
(b) The Company, Parent and the Purchaser shall take all actions
necessary to file as soon as practicable all notifications, filings and other
documents required to obtain all governmental authorizations, approvals,
consents or waivers, including, under the HSR Act and other applicable
antitrust or competition laws, and to respond as promptly as practicable to
any inquiries received from the Federal Trade Commission, the Antitrust
Division of the Department of Justice and any other Governmental Entity for
additional information or documentation and to respond as promptly as
practicable to all inquiries and requests received from any Governmental
Entity in connection therewith.
(c) The Company shall give prompt notice to Parent of (i) the occurrence
of any event, condition or development material to the Company and its
Subsidiaries, taken as a whole, (ii) any notice or other communication from
any Person claiming its consent is or may be required in connection with the
transactions contemplated by this Agreement, (iii) any notice or other
communication from any governmental or regulatory agency or authority in
connection with the transactions contemplated by this Agreement and (iv) any
actions, suits, claims, investigations or proceedings commenced or, to the
best of its knowledge threatened against, relating to or involving or otherwise
affecting the Company or any of its Subsidiaries which, if pending on the date
of this Agreement, would have been required to have been disclosed pursuant to
Section 3.10 or which relate to the consummation of the transactions
contemplated by this Agreement. Each of the Company and Parent shall give
prompt notice to the other of the occurrence or failure to occur of an event
that would, or, with the lapse of time would cause any condition to the
consummation of the Offer or the Merger not to be satisfied.
Section 5.8. Reasonable Best Efforts; Further Assurances. (a)
Each of the parties hereto agrees to use its respective reasonable best
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including the Offer and the Merger.
(b) At and after the Effective Time, the officers and directors of the
Surviving Corporation will be authorized to execute and deliver, in the name
and on behalf of the Company or Purchaser, any deeds, bills of sale,
assignments or assurances and to take and do, in the name and on behalf of the
Company or Purchaser, any other actions and things to vest, perfect or confirm
of record or otherwise in the Surviving Corporation any and all right, title
and interest in, to and under any of the rights, properties or assets of the
Company acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger.
Section 5.9. Shareholder Litigation. The Company and Parent
agree that in connection with any litigation which may be brought against the
Company or its directors relating to the transactions contemplated hereby, the
Company will keep Parent, and any counsel which Parent may retain at its own
expense, informed of the course of such litigation, to the extent Parent is
not otherwise a party thereto, and the Company agrees that it will consult with
Parent prior to entering into any settlement or compromise of any such
shareholder litigation; provided, that, no such settlement or compromise will
be entered into without Parent's prior written consent, which consent shall
not be unreasonably withheld.
Section 5.10. Fair Price Statute. (a) If any "fair price" or
"control share acquisition" or "anti-takeover" statute, or similar statute or
regulations shall become applicable to the transactions contemplated by this
Agreement or by the Stockholders Agreement, the Company and the Board of
Directors of the Company shall grant such approvals and take such actions as
are necessary so that the transactions contemplated hereby and thereby may be
consummated as promptly as practicable on the terms contemplated hereby and
thereby, and otherwise to minimize the effects of such statute or regulation
on the transactions contemplated hereby or thereby.
Section 5.11. Non-solicitation and Non-Competition Agreements.
As soon as practicable following the execution of this Agreement, the Company
will enter into Non-Solicitation and Non-Competition Agreements substantially
in the form of the agreements or as otherwise set forth in Section 5.11 of the
Company Disclosure Schedule with the individuals and the entities listed in
such Section of the Company Disclosure Schedule.
Section 5.12. Transition Services. The Company shall enter
into an agreement with ▇▇▇▇▇ & Partners pursuant to which, at the election of
the Company, ▇▇▇▇▇ & Partners will provide transition services to the Surviving
Corporation for a period of up to six months (as determined by the Company)
following the Effective Time at a cost that is equal to the cost to ▇▇▇▇▇ &
Partners of providing those services. For the purposes of this Section,
"transition services" means financial, treasury, accounting, tax, audit,
benefit administration, management information services and other related
services, and other similar administrative services currently provided to the
Company or its Subsidiaries by ▇▇▇▇▇ & Partners.
ARTICLE 6
Conditions
Section 6.1. Conditions to Each Party's Obligation to Effect
the Merger. The respective obligation of each party to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) this Agreement shall have been adopted by the requisite vote of the
holders of Company Stock, if required by applicable law and the Certificate of
Incorporation (provided that Parent shall comply with its obligations in
respect of the voting of Shares set forth in Section 1.08(b));
(b) any waiting period applicable to the Merger under the HSR Act and
other applicable antitrust or competition laws shall have expired or been
terminated, as applicable;
(c) no judgment, statute, rule, regulation, order, decree or injunction
shall have been enacted, promulgated or issued by any Governmental Entity or
court which prohibits or restrains the consummation of the Merger; and
(d) Parent, the Purchaser or their affiliates shall have purchased
shares of Company Stock pursuant to the Offer; provided that neither Parent
nor the Purchaser may invoke this condition if Purchaser shall have failed to
purchase shares of Company Stock so tendered and not withdrawn in violation of
the terms of this Agreement or the Offer.
Section 6.2. Conditions to the Obligations of the Company to
Effect the Merger. The obligation of the Company to effect the Merger shall
be further subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) the representations and warranties of Parent and the Purchaser shall
be true and accurate in all material respects as of the Effective Time as if
made at and as of such time (except for those representations and warranties
that address matters only as of a particular date or only with respect to a
specific period of time which need only be true and accurate as of such date
or with respect to such period); and
(b) each of Parent and the Purchaser shall have performed in all
material respects all of the respective obligations hereunder required to be
performed by Parent or the Purchaser, as the case may be, at or prior to the
Effective Time.
Section 6.3. Conditions to the Obligations of Parent and the
Purchaser to Effect the Merger. The obligations of Parent and the Purchaser
to effect the Merger shall be further subject to the satisfaction at or prior
to the Effective Time of the following conditions:
(a) the representations and warranties of the Company shall be true and
accurate in all material respects as of the Effective Time as if made at and
as of such time (except for those representations and warranties that address
matters only as of a particular date or only with respect to a specific period
of time which need only be true and accurate as of such date or with respect
to such period); and
(b) the Company shall have performed in all material respects all of the
respective obligations hereunder required to be performed by the Company, at
or prior to the Effective Time.
Section 6.4. Exception. The conditions set forth in Section
6.02 and 6.03 hereof shall cease to be conditions to the obligations of the
parties if the Purchaser shall have accepted for payment and paid for Shares
validly tendered pursuant to the Offer.
ARTICLE 7
Termination
Section 7.1. Termination. This Agreement may be terminated
and the Merger contemplated herein may be abandoned at any time prior to the
Effective Time, whether before or after stockholder approval thereof:
(a) By the mutual consent of Parent, the Purchaser and the Company.
(b) By either of the Company, on the one hand, or Parent and the
Purchaser, on the other hand:
(i) if shares of Company Stock shall not have been purchased
pursuant to the Offer on or prior to December 31, 1998; provided
further, however, that the right to terminate this Agreement under
this Section 7.01(b)(i) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the
cause of, or resulted in, the failure of Parent or the Purchaser, as
the case may be, to purchase shares of Company Stock pursuant to the
Offer on or prior to such date; or
(ii) if there shall be any law or regulation that makes
consummation of the Merger illegal or otherwise prohibited or if any
Governmental Entity shall have issued an order, decree or ruling or
taken any other action (which order, decree, ruling or other action
the parties hereto shall use their respective reasonable best efforts
to lift), in each case restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement or prohibiting Parent
to acquire or hold or exercise rights of ownership of the Shares, and
such order, decree, ruling or other action shall have become final and
non-appealable.
(c) By the Company:
(i) if, subject to the provisions of Section 5.04(b) hereof
and prior to the purchase of shares of Company Stock pursuant to the
Offer, a third party shall have made an Acquisition Proposal that the
Board of Directors of the Company determines in good faith, after
consultation with its financial advisor, is a Superior Proposal and
the Company shall have executed a definitive agreement with such third
party in respect of such Superior Proposal; or
(ii) if Parent or the Purchaser shall have terminated the
Offer, or the Offer shall have expired, without Parent or the
Purchaser, as the case may be, purchasing any shares of Company Stock
pursuant thereto; provided that the Company may not terminate this
Agreement pursuant to this Section 7.01(c)(ii) if the Company is in
material breach of this Agreement.
(d) By Parent and the Purchaser if, prior to the purchase of shares of
Company Stock pursuant to the Offer, (i) the Board of Directors of the Company
shall have withdrawn, modified or changed in a manner adverse to Parent or the
Purchaser its approval or recommendation of the Offer, this Agreement or the
Merger; (ii) the Board of Directors of the Company shall have approved or
recommended an Acquisition Proposal or shall have executed an agreement in
principle or definitive agreement relating to an Acquisition Proposal or
similar business combination with a person or entity other than Parent, the
Purchaser or their affiliates (or the Board of Directors of the Company
resolves to do any of the foregoing); or (iii) any person or group (as defined
in Section 13(d)(3) of the Exchange Act) (other than Parent or any of its
affiliates) shall have become the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) of at least 50% of the outstanding Shares
or shall have acquired, directly or indirectly, at least 50% of the assets of
the Company.
Section 7.2. Effect of Termination. (a) In the event of the
termination of this Agreement as provided in Section 7.01, written notice
thereof shall forthwith be given to the other party or parties specifying the
provision hereof pursuant to which such termination is made, and this
Agreement shall forthwith become null and void, and there shall be no
liability on the part of Parent, the Purchaser or the Company or their
respective directors, officers, employees, stockholders, representatives,
agents or advisors other than, with respect to Parent, the Purchaser and the
Company, the obligations pursuant to this Section 7.02, Sections 5.12, 8.01,
8.02, 8.03, 8.04, 8.05, 8.06, 8.07, 8.08, 8.10, 8.11, 8.12, 8.13 and the last
sentence of Section 5.02(a). Nothing contained in this Section 7.02 shall
relieve Parent, the Purchaser or the Company from liability for willful breach
of this Agreement.
(b) In the event that this Agreement is terminated by the Company
pursuant to Section 7.01(c)(i) hereof or by Parent and the Purchaser pursuant
to Section 7.01(d) hereof, the Company shall pay to Parent by wire transfer
of immediately available funds to an account designated by Parent on the next
business day following such termination, an amount equal to $65,000,000 (the
"Termination Fee").
(c) The Company acknowledges that the agreements contained in this
Section 7.02 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, Parent would not enter into
this Agreement; accordingly, if the Company fails to promptly pay any amount
due pursuant to this Section 7.02, and, in order to obtain such payment, the
other party commences a suit which results in a judgment against the Company
for the fee or fees and expenses set forth in this Section 7.02, the Company
shall also pay to Parent its costs and expenses incurred in connection with
such litigation.
ARTICLE 8
Miscellaneous
Section 8.1. Amendment and Modification. Subject to
applicable law, this Agreement may be amended, modified and supplemented in
any and all respects, whether before or after any vote of the stockholders of
the Company contemplated hereby, by written agreement of the parties hereto,
by action taken by their respective Boards of Directors (which in the case of
the Company shall include approvals as contemplated in Section 1.03(b)), at any
time prior to the Closing Date with respect to any of the terms contained
herein; provided, however, that after the approval of this Agreement by the
stockholders of the Company, no such amendment, modification or supplement
shall reduce or change the Merger Consideration or adversely affect the rights
of the Company's stockholders hereunder without the further approval of such
stockholders.
Section 8.2. Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement or in any
schedule, instrument or other document delivered pursuant to this Agreement
shall survive the Effective Time. This Section 8.02 shall not limit any
covenant or agreement contained in this Agreement which by its terms
contemplates performance after the Effective Time.
Section 8.3. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by an overnight courier
service, such as Federal Express, with delivery by such service confirmed, to
the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Parent or the Purchaser, to:
Tour Framatome
▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Telephone: ▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 43
Telecopy: ▇▇ (▇)▇ ▇▇ ▇▇ ▇▇ 88
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with copies to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq.
(b) if to the Company, to:
▇▇▇▇ Electronics Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Any notice which is not sent to the party's counsel in the
manner and at the address or telecopy number set forth above within 24 hours
following the time such notice is given to such party shall be deemed not to be
validly delivered to such party.
Section 8.4. Interpretation. The words "hereof", "herein" and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. Whenever the words
"include", "includes" or "including" are used in this Agreement they shall be
deemed to be followed by the words "without limitation". The words describing
the singular number shall include the plural and vice versa, and words denoting
any gender shall include all genders and words denoting natural persons shall
include corporations and partnerships and vice versa. The phrase "to the
knowledge of" or any similar phrase shall mean such facts and other
information which as of the date of determination are actually known to any
senior or executive vice president, chief financial officer, general counsel,
chief compliance officer, controller, and any officer superior to any of the
foregoing. The phrases "the date of this Agreement", "the date hereof" and
terms of similar import, unless the context otherwise requires, shall be
deemed to refer to August 27, 1998. As used in this Agreement, the term
"affiliate(s)" shall have the meaning set forth in Rule 12b-2 of the Exchange
Act. The parties have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement. As used in this Agreement, "Person" means an individual or
corporation, partnership, limited liability company, association, trust,
unincorporated organization, joint venture, estate, governmental entity or
other legal entity.
Section 8.5. Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
Section 8.6. Entire Agreement; Third Party Beneficiaries.
This Agreement and the Confidentiality Agreement (a) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof, and (b)
except as provided in Section 5.06, are not intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
Section 8.7. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 8.8. Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof or of any other
jurisdiction.
Section 8.9. Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement,
each non-breaching party would be irreparably and immediately harmed and could
not be made whole by monetary damages. It is accordingly agreed that the
parties hereto (a) will waive, in any action for specific performance, the
defense of adequacy of a remedy at law and the posting of any bond in
connection therewith and (b) shall be entitled, in addition to any other
remedy to which they may be entitled at law or in equity, to compel specific
performance of this Agreement in any action instituted in a court of competent
jurisdiction.
Section 8.10. Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties hereto, except that Parent and Purchaser
may transfer or assign, in whole or from time to time in part, to one or more
of its affiliates, the right to purchase Shares pursuant to the Offer, but any
such transfer or assignment will not relieve Parent or Purchaser, as the case
may be, of its obligations under the Offer or prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective permitted successors
and assigns.
Section 8.11. Expenses. Except as set forth in Section 7.02
hereof, all costs and expenses incurred in connection with the Offer, the
Merger, this Agreement and the consummation of the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
Section 8.12. Headings. Headings of the Articles and Sections
of this Agreement are for convenience of the parties only, and shall be given
no substantive or interpretative effect whatsoever.
Section 8.13. Waivers. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party or parties
entitled to the benefits thereof only by a written instrument signed by the
party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 8.14. Disclosure. The Company Disclosure Schedule
shall be construed with and as an integral part of this Agreement to the same
extent as if the same had been set forth verbatim herein.
IN WITNESS WHEREOF, Parent, the Purchaser and the Company have
caused this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
FRAMATOME CONNECTORS INTERNATIONAL S.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman and President
BRAVO ACQUISITION CO.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman of the Board of Directors
and President
▇▇▇▇ ELECTRONICS CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board and
Chief Executive Officer
ANNEX A
Notwithstanding any other provision of the Offer, subject to
the provisions of the Merger Agreement, Parent and the Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to the Purchaser's obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for, and may delay
the acceptance for payment of or, subject to the restriction referred to
above, the payment for, any tendered Shares, and may terminate the Offer and
not accept for payment any tendered Shares if (i) any applicable waiting
period under the HSR Act or other applicable antitrust or competition laws has
not expired or been terminated prior to the expiration of the Offer, (ii) the
Minimum Condition has not been satisfied, or (iii) at any time on or after
August 27, 1998, and before the time of acceptance of Shares for payment
pursuant to the Offer, any of the following shall exist:
(a) there shall be instituted or pending any action or proceeding by any
government or governmental authority or agency, domestic or foreign, before
any court or governmental authority or agency, domestic or foreign, that has
reasonable likelihood of success (i) challenging or seeking to make illegal,
to delay materially or otherwise directly or indirectly to restrain or
prohibit the making of the Offer, the acceptance for payment of or payment for
some of or all the Shares by Parent or the consummation by Parent of the
Merger, or seeking to obtain material damages in connection with the
transactions contemplated by the Offer or the Merger, (ii) seeking to restrain
or prohibit Parent's ownership or operation (or that of its respective
subsidiaries or affiliates) of all or any material portion of the business or
assets of the Company and its Subsidiaries, taken as a whole, or of Parent and
its subsidiaries, taken as a whole, or to compel Parent or any of its
subsidiaries or affiliates to dispose of or hold separate all or any material
portion of the business or assets of the Company and its Subsidiaries, taken
as a whole, or of Parent and its subsidiaries, taken as a whole, (iii) seeking
to impose or confirm material limitations on the ability of Parent or any of
its subsidiaries or affiliates effectively to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote any
Shares acquired or owned by Parent or any of its subsidiaries or affiliates on
all matters properly presented to the Company's stockholders, or (iv) seeking
to require divestiture by Parent or any of its subsidiaries or affiliates of
all or any material portion of the business or assets of the Company and its
Subsidiaries, taken as a whole; or
(b) there shall be any statute, rule, regulation, order, decree or
injunction enacted, promulgated or issued by any court, government or
governmental authority or agency that is reasonably likely, directly or
indirectly, to result in any of the consequences referred to in clauses (i)
through (iv) of paragraph (a) above;
(c) the representations and warranties of the Company set forth in the
Merger Agreement shall not be true and accurate in all material respects as of
the date of consummation of the Offer as though made on or as of such date
(except for those representations and warranties that address matters only as
of a particular date or only with respect to a specific period of time which
need only be true and accurate as of such date or with respect to such
period);
(d) the Company shall have breached or failed to perform or comply with,
in any material respects, any obligation, agreement or covenant under the
Merger Agreement;
(e) the Merger Agreement shall have been terminated in accordance with
its terms;
(f) the Board of Directors of the Company shall have withdrawn or
modified or changed in a manner adverse to Parent or the Purchaser its
approval or recommendation of the Offer, the Merger Agreement or the Merger or
shall have recommended an Acquisition Proposal or shall have executed an
agreement in principle or definitive agreement relating to an Acquisition
Proposal or similar business combination with a person or entity other than
Parent, the Purchaser or their affiliates or the Board of Directors of the
Company shall have adopted a resolution to do any of the foregoing.
The foregoing conditions are for the sole benefit of the
Purchaser and Parent (subject to any assignment in accordance with Section
8.10 hereof) and, subject to the Merger Agreement, may be asserted by either of
them or may be waived by Parent or the Purchaser, in whole or in part at any
time and from time to time in the sole discretion of Parent or the Purchaser.
The failure by Parent or the Purchaser at any time to exercise any such rights
shall not be deemed a waiver of any right and each right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
Facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal and certificates for Shares and any
other required documents should be sent to the Depositary at one of the
addresses set forth below:
The Depositary for the Offer is:
▇▇▇▇▇▇ Trust and Savings Bank
By Mail: By Facsimile Transmission By Hand or Overnight Courier:
(for Eligible Institutions only):
c/▇ ▇▇▇▇▇▇ Trust Company of New (▇▇▇) ▇▇▇-▇▇▇▇ c/▇ ▇▇▇▇▇▇ Trust Company of New
York York
Wall Street Station Receive Window
P.O. Box ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Confirm By Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Questions or requests for assistance or additional copies of
this Offer to Purchase and the Letter of Transmittal may be directed to the
Information Agent or the Dealer Manager at their respective addresses and
telephone numbers set forth below. You may also contact your broker,
dealer, commercial bank or trust company for assistance concerning the
Offer.
The Information Agent for the Offer is:
▇. ▇. ▇▇▇▇ & CO., INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Banks and Brokers Call Collect: (▇▇▇) ▇▇▇-▇▇▇▇
All Others Call Toll Free: (▇▇▇) ▇▇▇-▇▇▇▇
The Dealer Manager for the Offer is:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
World Financial Center
North Tower
New York, New York 10281-1305
(▇▇▇) ▇▇▇-▇▇▇▇ (Call Collect)