<PAGE> 1
NORTH STAR UNIVERSAL, Inc.
- --------------------------------------------------------------------------------
6479 City West Parkway - Eden Prairie MN 55344-3246 Fax 612-947-8660 - MN
(only) 1-800-247-1246 - Tel 612-941-3200
Dear Shareholders:
You are cordially invited to attend the 1996 Annual Meeting of Shareholders
of North Star Universal, Inc. ("NSU") to be held at 1:00 p.m. local time on
Monday, December 30, 1996, at the Marriott Southwest, 5801 Opus Parkway,
Minnetonka, Minnesota.
As you are aware, on December 21, 1995, NSU and Michael Foods, Inc.
("Michael") entered into an Agreement and Plan of Reorganization, which was
amended as of September 27, 1996 (as amended, the "Reorganization Agreement")
pursuant to which (i) NSU Merger Co., a Delaware corporation and wholly-owned
subsidiary of NSU ("Merger Co."), will be merged with and into Michael and
Michael will become a wholly-owned subsidiary of NSU (the "Merger"), (ii) each
stockholder of Michael (other than NSU) will receive, in exchange for each share
of common stock, par value $.01 per share, of Michael ("Michael Common Stock"),
held by such stockholder, one share of the common stock, par value $.01 per
share, of NSU ("NSU Common Stock"), (iii) each share of Michael Common Stock
held by NSU will be canceled and retired, (iv) NSU will change its name to
Michael Foods, Inc. (NSU after the consummation of the Merger is referred to
hereinafter as "New Michael") and will continue the business previously
conducted by Michael, (v) prior to the consummation of the Merger, NSU will have
transferred all of its assets and liabilities other than certain indebtedness
and other agreed upon assets and liabilities to another wholly-owned subsidiary
of NSU, ENStar Inc. ("ENStar"), (vi) the outstanding common stock of ENStar will
be distributed pro rata by NSU to the shareholders of NSU of record as of a
record date just prior to the effective date of the Merger (the "Distribution"),
and (vii) immediately prior to the effective time of the Merger, NSU will
effectuate a reverse stock split (the "Reverse Stock Split"), the ratio of the
Reverse Stock Split to be determined pursuant to the terms of the Reorganization
Agreement so as to cause the shareholders of NSU prior to the Merger to hold
fewer shares of common stock of New Michael than the number of shares of Michael
Common Stock held by NSU prior to the Merger, which difference reflects the
shares of Michael Common Stock effectively surrendered in the Merger in exchange
for Michael's assumption of certain indebtedness of NSU, all as described in the
accompanying Proxy Statement/Prospectus under "THE REORGANIZATION -- Effects of
the Reorganization." The above-referenced transactions are herein collectively
referred to as the "Reorganization."
In addition to the election of six directors to the Board of Directors of
NSU, at the Annual Meeting you will be asked to consider and vote upon the
following proposals in connection with the Reorganization:
(i) a proposal to approve the Reorganization Agreement and the Merger;
(ii) a proposal to approve the Reverse Stock Split;
(iii) a proposal to approve the Distribution; and
(iv) a proposal to approve an amendment to the Restated Articles of
Incorporation of NSU (collectively, the "NSU Proposals").
On December 30, 1996, Michael shareholders will be meeting to approve the
Reorganization Agreement and the Merger. Your board of directors believes that
the Reorganization is in the best interest of NSU and its shareholders and has
unanimously approved the NSU Proposals. Approval of each of the NSU Proposals by
the requisite vote of the NSU shareholders is required or the Reorganization
will not be consummated. THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE "FOR"
THE NSU PROPOSALS.
Pursuant to an Orderly Disposition and Registration Rights Agreement
between NSU and James H. Michael and Jeffrey J. Michael, each a member of the
Board of Directors of NSU, and two limited
<PAGE> 2
partnerships controlled by them (the "Michael Family Shareholders"), the Michael
Family Shareholders, which own an aggregate of 5,685,100 shares of the
outstanding NSU Common Stock (approximately 57% of the outstanding shares of NSU
Common Stock as of the date hereof) have agreed to vote in favor of the NSU
Proposals. IF THE MICHAEL FAMILY SHAREHOLDERS VOTE IN ACCORDANCE WITH THAT
AGREEMENT, THE APPROVAL OF THE NSU PROPOSALS IS ASSURED.
Consummation of the Reorganization is subject to certain conditions,
including approval and adoption of the Reorganization Agreement and the Merger
by the affirmative vote of the holders of a majority of the outstanding shares
of Michael Common Stock, the approval of the NSU Proposals by the affirmative
vote of the holders of a majority of the NSU Common Stock, a favorable tax
ruling from the Internal Revenue Service or tax opinion of counsel or
independent certified public accountants acceptable to both Michael and NSU and
the receipt of certain approvals from regulatory authorities. In addition, NSU's
obligation to consummate the Merger is subject to the condition that holders of
not more than 1% of the outstanding shares of NSU Common Stock effectively elect
statutory dissenters' rights, which condition may be waived by NSU. Under
Delaware law, holders of Michael Common Stock are not entitled to dissenters' or
appraisal rights in connection with the Merger. See "THE REORGANIZATION --
Dissenters' Rights" in the accompanying Proxy Statement/Prospectus.
The accompanying Proxy Statement/Prospectus provides detailed information
concerning the Reorganization, the NSU Proposals, and certain additional
information, which you are urged to read carefully. It is important that your
shares be represented at the annual meeting regardless of the number you hold.
Whether or not you plan to attend the annual meeting, you are requested to
complete, date, sign and return the proxy card in the enclosed postage paid
envelope. You may revoke your proxy at any time prior to its exercise at the
annual meeting by written notice of revocation to the secretary of Michael, by
signing and returning a later dated proxy or by voting in person at the annual
meeting.
Please do not send in your stock certificates at this time. In the event
the Reorganization is consummated, you will be sent a letter of transmittal for
that purpose.
Sincerely,
Jeffrey J. Michael
Jeffrey J. Michael
President and Chief Executive Officer
<PAGE> 3
NORTH STAR UNIVERSAL, INC.
ANNUAL SHAREHOLDERS MEETING
DECEMBER 30, 1996
1:00 P.M. - 3:00 P.M.
MARRIOTT SOUTHWEST
5801 OPUS PARKWAY
MINNETONKA, MINNESOTA 55343
DIRECTIONS
FROM THE SOUTH
- - 35W North to 494 West
- - 494 West to Highway 169 North
- - Highway 169 North to Londonderry/Bren Road Exit
- - Left on Bren Road
- - Left to Minneapolis Marriott Southwest
FROM THE WEST
- - Highway 5 East to Highway 169 North
- - Highway 169 North to Londonderry/Bren Road Exit
- - Left on Bren Road
- - Left to Minneapolis Marriott Southwest
FROM THE NORTH
- - Highway 169 to Bren Road/Londonderry Exit
- - Right on Bren Road
- - Left on Opus Parkway
- - Left to Minneapolis Marriott Southwest
FROM THE AIRPORT
- - 494 West to Highway 169 North
- - Highway 169 North to Londonderry/Bren Road Exit
- - Left on Bren Road
- - Left to Minneapolis Marriott Southwest
FROM MINNEAPOLIS
- - 35W South to Crosstown 62 West
- - Highway 169 North to Londonderry/Bren Road Exit
- - Left on Bren Road
- - Left to Minneapolis Marriott Southwest
<PAGE> 4
NORTH STAR UNIVERSAL, INC.
6479 CITY WEST PARKWAY
EDEN PRAIRIE, MINNESOTA 55344
-------------------------
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD DECEMBER 30, 1996
-------------------------
To the Shareholders of North Star Universal, Inc.
The 1996 Annual Meeting of Shareholders of North Star Universal, Inc., a
Minnesota corporation ("NSU"), will be held at 1:00 p.m. local time on Monday,
December 30, 1996 at the Marriott Southwest, 5801 Opus Parkway, Minnetonka,
Minnesota for the following purposes:
1. To consider and vote upon a proposal to approve an Agreement and
Plan of Reorganization, dated December 21, 1995 and amended September 27,
1996 (as amended, the "Reorganization Agreement"), between and among NSU,
Michael Foods, Inc. ("Michael") and NSU Merger Co., a wholly-owned
subsidiary of NSU and a Delaware corporation ("Merger Co."), and the
"Merger," as hereinafter defined. Pursuant to the Reorganization Agreement,
(i) Merger Co. will be merged with and into Michael and Michael will become
a wholly-owned subsidiary of NSU (the "Merger"), (ii) each stockholder of
Michael (other than NSU) will receive, in exchange for each share of the
common stock, par value $.01 per share, of Michael ("Michael Common Stock")
held by such stockholder, one share of common stock, par value $.01 per
share, of NSU ("NSU Common Stock"), (iii) each share of Michael Common
Stock held by NSU will be canceled and retired, (iv) NSU will change its
name to Michael Foods, Inc. (NSU after the consummation of the Merger is
referred to hereinafter as "New Michael") and will continue the business
previously conducted by Michael, (v) prior to the consummation of the
Merger, NSU will have transferred all of its assets and liabilities other
than certain indebtedness and other agreed upon assets and liabilities to
another wholly-owned subsidiary of NSU, ENStar Inc. ("ENStar"), (vi) the
outstanding common stock of ENStar will be distributed pro rata by NSU to
the shareholders of NSU of record as of a record date prior to the
effective date of the Merger (the "Distribution"), and (vii) immediately
prior to the effective time of the Merger, NSU will effectuate a reverse
stock split (the "Reverse Stock Split"), the ratio of the Reverse Stock
Split to be determined pursuant to the terms of the Reorganization
Agreement so as to cause the shareholders of NSU prior to the Merger to
hold fewer shares of common stock of New Michael than the number of shares
of Michael Common Stock held by NSU prior to the Merger, which difference
reflects the shares of Michael Common Stock effectively surrendered in the
Merger in exchange for Michael's assumption of certain indebtedness of NSU,
all as described in the accompanying Proxy Statement/Prospectus under "THE
REORGANIZATION -- Effects of the Reorganization."
2. To consider a proposal to approve the Reverse Stock Split;
3. To consider a proposal to approve the Distribution;
4. To consider a proposal to approve an amendment to the Restated
Articles of Incorporation of NSU;
5. To elect six persons to serve as directors during the ensuing year
and until their successors are elected and qualified; and
6. To transact such other business as may properly come before the
meeting.
The Board of Directors has fixed the close of business on November 22, 1996
as the record date for the determination of the holders of NSU Common Stock
entitled to notice of, and to vote at, the meeting. The Reorganization
Agreement, the Merger and the other transactions contemplated in the
Reorganization Agreement are more fully described in the accompanying Proxy
Statement/Prospectus, and the appendices thereto, which form a part of this
notice.
<PAGE> 5
Shareholders of NSU Common Stock may assert dissenters' rights under the
Minnesota Business Corporation Act in connection with the Distribution. The
procedures for asserting such dissenters' rights are described in the
accompanying Proxy Statement/Prospectus under the heading "THE REORGANIZATION --
Dissenters' Rights." A copy of the relevant sections of the Minnesota Business
Corporations Act relating to dissenters' rights is attached to the enclosed
Proxy Statement/Prospectus as Appendix IV. If holders of more than 1% of the
outstanding shares of NSU Common Stock exercise dissenters' rights, NSU has the
right under the Reorganization Agreement not to consummate the transactions
described above.
ALL SHAREHOLDERS ARE CORDIALLY INVITED TO ATTEND THE MEETING. TO ENSURE
YOUR REPRESENTATION AT THE MEETING, YOU ARE URGED TO COMPLETE, DATE, SIGN AND
RETURN THE ENCLOSED PROXY AS PROMPTLY AS POSSIBLE. A POSTAGE PRE-PAID ENVELOPE
IS ENCLOSED FOR THAT PURPOSE. ANY SHAREHOLDER ATTENDING THE MEETING MAY VOTE IN
PERSON EVEN IF THAT SHAREHOLDER HAS RETURNED A PROXY.
By Order of the Board of Directors
Peter E. Flynn
Peter E. Flynn
Secretary
November 26, 1996.
2
<PAGE> 6
FILED PURSUANT TO
RULE 424 B1
REGISTRATION NO.
333-1925
NORTH STAR UNIVERSAL, INC.
PROXY STATEMENT
-------------------------
ENSTAR INC.
PROSPECTUS
COMMON STOCK
This Proxy Statement and Prospectus ("Proxy Statement/Prospectus") is being
furnished to the holders of common stock, par value $.25 per share (the "NSU
Common Stock"), of North Star Universal, Inc., a Minnesota corporation ("NSU"),
in connection with the solicitation of proxies by the Board of Directors of NSU
for use at the annual meeting of the shareholders of NSU to be held at the
Marriott Southwest, 5801 Opus Parkway, Minnetonka, Minnesota, on Monday,
December 30, 1996 at 1:00 p.m. local time and at any and all adjournments or
postponements thereof (the "NSU Annual Meeting"). Certain information in this
Proxy Statement/ Prospectus, together with other additional information, is also
being furnished to the holders of common stock, par value $.01 per share (the
"Michael Common Stock"), of Michael Foods, Inc., a Delaware corporation
("Michael"), in connection with the solicitation of proxies by the Board of
Directors of Michael for use at the 1996 annual meeting of stockholders of
Michael to be held at the Lutheran Brotherhood Auditorium, 625 Fourth Avenue
South, Minneapolis, Minnesota on Monday, December 30, 1996 at 4:00 p.m. local
time, and at any and all adjournments or postponements thereof (the "Michael
Annual Meeting").
On December 21, 1995, NSU and Michael entered into an Agreement and Plan of
Reorganization, which was amended on September 27, 1996 (as amended, the
"Reorganization Agreement") pursuant to which (i) NSU Merger Co., a Delaware
corporation and a wholly-owned subsidiary of NSU ("Merger Co."), will be merged
with and into Michael and Michael will become a wholly-owned subsidiary of NSU
(the "Merger"); (ii) in the Merger, each stockholder of Michael (other than NSU)
will receive, in exchange for each share of Michael Common Stock held by such
stockholder, one share of NSU Common Stock; (iii) each share of Michael Common
Stock held by NSU will be canceled and retired; (iv) NSU will change its name to
Michael Foods, Inc. (NSU after the consummation of the Merger is referred to
hereinafter as "New Michael") and will continue the business previously
conducted by Michael; (v) prior to the consummation of the Merger, NSU will have
transferred all of its assets and liabilities other than certain indebtedness
and other agreed upon assets and liabilities to another wholly-owned subsidiary
of NSU, ENStar Inc. ("ENStar"); (vi) the outstanding common stock, $.01 par
value per share, of ENStar ("ENStar Common Stock") will be distributed pro rata
by NSU to the shareholders of NSU of record as of a record date prior to the
effective date of the Merger (the "Distribution"); and (vii) immediately prior
to the effective time of the Merger, NSU will effectuate a reverse stock split
(the "Reverse Stock Split"), the ratio of the Reverse Stock Split to be
determined pursuant to the terms of the Reorganization Agreement so as to cause
the shareholders of NSU prior to the Merger to hold fewer shares of common stock
of New Michael than the number of shares of Michael Common Stock held by NSU
prior to the Merger, which difference reflects the shares of Michael Common
Stock effectively surrendered in the Merger in exchange for Michael's assumption
of certain indebtedness of NSU, all as described below under "THE REORGANIZATION
- -- Effects of the Reorganization." The date on which the Merger is consummated
is hereinafter referred to as the "Effective Date," and the time on the
Effective Date at which the Merger is effective is hereinafter referred to as
the "Effective Time." The above transactions are collectively referred to herein
as the "Reorganization" and are discussed in detail herein.
This Proxy Statement/Prospectus also constitutes the prospectus of ENStar
with respect to the issuance of a certain number of shares of ENStar Common
Stock to be issued to the shareholders of NSU in connection with the
Distribution as more fully described herein.
Consummation of the Merger and the other transactions contemplated in the
Reorganization Agreement is subject to various conditions, including the
approval and adoption of the Reorganization Agreement and the Merger by the
holders of a majority of the outstanding shares of Michael Common Stock at the
Michael Annual Meeting and the approval of the NSU Proposals (as defined below)
at the NSU Annual Meeting by the affirmative vote at the NSU Annual Meeting of
the holders of a majority of the outstanding shares of NSU Common Stock, a
favorable tax ruling from the Internal Revenue Service or tax opinion of counsel
or independent certified public accountants acceptable to both Michael and NSU
and the receipt of certain approvals from regulatory authorities. See "THE
REORGANIZATION AGREEMENT -- Conditions." NSU is the owner of 7,354,950 shares of
the Michael Common Stock outstanding or approximately 38% of the outstanding
shares as of the date hereof and has agreed, subject to certain terms and
conditions, to vote in favor of the Reorganization Agreement and the Merger.
Pursuant to an Orderly Disposition and Registration Rights Agreement between NSU
and James H. Michael and Jeffrey J. Michael, each a member of the Board of
Directors of NSU, and two limited partnerships controlled by them (the "Michael
Family Shareholders"), the Michael Family Shareholders, which own an aggregate
of 5,685,100 shares of the outstanding NSU Common Stock (approximately 57% of
the outstanding shares of NSU Common Stock as of the date hereof) have agreed to
vote in favor of the NSU Proposals. IF THE MICHAEL FAMILY SHAREHOLDERS VOTE IN
ACCORDANCE WITH THAT AGREEMENT, THE APPROVAL OF THE NSU PROPOSALS IS ASSURED.
SEE "THE REORGANIZATION." IN ADDITION, NSU'S OBLIGATION TO CONSUMMATE THE MERGER
IS SUBJECT TO THE CONDITION THAT HOLDERS OF NOT MORE THAN 1% OF THE OUTSTANDING
SHARES OF NSU COMMON STOCK EFFECTIVELY ELECT STATUTORY DISSENTERS' RIGHTS, WHICH
CONDITION MAY BE WAIVED BY NSU. UNDER DELAWARE LAW, HOLDERS OF MICHAEL COMMON
STOCK DO NOT HAVE DISSENTERS' OR APPRAISAL RIGHTS IN CONNECTION WITH THE MERGER.
SEE "THE REORGANIZATION -- DISSENTERS' RIGHTS." Holders of Michael Common Stock
immediately prior to the Merger, excluding NSU, will own directly and
beneficially approximately 70.2% to 72.4% of New Michael Common Stock
outstanding immediately after the Merger depending upon the amount of
indebtedness of NSU assumed by Michael. Correspondingly, NSU shareholders
immediately prior to the Merger will own, directly and beneficially,
approximately 27.6% to 29.8% of the outstanding New Michael Common Stock after
the Merger. In addition, NSU shareholders immediately prior to the Merger will
own all the outstanding shares of ENStar Common Stock immediately after the
Merger. See "THE REORGANIZATION AGREEMENT."
All information contained in this Proxy Statement/Prospectus with respect
to Michael has been provided by Michael. All information contained in this Proxy
Statement/Prospectus with respect to NSU, Merger Co. and ENStar has been
provided by NSU. This Proxy Statement/Prospectus sent to NSU shareholders is
accompanied by the NSU Annual Report on Form 10-K, as amended, for the year
ended December 31, 1995 and the NSU Quarterly Report on Form 10-Q for the
quarter ended September 30, 1996 each of which is incorporated herein by
reference. See "INCORPORATION OF DOCUMENTS BY REFERENCE." Michael will provide
upon request a copy of its Annual Report on Form 10-K, as amended, for the year
ended December 31, 1995, and Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996 filed with the
Securities and Exchange Commission. Such request should be made to the Secretary
of Michael at the address shown below.
This Proxy Statement/Prospectus and the accompanying forms of proxy are
first being mailed to stockholders of Michael and shareholders of NSU on or
about November 26, 1996. A stockholder/shareholder who has given a proxy may
revoke it at any time prior to its exercise. See "THE ANNUAL MEETINGS."
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROXY STATEMENT/PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROXY STATEMENT/PROSPECTUS IS NOVEMBER 26, 1996.
<PAGE> 7
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS PROXY
STATEMENT/PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
NOT CONTAINED HEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR THE
SOLICITATION OF AN OFFER TO PURCHASE, ANY OF THE SECURITIES OFFERED BY THIS
PROXY STATEMENT/PROSPECTUS, OR THE SOLICITATION OF A PROXY, IN ANY JURISDICTION
TO OR FROM ANY PERSON TO OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION OF AN OFFER, OR PROXY SOLICITATION IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROXY STATEMENT/PROSPECTUS NOR THE ISSUANCE OR SALE OF ANY
SECURITIES HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE INFORMATION SET FORTH HEREIN OR INCORPORATED BY
REFERENCE SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
Michael and NSU are subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, DC 20549 and may be available at the Chicago
Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and at the New York Regional Office at Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such materials can be obtained
at prescribed rates from the Public Reference Section of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549. Reports, proxy
statements and other information that have been filed electronically with the
Commission may also be obtained from the Commission's Website, the address of
which is http://www.sec.gov.
This Proxy Statement/Prospectus does not contain all the information set
forth in the Registration Statement on Form S-4 and exhibits thereto, including
any amendments (the "Registration Statement"), of which this Proxy
Statement/Prospectus is a part, and which ENStar has filed with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"). Reference
is made to such Registration Statement for further information with respect to
ENStar and the securities of ENStar offered hereby. Statements contained herein
concerning the provisions of documents are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to the
copy of the applicable document filed with the Commission or attached as an
appendix hereto.
INCORPORATION OF DOCUMENTS BY REFERENCE
Michael and NSU hereby incorporate by reference into this Proxy
Statement/Prospectus the following documents previously filed with the
Commission pursuant to the Exchange Act:
1. Michael's Annual Report on Form 10-K, as amended, for the year
ended December 31, 1995;
2. Michael's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996;
3. Michael's Current Report on Form 8-K dated July 10, 1996;
4. NSU's Annual Report on Form 10-K, as amended, for the year ended
December 31, 1995; and
5. NSU's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996, June 30, 1996 and September 30, 1996.
In addition, all reports and other documents filed by Michael pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the date the offering is terminated shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Proxy Statement/Prospectus to the
extent that a statement contained herein, or in any other subsequently filed
document that also is incorporated or deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Proxy Statement/Prospectus.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY
REFERENCE HEREIN) ARE AVAILABLE WITHOUT CHARGE, UPON WRITTEN OR ORAL REQUEST
FROM ANY PERSON TO WHOM THIS PROXY STATEMENT/PROSPECTUS IS DELIVERED, INCLUDING
ANY BENEFICIAL OWNER, TO, IN THE CASE OF DOCUMENTS RELATING TO MICHAEL, SUITE
324 PARK NATIONAL BANK BUILDING, 5353 WAYZATA BOULEVARD, MINNEAPOLIS, MINNESOTA,
55416; ATTENTION: SECRETARY (TELEPHONE NO. (612) 546-1500) OR IN THE CASE OF
DOCUMENTS RELATING TO NSU, 6479 CITY WEST PARKWAY, EDEN PRAIRIE, MINNESOTA
55344; ATTENTION: SECRETARY, (TELEPHONE NO. (612) 941-3200). IN ORDER TO ENSURE
TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY DECEMBER 13,
1996.
2
<PAGE> 8
TABLE OF CONTENTS
<TABLE>
<S> <C>
AVAILABLE INFORMATION........................................................................... 2
INCORPORATION OF DOCUMENTS BY REFERENCE......................................................... 2
SUMMARY......................................................................................... 7
The Companies................................................................................. 7
The Annual Meetings........................................................................... 8
The Reorganization............................................................................ 9
Effect of the Reorganization on Michael Stockholders.......................................... 9
Effect of the Reorganization on NSU Shareholders.............................................. 9
Exchange of Certificates; Distribution of ENStar Common Stock................................. 10
Ownership of New Michael After the Reorganization............................................. 10
Dissenters Rights............................................................................. 11
Background of the Reorganization.............................................................. 11
Recommendation of Michael Board; Michael's Reasons for the Reorganization..................... 12
Recommendation of NSU Board; NSU's Reasons for the Reorganization............................. 13
Opinions of Financial Advisors................................................................ 13
The Reorganization Agreement.................................................................. 13
The Distribution Agreement.................................................................... 14
The Orderly Disposition Agreement............................................................. 15
Treatment of Michael Stock Options............................................................ 15
Accounting Treatment.......................................................................... 16
Certain Federal Income Tax Considerations..................................................... 16
Regulatory Approvals.......................................................................... 16
Differences in Rights of Michael Stockholders................................................. 16
Comparative Market Prices And Dividends....................................................... 17
Selected Historical And Unaudited Pro Forma Condensed Combined Financial Information.......... 18
Comparative Per Share Data.................................................................... 20
RISK FACTORS RELATING TO ENSTAR COMMON STOCK.................................................... 22
Limited History of Profitability; Uncertainty of Future Results............................... 22
Product and Service Development Risks......................................................... 22
Expansion Strategy............................................................................ 23
Fluctuations in Quarterly Results............................................................. 23
Dependence on and Need to Recruit and Retain Key Personnel.................................... 24
Concentration of Revenues..................................................................... 24
Dependence on Key Suppliers and Product Supply................................................ 24
Inventory Management.......................................................................... 25
Competition................................................................................... 26
Shares Eligible for Future Sale; Control by Michael Family.................................... 26
Absence of Prior Public Market and Possible Volatility of Stock Price......................... 26
Possible Volatility of CorVel Stock Price..................................................... 26
Certain Risks Pertaining to the CorVel Common Stock........................................... 27
THE ANNUAL MEETINGS............................................................................. 27
Times and Places; Purposes of Meetings........................................................ 27
Voting Rights; Votes Required for Approval.................................................... 28
Proxies....................................................................................... 29
PROPOSAL NUMBER ONE:
APPROVAL OF THE REORGANIZATION AGREEMENT AND THE MERGER......................................... 31
PROPOSAL NUMBER TWO:
APPROVAL OF THE REVERSE STOCK SPLIT............................................................. 31
</TABLE>
3
<PAGE> 9
<TABLE>
<S> <C>
PROPOSAL NUMBER THREE:
APPROVAL OF THE DISTRIBUTION.................................................................... 31
THE REORGANIZATION.............................................................................. 31
Effects of the Reorganization................................................................. 31
Effective Time................................................................................ 33
Background of the Reorganization.............................................................. 34
Recommendation of Michael Board; Michael's Reasons for the Reorganization..................... 36
Recommendation of NSU Board; NSU's Reasons for the Reorganization............................. 37
Fairness Opinions............................................................................. 38
Procedure for Exchange of Certificates........................................................ 45
Distribution of ENStar Common Stock........................................................... 46
Lost, Stolen or Destroyed Certificates........................................................ 46
Escheat and Withholding....................................................................... 47
Interest of Certain Persons in the Reorganization............................................. 47
Accounting Treatment.......................................................................... 48
Certain Federal Income Tax Consequences....................................................... 48
Regulatory Approvals.......................................................................... 50
Listing of New Michael Common Stock; Dividends................................................ 50
Listing of ENStar Common Stock; Dividends..................................................... 50
Effect on Stock Option Plans.................................................................. 50
Federal Securities Laws Consequences.......................................................... 51
Dissenters' Rights............................................................................ 51
THE REORGANIZATION AGREEMENT.................................................................... 54
General....................................................................................... 54
Effects of the Reorganization on the Stockholders of Michael and the Shareholders of NSU...... 54
New Michael Management Following the Reorganization........................................... 55
Conditions.................................................................................... 56
Representations and Warranties................................................................ 57
Certain Covenants............................................................................. 57
Termination................................................................................... 58
Expenses...................................................................................... 58
THE DISTRIBUTION AGREEMENT...................................................................... 59
General....................................................................................... 59
Conditions.................................................................................... 60
The Distribution.............................................................................. 60
Certain Covenants............................................................................. 60
Indemnification............................................................................... 61
RECENT DEVELOPMENTS............................................................................. 63
COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATION..................................... 64
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS..................................... 65
Unaudited Pro Forma Condensed Combined Balance Sheet.......................................... 66
Unaudited Pro Forma Condensed Combined Statement of Earnings.................................. 67
Notes to the Unaudited Pro Forma Condensed Combined Financial Statements...................... 69
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL CONDITION OF
ENSTAR........................................................................................ 70
General....................................................................................... 70
Results of Operations......................................................................... 71
Capital Resources and Liquidity............................................................... 75
BUSINESS OF ENSTAR.............................................................................. 75
Unconsolidated Subsidiary..................................................................... 76
Operating Subsidiaries........................................................................ 77
</TABLE>
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<TABLE>
<S> <C>
General....................................................................................... 77
Industry...................................................................................... 78
Business Strategy............................................................................. 78
Products and Services......................................................................... 79
Marketing and Customers....................................................................... 82
Research and Development...................................................................... 83
Manufacturing................................................................................. 83
Competition................................................................................... 83
Properties.................................................................................... 84
Legal Proceedings............................................................................. 84
DESCRIPTION OF NEW MICHAEL CAPITAL STOCK........................................................ 85
Common Stock.................................................................................. 85
Undesignated Stock............................................................................ 85
Transfer Agent and Registrar.................................................................. 85
Business Combination Statute and Control Share Acquisition Act................................ 85
Takeover Offers............................................................................... 86
COMPARISON OF RIGHTS OF NSU SHAREHOLDERS BEFORE AND AFTER THE REORGANIZATION.................... 86
EXECUTIVE OFFICERS AND DIRECTORS OF ENSTAR...................................................... 87
Executive Officers and Directors of ENStar.................................................... 88
Compensation of Executive Officers of ENStar.................................................. 88
Compensation of Directors of ENStar........................................................... 89
Committees of the Board of ENStar............................................................. 89
1996 Stock Incentive Plan..................................................................... 89
Eizenga Agreement............................................................................. 90
Mondelli Agreement............................................................................ 90
PROPOSAL NUMBER FOUR:
PROPOSAL TO ADOPT AN AMENDMENT TO THE RESTATED ARTICLES OF INCORPORATION OF NSU................. 90
PROPOSAL NUMBER FIVE:
ELECTION OF NSU DIRECTORS....................................................................... 91
Nominees...................................................................................... 92
Certain Information Regarding the Board of Directors.......................................... 93
Director Compensation......................................................................... 94
Report of the Executive Committee of the Board of Directors on Executive Compensation......... 94
Compensation Committee Interlocks and Insider Participation................................... 95
Summary of Cash and Certain Other Compensation................................................ 96
Stock Options, Awards, Exercises and Holdings................................................. 96
Option Exercises and Holdings................................................................. 96
Employment Contracts and Termination of Employment Arrangements............................... 97
Stock Price Performance Graph and Table....................................................... 98
Compliance with Section 16(a) of the Exchange Act............................................. 98
PRINCIPAL SHAREHOLDERS.......................................................................... 99
AUDITORS........................................................................................ 99
LEGAL MATTERS................................................................................... 99
EXPERTS......................................................................................... 100
SHAREHOLDER PROPOSALS FOR 1997 MEETING OF SHAREHOLDERS.......................................... 100
OTHER MATTERS................................................................................... 100
INDEX TO FINANCIAL STATEMENTS................................................................... F-1
</TABLE>
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<TABLE>
<S> <C> <C>
APPENDIX I Agreement and Plan of Reorganization and Exhibits and Amendment No. 1
thereto....................................................................... I-1
Exhibit Discount Factor
A
Exhibit Form of Certificate of Merger
B
Exhibit Form of Distribution Agreement
C
Exhibit Form of New Articles
D
Exhibit Form of Orderly Disposition and Registration Rights Agreement
E
APPENDIX II Opinion of Piper Jaffray Inc.................................................. II-1
APPENDIX III Opinion of Goldsmith, Agio, Helms Securities Inc.............................. III-1
APPENDIX IV Excerpt from the Minnesota Business Corporation Act regarding Dissenters'
Rights........................................................................ IV-1
</TABLE>
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SUMMARY
The following brief summary is intended only to highlight certain
information contained elsewhere in this Proxy Statement/Prospectus. This summary
is not intended to be complete and is qualified in its entirety by the more
detailed information contained elsewhere in this Proxy Statement/Prospectus, the
appendices hereto and the documents incorporated by reference or otherwise
referred to herein. Stockholders of Michael and shareholders of NSU are urged to
review this entire Proxy Statement/Prospectus carefully, including the
appendices hereto and such other documents.
THE COMPANIES
Michael. Michael, a Delaware corporation, together with its subsidiaries,
is a diversified food processor and distributor. Michael's principal products
include egg products, refrigerated grocery products, frozen and refrigerated
potato products and specialty dairy products. Its principal subsidiaries include
M.G. Waldbaum Company, a producer and processor of egg products; Crystal Farms
Refrigerated Distribution Company, a distributor of refrigerated grocery
products; Northern Star Co., a processor of frozen and refrigerated potato
products; and Kohler Mix Specialties, Inc., a processor of specialty dairy
products. The mailing address of Michael's principal executive office is 324
Park National Bank Building, 5353 Wayzata Boulevard, Minneapolis, Minnesota,
55416; its telephone number is (612) 546-1500.
NSU. NSU, a Minnesota corporation, is a holding company. Its principal
subsidiaries are Americable, Inc., ("Americable"), a provider of connectivity
and networking products and services; and Transition Networks, Inc.,
("Transition"), a designer and manufacturer of connectivity devices used in
local area network ("LAN") applications. NSU also owns 7,354,950 shares of
Michael Common Stock, or an approximate 38% interest in Michael, and 1,225,000
shares of common stock of CorVel Corporation ("CorVel"), or an approximate 26%
interest in CorVel, a provider of cost containment and managed care services
designed to address the medical costs of workers' compensation. In January 1996,
NSU sold 350,000 shares of its CorVel common stock for approximately $11.0
million. In addition, in April 1996, NSU completed the sale of substantially all
of the assets of its subsidiary, Eagle Engineering and Manufacturing, Inc., for
approximately $3.7 million. The mailing address of NSU's principal executive
office is 6479 City West Parkway, Eden Prairie, Minnesota, 55344; its telephone
number is (612) 941-3200.
Merger Co. Merger Co. is a wholly-owned subsidiary of NSU incorporated in
1995 for the sole purpose of consummating the Merger. Merger Co. has not
conducted and will not conduct any substantial business activity. As a result of
the Merger, Merger Co. will cease to exist.
ENStar. ENStar is a wholly-owned subsidiary of NSU incorporated in 1995.
Pursuant to the Distribution Agreement, as hereafter defined, all of the assets
and liabilities of NSU other than the Michael Common Stock owned by NSU, all of
the outstanding common stock of Merger Co., cash in an amount determined by NSU,
and certain NSU obligations, will have been transferred to ENStar prior to the
Effective Date of the Merger. Immediately after the Effective Time of the
Merger, all of the outstanding ENStar Common Stock will be distributed by NSU
ratably to the shareholders of record of NSU as of a record date prior to the
Effective Date in a tax-free distribution. The transfers of certain of NSU's
assets and liabilities, including NSU's shares of CorVel common stock and shares
of common stock of Americable and Transition, from NSU to ENStar as contemplated
by the Distribution have previously been made. Such transfers were made for the
purpose of commencing a self-underwritten, subordinated debenture program at
ENStar similar to the self-underwritten subordinated debenture and time
certificate programs previously maintained by NSU. Under such program, ENStar
may offer and sell to the public up to $10 million of its subordinated
debentures. In addition, NSU has indicated that prior to the Distribution it may
cause ENStar to sell up to 200,000 shares of CorVel Common Stock (the "CorVel
Stock Sale") and to distribute the after-tax proceeds from such sale to NSU as a
dividend in order to fund NSU's operating expenses and maturing indebtedness
prior to the Merger and to reduce the amount of NSU Net Assumed Liabilities at
the time of the Merger. If all 200,000 shares are sold, ENStar would own
1,025,000 shares of CorVel Common Stock, or approximately 22% of the outstanding
shares of CorVel as of September 30, 1996. The mailing address of ENStar's
principal executive office is 6479 City West Parkway, Eden Prairie, Minnesota,
55344; its telephone number is (612) 941-3200.
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<PAGE> 13
THE ANNUAL MEETINGS
Michael Meeting and Purpose. The Michael Annual Meeting will be held in the
Auditorium of the Lutheran Brotherhood Building, 625 Fourth Avenue South,
Minneapolis, Minnesota, on December 30, 1996 at 4:00 p.m., local time. See "THE
ANNUAL MEETINGS." At the Michael Annual Meeting, holders of Michael Common Stock
will be asked to approve and adopt the Reorganization Agreement and the Merger.
The Reorganization Agreement is attached hereto as Appendix I. In addition, the
stockholders will elect directors and ratify the appointment of Michael's
independent auditors. It is not expected that other matters will be presented at
the meeting.
Holders of record of Michael Common Stock at the close of business on
November 22, 1996 (the "Michael Record Date"), have the right to receive notice
of and to vote at the Michael Annual Meeting. On November 22, 1996, there were
19,395,731 shares of Michael Common Stock outstanding and entitled to vote. Each
share of Michael Common Stock is entitled to one vote on each matter that is
properly presented to stockholders for a vote at the Michael Annual Meeting. The
affirmative vote of the holders of a majority of the outstanding shares of
Michael Common Stock is required to approve and adopt the Reorganization
Agreement and Merger. The nine board nominees who receive the highest number of
votes will be elected directors of Michael, and a plurality of votes cast on all
other matters will be required to approve such matters. As of November 22, 1996,
directors, nominees and executive officers of Michael as a group (18 persons)
beneficially owned 8,248,762 shares of Michael Common Stock or approximately
42.5% of the shares outstanding as of such date. Included in this number are
7,354,950 shares of Michael Common Stock, or approximately 38% of the shares
outstanding as of such date, beneficially owned by NSU. See "SECURITY OWNERSHIP
OF MICHAEL."
Michael's Auditors. Michael's independent auditors for the current fiscal
year are Grant Thornton LLP. Representatives of Grant Thornton LLP will be
present at the Michael Annual Meeting and will have an opportunity to make a
statement if they desire to do so and will be available to respond to
appropriate questions.
NSU Meeting and Purpose. The NSU Annual Meeting will be held at the
Marriott Southwest, 5801 Opus Parkway, Minnetonka, Minnesota, on December 30,
1996 at 1:00 p.m., local time. See "THE ANNUAL MEETINGS." At the NSU Annual
Meeting, holders of NSU Common Stock will be asked to approve the NSU Proposals
and to elect six persons as directors. It is not expected that other matters
will be presented at the meeting.
Holders of record of NSU Common Stock at the close of business on November
22, 1996 (the "NSU Record Date") have the right to receive notice of and to vote
at the NSU Annual Meeting. On November 22, 1996, there were 9,913,000 shares of
NSU Common Stock outstanding and entitled to vote. Each share of NSU Common
Stock is entitled to one vote on each matter that is properly presented to
shareholders for a vote at the NSU Annual Meeting. The affirmative vote of
holders of a majority of the outstanding shares of NSU Common Stock is required
to approve and adopt each of the NSU Proposals. The affirmative vote of a
majority of the shares of NSU Common Stock present (or represented by proxy) and
entitled to vote at the NSU Annual Meeting is required to elect each of the
nominees as directors of NSU for the ensuing year or until the consummation of
the Reorganization. See "THE DISTRIBUTION AGREEMENT." James H. Michael and
Jeffrey J. Michael and two partnerships controlled by them (the "Michael Family
Shareholders") beneficially own approximately 57% of the outstanding shares of
NSU Common Stock and have agreed in the "Orderly Disposition Agreement" as
hereinafter defined, to vote such shares to approve the Reorganization
Agreement, the Merger, the Reverse Stock Split and the Distribution. If the
Michael Family Shareholders vote in accordance with the Orderly Disposition
Agreement, the approval of such matters is assured. See "THE REORGANIZATION --
Interest of Certain Persons in the Reorganization."
As of November 22, 1996, directors and executive officers of NSU as a group
beneficially owned 6,265,750 shares of NSU Common Stock, or approximately 63% of
the shares outstanding as of the NSU Record Date.
8
<PAGE> 14
NSU's Auditors. NSU's independent auditors for the current fiscal year are
Grant Thornton LLP. Representatives of Grant Thornton LLP will be present at the
NSU Annual Meeting and will have an opportunity to make a statement if they
desire to do so and will be available to respond to appropriate questions.
THE REORGANIZATION
On December 21, 1995, NSU and Michael entered into the Reorganization
Agreement pursuant to which: (i) Merger Co. will be merged with and into Michael
and Michael will become a wholly-owned subsidiary of NSU; (ii) in the Merger,
each stockholder of Michael (other than NSU) will receive, in exchange for each
share of Michael Common Stock held by such stockholder, one share of NSU Common
Stock; (iii) each share of Michael Common Stock held by NSU will be canceled and
retired; (iv) NSU will change its name to Michael Foods, Inc. and will continue
the business previously conducted by Michael; (v) prior to the consummation of
the Merger, NSU will have transferred all of its assets and liabilities other
than certain indebtedness and other agreed upon assets and liabilities to
ENStar; (vi) the outstanding common stock of ENStar will, conditioned on the
consummation of the Merger, be distributed pro rata to the shareholders of NSU
of record as of a record date prior to the Effective Date of the Merger; and
(vii) immediately prior to the Effective Time of the Merger, NSU will effectuate
the Reverse Stock Split, the ratio of the Reverse Stock Split to be determined
pursuant to the terms of the Reorganization Agreement so as to cause the
shareholders of NSU prior to the Merger to hold fewer shares of common stock of
New Michael than the number of shares of Michael Common Stock held by NSU prior
to the Merger, which difference reflects the shares of Michael Common Stock
effectively surrendered in the Merger in exchange for Michael's assumption of
certain indebtedness of NSU, all as described below under "THE REORGANIZATION --
Effect of the Reorganization."
EFFECT OF THE REORGANIZATION ON MICHAEL STOCKHOLDERS
Upon the consummation of the Merger, each outstanding share of Michael
Common Stock, other than the Michael Common Stock owned by NSU, will be
converted into the right to receive one share of NSU Common Stock (such NSU
Common Stock, after the Reorganization, is also referred to herein as New
Michael Common Stock). Upon the consummation of the Merger, each outstanding
share of Michael Common Stock owned by NSU will be canceled and retired without
any payment therefor. See "THE REORGANIZATION -- Effects of the Reorganization"
and "THE REORGANIZATION AGREEMENT -- Effects of the Reorganization on the
Stockholders of Michael and the Shareholders of NSU." For a description of the
New Michael Common Stock, see "DESCRIPTION OF NEW MICHAEL CAPITAL STOCK." As a
result of the Reorganization, New Michael will continue the business of Michael
and each stockholder of Michael prior to the Reorganization will own the same
number of shares of New Michael Common Stock after the Reorganization as such
stockholder owned of Michael before the Reorganization. As a result of the
retirement of a portion of the NSU Common Stock through the Reverse Stock Split
and the corresponding assumption by New Michael of the "NSU Net Assumed
Liabilities," as hereinafter defined, the pro forma book value per share of New
Michael Common Stock will be reduced by approximately $0.14 per share. See
"SUMMARY -- Comparative Per Share Data." For a summary of the principal
differences between the rights of holders of NSU Common Stock before and after
the Reorganization, see "COMPARISON OF RIGHTS OF NSU SHAREHOLDERS BEFORE AND
AFTER THE REORGANIZATION."
EFFECT OF THE REORGANIZATION ON NSU SHAREHOLDERS.
Reverse Stock Split. Immediately prior to the Effective Time, NSU will
effect the Reverse Stock Split whereby each outstanding share of NSU Common
Stock will be combined into a fraction of one share of NSU Common Stock
determined by multiplying each such share by a fraction where the denominator is
the number of outstanding shares of NSU Common Stock immediately prior to the
Effective Date, and the numerator is the number of shares of Michael Common
Stock owned by NSU at such date less the number of shares of Michael Common
Stock owned by NSU which are retired in consideration for the assumption of the
NSU Net Assumed Liabilities by New Michael. The amount of the NSU Net Assumed
Liabilities to be
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retained by New Michael is equal to the sum of the subordinated debentures,
subordinated fixed-term time certificates, subordinated extendible time
certificates and bank debt of NSU outstanding immediately prior to the Effective
Time plus the "Dissenting Shares Holdback," as hereinafter defined, less any
cash retained by NSU at the Effective Time of the Merger. NSU has preliminarily
indicated to Michael that the amount of the NSU Net Assumed Liabilities will be
between $25 million and $29 million, except to the extent that the CorVel Stock
Sale is made, in which case the NSU Net Assumed Liabilities may be reduced below
$25 million. Based on the closing price for shares of CorVel common stock on
November 20, 1996, which was $27.50, NSU estimates that the net after-tax
proceeds of the CorVel Stock Sale, if all 200,000 shares of CorVel common stock
were sold, would be $5.0 million. Pursuant to the Reorganization Agreement, as
amended, the NSU Net Assumed Liabilities must be greater than $15 million. The
Dissenting Shares Holdback is an amount to be mutually agreed by Michael and NSU
as a reserve to pay for the shares of NSU Common Stock as to which dissenters'
rights properly have been exercised. See "THE REORGANIZATION -- Effects of the
Reorganization" and "THE REORGANIZATION AGREEMENT -- Effects of the
Reorganization on the Stockholders of Michael and the Shareholders of NSU."
While the amount of the Dissenting Shares Holdback has not yet been agreed to by
Michael and NSU, it is anticipated that such amount will be determined by adding
(i) the product of (A) the number of shares of NSU Common Stock held by persons
that have effectively elected to exercise their dissenters' rights, times (B)
the trading price of the NSU Common Stock immediately prior to the Effective
Date, plus (ii) an amount equal to some portion of the product described above
in the event that a court were to find that the trading price for NSU's Common
Stock does not equal its fair value.
Distribution. Prior to the Effective Date, NSU will transfer all of its
assets and liabilities other than the Michael Common Stock owned by NSU, all of
the outstanding common stock of Merger Co., cash in an amount to be determined
by NSU and a certain amount of NSU indebtedness to ENStar and declare a
contingent dividend of all of its ENStar Common Stock, payment of which will be
subject to the prior consummation of the Merger. Immediately after the Effective
Time, the ENStar Common Stock will be distributed by NSU as a dividend to NSU
shareholders of record as of a record date prior to the Effective Date. See "THE
DISTRIBUTION AGREEMENT." Holders of Michael Common Stock will not receive any
ENStar Common Stock as a result of the Reorganization.
EXCHANGE OF CERTIFICATES; DISTRIBUTION OF ENSTAR COMMON STOCK
As soon as practicable after the Effective Date, The First National Bank of
Boston, or another person mutually designated by Michael and NSU, in its
capacity as exchange agent for the Merger and the Reverse Stock Split (the
"Exchange Agent"), will send a transmittal letter to each holder of Michael
Common Stock and each holder of NSU Common Stock as of the Effective Date. The
transmittal letter will contain instructions with respect to the surrender of
certificates representing the Michael Common Stock and NSU Common Stock to be
exchanged for certificates evidencing the New Michael Common Stock in the
Merger. On or prior to the Effective Date, NSU will deliver to its Exchange
Agent certificates representing all of the outstanding shares of ENStar Common
Stock. Immediately after the Effective Time, NSU will deliver to such Exchange
Agent instructions to distribute, as promptly as practicable following the
Effective Date, to each holder of record of NSU Common Stock on the record date
for the Distribution, stock certificates evidencing one share of ENStar Common
Stock for every three shares of NSU Common Stock held of record by such holder
on such record date and cash in lieu of any fractional shares of ENStar Common
Stock. See "THE REORGANIZATION -- Procedure for Exchange of Certificates."
MICHAEL STOCKHOLDERS AND NSU SHAREHOLDERS SHOULD NOT FORWARD CERTIFICATES TO THE
EXCHANGE AGENT UNTIL THEY HAVE RECEIVED TRANSMITTAL LETTERS. MICHAEL
STOCKHOLDERS AND NSU SHAREHOLDERS SHOULD NOT RETURN STOCK CERTIFICATES WITH THE
ENCLOSED PROXY.
OWNERSHIP OF NEW MICHAEL AFTER THE REORGANIZATION
Following the Reorganization, NSU's only assets will consist of all of the
outstanding capital stock of Michael, certain contractual rights and retained
cash. In order to avoid confusion, on the Effective Date, NSU
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will change its name to Michael Foods, Inc. and transactions in New Michael
Common Stock will continue to be reported on the Nasdaq National Market under
the symbol MIKL. Michael will change its name to Michael Foods of Delaware, Inc.
At the date of this Proxy Statement/Prospectus, NSU owns, directly and
beneficially, 7,354,950 shares of the outstanding common stock of Michael, or
approximately 38% of such securities. Based on NSU's preliminary indication of
the anticipated NSU Net Assumed Liabilities, assuming the CorVel Stock Sale is
not made, holders of Michael Common Stock immediately prior to the Merger,
excluding NSU, will own directly and beneficially approximately 70.2% to 72.4%
of New Michael Common Stock outstanding immediately after the Merger depending
upon the amount of the NSU Net Assumed Liabilities retained by New Michael.
Correspondingly, NSU shareholders immediately prior to the Merger will own,
directly and beneficially, approximately 27.6% to 29.8% of the outstanding New
Michael Common Stock immediately after the Merger.
DISSENTERS' RIGHTS
Holders of Michael Common Stock are not entitled to dissenters' or
appraisal rights in connection with the Reorganization. Pursuant to Delaware
law, dissenters' or appraisal rights are not available to a holder of stock
traded on the Nasdaq National Market who receives stock of a company in a merger
that is also traded on the Nasdaq National Market. Holders of NSU Common Stock
who do not vote in favor of the Distribution and who file a written objection
thereto with NSU prior to the NSU Annual Meeting or at such meeting, but before
the vote is taken, and who have otherwise complied with Section 302A.473 of the
Minnesota Business Corporation Act ("MBCA") will be entitled to certain
dissenters' rights. See "THE REORGANIZATION -- Dissenters' Rights." If holders
of more than 1% of the outstanding shares of NSU Common Stock exercise
dissenters' rights, NSU has the right under the Reorganization Agreement not to
consummate the Reorganization.
BACKGROUND OF THE REORGANIZATION
From time to time since 1990, NSU and Michael senior management have
discussed various possible tax-advantaged transactions that would result in all
or a portion of NSU's substantial ownership interest in Michael being held
directly by NSU shareholders. Certain transactions discussed involved the
assumption of some or all of NSU's outstanding indebtedness in consideration of
the retirement of some of the Michael Common Stock held by NSU. Although a
number of alternative transactions and transaction structures were discussed,
agreement was never reached on any particular transaction, transaction structure
or related financial terms and none of these discussions progressed beyond the
preliminary discussion stage.
In the summer of 1994, NSU contacted Michael to hold discussions again in
an effort to structure a mutually acceptable transaction that would provide for
the assumption by Michael of some or all of NSU's outstanding indebtedness and
permit NSU shareholders to directly own NSU's interest in Michael. During
subsequent meetings between NSU and Michael senior management the following
fundamental elements in any transaction were determined: (i) any transaction
could not result in federal income tax to the parties or their respective
shareholders; (ii) the amount of NSU indebtedness assumed by Michael in any
transaction had to be within parameters to be agreed upon; (iii) the Michael
Common Stock to be retired in consideration for the debt assumed in any
transaction had to be valued at a discount to the market; and (iv) Michael had
to be protected from the liabilities of NSU relating to the operations of NSU
(other than its investment in Michael Common Stock). Michael and its financial
advisors also concluded that the transfer of all other assets and liabilities of
NSU to a separate company to be spun-off to the NSU shareholders or some other
disposition of such assets and satisfaction of such liabilities was necessary in
order to avoid higher costs of capital that would otherwise occur if such assets
and liabilities were retained after the Reorganization and to avoid the adverse
impact on the value of Michael Common Stock if New Michael were engaged in
businesses unrelated to its core food processing and distribution businesses. As
a result of these discussions, senior management of both companies, with the
assistance of their respective tax and legal advisors, developed a general
transaction structure proposal that satisfied the parties' fundamental
requirements. No agreement was reached, however, on the financial terms, or on
certain of the other terms of this proposal.
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<PAGE> 17
Once a potentially acceptable transaction structure proposal had been
developed, advisors of both companies were directed to obtain a preliminary
indication from the Internal Revenue Service (the "IRS") as to the tax treatment
of the proposal. Discussions with the IRS occurred during the spring and summer
of 1995, which led senior management of both companies to conclude that there
were reasonable prospects for receipt of a favorable ruling concerning the
tax-free nature of the transaction structure proposal.
Following the discussions with the IRS, NSU engaged its financial advisor,
Goldsmith, Agio, Helms Securities Inc. ("GAHS"), in July 1995. Michael had
previously engaged its financial advisor, Piper Jaffray Inc. ("Piper Jaffray"),
in April 1995.
Beginning in September 1995, senior management of NSU and Michael, and
their respective legal, tax and financial advisors, began meeting to discuss the
financial and other terms relating to the transaction proposal that had been
developed and discussed with the IRS. On October 27, 1995, Michael's management
informed the Michael Board of the status of negotiations with NSU and the
principal terms of the transaction proposal that was currently under
consideration by Michael senior management. Messrs. Jeffrey J. Michael, James H.
Michael and Miles E. Efron, each a member of the board of directors of both NSU
and Michael, at the request of Michael, did not participate in this discussion.
At the NSU Board meeting held on November 7, 1995, NSU's management and its
financial advisor discussed with the NSU Board the principal terms of the
transaction proposal that was currently under consideration by NSU senior
management. The NSU Board, after such discussion, directed and authorized
certain officers of NSU to negotiate the terms of a definitive agreement with
respect to the transaction proposal, subject to final board review and approval.
Over the next several weeks, the terms of the definitive agreement were
negotiated and a definitive agreement was presented to each of the NSU and
Michael Boards at separate meetings held on December 21, 1995. Messrs. Michael,
Michael and Efron recused themselves from participation in the meeting of the
Michael Board. Each of them participated in the meetings of the NSU Board. The
Boards of Directors of NSU and Michael approved the Reorganization Agreement at
their respective meetings held on that date, at which meetings each Board
received the opinion of its respective financial advisor as to the fairness of
the transactions contemplated by the Reorganization Agreement. See "SUMMARY --
Opinions of Financial Advisors." The Reorganization Agreement was executed by
NSU and Michael later that same day. See "THE REORGANIZATION -- Background of
the Reorganization."
In connection with the execution of the Papetti's Agreement (as defined
herein) by Michael, NSU and Michael entered into negotiations to amend the
Reorganization Agreement to, among other things, extend the date on which the
parties' obligations to consummate the transactions contemplated by the
Reorganization Agreement expire to the later of March 31, 1997 or 90 days after
the date on which the stockholders of Michael and the shareholders of NSU have
approved the Reorganization Agreement and the transactions contemplated thereby;
allow NSU to choose any ten day trading period beginning nine days prior to such
stockholder and shareholder approval during which the Average Price of Michael
Common Stock will be established; reduce the range of NSU Net Assumed
Liabilities from $25 million to $38 million to $15 million to $29 million; and
reduce the corresponding range of the Discount Factor from .92 (8%) to .90 (10%)
to .94 (6%) to .91 (9%) depending upon the amount of NSU Net Assumed
Liabilities. See "RECENT DEVELOPMENTS" and "THE REORGANIZATION AGREEMENT." An
amendment to the Reorganization Agreement reflecting the agreements reached in
such negotiations was approved by the Michael Board and by the NSU Board on June
26, 1996 and was executed by Michael and NSU on September 27, 1996.
RECOMMENDATION OF MICHAEL BOARD; MICHAEL'S REASONS FOR THE REORGANIZATION
The Board of Directors of Michael (the "Michael Board") (with James H.
Michael, Jeffrey J. Michael and Miles E. Efron, each of whom is also a director
of NSU, having recused themselves from any discussions of and vote on the
proposed transaction), has determined that the Reorganization is in the best
interest of Michael and recommends that the holders of Michael Common Stock vote
in favor of the Reorganization Agreement and the Merger. The decision of the
Michael Board to enter into the Reorganization and to recommend that its
stockholders vote in favor of the Reorganization Agreement and the Merger is
based upon its evaluation of a number of factors, including, among others, the
opinion of Piper Jaffray that the
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<PAGE> 18
consideration given up by Michael in the form of the NSU Net Assumed Liabilities
retained by New Michael after the Merger, in exchange for the shares of Michael
Common Stock held by NSU that will be retired in the Merger, and the exchange of
Michael Common Stock for NSU Common Stock, is fair to Michael from a financial
point of view. See "THE REORGANIZATION -- Recommendation of Michael Board;
Michael's Reasons for the Reorganization" and "-- Fairness Opinions."
RECOMMENDATION OF NSU BOARD; NSU'S REASONS FOR THE REORGANIZATION
The Board of Directors of NSU (the "NSU Board"), by unanimous vote,
determined that the consummation of the Reorganization, including the Merger,
the Reverse Stock Split and the Distribution, is in the best interest of the
holders of NSU Common Stock and recommends that the holders of NSU Common Stock
vote in favor of the NSU Proposals. The decision of the NSU Board to enter into
the Reorganization Agreement and to make the foregoing recommendations is based
upon its evaluation of a number of factors including, among others, the opinion
of GAHS, that the Reorganization is fair to the Shareholders of NSU from a
financial point of view. See "THE REORGANIZATION -- Recommendation of NSU Board;
NSU's Reasons for the Reorganization" and "-- Fairness Opinions."
OPINIONS OF FINANCIAL ADVISORS
Michael. Piper Jaffray has rendered to the Michael Board its oral and
written opinion that the consideration given up by Michael in exchange for the
shares of Michael Common Stock held by NSU that will be retired in the Merger,
and the exchange of Michael Common Stock for NSU Common Stock is fair to Michael
from a financial point of view. The full text of the written opinion of Piper
Jaffray dated as of the date of this Proxy Statement/Prospectus, which sets
forth the assumptions made, factors considered and scope of the review
undertaken by Piper Jaffray, is included as Appendix II to this Proxy
Statement/Prospectus. Michael stockholders are urged to read such opinion
carefully in its entirety. Michael has agreed to pay Piper Jaffray a fee of
$220,000 for rendering its financial advisory services, including its opinion.
See "THE REORGANIZATION -- Fairness Opinions."
NSU. GAHS has rendered to the NSU Board its oral and written opinion to the
effect that the Reorganization is fair to NSU's shareholders from a financial
point of view. The full text of the written opinion of GAHS, dated as of the
date of this Proxy Statement/Prospectus, which sets forth the assumptions made,
factors considered and limitations on the review undertaken by GAHS is included
as Appendix III to this Proxy Statement/Prospectus. NSU shareholders are urged
to read such opinion carefully in its entirety. GAHS has been paid $77,500 for
its financial advisory services to date, including $25,000 in connection with
the delivery of its fairness opinion on December 21, 1995. If the Reorganization
is consummated, GAHS will receive an additional $175,000 to $225,000, depending
upon the amount of the Discount Factor (as defined herein), for its financial
advisory services and $75,000 for the issuance of its fairness opinion. See "THE
REORGANIZATION -- Fairness Opinions."
THE REORGANIZATION AGREEMENT
Representations, Warranties and Covenants. The Reorganization Agreement
contains various representations and warranties of NSU and Michael relating to
the organization and operations of such entities. See "THE REORGANIZATION
AGREEMENT -- Representations and Warranties." In the Reorganization Agreement,
NSU and Michael have made certain covenants with respect to the conduct of their
respective businesses and certain actions to be taken between the date of the
Reorganization Agreement and the Effective Date. See "THE REORGANIZATION
AGREEMENT -- Certain Covenants."
Conditions to the Reorganization. The obligations of Michael and NSU to
consummate the transactions contemplated under the Reorganization Agreement are
subject to various conditions including, but not limited to: (i) the accuracy of
representations and warranties of the other party; (ii) the receipt of a
favorable ruling from the IRS or tax opinion of counsel or independent certified
public accountants acceptable to both Michael and NSU that the Merger, the
Reverse Stock Split and the Distribution will not result in taxable gain or
loss; (iii) the effectiveness of the registration statement filed with the
Commission under the Securities Act with
13
<PAGE> 19
regard to the shares of NSU Common Stock to be exchanged for Michael Common
Stock (the "NSU Registration Statement") and of a registration statement filed
with the Commission under the Securities Act with regard to the shares of ENStar
Common Stock to be distributed in the Distribution (the "ENStar Registration
Statement"); (iv) obtaining requisite stockholder and shareholder approvals; (v)
the absence of any injunction or other order that would prohibit or make illegal
the consummation of the Reorganization Agreement; (vi) the approval of Nasdaq
for the trading of New Michael Common Stock and the ENStar Common Stock on the
Nasdaq National Market; (vii) holders of fewer than 1% of the issued and
outstanding NSU Common Stock effectively electing statutory dissenters' rights;
and (viii) obtaining requisite governmental and third party consents. Neither
Michael nor NSU has any present intention to modify or waive any of the
conditions to consummating the transactions contemplated by the Reorganization
Agreement; provided, however, that, depending upon the facts and circumstances
at the time, with prior board approval either Michael or NSU may modify or waive
any of the conditions. See "THE REORGANIZATION AGREEMENT -- Conditions."
In the event that a material condition to the obligations of NSU or Michael
to consummate the Reorganization is waived by NSU or Michael, including but not
limited to waiver of the receipt of a private letter ruling from the IRS or a
tax opinion as to certain tax issues (see "THE REORGANIZATION--Certain Federal
Income Tax Consequences"), NSU and Michael undertake to file a post-effective
amendment to the Registration Statement and to resolicit the approval of the
Reorganization by Michael stockholders and the approval of the NSU Proposals by
NSU shareholders pursuant to an amended Proxy Statement/Prospectus contained in
the amended Registration Statement, or ENStar Registration Statement, if such
resolicitation is required by law or deemed necessary by Michael or NSU,
respectively, after consultation with counsel.
Termination. The Reorganization Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of the matters
presented to the stockholders of Michael or the shareholders of NSU at their
respective Annual Meetings: (i) by mutual written consent of the Boards of
Directors of Michael and NSU; (ii) by either party, if any of the conditions to
such party's obligation to complete the transactions become impossible to
satisfy; (iii) by either party if the requisite stockholder vote or shareholder
vote has not been obtained; (iv) by either party if the transactions have not
been completed on or before the later of March 31, 1997 or 90 days after the
earlier of the stockholders meeting of Michael and shareholders meeting of NSU
approving the Reorganization Agreement; (v) by NSU if the "Average Price of
Michael Common Stock," as hereinafter defined, is less than $11.00 per share;
(vi) by Michael if the Average Price of Michael Common Stock is more than $17.00
per share; and (vii) by either party if any representation or warranty of the
other party becomes untrue, subject to certain exceptions. Under certain
circumstances, Michael or NSU may recover from the other party out-of-pocket
costs, including fees and expenses of attorneys, accountants and investment
bankers, up to an aggregate of $500,000 if the Reorganization Agreement is
terminated by the other party. Entitlement to such reimbursement is the sole and
exclusive remedy of a party for any termination of the Reorganization Agreement.
See "THE REORGANIZATION AGREEMENT -- Termination" and "-- Expenses."
THE DISTRIBUTION AGREEMENT
The Distribution Agreement is attached to the Reorganization Agreement as
Exhibit C and included as a part of Appendix I of this Proxy
Statement/Prospectus. The Reorganization Agreement provides that NSU will, and
will cause ENStar to, execute and deliver the Distribution Agreement prior to
the Effective Date. The Distribution Agreement requires NSU to contribute and
transfer to ENStar or an ENStar subsidiary all of NSU's right, title and
interest in and to all of NSU's assets, except for the following assets to be
retained by New Michael: (i) cash in an amount to be determined by NSU, (ii) the
7,345,950 shares of Michael Common Stock owned by NSU, (iii) the capital stock
of Merger Co., (iv) the rights of NSU under the Reorganization Agreement, the
Distribution Agreement and the Orderly Disposition Agreement and (v) all net
operating loss carryforwards and other tax attributes properly allocable to NSU
following the Effective Date. In addition, ENStar will assume and has agreed to
pay, perform and discharge all liabilities of NSU arising at any time prior to
the Effective Time, other than the following liabilities to be retained by New
14
<PAGE> 20
Michael: (i) liabilities arising from the assertion of dissenters' rights by NSU
shareholders, (ii) obligations under the Reorganization Agreement, the
Distribution Agreement and the Orderly Disposition Agreement, and (iii) the NSU
Net Assumed Liabilities. NSU has preliminarily indicated to Michael that the
amount of the NSU Net Assumed Liabilities to be assumed, will be between $25
million and $29 million, except to the extent that the CorVel Stock Sale is
made, in which case the NSU Net Assumed Liabilities may be reduced below $25
million. Based on the closing price for shares of CorVel common stock on
November 20, 1996, which was $27.50, NSU estimates that the net after-tax
proceeds of the CorVel Stock Sale, if all 200,000 shares of CorVel common stock
were sold, would be $5.0 million. Pursuant to the Reorganization Agreement, the
NSU Net Assumed Liabilities must be greater than $15 million. New Michael is
required, pursuant to the Distribution Agreement, to repay in full all the NSU
Net Assumed Liabilities not later than six months after the Effective Date. The
Distribution is expressly conditioned on the prior consummation of the Merger
and the satisfaction of certain other conditions set forth in the Distribution
Agreement. In the Distribution, each NSU shareholder of record on the record
date for the Distribution will receive one share of ENStar Common Stock for
every three shares of NSU Common Stock held by such holder on such date, which
date will be prior to the Effective Date and prior to the Reverse Stock Split.
The Distribution Agreement also requires ENStar and New Michael to indemnify
each other for certain losses and liabilities arising before or after the
Effective Time. See "THE DISTRIBUTION AGREEMENT."
THE ORDERLY DISPOSITION AGREEMENT
Concurrently with the execution of the Reorganization Agreement, the
Michael Family Shareholders, which own an aggregate of 5,685,100 shares of the
outstanding NSU Common Stock (approximately 57% of the outstanding shares of NSU
Common Stock as of the date hereof), and NSU entered into that certain Orderly
Disposition and Registration Rights Agreement, dated December 21, 1995 (the
"Orderly Disposition Agreement"). The Orderly Disposition Agreement is attached
as Exhibit E to the Reorganization Agreement and included as part of Appendix I
of this Proxy Statement/Prospectus. Under the Orderly Disposition Agreement, the
Michael Family Shareholders have agreed, among other things, to vote the shares
of NSU Common Stock owned by them in favor of the NSU Proposals. The Michael
Family Shareholders have also agreed to refrain for a period of two years after
the Merger from selling, pledging or otherwise disposing of any of the shares of
New Michael Common Stock owned by them if the purchaser of such shares owns or
would own more than five percent of the outstanding New Michael Common Stock,
unless New Michael is first given an opportunity to purchase such shares. The
disposition restrictions do not apply if a tender offer is made for all of the
outstanding New Michael Common Stock. In addition, the Michael Family
Shareholders are entitled during such two year period to certain registration
rights under the Securities Act with respect to the New Michael Common Stock
owned by them. Finally, during such two year period, the Michael Family
Shareholders will be entitled to designate two nominees for the Board of New
Michael (the "New Michael Board") if they collectively own ten percent or more
of the outstanding New Michael Common Stock and one nominee for director if
their ownership is below ten percent. The Michael Family Shareholders' initial
designees to the New Michael Board are Jeffrey J. Michael and Miles E. Efron.
See "THE REORGANIZATION -- Interest of Certain Persons in the Reorganization."
TREATMENT OF MICHAEL STOCK OPTIONS
The Reorganization Agreement obligates New Michael to assume all existing
stock option plans of Michael and the stock award portion of Michael's Executive
Incentive Plan. Outstanding Michael stock options will be converted into options
to purchase New Michael Common Stock and, to the extent exercisable, may be
exercised at the stated exercise price and for an equal number of shares of New
Michael Common Stock. At November 22, 1996, Michael had granted options under
these Plans to purchase 2,016,776 shares, of which options for 1,638,304 shares
were currently exercisable. See "THE REORGANIZATION -- Effect on Stock Option
Plans." All outstanding stock options for NSU Common Stock will be exercised or
canceled prior to the Effective Time.
15
<PAGE> 21
ACCOUNTING TREATMENT
The Merger will be accounted for as a business combination utilizing the
reverse acquisition method with Michael being the accounting acquiror under
generally accepted accounting principles. As such, the Merger will be treated as
an acquisition using the purchase method of accounting with no change in the
recorded amount of Michael's assets and liabilities. The assets and liabilities
of NSU that are acquired as a result of the Merger will be recorded at their
fair market values. The ENStar assets and liabilities, following the
Distribution, will be recorded at their historic amounts as recorded in the
books and records of NSU. See "THE REORGANIZATION -- Accounting Treatment."
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The obligations of Michael and NSU to consummate the Reorganization are
subject to the receipt of the following rulings from the IRS or tax opinions
addressed to both Michael and NSU by counsel or independent certified public
accountants acceptable to both Michael and NSU, based on customary reliance and
subject to customary qualifications, to the effect that for federal income tax
purposes:
(i) The Merger will be treated as a tax-free reorganization within the
meaning of Section 368 of the Internal Revenue Code of 1986, as
amended (the "Code"), and no gain or loss will be recognized by any
Michael stockholder upon receipt of New Michael Common Stock pursuant
to the Merger.
(ii) The Reverse Stock Split will not be treated as a stock distribution,
or a transaction that has the effect of such a distribution, to which
Sections 301, 305(b) or 305(c) of the Code apply. Accordingly, no
taxable income will be recognized under such Sections by any of the
shareholders of NSU, except for cash paid in lieu of fractional
shares.
(iii) The Distribution will qualify as a tax-free distribution under
Sections 355 and 368(a)(1)(D) of the Code, and no gain or loss will
be recognized by any NSU shareholder upon the receipt of ENStar
Common Stock pursuant to the Distribution (except upon the receipt of
cash by an NSU shareholder in lieu of fractional shares of ENStar
Common Stock).
If such rulings or tax opinions are not received, the Reorganization will
not be consummated unless the conditions requiring their receipt are waived and
the approvals of the Michael stockholders and NSU shareholders are resolicited
by means of an updated Proxy Statement/Prospectus. See "THE REORGANIZATION --
Certain Federal Income Tax Consequences."
REGULATORY APPROVALS
The Merger is subject to the requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the rules
and regulations thereunder, which provide that certain transactions may not be
consummated until required information and materials are furnished to the
Antitrust Division of the Department of Justice and the Federal Trade Commission
("FTC") and the requisite waiting period has expired or is terminated. NSU and
Michael each filed the required information and materials with the antitrust
division and the FTC, and the requisite waiting period for such filings expired
on May 28, 1996. See "THE REORGANIZATION -- Regulatory Approvals."
DIFFERENCES IN RIGHTS OF MICHAEL STOCKHOLDERS.
Upon consummation of the Merger, holders of Michael Common Stock will
become holders of the same number of shares of New Michael Common Stock. As a
result, their rights as stockholders, which are now governed by Delaware
corporate law and Michael's Certificate of Incorporation and Bylaws, will be
governed by Minnesota law and New Michael's Articles of Incorporation and
Bylaws. The principal differences between Delaware and Minnesota law and the
rights of stockholders and shareholders thereunder and between the rights of
stockholders of Michael under its Certificate of Incorporation and Bylaws and
shareholders of NSU under its Articles of Incorporation and Bylaws include
expanded appraisal rights under Minnesota law, more extensive anti-takeover
protection under Minnesota law and certain differences in the requirements for
calling special meetings of shareholders and taking shareholder and board action
without holding a meeting. For a
16
<PAGE> 22
summary of these and other differences between the rights of holders of Michael
Common Stock and New Michael Common Stock, see "COMPARISON OF RIGHTS OF
STOCKHOLDERS AND SHAREHOLDERS."
COMPARATIVE MARKET PRICES AND DIVIDENDS
Michael Common Stock is traded on the Nasdaq National Market under the
symbol MIKL. NSU Common Stock is traded on the Nasdaq National Market under the
symbol NSRU and the Pacific Stock Exchange under the symbol NSU. On December 20,
1995, the last full trading day preceding public announcement of the proposed
transactions, the closing price per share of Michael Common Stock reported by
the Nasdaq National Market was $10.88 and the closing price per share of NSU
Common Stock reported by the Nasdaq National Market was $6.00. On November 20,
1996, the most recent practicable date prior to the printing of this Proxy
Statement/Prospectus, the closing price per share of Michael Common Stock
reported by the Nasdaq National Market was $12.13 and the closing price per
share of NSU Common Stock reported by the Nasdaq National Market was $7.75.
The payment of future dividends on New Michael Common Stock will be a
business decision to be made by the New Michael Board from time to time based
upon the results of operations and the financial condition of New Michael and
such other factors as the New Michael Board considers relevant. See "COMPARATIVE
PER SHARE MARKET PRICE AND DIVIDEND INFORMATION."
No market currently exists for the ENStar Common Stock. ENStar has applied
to have the ENStar Common Stock approved for quotation on the Nasdaq National
Market under the symbol "ENSR." No assurance can be given that an active market
will develop or continue for the ENStar Common Stock. Management of ENStar
currently intends to retain any earnings for use in its operations and does not
anticipate paying any cash dividends in the foreseeable future.
New Michael expects to continue the Nasdaq National Market listing of NSU
Common Stock, but will use the symbol MIKL, rather than NSRU, and will
discontinue the listing of the New Michael Common Stock on the Pacific Stock
Exchange.
17
<PAGE> 23
SELECTED HISTORICAL AND UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL
INFORMATION
Selected Michael Historical Consolidated Financial Information. The
following table sets forth certain selected historical consolidated financial
information of Michael that has been derived from and should be read in
conjunction with Michael's consolidated financial statements, including the
notes thereto, which are incorporated by reference in this Proxy
Statement/Prospectus:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------------- --------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA
Net sales....................... $455,478 $393,821 $536,627 $505,965 $474,783 $442,734 $454,735
Cost of sales................... 403,267 333,913 454,652 430,917 414,965 390,185 380,270
-------- -------- -------- -------- -------- -------- --------
Gross profit.................... 52,211 59,908 81,975 75,048 59,818 52,549 74,465
Selling, general and
administrative expenses....... 33,597 34,292 45,729 41,851 39,122 36,936 34,217
Disposal of product line........ -- -- -- -- 22,769 -- --
Restructuring charges........... -- -- -- -- 11,164 -- --
-------- -------- -------- -------- -------- -------- --------
33,597 34,292 45,729 41,851 73,055 36,936 34,217
-------- -------- -------- -------- -------- -------- --------
Operating profit (loss)......... 18,614 25,616 36,246 33,197 (13,237) 15,613 40,248
Interest expense, net........... 5,474 5,872 7,635 8,498 8,363 9,588 9,511
-------- -------- -------- -------- -------- -------- --------
Earnings (loss) before income
taxes......................... 13,140 19,744 28,611 24,699 (21,600) 6,025 30,737
Income tax expense (benefit).... 5,260 7,600 11,020 9,510 (5,280) 2,175 11,070
-------- -------- -------- -------- -------- -------- --------
Net earnings (loss)............. $ 7,880 $ 12,144 $ 17,591 $ 15,189 $(16,320) $ 3,850 $ 19,667
======== ======== ======== ======== ======== ======== ========
Net earnings (loss) per share... $ 0.41 $ 0.63 $ 0.91 $ 0.79 $ (0.84) $ 0.20 $ 1.07
======== ======== ======== ======== ======== ======== ========
Weighted average shares
outstanding................... 19,379 19,326 19,328 19,315 19,416 19,516 18,400
Dividends per common share...... $ 0.15 $ 0.15 $ 0.20 $ 0.20 $ 0.20 $ 0.20 $ 0.20
BALANCE SHEET DATA (END OF
PERIOD)
Working capital................. $ 2,280 $ 26,842 $ 42,095 $ 33,589 $ 22,267 $ 54,826 $ 58,988
Total assets.................... 370,069 338,540 359,227 336,645 329,087 370,218 357,171
Long-term debt, including
current maturities............ 55,619 82,364 101,421 100,604 104,008 135,798 120,645
Stockholders' equity............ 185,309 175,614 180,095 166,029 155,003 177,037 176,321
</TABLE>
Selected NSU Historical Consolidated Financial Information. The following
table sets forth certain selected historical consolidated financial information
of NSU that has been derived from and should be read in conjunction with NSU's
consolidated financial statements, including the notes thereto, which are
incorporated by reference in this Proxy Statement/Prospectus:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
--------------------- --------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA
Revenues............................ $ 49,151 $ 40,593 $ 54,891 $ 47,193 $ 46,756 $ 42,025 $ 37,007
Operating income (loss)............. 260 453 484 (784) (2,143) (1,610) (1,475)
Interest expense, net............... (2,573) (3,138) (4,120) (4,194) (4,223) (4,175) (4,351)
Investment income................... 7,713 -- -- -- -- -- --
Income (loss) from continuing
operations before income taxes,
and equity in earnings (loss) of
unconsolidated subsidiaries....... 5,400 (2,685) (3,636) (4,978) (6,366) (5,785) 2,738
Income (loss) from continuing
operations........................ 5,910 2,060 3,090 1,410 (13,563) (2,070) 11,261
Income (loss) from discontinued
operations........................ 1,257 (3,025) (3,025) (2,084) 1,691 433 (960)
-------- -------- -------- -------- -------- -------- --------
Net income (loss)................... $ 7,167 $ (965) $ 65 $ (674) $(11,872) $ (1,637) $ 10,301
======== ======== ======== ======== ======== ======== ========
</TABLE>
18
<PAGE> 24
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
--------------------- --------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) per common and common
equivalent share:
Income (loss) from continuing
operations........................ $ 0.59 $ 0.22 $ 0.32 $ 0.15 $ (1.44) $ (0.22) $ 1.14
Discontinued operations............. 0.13 (0.32) (0.31) (0.22) 0.18 0.05 (0.10)
-------- -------- -------- -------- -------- -------- --------
Net income (loss)................... $ 0.72 $ (0.10) $ 0.01 $ (0.07) $ (1.26) $ (0.17) $ 1.04
======== ======== ======== ======== ======== ======== ========
Weighted average shares
outstanding....................... 9,922 9,438 9,651 9,438 9,438 9,438 9,888
BALANCE SHEET DATA (END OF PERIOD)
Total assets........................ $115,081 $109,682 $110,234 $111,093 $108,607 $115,873 $116,355
Long-term debt, including current
maturities........................ 33,934 44,522 42,480 45,061 43,194 41,849 41,451
Shareholders' equity................ 41,956 33,439 34,481 34,196 34,675 61,083 63,246
</TABLE>
Selected ENStar Historical Combined Financial Information. The following
table sets forth certain selected historical combined financial information of
ENStar, currently an operating unit of NSU, that has been derived from and
should be read in conjunction with ENStar's combined financial statements,
including the notes thereto, which are incorporated by reference in this Proxy
Statement/Prospectus:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------------- ---------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------- ------- ------- ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA
Revenues................................... $49,151 $40,593 $54,891 $47,193 $46,756 $42,025 $37,007
Operating income (loss).................... 410 618 1,033 (702) (1,978) (1,151) (666)
Interest expense, net...................... (191) (210) (247) (348) (361) (373) (415)
Income (loss) before income taxes and
equity in earnings of unconsolidated
subsidiary............................... 219 408 786 (1,050) (2,339) (1,524) (1,081)
------- ------- ------- ------- ------- ------- -------
Net income (loss).......................... $ 1,053 $ 1,050 $ 1,572 $ 286 $(1,524) $ (550) $ (302)
======= ======= ======= ======= ======= ======= =======
Pro forma net income (loss) per share(1)... $ 0.32 $ 0.32 $ 0.49 $ 0.09 $ (0.48) $ (0.17) $ (0.09)
======= ======= ======= ======= ======= ======= =======
Pro forma weighted average shares
outstanding(1)........................... 3,307 3,284 3,217 3,235 3,146 3,146 3,296
BALANCE SHEET DATA (END OF PERIOD)
Total assets............................... $36,512 $35,752 $35,251 $32,243 $30,222 $30,318 $29,497
Long-term debt, including current
maturities............................... 163 2,162 1,246 3,607 3,443 3,898 3,323
Operating unit equity...................... 20,393 20,128 19,694 18,176 17,035 17,262 16,737
</TABLE>
- -------------------------
(1) Pro forma net income (loss) per share was computed using the weighted
average number of outstanding shares of NSU Common Stock during each period
presented and assuming that, in the Distribution, one share of ENStar Common
Stock was distributed for every three shares of the weighted average
outstanding NSU Common Stock, without taking into account any fractional
shares. Except for 1994, in which year stock options that were anti-dilutive
for computation of North Star earnings per share were dilutive when
computing earnings per share for ENStar.
Selected Unaudited Pro Forma Condensed Combined Financial Information of
New Michael. The following table sets forth certain selected unaudited pro forma
condensed combined financial information of New Michael and has been derived
from, or prepared on a basis consistent with, the unaudited pro forma condensed
combined financial statements included elsewhere in this Proxy
Statement/Prospectus. The unaudited pro forma condensed combined balance sheet
information and the unaudited pro forma condensed combined statement of earnings
information set forth below has been prepared as if the Reorganization was
consummated on September 30, 1996 and January 1, 1995 and 1996, respectively.
See "UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS." This data is
presented for illustrative purposes only and is not indicative of the combined
results of operations or financial position that would have occurred if the
Reorganization had been consummated at the beginning of the period presented or
19
<PAGE> 25
on the date indicated, nor is it necessarily indicative of future operating
results or financial position of New Michael.
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEAR ENDED
SEPTEMBER 30, 1996 DECEMBER 31, 1995
------------------ -----------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
PRO FORMA STATEMENT OF EARNINGS DATA
Revenues...................................... $455,478 $ 536,627
Operating profit.............................. 18,564 36,081
Net earnings.................................. $ 7,037 $ 16,381
======== ========
Net earnings per share........................ $ 0.42 $ 0.98
======== ========
Weighted average shares outstanding:.......... 16,815 16,764
PRO FORMA BALANCE SHEET DATA (END OF PERIOD)
Working capital............................... $ (1,433)
Total assets.................................. 369,377
Long-term debt, including current
maturities.................................. 81,896
Stockholders' equity.......................... 158,340
</TABLE>
COMPARATIVE PER SHARE DATA
The unaudited pro forma per share data set forth in the following tables is
derived from, and should be read in conjunction with, the historical
consolidated or combined financial statements of Michael, NSU and ENStar
(currently an operating unit of NSU), the respective notes thereto, which are
incorporated by reference into this Proxy Statement/Prospectus, and the pro
forma condensed combined financial information, including the notes thereto,
appearing elsewhere in this Proxy Statement/Prospectus. See "UNAUDITED PRO FORMA
CONDENSED COMBINED FINANCIAL STATEMENTS." The per share data set forth below is
presented for informational purposes only, and is not necessarily indicative of
the results of the future operations of New Michael or ENStar.
Michael Per Share Data. The following table presents selected historical
and pro forma per share data for Michael Common Stock before and after
consummation of the Reorganization.
<TABLE>
<CAPTION>
MICHAEL NEW MICHAEL
HISTORICAL PRO FORMA(1)
---------- ------------
<S> <C> <C>
Book value at September 30, 1996...................................... $ 9.55 $ 9.41
Dividends paid for the year ended December 31, 1995................... $ .20 $ .20(2)
Net earnings for the year ended December 31, 1995..................... $ .91 $ .98
</TABLE>
NSU Per Share Data. The following table presents selected historical and
pro forma per share data for NSU Common Stock before and after consummation of
the Reorganization. The ENStar pro forma per share data assumes NSU shareholders
are issued one share of ENStar for each three shares of NSU Common Stock they
own. The New Michael pro forma per share data assumes that, in the Reverse Stock
Split, each NSU shareholder will receive .48 shares of New Michael Common Stock
for each share of NSU Common Stock held by such shareholder at the Effective
Time. See "THE REORGANIZATION -- Effects of the Reorganization."
<TABLE>
<CAPTION>
NSU ENSTAR NEW MICHAEL PRO FORMA
HISTORICAL PRO FORMA(3) PRO FORMA(4) COMBINED(5)
---------- ------------ ------------ -----------
<S> <C> <C> <C> <C>
Book value at September 30, 1996.............. $ 4.23 $ 2.06 $ 4.52 $6.58
Net income from continuing operations for the
year ended December 31, 1995................ $ 0.32 $ 0.16 $ 0.49 $0.65
</TABLE>
- -------------------------
(1) These pro forma per share amounts represent the interest of a holder of a
share of Michael Common Stock in New Michael after the Merger. The pro forma
book value computation utilizes the book value of New Michael at September
30, 1996 divided by the number of outstanding shares of New Michael Common
Stock at September 30, 1996 reduced by 2,563,983 Retired Michael Shares. The
pro forma net
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<PAGE> 26
earnings computation for the year ended December 31, 1995, utilizes the net
earnings of New Michael and the weighed average shares of Michael Common Stock
reduced by 2,563,983 Retired Michael Shares. See "THE REORGANIZATION -- Effects
of the Reorganization" for a hypothetical calculation of such number of
Retired Michael Shares.
(2) The calculation of pro forma dividends paid per share assumes the same per
share dividend was paid.
(3) These pro forma per share amounts represent the interest of a holder of a
share of NSU Common Stock in ENStar's per share book value at September 30,
1996 and the net income from continuing operations after the Distribution
for the year ended December 31, 1995. The book value per share and net
income from continuing operations per share amounts represent the book value
and net income from continuing operations, respectively, of ENStar divided
by the number of outstanding shares of NSU Common Stock at September 30,
1996 for the book value computation and weighted average number of
outstanding shares of NSU Common Stock for the year ended December 31, 1995
for the net income from continuing operations computation.
(4) These pro forma per share amounts represent the interest of a holder of a
share of NSU Common Stock in New Michael per share book value at September
30, 1996 and net income from continuing operations after the Merger for the
year ended December 31, 1995. The pro forma book value computation is
computed by dividing New Michael pro forma stockholder equity by the number
of shares of outstanding New Michael Common Stock after reduction for the
Retired Michael Shares (19,395,731, the historical outstanding shares of
Michael at September 30, 1996, less 2,563,983 Retired Michael Shares), this
product is then adjusted for an assumed Reverse Stock Split ratio of .48
shares of New Michael Common Stock for every outstanding share of NSU Common
Stock. The pro forma income from continuing operations computation is
computed by dividing the New Michael pro forma net earnings for the year
ended December 31, 1995 by the New Michael weighted average shares
outstanding (19,328,000, the historical weighted average shares of Michael
Common Stock as of December 31, 1995, less 2,563,983 Retired Michael
Shares), this product is then adjusted for an assumed Reverse Stock Split
ratio of .50 shares of New Michael Common Stock for every outstanding share
of NSU Common Stock. The Reverse Stock Split ratios differ in these
computations due to the use of the actual number of shares outstanding for
the book value computation and the weighted average shares outstanding for
the net income from continuing operations computation.
(5) The pro forma combined amounts are the total of the ENStar and the New
Michael pro forma per share amounts.
RECENT DEVELOPMENTS
On June 28, 1996, Michael entered into an Agreement and Plan of
Reorganization (the "Papetti's Agreement") with the Papetti's Hygrade Egg
Products, Inc. and certain other related entities (collectively, "Papetti's"),
pursuant to which Michael agreed to acquire Papetti's Hygrade Egg Products, Inc.
through a partially tax-free merger, and the related entities through taxable
mergers or asset purchases (collectively, the "Papetti's Acquisition"). The
Papetti's Acquisition is expected to be completed during the fourth quarter of
1996 or first quarter of 1997 and is subject to the satisfaction of certain
conditions. The parties may terminate the Papetti's Agreement under certain
circumstances. The Papetti's Acquisition will be accounted for as a purchase.
The consideration to be delivered by Michael in connection with the Papetti's
Acquisition consists of 3,400,000 shares of Michael Common Stock, the assumption
by Michael of approximately $28 million of Papetti's indebtedness and
approximately $48 million in cash, subject to certain adjustments. The
information contained in this Proxy Statement/Prospectus does not take into
consideration the 3,400,000 shares of Michael Common Stock to be issued to the
shareholders of Papetti's in connection with the Papetti's Acquisition.
Papetti's is a family-owned business based in Elizabeth, New Jersey, and is
the largest further-processed egg products producer in the United States with
annual sales in excess of $275 million. Papetti's produces and distributes
liquid, frozen and dried egg products, along with other further-processed egg
products, such as hardcooked eggs, egg patties and omelettes for industrial,
food service and retail use. Papetti's major processing facilities are located
in New Jersey, Pennsylvania, Iowa and Missouri. See "RECENT DEVELOPMENTS."
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<PAGE> 27
RISK FACTORS RELATING TO ENSTAR COMMON STOCK
In addition to the other information contained in or incorporated by
reference into this Proxy Statement/Prospectus, NSU's shareholders should
consider the following risk factors regarding ENStar and the ENStar Common Stock
that such shareholders will receive in the Distribution. All references herein
to ENStar are intended to include the operating units of NSU, Americable and
Transition, transferred to ENStar in connection with the Distribution.
LIMITED HISTORY OF PROFITABILITY; UNCERTAINTY OF FUTURE RESULTS
ENStar has a limited history of profitability. ENStar experienced operating
losses during 1991, 1992, 1993 and 1994. During 1995 and the nine months ended
September 30, 1996, ENStar generated operating income of approximately $1
million and $410,000, respectively. Americable derives its revenues from three
primary lines of business: networking products and services, cable and
connectivity products and cable assemblies. Americable has recently increased
the focus of its business on network services, which are generally more
profitable. No assurance can be made, however, that Americable will be
successful in increasing revenues from its network services. In addition,
Americable continues to make significant investments in new sales, engineering
and technical personnel.
Transition's ability to maintain its present level of sales and its
historical sales growth is highly dependent upon its ability to offer new
products that meet customer's demands in a rapidly changing market, particularly
in light of the relatively short life cycle of its products. In order to achieve
market acceptance of new products, Transition plans to continue its investment
in research and development. Transition had research and development expenses of
approximately $1.2 million (10% of net sales) in 1994, $1.0 million (7% of net
sales) in 1995 and $1.2 million (9% of net sales) for the nine months ended
September 30, 1996. See "BUSINESS OF ENSTAR -- Research and Development." There
can be no assurance, however, that its research and development efforts will
result in commercially successful new products in the future. In addition,
Transition believes that sales and marketing expenses will continue to increase
in terms of absolute dollars in an effort to differentiate its products and
enhance its competitive position.
These anticipated increases in operating expenses at both Americable and
Transition may result in lower operating profit at ENStar, if the companies are
unable to maintain their respective current gross profit margins and continued
sales growth. Further, if Americable is not successful in generating higher
volumes of service revenues, its operating margins could decline and its ability
to maintain its current operating profitability could be materially adversely
affected. Based on the above factors, there can be no assurance that ENStar will
be able to increase or sustain its profitability on a quarterly or annual basis
in the future. See "MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATION
AND FINANCIAL CONDITION OF ENSTAR -- Results of Operations."
PRODUCT AND SERVICE DEVELOPMENT RISKS
With respect to Transition, the market for networking products is subject
to rapid technological change, evolving industry standards and frequent new
product introductions and, therefore, requires a high level of expenditures for
research and development. Transition may be required to incur significant
expenditures to develop such product offerings. There can be no assurance that
Transition will be successful in identifying, sourcing, developing and marketing
product enhancements or new products that respond to this rapidly changing
market. Also, there can be no assurance that its product enhancements and new
products will adequately meet the requirements of the marketplace and achieve
market acceptance. A critical factor in market acceptance of product
enhancements and new products is the timely introduction of such products and
enhancements in order to take advantage of existing market opportunities.
Transition has, in the past, experienced delays in the introduction of certain
of its new products and enhancements. See "BUSINESS OF ENSTAR -- Business
Strategy -- Transition" and "-- Products and Services -- Transition."
The markets for Americable's products and services are also characterized
by rapidly changing technology and frequent new product and service offerings by
its competitors. The introduction of new technologies can render existing
products and services obsolete or unmarketable. Americable's continued
22
<PAGE> 28
success will depend on its ability to enhance existing products and services and
to develop and introduce, on a timely and cost-effective basis, new products and
services that keep pace with technological developments and address increasingly
sophisticated customer requirements. See "BUSINESS OF ENSTAR -- Business
Strategy -- Americable" and "-- Products and Services -- Americable."
ENStar's business, financial condition and results of operations could be
materially adversely affected if Transition were to incur delays in developing
or introducing new products or product enhancements or if such new products or
product enhancements did not gain market acceptance or in the event that
Americable were to incur delays in sourcing and developing new products and
services or that these products and services did not gain market acceptance.
EXPANSION STRATEGY
ENStar's expansion strategy includes both internal growth and the
identification and pursuit of acquisition opportunities at Americable.
Americable currently operates in six locations and the success and the rate of
Americable's expansion into new geographical markets will depend on a number of
factors, including general economic and business conditions affecting the
industries of Americable's customers in such markets, competition, the
availability of sufficient capital, the availability of sufficient inventory to
meet customer demand, and the ability to attract and retain qualified personnel
and operate effectively in geographic areas in which Americable has no prior
experience. As a result, there can be no assurance that Americable will be able
to achieve its planned expansion on a timely or profitable basis.
Americable intends to identify and pursue acquisition opportunities as a
means to expand its geographic coverage and enhance service capabilities offered
to its customers. However, viable acquisition candidates may not be available to
Americable on acceptable terms or at all. Furthermore, Americable has not
engaged in any significant acquisitions recently, and no assurance can be made
that Americable will be able to successfully acquire or integrate the operations
of another business into the operations and business of Americable. Americable
has no present commitments, agreements or understandings with respect to any
acquisitions.
If Americable continues to grow, it may be required to make further
investments in personnel and information technology systems. Failure to
successfully hire or retain such personnel or implement such systems could have
a material adverse effect on ENStar's results of operations and financial
condition. There can be no assurance that Americable will be able to manage its
expanding operations effectively, that it will be able to maintain or accelerate
its recent growth or that Americable will be able to continue to operate
profitably. See "BUSINESS OF ENSTAR -- Business Strategy."
FLUCTUATIONS IN QUARTERLY RESULTS
ENStar's quarterly revenues and operating results have varied significantly
in the past and will likely continue to do so in the future. Quarterly revenues
and operating results may fluctuate as a result of the demand for Americable's
and Transition's products and services, the introduction of new hardware and
software technologies offering improved features, the introduction of new
products and services by competitors, changes in the level of operating
expenses, competitive conditions and economic conditions generally. See
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND FINANCIAL
CONDITION OF ENSTAR."
At Americable, the purchase of its products and services generally involves
a significant commitment of capital, with the delays frequently associated with
large capital expenditures and required authorization procedures within an
organization. Such expenditures by customers can range from $50,000 to over
$500,000. The sales cycle for Americable's products and services generally
ranges from three to nine months depending on the size of the project, extent of
competition and degree of the customer's technical expertise. For these and
other reasons, Americable's operating results are subject to a number of risks
over which it has little or no control, including customers' technology life
cycle needs, budgetary constraints and internal authorization reviews. Further,
Americable is increasing its operating expenses, including an increase in
personnel, based on anticipated revenue growth in its networking line of
business.
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<PAGE> 29
A variety of factors may cause period-to-period fluctuations in the
operating results of Transition. Such factors include, but are not limited to,
product mix, competitive pricing pressures, material costs and timely
availability, revenue and expenses related to new product introductions, as well
as delays in customer purchases in anticipation of new products or enhancements
by Transition or its competitors. Further, Transition plans to continue to
invest in research and development, sales and marketing and technical support
staff.
ENStar's operating results also could be adversely affected if it is unable
to adjust spending sufficiently in a timely manner to compensate for any
unexpected revenue shortfall. In addition, the results of any quarterly period
are not indicative of results to be expected for a full fiscal year. It is
possible that in certain future quarters, ENStar's operating results may be
below the expectations of public market analysts and investors. In such event,
the price of ENStar's Common Stock would likely be materially adversely
affected.
DEPENDENCE ON AND NEED TO RECRUIT AND RETAIN KEY PERSONNEL
ENStar's success depends to a significant extent on its ability to attract
and retain key personnel. In particular, Americable and Transition are dependent
on their respective engineering and technical personnel. Competition for such
technical personnel is intense and no assurance can be given that ENStar will be
able to recruit and to retain such personnel. The failure to recruit and to
retain management and technical personnel could have a material adverse effect
on ENStar's anticipated growth, revenues and results of operations.
CONCENTRATION OF REVENUES
During 1995 and the first nine months of 1996, Mayo Foundation accounted
for approximately 11% and 14%, respectively, of Americable's net sales. No other
customers accounted for more than 10% of Americable's revenues. In addition,
Americable derived approximately 61% of its revenues from its 100 largest
customers in 1995, and 65% of its revenues from its 100 largest customers in the
first nine months of 1996. While Americable seeks to build long-term customer
relationships, revenues from any particular customer can fluctuate from period
to period due to such customer's purchasing patterns.
Transition distributes its products through an expanding network of
reseller channels, which include a number of regionally based domestic and
international volume distributors and, to a lesser extent, value-added resellers
("VARs"). In 1995 and the first nine months of 1996, Americable was Transition's
largest domestic customer, accounting for approximately 14% and 15%,
respectively, of domestic net sales (9% and 10%, respectively, overall). During
1995 and the first nine months of 1996, Transition's largest international
customer accounted for approximately 11% and 12%, respectively, of international
net sales (4% and 4%, respectively, overall). Moreover, the ten distributors
that sold the largest amount of Transition's products accounted for
approximately 39% and 43%, respectively, of Transition's net sales for 1995 and
the first nine months of 1996.
Any termination or significant disruption of the companies' relationships
with a number of its principal customers could have a material adverse effect on
ENStar's business, financial condition and results of operations. In addition, a
deterioration in the financial condition of any of its principal customers could
expose ENStar to the possibility of large accounts receivable write-offs, which
would adversely affect ENStar's financial condition and results of operations.
See "BUSINESS OF ENSTAR -- Marketing and Customers."
DEPENDENCE ON KEY SUPPLIERS AND PRODUCT SUPPLY
The networking industry has experienced product supply shortages and
customer order backlogs due to the inability of certain manufacturers to supply
certain products on a timely basis. In addition, certain suppliers have
initiated new channels of distribution that increase competition for the
available product supply. There can be no assurance that suppliers will be able
to maintain an adequate supply of products to fulfill Americable's and
Transition's customer orders on a timely basis. Both Americable and Transition
have experienced product supply shortages in the past and expect to experience
such shortages from time to time in the future. Failure to obtain adequate
product supplies or fulfill customer orders on a timely basis or substantial
change in the cost of components could affect the companies' ability to deliver
products in a timely
24
<PAGE> 30
and cost-effective manner and could have a material adverse effect on ENStar's
business, financial condition, and results of operations.
Transition's products include certain components, including some produced
by Novacom Technologies, Ltd., that are currently available from single or
limited sources, some of which require long order lead times. Although
Transition believes that it would be able to obtain alternative sources of
supply for the components included in its products if required, there can be no
assurance that Transition will be able to locate any such sources or will be
able to obtain alternative sources of supply on a timely and economic basis, if
at all. Any reduction in supply, interruption or extended delay in timely supply
or change in costs of components could materially adversely affect Transition's
business and results of operations and, consequently, the business, financial
condition and results of operations of ENStar.
A significant portion of Americable's revenues is derived from sales of
network hardware, including products of various major suppliers. During 1995
approximately 19% of the Americable's sales represented products manufactured by
Bay Networks, Inc., Americable's agreements with those suppliers from which it
purchases products directly generally contain provisions for periodic renewals
and for termination by the supplier without cause, generally upon relatively
short notice. Although Americable believes its supplier relationships are good,
there can be no assurance that Americable's relationships will continue as
presently in effect. Although Americable believes that it would be able to
obtain alternative sources of supply for its products if required, there can be
no assurance that Americable will be able to locate any such sources or will be
able to obtain alternative sources of supply on a timely and economic basis, if
at all. The loss of a major supplier, including Bay Networks, Inc., the
deterioration of Americable's relationship with a major supplier or the failure
of Americable to establish good relationships with major new suppliers as they
develop could have a material adverse effect on ENStar's business.
INVENTORY MANAGEMENT
The networking industry is characterized by rapid product improvement and
technological change resulting in relatively short product life cycles and rapid
product obsolescence, which can place inventory at considerable valuation risk.
The typical life cycle of Transition's products ranges from 18 months to three
years for its basic LAN and terminal products and 12 to 18 months for its
advanced LAN products. Some of Transition's products include components that are
currently available from limited sources and require long order lead times.
Because of the long lead times and Transition's desire to be responsive to
customer demand, Transition has maintained higher inventory levels compared to
other networking manufacturers. Transition's inventories are valued at the lower
of cost or market and management periodically assesses the appropriateness of
the inventory valuations giving consideration to any slow-moving and nonsalable
inventory relative to current market selling prices of comparable products.
Provisions for inventory obsolescence are recorded in the period any valuation
impairments are identified. For 1995 and the nine month period ended September
30, 1996, total inventory write-offs as a percentage of net sales were 1% and
1.7%, respectively. Due to the ongoing risk of product obsolescence and changes
in customer demand, there can be no assurances that Transition will be able to
successfully manage its existing and future inventories.
Although it is industry practice for Americable's suppliers to provide
price protection to VARs such as Americable in order to reduce the risk of
inventory devaluation, such policies are subject to change. Americable also has
the option of returning, subject to certain limitations, a percentage of its
current product inventories each quarter to certain manufacturers as it assesses
each product's current and forecasted demand. The amount of inventory that can
be returned to suppliers varies under Americable's agreements and such return
policies may provide only limited protection against excess inventory. There can
be no assurance that suppliers will continue such policies, that unforeseen new
product developments will not affect Americable adversely or that Americable can
successfully manage its existing and future inventories. Any inventory
adjustments could adversely affect ENStar's financial condition and results of
operations.
25
<PAGE> 31
COMPETITION
Each of ENStar's businesses faces substantial competition from a large
number of companies, some of which are larger, have greater financial resources,
broader name recognition and, in many cases, lower product and operating costs
than ENStar.
The industry in which Transition operates is highly competitive, and
Transition believes that such competition will continue to intensify. The
industry is characterized by rapid technological change, short product
life-cycles, frequent product introductions and evolving industry standards.
Transition competes with a number of independent companies focused on the LAN
market, including companies with significantly greater financial resources, more
extensive business experience, and greater market and service capabilities than
Transition. Transition competes with a number of companies focused on designing
and manufacturing products for the LAN market, including, among others, 3Com
Corp., Bay Networks, Inc., Cabletron System, Inc., Allied Telesyn International
and Digi International. Americable faces competition from large system
integrators such as AmeriData Technologies, Inc., Vanstar Corporation and a
significant number of smaller regional VARs and network integrators. Additional
competitors with Americable's distribution business include, among others,
Anixter International, Inc. and Graybar Electric Co., Inc. See "BUSINESS OF
ENSTAR -- Competition." There can be no assurance that ENStar will be able to
compete successfully.
ENStar expects to face further competition from new market entrants and
possible alliances between competitors in the future. Certain of ENStar's
current and potential competitors have greater financial, technical, marketing
and other resources than ENStar. As a result, they may be able to respond more
quickly to new or emerging technologies and changes in customer requirements or
to devote greater resources to the development, promotion and sale of their
products and services than ENStar. No assurance can be given that ENStar will be
able to compete successfully against current and future competitors. See
"BUSINESS OF ENStar -- Competition."
SHARES ELIGIBLE FOR FUTURE SALE; CONTROL BY MICHAEL FAMILY
Sales of a substantial number of shares of ENStar Common Stock in the
public market following the Distribution could adversely affect the market price
for the ENStar Common Stock. Upon consummation of the Reorganization the Michael
Family Shareholders, in the aggregate, will beneficially own approximately
1,895,000 shares, or approximately 57%, of the outstanding ENStar Common Stock.
Accordingly, the Michael Family will have the ability to exercise significant
influence over the business and affairs of ENStar, including the ability to
approve or reject corporate actions requiring the approval of shareholders. See
"PRINCIPAL SHAREHOLDERS." The shares of ENStar Common Stock held by the Michael
Family will be "restricted securities" as that term is defined in Rule 144 under
the Securities Act. Such shares are eligible for immediate sale, subject to
compliance with the volume limitations and other restrictions of Rule 144.
ABSENCE OF PRIOR PUBLIC MARKET AND POSSIBLE VOLATILITY OF STOCK PRICE
Prior to this offering, there has been no public market for the ENStar
Common Stock. There can be no assurance that, following this offering, an active
trading market for the ENStar Common Stock will develop or be sustained,
particularly in light of the limited number of shares being distributed in the
Distribution. The market price of the ENStar Common Stock could be subject to
significant fluctuations in response to variations in quarterly operating
results, changes in the market value of its CorVel investment, changes in
earnings estimates by analysts, general conditions in the industries in which
ENStar's customers compete and other events or factors. In addition, the stock
market, from time to time, has experienced extreme price and volume fluctuations
which have particularly affected the market price for companies in ENStar's and
CorVel's industries, and which have often been unrelated to the operating
performance of such companies. These broad fluctuations may adversely affect the
market price of the ENStar Common Stock.
POSSIBLE VOLATILITY OF CORVEL STOCK PRICE
CorVel, in its reports and other information prepared and filed by it with
the Commission, has indicated that the market price of the CorVel Common Stock
may be highly volatile. CorVel has also indicated that
26
<PAGE> 32
factors such as variations in CorVel's revenues, earnings and cash flow, general
market trends in the workers' compensation managed care market, and
announcements of innovations by CorVel or its competitors could cause the market
price of the CorVel Common Stock to fluctuate substantially. Specifically,
CorVel has reported that the quarter to quarter percentage growth in operating
results for each of the three completed fiscal quarters ending December 31, 1995
and March 31, 1996 for its fiscal year ending March 31, 1996 and for the second
quarter ending September 30, 1996 for its current fiscal year was 9.6%, 8.6% and
7.9%, respectively. These quarterly growth rates are lower than the quarterly
growth rates historically experienced by CorVel in recent years, which ranged
from 17.0% to 36.1% during period beginning with the quarter ended June 30, 1993
and ending with the quarter ended September 30, 1995. CorVel's slower growth
rate in those three fiscal quarters was partially attributable to a reduction in
the growth rate of health care expenditures nationally, contributing to a
reduction in the growth rate of claims processed by CorVel. There can be no
assurance that CorVel's growth rate in the future, if any, will be at or near
historical levels. In addition, the stock market has in the past experienced
price and volume fluctuations that have particularly affected companies in the
health care and managed care markets resulting in changes in the market price of
the stock of many companies which may not have been directly related to the
operating performance of those companies. Such broad market fluctuations may
adversely affect the market price of the CorVel Common Stock, which in turn may
adversely affect the market price of the ENStar Common Stock. See "BUSINESS OF
ENSTAR -- Unconsolidated Subsidiary."
CERTAIN RISKS PERTAINING TO THE CORVEL COMMON STOCK
CorVel, in its reports and other information prepared and filed by it with
the Commission, has indicated that an investment in the CorVel Common Stock
involves a high degree of risk, including the potential adverse impact of
government regulations, possible litigation and legal liability, competition,
changes in market dynamics, dependence on key personnel and risks related to
CorVel's growth strategy. These risks are described in more detail in the
reports and other information prepared and filed by CorVel with the Commission.
See "BUSINESS OF ENSTAR -- Unconsolidated Subsidiary."
THE ANNUAL MEETINGS
This Proxy Statement/Prospectus is furnished in connection with the
solicitation of proxies (i) from the holders of Michael Common Stock by the
Michael Board for use at the Michael Annual Meeting and (ii) from the holders of
NSU Common Stock by the NSU Board for use at the NSU Annual Meeting. All
information contained in this Proxy Statement/Prospectus relating to Michael has
been furnished by Michael. All information contained in this Proxy
Statement/Prospectus relating to NSU, Merger Co. or ENStar has been supplied by
NSU.
TIMES AND PLACES; PURPOSES OF MEETINGS
Michael. The Michael Annual Meeting will be held at The Lutheran
Brotherhood Auditorium, 625 Fourth Avenue South, Minneapolis, Minnesota on
Monday, December 30, 1996 at 4:00 p.m. local time. At the Michael Annual
Meeting, the stockholders of Michael will be asked to consider and vote upon the
following items: (i) a proposal to approve the Reorganization Agreement and the
Merger (the "Michael Proposal"), (ii) a proposal to elect nine directors to the
Michael Board, (iii) the ratification of the selection of auditors, and (iv)
such other business as may properly come before the Michael Annual Meeting. The
Reorganization Agreement is included as Appendix I to this Proxy
Statement/Prospectus.
NSU. The NSU Annual Meeting will be held at the Marriott Southwest, 5801
Opus Parkway, Minnetonka, Minnesota on Monday, December 30, 1996 at 1:00 p.m.
local time. At the NSU Annual Meeting, the shareholders of NSU will be asked to
consider and vote upon the following items: (i) a proposal to approve the
Reorganization Agreement and the Merger; (ii) a proposal to approve the Reverse
Stock Split; (iii) a proposal to approve the Distribution; (iv) a proposal to
approve the New Articles; (v) a proposal to elect six directors to the NSU
Board; and (vi) such other business as may properly come before the NSU
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<PAGE> 33
Annual Meeting (proposals (i) through (iv) above are collectively referred to
herein as the "NSU Proposals").
VOTING RIGHTS; VOTES REQUIRED FOR APPROVAL
Michael. The Michael Board has fixed the close of business on November 22,
1996, as the Michael Record Date. Only holders of record of shares of Michael
Common Stock on the Michael Record Date are entitled to notice of and to vote at
the Michael Annual Meeting. As of November 22, 1996, there were 19,395,731
shares of Michael Common Stock outstanding and entitled to vote held by
approximately 515 stockholders of record.
Each holder of record, as of the Michael Record Date, of Michael Common
Stock is entitled to cast one vote per share. The presence, in person or by
proxy, of the holders of a majority of the outstanding shares of Michael Common
Stock entitled to vote is necessary to constitute a quorum at the Michael Annual
Meeting.
Under Delaware law, the affirmative vote, in person or by proxy, of the
holders of a majority of the shares of Michael Common Stock outstanding on the
Michael Record Date is required to approve and adopt the Michael Proposal. The
nine board nominees who receive the highest number of votes will be elected
directors of Michael and a plurality of votes cast on all other matters will be
required to approve such matters.
As of November 22, 1996, directors, nominees and executive officers of
Michael as a group (18 persons) beneficially owned 8,248,762 shares of Michael
Common Stock, or approximately 42.5% of those shares of Michael Common Stock
outstanding as of such date. As of November 22, 1996, NSU beneficially owned
7,354,950 shares of Michael Common Stock or approximately 38% of the shares of
Michael Common Stock outstanding as of such date. The Michael shares
beneficially owned by NSU are included in the shares beneficially owned by
directors and executive officers.
THE MICHAEL BOARD RECOMMENDS THAT HOLDERS OF MICHAEL COMMON STOCK VOTE FOR
THE MICHAEL PROPOSAL AND FOR EACH OF THE NOMINEES FOR ELECTION TO THE MICHAEL
BOARD.
NSU. The NSU Board has fixed the close of business on November 22, 1996 as
the NSU Record Date. Only holders of record of shares of NSU Common Stock on the
NSU Record Date are entitled to notice of and to vote at the NSU Annual Meeting.
On November 22, 1996, there were 9,913,000 shares of NSU Common Stock
outstanding and entitled to vote at the NSU Meeting held by approximately 202
shareholders of record.
Each holder of record, as of the NSU Record Date, of NSU Common Stock is
entitled to cast one vote per share. The presence, in person or by proxy, of the
holders of a majority of the outstanding shares of NSU Common Stock entitled to
vote is necessary to constitute a quorum at the NSU Annual Meeting.
Under Minnesota law, the affirmative vote, in person or by proxy, of the
holders of a majority of the shares of NSU Common Stock outstanding on the NSU
Record Date and entitled to vote is required to approve and adopt the NSU
Proposals. Approval of each of the NSU Proposals by the requisite vote of the
NSU shareholders is required or the Reorganization will not be completed. The
affirmative vote of a majority of the shares of NSU Common Stock present or
represented by proxy and entitled to vote at the NSU Annual Meeting is required
to elect each of the nominees as Directors of NSU for the ensuing year or until
the consummation of the Reorganization.
As of November 22, 1996, directors and executive officers of NSU as a group
beneficially owned approximately 6,265,750 shares of NSU Common Stock or
approximately 63% of NSU Common Stock outstanding as of the NSU Record Date. The
Michael Family Shareholders beneficially owned 5,685,100 shares of NSU Common
Stock, or approximately 57% of the NSU Common Stock outstanding as of the NSU
Record Date, and have agreed in the Orderly Disposition Agreement to vote such
shares in favor of each of the Merger, the Reverse Stock Split and the
Distribution. See "THE REORGANIZATION -- Interest of Certain Persons in the
Reorganization."
THE NSU BOARD UNANIMOUSLY RECOMMENDS THAT HOLDERS OF NSU COMMON STOCK VOTE
FOR EACH OF THE NSU PROPOSALS AND FOR EACH OF THE NOMINEES FOR ELECTION TO THE
NSU BOARD.
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<PAGE> 34
PROXIES
Michael. Votes cast by proxy or in person at the Michael Annual Meeting
will be tabulated by the election inspector appointed for the meeting. All
shares of Michael Common Stock represented by properly executed proxies received
prior to or at the Michael Meeting and not revoked will be voted in accordance
with the instructions indicated in such proxies. If no instructions are
indicated on a properly executed returned proxy, such proxy will be voted FOR
the Michael Proposal. A properly executed proxy marked "ABSTAIN" (or a proxy
marked "withhold vote for" as to the election of directors), although counted
for purposes of determining whether there is a quorum, will not be voted.
Accordingly, since the affirmative vote of a majority of the shares of Michael
Common Stock on the Michael Record Date represented in person or by proxy and
entitled to vote is required for approval of the Michael Proposal, a properly
executed proxy marked "ABSTAIN" will have the effect of a vote against the
Michael Proposal. If a broker indicates on a proxy that it does not have
discretionary authority as to certain shares to vote on a particular matter,
those shares will not be considered as present and entitled to vote with respect
to that matter.
NSU. Votes cast by proxy or in person at the NSU Annual Meeting will be
tabulated by the election inspector appointed for the meeting. All shares of NSU
Common Stock represented by properly executed proxies received prior to or at
the NSU Meeting and not revoked will be voted in accordance with the
instructions indicated in such proxies. If no instructions are indicated on a
properly executed returned proxy, such proxy will be voted FOR the NSU
Proposals. A properly executed proxy marked "ABSTAIN" (or a proxy marked
"withhold vote for" as to the election of directors), although counted for
purposes of determining whether there is a quorum, will not be voted.
Accordingly, since the affirmative vote of a majority of the shares of NSU
Common Stock outstanding on the NSU Record Date, represented in person or by
proxy and entitled to vote, is required for approval of each of the NSU
Proposals, a properly executed proxy marked "ABSTAIN" with respect to any such
proposal will have the effect of a vote against such proposal. If a broker
indicates on the proxy that it does not have discretionary authority as to
certain shares to vote on a particular matter, those shares will not be
considered as present and entitled to vote with respect that matter.
It is not expected that any matter not referred to herein will be presented
for action at the Michael and NSU Annual Meetings. If any other matters are
properly brought before the Michael Annual Meeting or the NSU Annual Meeting,
the persons named in the proxies will have discretion to vote on such matters in
accordance with their best judgment. However, shares represented by proxies that
have been voted "AGAINST" the Michael Proposal, or any of the NSU Proposals, as
the case may be, will not be used to vote "FOR" postponement or adjournment of
the Michael Annual Meeting or the NSU Annual Meeting, as the case may be, for
the purpose of allowing additional time for soliciting additional votes "FOR"
the Michael Proposal or the NSU Proposals, as the case may be. The grant of a
proxy will also confer discretionary authority on the persons named in the proxy
as proxy appointees to vote in accordance with their best judgment on matters
incident to the conduct of the Annual Meetings, including (except as stated in
the preceding sentence) adjournment for the purpose of soliciting additional
votes.
Revocation of Proxies. A stockholder or shareholder giving a proxy may
revoke it at any time prior to the voting of the proxy by filing with the
secretary of Michael or NSU, as the case may be, a written notice of revocation
or another proxy bearing a later date. Unless otherwise noted on the proxy, the
proxies will vote FOR the proposals set forth herein. Any written notice of
revocation or subsequently dated Michael proxy should be mailed or delivered to
Michael Foods, Inc., 324 Park National Bank Building, 5353 Wayzata Boulevard,
Minneapolis, Minnesota 55416; Attention: Secretary. Any written notice of
revocation or subsequently dated NSU proxy should be mailed or delivered to
North Star Universal, Inc., 6479 City West Parkway, Eden Prairie, MN 55344,
Attention: Secretary. A stockholder or shareholder may also revoke his or her
proxy by attending the Michael Annual Meeting or the NSU Annual Meeting and
voting in person. Attendance at the Michael Annual Meeting or the NSU Annual
Meeting will not in itself constitute the revocation of a proxy.
Solicitation of Proxies. Each party will bear its own costs with respect to
the Annual Meetings including the cost of preparing, assembling and mailing the
Notice of Annual Meeting, this Proxy Statement/ Prospectus and the form of
proxy, including the reimbursement of banks, brokers and other nominees for
29
<PAGE> 35
forwarding proxy materials to beneficial owners. Proxies may also be solicited
personally or by telephone by directors, officers and regular employees of
Michael or NSU who will receive no additional compensation.
THE MATTERS TO BE CONSIDERED AT THE MICHAEL AND NSU ANNUAL MEETINGS ARE OF
IMPORTANCE TO THE MICHAEL STOCKHOLDERS AND THE NSU SHAREHOLDERS. ACCORDINGLY,
MICHAEL STOCKHOLDERS AND NSU SHAREHOLDERS ARE URGED TO READ AND CAREFULLY
CONSIDER THE INFORMATION PRESENTED IN THIS PROXY STATEMENT/PROSPECTUS, AND TO
COMPLETE, DATE, SIGN AND PROMPTLY RETURN THE ENCLOSED PROXY IN THE ENCLOSED
POSTAGE-PAID ENVELOPE.
HOLDERS OF MICHAEL AND NSU COMMON STOCK SHOULD NOT SEND ANY CERTIFICATES
REPRESENTING MICHAEL OR NSU COMMON STOCK WITH THE ENCLOSED PROXY CARD. IF THE
TRANSACTIONS ARE APPROVED, A LETTER OF TRANSMITTAL WILL BE MAILED AFTER THE
EFFECTIVE TIME TO EACH PERSON WHO WAS A HOLDER OF OUTSTANDING SHARES IMMEDIATELY
PRIOR TO THE EFFECTIVE TIME. STOCKHOLDERS AND SHAREHOLDERS SHOULD SEND
CERTIFICATES REPRESENTING COMMON STOCK TO THE EXCHANGE AGENT ONLY AFTER THEY
RECEIVE, AND IN ACCORDANCE WITH, THE INSTRUCTIONS CONTAINED IN THE LETTER OF
TRANSMITTAL.
30
<PAGE> 36
PROPOSAL NUMBER ONE: APPROVAL OF THE REORGANIZATION
AGREEMENT AND THE MERGER
PROPOSAL NUMBER TWO: APPROVAL OF THE REVERSE STOCK SPLIT
PROPOSAL NUMBER THREE: APPROVAL OF THE DISTRIBUTION
THE REORGANIZATION
The following information describes certain aspects of the Reorganization.
This description does not purport to be complete and is qualified in its
entirety by reference to the Appendices hereto, including the Reorganization
Agreement and the exhibits thereto, which are attached to this Proxy
Statement/Prospectus as Appendix I and are incorporated herein by reference. All
shareholders are urged to read Appendix I in its entirety. See also "THE
REORGANIZATION AGREEMENT."
EFFECTS OF THE REORGANIZATION
Prior to the consummation of the Merger, NSU will contribute all of its
assets and liabilities other than certain indebtedness and other agreed upon
assets and liabilities to ENStar. See "THE REORGANIZATION AGREEMENT -- Effects
of the Reorganization on the Stockholders of Michael and the Shareholders of
NSU." Upon consummation of the Reorganization on the Effective Date of the
Merger: (i) Merger Co. will be merged with and into Michael and Michael will
become a wholly-owned subsidiary of NSU; (ii) each stockholder of Michael (other
than NSU) will receive, in exchange for each share of Michael Common Stock held
by such stockholder, one share of New Michael Common Stock; (iii) each share of
Michael Common Stock held by NSU will be canceled and retired; (iv) NSU will
change its name to Michael Foods, Inc. and will continue the business previously
conducted by Michael; (v) NSU will effectuate the Reverse Stock Split so as to
cause the shareholders of NSU prior to the Merger to hold fewer shares of common
stock of New Michael than the number of shares of Michael Common Stock held by
NSU prior to the Merger, which difference reflects the shares of Michael Common
Stock effectively surrendered in the Merger in exchange for Michael's assumption
of certain indebtedness of NSU; and (vi) NSU will effectuate the Distribution,
whereby all of the outstanding ENStar Common Stock will be distributed pro rata
to the shareholders of NSU of record as of a record date just prior to the
Effective Date of the Merger.
As part of the negotiations with respect to the structure of the
Reorganization, Michael requested that, in order to avoid confusion on the part
of holders of Michael Common Stock, in the Merger each holder of Michael Common
Stock would receive one share of NSU Common Stock in exchange for each share of
Michael Common Stock held by such stockholder. In order to accommodate this
request, the Reorganization was structured so that the number of outstanding
shares of NSU Common Stock would be reduced through the Reverse Stock Split. In
the Reverse Stock Split, each outstanding share of NSU Common Stock will be
converted into a fraction of one share of New Michael Common Stock determined by
multiplying each such share by a fraction where the denominator is the number of
outstanding shares of NSU Common Stock immediately prior to the Effective Date
and the numerator is the number of shares of Michael Common Stock owned by NSU
at such date less the number of shares of Michael Common Stock owned by NSU
which are retired in consideration for the NSU Net Assumed Liabilities retained
by New Michael. For purposes of the Reorganization Agreement, NSU Net Assumed
Liabilities is defined to be the amount of outstanding NSU subordinated
debentures and subordinated fixed-term or extendible time certificates and the
Dissenting Shares Holdback, less any cash retained by NSU at the time of the
Merger. Under the terms of the Reorganization Agreement, NSU has indicated to
Michael that the NSU Net Assumed Liabilities will be between $25 million and $29
million, except to the extent that the CorVel Stock Sale is made, in which case
the NSU Net Assumed Liabilities may be reduced below $25 million. Based on the
closing price for shares of CorVel common stock on November 20, 1996, which was
$27.50, NSU estimates that the net after-tax proceeds of the CorVel Stock Sale,
if all 200,000 shares of CorVel common stock were sold, would be $5.0 million.
Pursuant to the Reorganization Agreement, as amended, the NSU Net Assumed
Liabilities must be greater than $15 million. The number of shares of Michael
Common Stock to be retired (the "Retired Michael Shares") in consideration for
the NSU Net Assumed Liabilities will be determined by dividing the amount of NSU
Net Assumed Liabilities by the average market price of the Michael Common Stock
during any
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<PAGE> 37
consecutive ten-day trading period, beginning nine days prior to the date of the
Michael Annual Meeting and the NSU Annual Meeting approving the Reorganization
Agreement and ending on March 26, 1997, as may be designated by NSU by written
notice to Michael within two business days after the end of the period so
designated, or in the absence of such designation, the ten consecutive trading
days ending on the third trading day preceeding the Effective Date of the Merger
(the "Average Price of Michael Common Stock") after applying a certain
percentage discount to the Average Price of Michael Common Stock (the "Discount
Factor"). The Discount Factor will be based upon the amount of Net Indebtedness,
ranging from .94 at $15 million to .91 beginning at $28.75 million, resulting in
an effective discount of 6% to 9%, respectively. See "THE REORGANIZATION
AGREEMENT -- Effects of the Reorganization on the Stockholders of Michael and
the Shareholders of NSU."
THE FOLLOWING EXAMPLE IS PRESENTED FOR INFORMATIONAL PURPOSES TO ILLUSTRATE
THE PROCEDURE FOR DETERMINING THE REVERSE STOCK SPLIT RATIO UTILIZING ACTUAL OR
PRO FORMA INFORMATION AS OF SEPTEMBER 30, 1996. THE INFORMATION PRESENTED BELOW
IS NOT INTENDED AS AN ESTIMATE OR PROJECTION OF ANY OF THE DATA THAT WILL BE
USED TO DETERMINE THE ACTUAL REVERSE STOCK SPLIT, NSU NET ASSUMED LIABILITY OR
ANY OTHER AMOUNTS THAT WILL BE USED IN DETERMINING THE CONSIDERATION RECEIVED BY
SUCH SHAREHOLDERS OR STOCKHOLDERS IN THE REORGANIZATION. THE EXAMPLE DOES NOT
TAKE INTO CONSIDERATION THE 3,400,000 SHARES OF MICHAEL COMMON STOCK TO BE
ISSUED TO THE SHAREHOLDERS OF PAPETTI'S IN CONNECTION WITH THE PAPETTI'S
ACQUISITION. SEE "RECENT DEVELOPMENTS." THE ACTUAL REVERSE STOCK SPLIT, NSU NET
ASSUMED LIABILITIES, DISCOUNT FACTOR AND OTHER ASSUMED AMOUNTS MAY BE HIGHER OR
LOWER THAN THE AMOUNTS PRESENTED BELOW. THE PRO FORMA ASSUMPTIONS USED BELOW ARE
DERIVED FROM THE UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS AND
THE NOTES THERETO:
Pro Forma Assumptions:
The Average Price of Michael Common Stock: $11.00 per share (assumed to
be the average of the closing prices of a share of Michael Common Stock
for the ten-day trading period designated by NSU pursuant to the
Reorganization Agreement)
NSU Net Assumed Liabilities: $25,877,000 (assumed to be the NSU Net
Assumed Liabilities at the closing date of the Reorganization)
Discount Factor: .9175 (a discount of 8.25%)
Aggregate number of outstanding shares of NSU Common Stock: 9,913,000
Aggregate number of outstanding shares of Michael Common Stock held by
NSU: 7,354,950
Pro Forma Calculation of the Retired Michael Shares:
<TABLE>
<S> <C> <C> <C>
a. Aggregate number of Retired
Michael Shares = NSU Net Assumed Liabilities
--------------------------------------------------------
Average Price of Michael Common Stock X Discount Factor
b. Aggregate number of Retired
Michael Shares = $25,877,000
--------------
$11.00 X .9175
c. Aggregate number of Retired
Michael Shares = 2,563,983
</TABLE>
Pro Forma Calculation of the Reverse Stock Split Ratio:
<TABLE>
<S> <C> <C> <C>
a. Ratio = (Aggregate number of outstanding shares of Michael Common Stock
held by NSU less Aggregate number of Retired Michael Shares)
----------------------------------------------------------------
Aggregate number of outstanding shares of NSU Common Stock
b. Ratio = (7,354,950 - 2,563,983)
------------------------
9,913,000
c. Ratio = .48
</TABLE>
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<PAGE> 38
Under the hypothetical example provided above, in the Reverse Stock Split
each share of NSU Common Stock issued and outstanding immediately prior to the
Effective Time would be converted into .48 shares of New Michael Common Stock.
NSU has preliminarily indicated that the amount of NSU Net Assumed
Liabilities that New Michael will be required to assume will be between $25
million and $29 million, except to the extent that the CorVel Stock Sale is
made, in which case the NSU Net Assumed Liabilities may be reduced below $25
million. Based on the closing price for shares of CorVel common stock on
November 20, 1996, which was $27.50, NSU estimates that the net after-tax
proceeds of the CorVel Stock Sale, if all 200,000 shares of CorVel common stock
were sold, would be $5.0 million. Pursuant to the Reorganization Agreement, the
NSU Net Assumed Liabilities must be greater than $15 million. At this range of
NSU Net Assumed Liabilities (assuming the CorVel Stock Sale is not made), the
relevant discount factors are .92 (a discount of 8%) if the NSU Net Assumed
Liabilities equal $25 million and .91 (a discount of 9%) if the NSU Net Assumed
Liabilities equal $29 million. Assuming the Average Price of Michael Common
Stock is $11.00 or $17.00, the minimum and maximum average market price
permitted by the Reorganization Agreement, the range of the number of Retired
Michael Shares and the Reverse Stock Split ratio resulting from the application
of the above formula would be as follows:
<TABLE>
<CAPTION>
NUMBER OF REVERSE STOCK NUMBER OF REVERSE STOCK
RETIRED MICHAEL SPLIT RATIO RETIRED MICHAEL SPLIT RATIO
SHARES ASSUMING ASSUMING NSU NET SHARES ASSUMING ASSUMING NSU NET
AVERAGE PRICE NSU NET ASSUMED ASSUMED NSU NET ASSUMED ASSUMED
OF MICHAEL LIABILITIES OF LIABILITIES OF LIABILITIES OF LIABILITIES OF
COMMON STOCK $25 MILLION $25 MILLION $29 MILLION $29 MILLION
- ---------------- ---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
$11.00 2,470,356 0.49 2,897,103 0.45
$17.00 1,598,465 0.58 1,874,596 0.55
</TABLE>
All shares of Michael Common Stock held by NSU will not be converted into
shares of New Michael Common Stock in the Merger and will automatically be
canceled and retired. Each certificate previously representing shares of NSU
Common Stock or Michael Common Stock not held by NSU will thereafter represent
the right to receive a certificate representing shares of New Michael Common
Stock.
For a description of the procedures for exchanging NSU Common Stock or
Michael Common Stock for New Michael Common Stock and, in the case of NSU Common
Stock, for payment of cash in lieu of the issuance of fractional shares, see "--
Procedure for Exchange of Certificates."
EFFECTIVE TIME
If the Michael Proposal is approved and adopted by the requisite vote of
the stockholders of Michael, the NSU Proposals are approved and adopted by the
requisite vote of the shareholders of NSU and the other conditions to the
Reorganization are satisfied (or waived to the extent permitted), the Merger
will be consummated and effected at the time a Certificate of Merger is filed
with the Secretary of State of the State of Delaware.
The Reorganization Agreement provides that NSU and Michael will cause the
Effective Date to occur as promptly as practicable, but in no event later than
ten business days after the approval and adoption of the Michael Proposal by the
requisite vote of the stockholders of Michael, the approval and adoption of the
NSU Proposals by the requisite vote of the shareholders of NSU, satisfaction (or
waiver, to the extent permitted) of the other conditions contained in the
Reorganization Agreement and the establishment of the Average Price of Michael
Stock by NSU. The Reorganization Agreement may be terminated by either NSU or
Michael in certain circumstances, notwithstanding the prior approval and
adoption of the Reorganization Agreement by their respective shareholders and
stockholders. See "THE REORGANIZATION AGREEMENT -- Termination."
BACKGROUND OF THE REORGANIZATION
In March 1987, NSU formed Michael to consolidate and focus development of
NSU's food businesses, and shortly thereafter Michael completed an initial
public offering of approximately 36% of its outstanding
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<PAGE> 39
common stock. Since that time, NSU's ownership of Michael has been reduced from
approximately 64% to approximately 38% of the outstanding Michael Common Stock
through sales by NSU of Michael Common Stock and additional issuances of Michael
Common Stock.
For many years, both before and after the initial public offering of
Michael's Common Stock, NSU raised funds to finance acquisitions and support its
operations by offering and selling subordinated debentures and subordinated
fixed-term and extendible time certificates to the public. Debt service for this
indebtedness was provided through the reinvestment of maturing obligations by
investors, sales of assets and cash flow generated from NSU's operating
subsidiaries. Since the initial public offering of Michael in 1987, however, NSU
has not had the use of cash flow generated by Michael's operations other than
quarterly Michael dividends. Also, in June 1991, CorVel, formerly a wholly owned
subsidiary of NSU, completed an initial public offering of its common stock.
After the CorVel initial public offering, NSU ceased to have the use of cash
flow generated by CorVel. CorVel has not paid dividends on its common stock in
the past.
As a result of these transactions, NSU has experienced cash flow deficits
from operations, which has resulted in greater reliance by NSU on the sale of
subordinated fixed-term and extendible time certificates to finance continuing
operations and service its indebtedness. In response to this situation, NSU's
senior management has, for many years, considered various alternative strategies
and transactions to substantially reduce the amount of NSU's indebtedness and to
permit its shareholders to realize the substantial value of NSU's interest in
Michael. One obvious strategic alternative has always been to participate in a
tax-advantaged transaction involving Michael.
From time to time since 1990, NSU and Michael senior management have had
discussions concerning various possible tax-advantaged transactions that would
result in all or a portion of NSU's substantial ownership interest in Michael
being held directly by NSU's shareholders. Also, certain of the transactions
discussed involved the assumption of some or all of NSU's outstanding
indebtedness in consideration of the retirement of some of the Michael Common
Stock held by NSU. Although a number of alternative transactions and transaction
structures were discussed, agreement was never reached on any particular
transaction, transaction structure or related financial terms and none of these
discussions progressed beyond the preliminary discussion stage.
In the summer of 1994, Jeffrey J. Michael, President and Chief Executive
Officer of NSU, contacted Gregg A. Ostrander, President and Chief Executive
Officer of Michael, to request that Michael and NSU hold discussions again in an
effort to structure a mutually acceptable transaction that would provide for the
assumption by Michael of some or all of NSU's outstanding indebtedness and
permit NSU's shareholders to directly own NSU's interest in Michael. A number of
meetings between senior management of both companies followed in the fall of
1994, and continued off and on through the spring of 1995. During this time the
fundamental elements required by each of NSU and Michael in any such transaction
between them were discussed. These elements included the following: (i) any such
transaction could not result in federal income tax to the parties or their
respective shareholders or stockholders; (ii) the amount of NSU indebtedness
assumed by Michael in any such transaction had to be within parameters to be
agreed upon; (iii) the Michael Common Stock to be retired in consideration for
the debt assumed in any such transaction had to be valued at a discount to the
market; and (iv) Michael had to be protected from the liabilities of NSU
relating to the operations of NSU (other than its investment in Michael Common
Stock). Michael and its financial advisors also concluded that the transfer of
all other assets and liabilities of NSU to a separate company to be spun-off to
the NSU shareholders or some other disposition of such assets and satisfaction
of such liabilities was necessary in order to avoid higher costs of capital that
would otherwise occur if such assets and liabilities were retained after the
Reorganization and to avoid the adverse impact on the value of Michael Common
Stock if New Michael were engaged in businesses unrelated to its core food
processing and distribution businesses. As a result of these discussions, senior
management of both companies, with the assistance of their respective tax and
legal advisors, developed a general transaction structure proposal that
satisfied the parties' fundamental requirements. No agreement was reached,
however, on the financial terms, or on certain of the other terms of this
proposal.
34
<PAGE> 40
Once a potentially acceptable transaction structure proposal had been
developed, advisors of both companies were directed to obtain a preliminary
indication from the IRS as to the tax treatment of the proposal. Discussions
with the IRS occurred during the spring and summer of 1995, which led senior
management of both companies to conclude that there were reasonable prospects
for receipt of a favorable ruling concerning the tax-free nature of the
transaction structure proposal.
Following the discussions with the IRS, NSU retained its financial advisor,
GAHS, in July 1995. Michael had previously engaged its financial advisor, Piper
Jaffray, in April 1995.
Beginning in September 1995, NSU and Michael began meetings involving
senior management and their respective legal, tax and financial advisors to
discuss the financial and other terms relating to the transaction structure
proposal that had been developed and discussed with the IRS. These discussions
continued in October, during which tentative agreement was reached between the
senior managements of NSU and Michael as to certain of the principal terms of
the transaction proposal. On October 27, 1995, immediately following Michael's
regular quarterly board meeting, Michael's management informed the Michael Board
of the status of negotiations with NSU and the principal terms of the
transaction proposal that was currently under consideration by Michael senior
management. Messrs. Jeffrey J. Michael, James H. Michael and Miles E. Efron,
each a member of the board of directors of both NSU and Michael, at the request
of Michael, did not participate in this discussion. At the NSU Board meeting
held on November 7, 1995, NSU's management and its financial advisor discussed
with the NSU Board the principal terms of the transaction proposal that was
currently under consideration by NSU senior management. The NSU Board, after
such discussion, directed and authorized certain officers of NSU to negotiate
the terms of a definitive agreement with respect to the transaction proposed,
subject to final board review and approval.
The transaction proposal presented to each of the Michael and NSU Boards at
their respective meetings in late October and early November included a range of
permitted NSU Net Assumed Liabilities of between $25 million and $38 million and
a corresponding range of Discount Factors of between .92 and .90 (an effective
discount of 8% to 10%), depending on the amount of NSU Net Assumed Liabilities
at the time of the Merger. This range of NSU Net Assumed Liabilities was
negotiated by the parties because NSU desired as much flexibility as possible in
fixing the amount of NSU Net Assumed Liabilities depending upon the market price
of the Michael Common Stock immediately prior to the Merger and whether NSU
would be able to sell certain of its assets for fair value prior to the
Effective Date of the Reorganization. Michael also insisted on a range of NSU
Net Assumed Liabilities in order that the stock repurchase would be accretive to
Michael's pro forma earnings per share and that replacement financing could be
obtained under existing credit arrangements at substantially the same financing
costs to Michael. The maximum permitted amount of NSU Net Assumed Liabilities
was negotiated based on the amount of the NSU Net Assumed Liabilities at the
time the Reorganization Agreement was executed, which was approximately $38
million. For the reasons described above, Michael insisted upon a minimum amount
of Net Indebtedness of $25 million at the time of the execution of the
Reorganization Agreement; however, as described below, the range of NSU Net
Assumed Liabilities was amended to be $15 million to $29 million with a
corresponding range of Discount Factors of between .94 and .91 (an effective
discount of 6% to 9%) in the amendment to the Reorganization Agreement entered
into in connection with the execution of the Papetti's Agreement. See below and
"RECENT DEVELOPMENTS."
Also, as described above, one of the fundamental elements required by
Michael in any transaction with NSU was that the Michael Common Stock to be
repurchased in the transaction be valued at a discount to the market. The
determination of the amount of the Discount Factor based on the amount of Net
Indebtedness of NSU at the time the Merger was negotiated by the parties. The
increase in the effective discount as the amount of Net Indebtedness increases
was required by Michael because of Michael's view that it would cost more for
New Michael to refinance such indebtedness. In negotiating the Discount Factor,
both parties reviewed comparable stock repurchase transactions and found that
the effective discount negotiated by the parties was within the range of
discounts that had been negotiated by other issuers in repurchase transactions.
Over the next several weeks, the terms of the definitive agreement were
negotiated and a definitive agreement was presented to each of the NSU and
Michael Boards at separate meetings held on December 21,
35
<PAGE> 41
1995. Messrs. Michael, Michael and Efron recused themselves from participation
in the meeting of the Michael Board. Each of them participated in the meetings
of the NSU Board. The Boards of Directors of NSU and Michael approved the
Reorganization Agreement at their respective meetings held on that date at which
meetings each of the Boards of Michael and NSU received the opinion of its
respective financial advisor as to the fairness of the transactions contemplated
by the Reorganization Agreement. The Reorganization Agreement was executed by
NSU and Michael later that same day.
In connection with the execution of the Papetti's Agreement by Michael, NSU
and Michael entered into negotiations to amend the Reorganization Agreement to,
among other things (i) extend the date on which the parties' obligations to
consummate the transactions contemplated by the Reorganization Agreement expire
to the later of March 31, 1997 or 90 days after the earlier date on which the
stockholders of Michael and the shareholders of NSU have approved the
Reorganization Agreement and the transactions contemplated thereby; (ii) allow
NSU to choose any ten day trading period beginning nine days prior to such
stockholder and shareholder approval during which the Average Price of Michael
Common Stock will be established; (iii) reduce the range of NSU Net Assumed
Liabilities from $25 million to $38 million to $15 million to $29 million and
(iv) reduce the corresponding range of the Discount Factor from .92 (8%) to .90
(10%) to .94 (6%) to .91 (9%) depending upon the amount of NSU Net Assumed
Liabilities. See "RECENT DEVELOPMENTS" and "THE REORGANIZATION AGREEMENT." An
amendment to the Reorganization Agreement (the "Reorganization Agreement
Amendment") reflecting the agreements reached in such negotiations was approved
by the Michael Board and by the NSU Board on June 26, 1996 and was executed by
Michael and NSU on September 27, 1996.
RECOMMENDATION OF MICHAEL BOARD; MICHAEL'S REASONS FOR THE REORGANIZATION
THE MICHAEL BOARD UNANIMOUSLY RECOMMENDS THAT HOLDERS OF MICHAEL COMMON
STOCK VOTE FOR THE MICHAEL PROPOSAL.
Michael's Reasons for the Transactions. On December 21, 1995, the Michael
Board met to consider the Merger and the transactions contemplated thereby.
Michael's senior management, Michael's legal and accounting advisors and Piper
Jaffray, its investment banker, made presentations to the Michael Board and
discussed with the Michael Board their views and analyses of various aspects of
the proposed transactions. Michael's legal advisors reviewed with the Michael
Board the principal terms of the Reorganization Agreement and ancillary
agreements, the procedures to be followed in considering and adopting the
Reorganization Agreement and the principal conditions to its completion.
Michael's auditors reviewed the tax and accounting consequences of the
Reorganization to Michael and its stockholders and, in particular, the
procedures for the tax ruling request. Piper Jaffray then reviewed its fairness
opinion and supporting documentation. The Michael Board reviewed and considered,
among other things, the background of the proposed Reorganization, the
alternative of NSU remaining a Michael stockholder until it was compelled or
chose to sell or otherwise dispose of its block of Michael Common Stock,
financial and valuation analyses of the Reorganization, the terms of the
Reorganization and the other matters described herein. The Michael Board
reviewed and considered, among other things, the background of the proposed
transaction, Michael's strategic alternatives, financial and valuation analyses
of the transaction, the terms of the Reorganization and the other matters
described herein. Piper Jaffray gave an opinion that, based upon the matters
presented to the Michael Board and as set forth in its opinion, as of such date,
the consideration paid by Michael in the form of Net Indebtedness retained by
New Michael for the Retired Michael Shares and the exchange of Michael Common
Stock for New Michael Common Stock is fair to Michael from a financial point of
view. See "-- Fairness Opinions."
In view of the variety of factors considered in connection with its
evaluation of the Reorganization, the Michael Board did not quantify or
otherwise attempt to assign relative weights to the specific factors considered
in reaching its determination. In reaching its determination to recommend
approval of the transactions, the Michael Board consulted with Michael
management, as well as legal counsel, accounting and tax advisors, and its
investment banker. The Michael Board concluded that the Reorganization will
allow Michael to acquire a large block of its stock at a discount from the
market price of such stock which Michael believes will be accretive to earnings
per share in 1996 and 1997. Although the Michael Board noted that the
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Reorganization would result in a slight reduction, on a pro forma basis, in the
book value per share of Michael Common Stock, this reduction was not a
significant factor in the Michael Board's deliberations, as the reduction was
not significant and was not considered to be an important indicator of value in
the Reorganization. The effective redemption of Michael shares owned by NSU
should also remove the market's perceived adverse effect of NSU holding such a
large position in Michael and should increase the liquidity of Michael Common
Stock. The Michael Board concluded that the amount of indebtedness to be assumed
in the Reorganization would not have a material adverse affect on Michael
primarily because the range of NSU Net Assumed Liabilities to be assumed in the
Reorganization can be serviced by New Michael without an adverse effect on its
earnings per share. Finally, the Michael Board authorized the Reorganization, in
part, based on NSU's willingness to complete the Distribution.
On June 26, 1996 the Michael Board authorized the Reorganization Agreement
Amendment. The Michael Board authorized the Reorganization Agreement Amendment
in light of the anticipated delays associated with the Papetti's transaction and
the Internal Revenue Service ruling request. Additionally, Piper Jaffray
confirmed to the Board of Directors that the changes, including the anticipated
reduced indebtedness assumed, would provide greater financing flexibility and
would not adversely affect the fairness opinion previously given to the Board.
The Michael Board believes that the terms of the Reorganization and the
transactions contemplated thereby are in the best interests of Michael and its
stockholders. Accordingly, the Michael Board has approved the Reorganization
Agreement and the Merger and recommends approval thereof by the stockholders of
Michael.
RECOMMENDATION OF NSU BOARD; NSU'S REASONS FOR THE REORGANIZATION
THE NSU BOARD UNANIMOUSLY RECOMMENDS THAT HOLDERS OF NSU COMMON STOCK VOTE
FOR THE NSU PROPOSALS.
NSU's Reasons for the Reorganization. On December 21, 1995, the NSU Board
met to consider the Reorganization, the terms of the Reorganization Agreement
and Distribution Agreement and the transactions contemplated thereby. NSU's
senior management and representatives of NSU's legal advisor and GAHS, its
independent financial advisor, made presentations to the NSU Board and discussed
with the NSU Board their views and analyses of various aspects of the proposed
transaction. The NSU Board reviewed and considered, among other things, the
background of the proposed transaction, NSU's strategic alternatives, financial
and valuation analyses of the transaction, the terms of the Reorganization
Agreement and the Distribution Agreement, the Merger, the Distribution, the New
Articles and the other matters described herein. GAHS provided an opinion that,
based upon the matters presented to the NSU Board and as set forth in its
opinion, as of such date, that the Reorganization was fair to the shareholders
of NSU from a financial point of view. See "-- Fairness Opinions."
NSU's senior management consulted with each director on the NSU Board
regarding the Reorganization and terms of the Reorganization Agreement Amendment
in light of the Papetti's Acquisition. NSU's senior management and
representatives of NSU's legal advisor and GAHS, its independent financial
advisor, discussed with certain representatives of the NSU Board their views and
analyses of various aspects of the Papetti's Acquisition, its effect on the
Reorganization and the transactions contemplated thereby and the Reorganization
Agreement Amendment. The representatives of the NSU Board reviewed and
considered, among other things, the background of the Papetti's Acquisition, the
effect of the Papetti's Acquisition on Michael, the Michael Common Stock and the
Reorganization, including the delay in consummating the Reorganization, and the
terms of the Reorganization Agreement Amendment. GAHS indicated to the NSU Board
representatives that its opinion that the Reorganization was fair to the
shareholders of NSU from a financial point of view would not change as a result
of the Papetti's Acquisition or the Reorganization Agreement Amendment. At the
time the terms of the Reorganization Agreement Amendment were finalized, each
director on the NSU Board was contacted and the terms of the amendment were
discussed. The NSU Board then authorized the Reorganization Agreement Amendment
by unanimous written consent as of June 26, 1996. See "-- Fairness Opinions."
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In view of the variety of factors considered in connection with its
evaluation of the Reorganization, the NSU Board did not quantify or otherwise
attempt to assign relative weights to the specific factors considered in
reaching its determination. In reaching its determination, the NSU Board
consulted with NSU management, as well as its legal counsel and financial
advisor, and considered a number of factors. The NSU Board considered that the
Reorganization will relieve NSU's operating businesses of significant debt
service obligations with respect to the NSU Indebtedness to be assumed by New
Michael. The NSU Board also considered the advantages of avoiding income
taxation at the corporate level on NSU's holdings of Michael Common Stock while
providing its shareholders with a direct financial interest in Michael. Further,
the NSU Board considered that the Distribution would allow NSU's shareholders to
continue to hold an interest in NSU's other assets and that the Distribution was
required by Michael in order to avoid higher costs of capital to Michael.
The NSU Board believes that the consummation of the Reorganization,
including the execution of the Reorganization Agreement, the Merger, the Reverse
Stock Split, the Distribution and the New Articles are in the best interests of
NSU and its shareholders. Based on these considerations, the NSU Board has
unanimously approved the Merger, the Reverse Stock Split, the Distribution and
the New Articles and authorized the execution of the Reorganization Agreement,
the Reorganization Agreement Amendment and Distribution Agreement and recommends
approval thereof by the shareholders of NSU.
FAIRNESS OPINIONS
Opinion of Michael's Financial Advisor. Michael retained Piper Jaffray as
its investment banker in connection with the Reorganization. Piper Jaffray is an
investment banking firm engaged, among other things, in the valuation of
businesses and their securities in connection with mergers and acquisitions,
underwriting and secondary distributions of securities, private placements and
valuations for estate, corporate and other purposes. While Michael interviewed
other financial advisors to evaluate the Reorganization, Piper Jaffray was
selected because of its long standing relationship with Michael as its financial
advisor and its familiarity with Michael and NSU, and because of its reputation
as a recognized national investment banking firm, with particular expertise in
the food and food products industry. Piper Jaffray was selected by Michael
because of its reputation as a recognized investment banking firm and its
familiarity with Michael and its respective component businesses. Piper Jaffray
makes a market in Michael's Common Stock, provides research coverage for
Michael, and acted as co-manager of public offerings of Michael Common Stock in
1987, 1988 and 1991 and as placement agent for an offering of senior notes in
1989. Piper also provided financial advisory services to Michael in regard to
the Papetti's Acquisition.
Piper Jaffray delivered opinions to the Michael Board as of December 21,
1995, June 26, 1996, and on or about the date of this Proxy
Statement/Prospectus, that, based upon and subject to the matters set forth in
its written opinion as of December 21, 1995 and November 22, 1996, the effective
price per share Michael is paying NSU, in the form of the Net Indebtedness
retained by New Michael, for the Retired Michael Shares and the exchange of
Michael Common Stock for New Michael Common Stock is fair, from a financial
point of view, to Michael. The full text of the written opinion of Piper
Jaffray, dated as of the date of this Proxy Statement/Prospectus, is set forth
as Appendix II to this Proxy Statement/Prospectus and describes the assumptions
made, matters considered and limits on the review undertaken. The following
summary of the opinion is qualified in its entirety by reference to the full
text of the opinion attached hereto as Appendix II. Michael stockholders are
urged to read the opinion in its entirety.
Piper Jaffray's opinion addresses only the fairness of the Reorganization
from a financial point of view to Michael and does not constitute a
recommendation to any stockholder of Michael as to how such stockholder should
vote with respect to the approval of the Reorganization. In connection with its
opinion, Piper Jaffray was not requested to opine as to, and their opinion does
not address, the merits of the basic business decision to proceed with or effect
the Reorganization. Piper Jaffray does not admit that it is an expert within the
meaning of the term "expert" as used in the Securities Act and the rules and
regulations promulgated thereunder, or that its opinions constitute a report or
valuation within the meaning of Section 11 of the Securities Act and the rules
and regulations promulgated thereunder.
In connection with rendering its opinion, Piper Jaffray: (i) reviewed the
Reorganization Agreement; (ii) reviewed the annual reports, Forms 10-K and
audited financial statements for Michael for the three years
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ended December 31, 1995; (iii) reviewed the Forms 10-Q for Michael for the
quarters ended March 31, June 30 and September 30, 1996; (iv) reviewed the
annual reports, Forms 10-K and audited financial statements for NSU for the
three years ended December 31, 1995; (v) reviewed the Forms 10-Q for NSU for the
quarters ended March 31, June 30 and September 30, 1996; (vi) reviewed two year
financial forecasts through December 31, 1998 for Michael furnished by Michael
management; (vii) conducted discussions with members of senior management of
Michael; (viii) conducted discussions with members of senior management of NSU;
(ix) reviewed the historical prices and trading activity for Michael Common
Stock and NSU Common Stock; (x) reviewed the financial terms, to the extent
publicly available, of certain comparable transactions it deemed relevant; (xi)
considered the proforma effect of the proposed Merger on Michael earnings per
share for the two fiscal years ending December 31, 1998; (xii) compared certain
financial and securities data of Michael with certain financial and securities
data of companies deemed similar to Michael or representative of the business
sector in which Michael operates; and (xiii) reviewed other financial data,
performed other analyses and considered other information as it deemed necessary
and appropriate under the circumstances.
The financial forecasts provided to Piper Jaffray included a projected
statement of earnings for 1996 and suggested adjustments for 1997 and 1998. In
addition, the forecasts provided projected weighted average shares outstanding
to enable Piper Jaffray to calculate projected earnings per share. The forecast
was adjusted to give effect to the Reorganization by including projected
interest on the NSU Net Indebtedness and incremental interest expense on current
debt adjusted for the effect of taxes. These adjustments resulted in a pro forma
net income amount for each of the years. Piper Jaffray then calculated the
number of shares retired as a result of the Reorganization, which was subtracted
from the projected weighted average shares outstanding and, in turn, used to
calculate pro forma earnings per share for each of the years. Earnings per share
were calculated as if the Reorganization had occurred as of January 1, 1997 and
a sensitivity analysis was completed on the number of shares retired assuming a
range of NSU Net Assumed Liabilities of between $15 million and $29 million and
a price range for Michael Common Stock between $11 and $17 per share. Piper
Jaffray determined that the Reorganization would be accretive to Michael's
earning per share.
In the course of its review, Piper Jaffray relied upon and assumed the
accuracy and completeness of the financial statements and other information
provided by Michael, NSU or otherwise made available to Piper Jaffray and did
not attempt independently to verify such information. Piper Jaffray further
relied upon the assurances of Michael's management that the information provided
pertaining to Michael was prepared on a reasonable basis and, with respect to
financial planning data, reflected the best currently available estimates. In
that regard, Piper Jaffray assumed, with Michael's consent, that any projections
or forecasts reflected the best currently available estimates and judgments of
the Michael management. Furthermore, Piper Jaffray assumed that neither Michael
nor NSU was a party to any pending transaction (including Michael's pending
transaction with Papetti's, any effect of which has been excluded from its
opinion), including external financings, recapitalizations, acquisitions or
merger discussions, other than the Merger or otherwise in the ordinary course of
business. Piper Jaffray also assumed, with Michael's consent, that the Merger,
the Reverse Stock Split and the Distribution will not result in the recognition
of income or loss for federal income tax purposes.
In arriving at its opinion, Piper Jaffray did not perform any appraisals or
valuations of specific assets of Michael or NSU and expressed no opinion
regarding the liquidation value of Michael or NSU. Its opinion is necessarily
based upon information available to it, existing facts and circumstances and
economic, market and other conditions as they exist and are subject to
evaluation on the date of the opinion. Events occurring after the date of the
opinion could materially affect the assumptions used in preparing its opinion.
Piper Jaffray expressed no opinion as to the prices at which shares of Michael
Common Stock may trade at any future time.
The following is a summary of the three primary analyses performed by Piper
Jaffray in connection with its opinion.
Dilution Analysis. A dilution analysis was done to determine whether the
transaction is dilutive to Michael's earnings per share. The Reorganization
Agreement contemplates that Michael will assume between $15 million and $29
million in NSU Net Assumed Liabilities in exchange for the retirement of a
portion of
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the Michael Common Stock held by NSU. The income statement effects from the
transaction are an increased level of interest expense due to the assumption of
debt and a decreased number of shares of Michael Common Stock outstanding due to
the retirement of a portion of the Michael Common Stock held by NSU. Michael's
pre-transaction earnings per share were compared to the post-transaction
earnings per share to see if and when the Reorganization was dilutive to
Michael's earnings. Piper Jaffray's analysis of those figures currently supports
the conclusion that the transaction will be accretive to New Michael earnings
per share in both fiscal 1997 and 1998. The analysis described above resulted in
a range of accretion to earnings per share for the years 1997 and 1998 from a
low of 1.3% to a high of 10.6%.
Comparable Transactions. Piper Jaffray prepared a comparable transaction
analysis to compare the discount to market to be received by Michael for the
retirement of Michael Common Stock in the Reorganization. The comparable
transaction analysis involves a review of transactions deemed comparable to the
Reorganization. Piper Jaffray focused on the following criteria to obtain a
group of such comparables: (i) privately negotiated transactions in which a
public company acquired a minority block of stock from a shareholder, excluding
open market transactions; (ii) the market capitalization of the acquiring
company exceeded $100 million; (iii) the percentage of shares repurchased was
greater than or equal to 10% but less than 50%; and (iv) the transactions
occurred between January 1, 1992, and November 20, 1996. These criteria yielded
45 transactions.
Piper Jaffray then reviewed the premium or discount paid for the block of
stock at three different points: one day prior to the announcement date, one
week prior to the announcement date and four weeks prior to the announcement
date. Piper Jaffray concluded that the discount factor for the Michael Common
Stock to be retired in consideration for the retention of the NSU Net Assumed
Liabilities compared favorably to the mean and median discounts for the
transactions it reviewed.
Cost Analysis. Piper Jaffray prepared a cost analysis that involved a
review of the costs of the Reorganization to Michael in order to determine a
range of discounts deemed appropriate for the transaction to cover such costs.
The costs Piper Jaffray analyzed included: (i) fixed costs, including all
professional fees (accountants, lawyers and financial advisors) and the costs
associated with the Michael stockholder approval process; and (ii) variable
costs, including (a) interest expense on NSU Net Assumed Liabilities retained by
New Michael, after taxes; (b) incremental interest expense expected to be
incurred on Michael's current line of credit; and (c) underwriting expense for
potentially reselling the repurchased stock in a public equity underwriting. The
aggregate of these costs is dependent on the amount of debt assumed by Michael
and the Michael Common Stock average per share price assumed in the redemption
of Michael Retired Shares and is currently estimated to be in the range of
$980,000 to $3.1 million.
The appropriate discount to apply to the Michael Common Stock price in
order to determine the amount of shares to be repurchased in consideration for
assuming the NSU Net Assumed Liabilities was calculated by dividing the gross
amount of the costs (fixed plus variable) by the sum of the gross amount of the
costs plus the amount of NSU Net Assumed Liabilities. Based on Piper Jaffray's
current analysis, the range of implied appropriate discounts compared favorably
to the discount factor range.
Piper Jaffray focused on the foregoing analysis because, in its opinion,
the most relevant factors in determining the fairness to Michael for the
Reorganization was whether earnings per share would increase as a result of the
Reorganization and whether the discount received for the retirement of shares of
Michael Common Stock held by NSU was adequate in the context of other similar
transactions and actual costs incurred as a result of the Reorganization. Piper
Jaffray did not rely on other methodologies often used in determining the
fairness of reorganization transactions, such as the discounted cash flow
analysis, because in the context of a share repurchase transaction such analyses
were deemed not to be relevant.
In addition to these primary analyses, Piper Jaffray also reviewed certain
stock market information on Michael and NSU as well as on comparable companies
to Michael. The comparable companies included public companies with SIC codes in
the range of 2011 through 2099 (food and kindred products) which had similar
product or market characteristics. Based on this criteria and other factors
considered by Piper Jaffray, eight companies were chosen as comparable companies
to Michael: ConAgra, Inc.; Dean Foods Co.; Foodbrands America, Inc.; Hormel
Foods Corp.; International Multifoods Corp.; Morningstar Group, Inc.;
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Northland Cranberries, Inc.; and Tyson Foods, Inc. While Piper Jaffray
considered these reviews to be relevant and prudent, they did not play a major
role in their determination of the fairness of the consideration exchanged.
The foregoing is a summary of the financial analyses used by Piper Jaffray
in connection with rendering its opinion. The preparation of a fairness opinion
is a complex process and is not necessarily susceptible to partial analysis or
summary description. Selecting portions of the analyses or the summary set forth
above, without considering the analyses as a whole, could create an incomplete
view of the processes underlying Piper Jaffray's opinion. In arriving at its
opinion, Piper Jaffray considered the results of all such analyses. The analyses
were prepared solely for the purposes of Piper Jaffray providing its opinion as
to the fairness of the repurchase and share exchange, from a financial point of
view, to Michael and do not purport to be appraisals or necessarily reflect the
prices at which businesses or securities actually may be sold. No company used
in the comparable company analysis summarized above is identical to Michael and
no transaction used in the comparable transaction analysis summarized above is
identical to the transactions described herein. Any analysis of the fairness of
the Merger, from a financial point of view, to Michael involves complex
considerations and judgments concerning differences in the potential financial
and operating characteristics of the comparable companies and transactions and
other factors in relation to the trading and acquisition values of the
comparable companies. Analyses based upon forecasts of future results are not
necessarily indicative of actual future results, which may be significantly more
or less favorable than those suggested by such analyses. As described above,
Piper Jaffray's opinion was one of many factors taken into consideration by the
Michael Board in making its determination to approve the Reorganization
Agreement.
Michael has agreed to pay Piper Jaffray a fee of $220,000 for rendering its
financial advisory services, including its opinion. This fee was not conditioned
upon the ability of Piper Jaffray to render its opinion or the closing of the
Merger. Michael also agreed to reimburse Piper Jaffray for its reasonable
out-of-pocket expenses, including the fees and disbursements of its counsel, and
to indemnify Piper Jaffray against certain liabilities, including liabilities
under the federal securities laws. As of November 22, 1996 Piper Jaffray had no
beneficial interest in any securities of Michael.
Opinion of NSU's Financial Advisor. NSU retained GAHS as its financial
advisor in connection with the Reorganization. Prior to retaining GAHS, NSU
interviewed two other investment banking firms. In selecting GAHS as its
financial advisor, NSU considered, among other factors, (i) the reputation of
GAHS, particularly relative to advising companies in complex transactions
involving complicated tax and corporate law issues, (ii) the experience level of
the individuals that would be directly involved in advising NSU, (iii) the fact
that GAHS had not previously had any relationship with NSU and might offer a
new, independent perspective concerning the transaction proposal that was then
being discussed by NSU and Michael, as well as alternative transactions and
transaction structures, and (iv) the proposed fees and fee structure of the
engagement. As a customary part of its investment banking business, GAHS is
engaged in the valuation of businesses and securities in connection with mergers
and acquisitions, private placements, and valuations for estate, corporate, and
other purposes. GAHS does not make a market in the NSU Common Stock or Michael
Common Stock.
GAHS delivered its written opinion to the NSU Board, dated as of December
21, 1995, and as of the date of this Proxy Statement/Prospectus that, based upon
and subject to the matters set forth in its written opinions, as of each such
date, the Reorganization is fair to NSU's shareholders from a financial point of
view. In addition, in connection with the NSU Board's consideration of the
Papetti's Acquisition and the Reorganization Agreement Amendment, GAHS indicated
to certain representatives of the NSU Board that its opinion that the
Reorganization was fair to the shareholders of NSU from a financial point of
view would not change as a result of the Papetti's Acquisition or the
Reorganization Agreement Amendment. The full text of the written opinion of
GAHS, dated as of the date of this Proxy Statement/Prospectus, is set forth as
Appendix III to this Proxy Statement/Prospectus and describes the assumptions
made, matters considered, and limits on the review undertaken. NSU shareholders
are urged to read the opinion in its entirety. The following summary of the
opinion is qualified in its entirety by reference to the full text of the
opinion attached as Appendix III to this Proxy Statement/Prospectus. GAHS does
not admit that it is an expert within the meaning of the term "expert" as used
in the Securities Act and the rules and regulations promulgated
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thereunder, or that its opinions constitute a report or valuation within the
meaning of Section 11 of the Securities Act and the rules and regulations
promulgated thereunder.
GAHS's opinion addresses only the fairness of the Reorganization, from a
financial point of view, to NSU's shareholders, and does not constitute a
recommendation to any NSU shareholder as to how such shareholder should vote
with respect to any of the NSU Proposals. In connection with its opinion, GAHS
was not requested to opine as to, and its opinion does not address the merits of
the basic business decision to proceed with or effect the Reorganization.
In arriving at its opinion, GAHS undertook such reviews, analyses, and
inquiries as it deemed necessary and appropriate under the circumstances. Among
other things, GAHS reviewed the Reorganization Agreement, the Distribution
Agreement, and financial and other information relating to NSU and Michael. GAHS
reviewed the reported price and trading activity of NSU and Michael Common
Stock. GAHS compared certain financial and stock market information with respect
to NSU and Michael with similar information for certain other companies,
securities of which are publicly traded. GAHS made inquiries of NSU's management
as to NSU's financial condition, operating results, business outlook plans and
opportunities. GAHS also conducted discussions with members of senior management
of Michael, and reviewed all publicly available information relative to NSU and
Michael.
GAHS relied upon and assumed the accuracy, completeness, and fairness of
the financial statements and other information of NSU and Michael, and did not
attempt independently to verify such information. GAHS further relied upon
assurances by NSU that the information provided to GAHS had a reasonable basis,
and with respect to projections and other business outlook information,
reflected the best currently available estimates, and that NSU was not aware of
any information or fact that would make such information provided to GAHS
incomplete or misleading.
GAHS's opinion is not based on any specific appraisal of the liquidation
value of NSU or Michael or any of their respective assets, or of ENStar or any
of its assets. GAHS did not actively solicit indications of interest or value
from any third parties for NSU or any of its assets; nor did GAHS solicit
indications of interest or value from any third parties for Michael. GAHS is not
expressing any opinion as to the price at which shares of Common Stock of ENStar
or New Michael will trade subsequent to the Effective Date, and GAHS expressly
disclaims any opinion as to prices at which shares of NSU or Michael Common
Stock have traded prior to the date of the Reorganization. GAHS's opinion is
based on the information made available to it and the facts and circumstances as
they exist as of the date of such opinion, and is subject to evaluation on the
date thereof. Events occurring after the date of such opinion could materially
affect the assumptions used in preparing such opinion. GAHS was not requested to
opine, and is not opining, in any way concerning other transactions or
agreements entered into in conjunction with the Reorganization.
GAHS assumed that neither NSU nor Michael was a party to any pending
transaction, except for the Papetti's Acquisition, including external
financings, recapitalizations, acquisitions, or merger discussions, other than
the Reorganization, or in the ordinary course of business. GAHS also assumed,
based on NSU's instructions, that the Reorganization including the Merger and
the Distribution, will not result in recognition of income or loss for federal
income tax purposes.
The following is a summary of the primary analysis performed by GAHS in
connection with its opinion. As the principal element of the Reorganization with
economic consequences to NSU and its shareholders is the terms of the effective
sale by NSU of a portion of its holdings of Michael Common Stock in exchange for
the assumption by Michael of the NSU Net Assumed Liabilities in connection with
the Merger, GAHS focused on the two types of analysis summarized below which it
deemed most relevant: (i) an economic comparison of NSU's alternatives for its
Michael Common Stock, and (ii) a review of comparable transactions. GAHS did not
rely on other methodologies often used in determining the fairness of
reorganization transactions, such as discounted cash flow analysis, because in
the context of a transaction that is effectively a sale by NSU of its Michael
Common Stock, such analyses were deemed not to be relevant.
Economic Comparison of NSU's Alternatives for its Michael Common
Stock. Because ENStar will be configured so as to represent primarily the same
assets and liabilities currently held by NSU, with the
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exception of the Michael Common Stock and the NSU Net Assumed Liabilities of
NSU, ENStar will have the same intrinsic value as NSU prior to the
Reorganization, modified by the economic impact of these two exceptions.
Therefore, as noted above, the net economic impact of the Reorganization on NSU
shareholders is measured by the financial terms of the exchange by NSU of the
Retired Michael Shares for Michael's assumption of NSU Net Assumed Liabilities.
GAHS's first analysis focused on a comparison of the economic impact of this
defacto sale by NSU to Michael of the Retired Michael Shares, to other
alternatives open to NSU for disposition of the Michael Shares held by NSU.
- Public Sale by NSU. GAHS analyzed and evaluated the alternatives
available to NSU for registration of its Michael Common Stock under
applicable federal and state securities laws, and selling such shares to
the public through a secondary offering or in an unregistered, piecemeal
fashion as permitted under applicable laws. GAHS concluded that such
alternative would result in lesser after-tax proceeds and inferior
intrinsic value to NSU's shareholders as compared to the Reorganization,
due to the costs and expenses of such an option, including without
limitation, the income taxes payable by NSU in conjunction with such a sale
or sales, as well as other market issues relating to the impact of such
transaction on the trading value of the Michael Common Stock.
- Private Sale by NSU of its Michael Shares. After analysis and
evaluation, GAHS concluded that a private sale by NSU of its Michael
shares, without registration under applicable federal and state securities
laws, was not practical or appropriate. Moreover, GAHS concluded that, in
light of the tax impact of such an alternative, the intrinsic value to
NSU's shareholders of such a private sale would be inferior to the
Reorganization.
- The Sale of Michael in its Entirety. After analysis and evaluation
and discussions with the management of Michael, including Gregg Ostrander,
its President and Chief Executive Officer and John Reedy, its Chief
Financial Officer, and the management of NSU and the NSU Board, GAHS
concluded that the possible sale of Michael in its entirety was unlikely
and impractical. Such a sale, however, might result in a control premium
and, if properly structured as a tax-free reorganization with respect to
NSU, could result in greater value to the NSU shareholders than that which
they may receive in the Reorganization. Management of Michael confirmed to
GAHS, however, that it had no present intention to pursue such a
transaction based on its belief that it would not be in the best interests
of Michael's shareholders. Moreover, after due consideration and
discussions with management of NSU, GAHS concluded that NSU, despite its
significant holdings of Michael Common Stock, was not in a position to
unilaterally take action that would bring about a sale of Michael in its
entirety without the support or initiation of Michael's management. GAHS
reached this conclusion for several reasons. First, as noted above, a
successful sale of Michael in its entirety would be difficult without
cooperation from management, for example, in gaining access to information
about Michael that any third party acquiror would expect to have in
entering into such a transaction. Second, a sale without support of Michael
management could present potentially high transaction costs in the event
that NSU sought to unseat the current Michael Board and replace management
through a proxy contest. In addition to potentially high costs, the effect
a proxy contest might have on the management of Michael, for example, the
loss of key executives, could reduce the ultimate value of such an approach
to selling Michael. Third, although there have been a number of potential
buyers interested in purchasing discrete product lines of Michael, there
likely would be few potential buyers for Michael as a whole, given the
diversity of its product lines. As a result, marketing Michael as a whole
would be difficult with no guarantee of success, and the failure of such an
effort would likely adversely affect Michael's business. Finally, a
relevant consideration in GAHS's analysis was the requirement that any such
sale of Michael in its entirety would be required to be structured as a
tax-free reorganization with respect to NSU also, in order to avoid
recognition of substantial taxable income by NSU so as to achieve an
intrinsic value to NSU shareholders equal to or greater than the
Reorganization.
Comparable Transactions. GAHS prepared a comparable transaction analysis to
compare the discount to market used in determining the number of Retired Michael
Shares in the Reorganization. The comparable transaction analysis involved a
review of transactions deemed comparable to the Merger. GAHS focused on the
following criteria to determine a group of comparables: (i) privately negotiated
transactions in which a
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public company acquired a minority block of stock from a shareholder, excluding
open market transactions; (ii) the market capitalizations of the acquiring
company exceeded $100 million; (iii) the percentage of shares repurchased was
greater than 10% but less than 50%; and (iv) the transactions occurred between
January 1, 1992 and December 21, 1995.
In addition, GAHS considered and evaluated the unique objectives and
requirements confronting buyer and seller in such comparable transactions,
including without limitation, the alternative opportunities for the seller to
dispose of the stock and the relevance of tax-free or tax-advantaged transaction
structures.
GAHS then reviewed the premium or discount paid for the block of stock at
various points in time prior to and at the effective date of such transactions.
While actual discounts ranged from nominal to 40% or greater, the most
comparable transactions involved discounts in the 5% to 15% range. Key factors
in determining the appropriate discount level in such transactions include the
strength of the public market for the shares, the seller's alternatives for
divesting such shares, the redeeming company's cost of capital and financial
capability, its expenses incurred in conjunction with the stock repurchase, the
impact of the stock repurchase on the company's balance sheet and future cost of
borrowing, as well as requirements for prospective secondary offerings by the
redeeming company, and other special circumstances, including without
limitation, tax advantages and/or costs to the selling shareholder and/or the
redeeming company. Of particular relevance in GAHS's opinion, was the redemption
by E.I. DuPont de Nemours and Company of a substantial number of its shares held
by The Seagram Company Ltd. in April, 1995. The transaction highlights the
market precedence for focusing on the after-tax attributes of a redemption to
the selling company's shareholders.
ENStar Strategic Considerations. GAHS considered that strategic
considerations with respect to the prospects of ENStar were not meaningfully
relevant to the issue of fairness of the Reorganization, due in large measure to
the fact that ENStar represents the same assets and liabilities as NSU prior to
the effective date of the Reorganization, with the exception of the elimination
of the Retired Michael Shares and the Net Indebtedness. Nevertheless, GAHS
considered that, in general, the Reorganization would have a favorable impact on
ENStar's strategic prospects for numerous reasons, including ENStar's increased
focus and decreased leverage vis-a-vis NSU.
The foregoing is a summary of the analyses used by GAHS in connection with
rendering its opinion. The preparation of a fairness opinion is a complex
process and is not necessarily susceptible to partial analysis or summary
description. Selecting portions of the analyses or of the summary set forth
above, without considering the analyses as a whole, could create an incomplete
view of the processes underlying GAHS's opinion. In arriving at its opinion,
GAHS considered the results of all such analyses. The analyses were prepared
solely for the purposes of GAHS providing its opinion as to the fairness of the
Reorganization to NSU shareholders, from a financial point of view, and do not
purport to be appraisals or necessarily reflect the prices at which businesses
or securities actually may be sold. No transaction used in the comparable
transaction analysis summarized above is identical to the Reorganization. Any
analysis of the fairness of the Reorganization to NSU shareholders, from a
financial point of view, involves complex considerations and judgments
concerning differences in the potential financial and operating characteristics
of the comparable transactions and the companies involved and other factors in
relation to the trading and acquisition values of the companies involved in such
transactions. Analyses based upon forecasts of future results are not
necessarily indicative of actual future results, which may be significantly more
or less favorable than those suggested by such analyses. As described above,
GAHS's opinion was one of many factors taken into consideration by the NSU Board
in making its determination to approve the Reorganization.
GAHS has been paid $77,500 for its financial advisory services to date,
including $25,000 in connection with the delivery of its fairness opinion on
December 21, 1995. If the Reorganization is consummated, GAHS will receive an
additional $175,000 to $225,000, depending upon the amount of the Discount
Factor, for its financial advisory services and $75,000 for the issuance of its
fairness opinion. Reasonable out-of-pocket expenses of GAHS will also be
reimbursed by NSU, and NSU has agreed to indemnify GAHS against certain
liabilities. As of November 22, 1996 GAHS had no beneficial interest in any
securities of NSU.
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PROCEDURE FOR EXCHANGE OF CERTIFICATES
General. As soon as practicable after the Effective Time, The First
National Bank of Boston, or another person mutually designated by Michael and
NSU, in its capacity as the Exchange Agent, will send a transmittal letter to
each Michael stockholder and NSU shareholder. The transmittal letter will
contain instructions with respect to the surrender of certificates representing
Michael Common Stock and NSU Common Stock in exchange for certificates
evidencing New Michael Common Stock.
Michael. Upon receipt of stock certificates representing shares of Michael
Common Stock ("Michael Certificates"), the Exchange Agent will deliver shares of
New Michael Common Stock to the surrendering stockholder in accordance with the
terms of the Reorganization Agreement.
If any issuance of shares of New Michael Common Stock in exchange for
shares of Michael Common Stock is to be made to a person other than the Michael
stockholder in whose name the Michael Certificate is registered at the Effective
Time, it will be a condition of such exchange that the certificate so
surrendered be properly endorsed or otherwise in proper form for transfer and
that the Michael stockholder requesting such issuance either pay any transfer or
other tax required or establish to the satisfaction of New Michael that such tax
has been paid or is not payable.
After the Effective Time, there will be no further transfers of Michael
Common Stock on the stock transfer books of Michael. If a Michael Certificate
representing Michael Common Stock is presented for transfer, it will be canceled
and a certificate representing the same number of shares of New Michael Common
Stock will be issued in exchange therefor.
After the Effective Time and until surrendered, shares of Michael Common
Stock will be deemed for all corporate purposes to evidence ownership of an
equal number of shares of New Michael Common Stock. New Michael will not be
obligated to deliver certificates evidencing shares of New Michael Common Stock
to former shareholders of Michael until the Michael Certificates relating to
such shares are surrendered. All declared dividends and distributions which
shall have become payable with respect to such New Michael Common Stock in
respect of a record date after the Effective Time will be paid to the holder of
record of the full shares of New Michael Common Stock regardless of whether such
holder has surrendered for exchange his or her certificates evidencing Michael
Common Stock.
NSU. Upon receipt of stock certificates evidencing shares of NSU Common
Stock ("NSU Certificates"), the Exchange Agent will deliver such number of full
shares of New Michael Common Stock and cash in lieu of fractional shares of New
Michael Common Stock, if any, as such shareholder is entitled to receive after
the Reverse Stock Split, together with any dividends or other distributions of
New Michael to which such shareholder is entitled. No fractional shares of New
Michael Common Stock will be issued to NSU shareholders in connection with the
Reverse Stock Split. In lieu of issuing fractional shares, NSU shareholders will
receive cash (without interest) determined by multiplying (a) the Average Price
of Michael Common Stock multiplied by (b) the fractional share interest which
such shareholders would otherwise be entitled to receive.
If any issuance of shares of New Michael Common Stock in exchange for
shares of NSU Common Stock is to be made to a person other than the NSU
shareholder in whose name the certificate is registered at the Effective Time,
it will be a condition of such exchange that the certificate so surrendered be
properly endorsed or otherwise in proper form for transfer and that the NSU
shareholder requesting such issuance either pay any transfer or other tax
required or establish to the satisfaction of New Michael that such tax has been
paid or is not payable.
After the Effective Time, there will be no further transfers of pre-Reverse
Stock Split NSU Common Stock on the stock transfer books of New Michael. If a
certificate representing pre-Reverse Stock Split NSU Common Stock is presented
for transfer, it will be canceled and a certificate representing the appropriate
number of full shares of New Michael Common Stock and cash in lieu of fractional
shares and any dividends and distributions will be issued in exchange therefor.
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<PAGE> 51
After the Effective Time and until surrendered, shares of pre-Reverse Stock
Split NSU Common Stock will be deemed for all corporate purposes, other than the
payment of dividends and distributions, to evidence ownership of the number of
full shares of New Michael Common Stock into which such NSU Common Stock was
combined in the Reverse Stock Split. No dividends or other distributions, if
any, payable to holders of NSU Common Stock will be paid to the holders of any
NSU Certificates until such certificates are surrendered. Upon surrender of such
NSU Certificates, all such declared dividends and distributions which shall have
become payable with respect to such NSU Common Stock in respect of a record date
after the Effective Time will be paid to the holder of record of the full shares
of New Michael Common Stock represented by the certificate issued in exchange
therefor, without interest.
DISTRIBUTION OF ENSTAR COMMON STOCK
On or prior to the Effective Date of the Merger, NSU will deliver to its
transfer agent certificates representing all of the outstanding shares of ENStar
Common Stock. On the Effective Date, immediately after the Effective Time, NSU
will deliver to such transfer agent an instruction to distribute as promptly as
practicable following the Effective Date to each holder of record of NSU Common
Stock on the record date for the Distribution stock certificates evidencing one
share of ENStar Common Stock for every three shares of NSU Common Stock held of
record by such shareholder on such record date for the Distribution and cash in
lieu of any fractional shares of ENStar Common Stock. No certificate or scrip
representing fractional shares of ENStar Common Stock will be issued as part of
the Distribution, and in lieu of receiving fractional shares each holder of NSU
Common Stock who would otherwise be entitled to receive a fractional share of
ENStar Common Stock pursuant to the Distribution will receive cash for such
fractional share. NSU will instruct its transfer agent to determine the number
of whole shares and fractional shares of ENStar Common Stock allocable to each
holder of record of NSU Common Stock as of the record date for Distribution, to
aggregate all such fractional shares into whole shares and sell the whole shares
obtained thereby in the open market, if possible, at then prevailing prices on
behalf of the holders who otherwise would be entitled to receive fractional
share interests and to distribute to each such holder such holder's ratable
share of the total proceeds of such sale. ENStar will bear the costs and
commissions incurred in connection with such sale. If the transfer agent is
unable to sell such shares in the open market, ENStar will pay to such holders,
in lieu of any fractional share, an amount of cash determined by multiplying (a)
the average closing price per share of ENStar Common Stock on the Nasdaq
National Market during the five days following the Effective Date multiplied by
(b) the fractional share interest to which such holder would otherwise be
entitled.
LOST, STOLEN OR DESTROYED CERTIFICATES
In the event any Michael Certificates or NSU Certificates have been lost,
stolen or destroyed, the Exchange Agent will issue shares of New Michael Common
Stock, in exchange for such lost, stolen or destroyed certificates upon the
making of an affidavit of that fact by the owner of such certificates, provided
that New Michael may, in its discretion require the holder of such lost, stolen
or destroyed certificates to deliver a bond in a reasonable sum as indemnity
against any claim that may be made against New Michael or the Exchange Agent
with respect to the certificates alleged to have been lost, stolen or destroyed.
DETAILED INSTRUCTIONS, INCLUDING A TRANSMITTAL LETTER, WILL BE MAILED TO MICHAEL
STOCKHOLDERS AND NSU SHAREHOLDERS PROMPTLY FOLLOWING THE EFFECTIVE TIME AS TO
THE METHOD OF EXCHANGING CERTIFICATES FORMERLY REPRESENTING SHARES OF MICHAEL
AND NSU COMMON STOCK. MICHAEL STOCKHOLDERS AND NSU SHAREHOLDERS SHOULD NOT SEND
CERTIFICATES REPRESENTING THEIR SHARES TO THE EXCHANGE AGENT PRIOR TO RECEIPT OF
THE TRANSMITTAL LETTER.
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ESCHEAT AND WITHHOLDING
NSU, Merger Co., New Michael and ENStar will not be liable to any holder of
NSU Common Stock or Michael Common Stock for any consideration due such holder
as a part of the Reorganization delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law. New Michael or the
Exchange Agent will be entitled to deduct and withhold from such consideration
to any NSU shareholder such amounts as New Michael or the Exchange Agent is
required to deduct and withhold with respect to the making of such payment under
any provision of federal, state, local or foreign tax law.
INTEREST OF CERTAIN PERSONS IN THE REORGANIZATION
In considering the respective recommendations of the Michael Board and the
NSU Board regarding the Reorganization Agreement and the transactions
contemplated thereby, stockholders of Michael and shareholders of NSU should be
aware that certain members of the management of Michael and NSU and the Michael
and the NSU Boards have certain interests in the Reorganization that may be
different from, or in addition to, the interests of stockholders of Michael and
shareholders of NSU generally. In approving the Reorganization Agreement and the
transactions contemplated thereby, all members of the respective NSU and Michael
Boards, including the outside directors thereof, were aware of the various
interests certain Michael and NSU management and Michael and NSU Board members
had in the transactions contemplated by the Reorganization. Also, each of NSU
and Michael engaged its respective financial advisor and obtained a fairness
opinion as to the fairness of the Reorganization from such advisors at the time
of approving the Reorganization Agreement. The Michael Board, in addition to
taking the precautions noted above, obtained the recusal of three of its
members, Messrs. Michael, Michael and Efron who are shareholders and officers or
directors of NSU, from its meeting approving the Reorganization Agreement.
Additionally, the NSU Board considered that the Michael Family holds
approximately 57% of the outstanding NSU Common Stock; however, it was the NSU
Board's view that the interests of the Michael Family were aligned with the
interests of the other shareholders of NSU. In this regard, the NSU Board noted
that all NSU shareholders will receive equal treatment in the Reorganization.
Also, the terms of the Orderly Disposition Agreement, which was required by
Michael as a condition to executing the Reorganization Agreement, were fully
disclosed to all of the members of the NSU Board.
Michael. All of the current directors of Michael, except James H. Michael
and Orville L. Freeman, will become directors of New Michael. In addition, the
executive officers of Michael will become executive officers of New Michael. See
"THE REORGANIZATION AGREEMENT -- New Michael Management Following the
Reorganization."
Pursuant to the Reorganization Agreement, New Michael will assume all
existing Michael stock option plans and the stock award portion of Michael's
Executive Incentive Plan. At the Effective Time, each outstanding right to
purchase shares of Michael Common Stock (a "Michael Option"), will be assumed by
New Michael in such manner that it is converted into an option to purchase the
same number of shares of New Michael Common Stock at the same exercise price.
Each Michael Option assumed by New Michael will have the same terms and
conditions as then are applicable to such Michael Option. As of November 22,
1996, directors and executive officers of Michael held outstanding Michael
Options to purchase 1,025,692 shares of Michael Common Stock at exercise prices
ranging from $7.11 to $18.88.
NSU. At or prior to the Effective Time, all of the NSU stock options
outstanding under the NSU stock option plans will be canceled or exercised and
all NSU stock option plans will terminate.
Concurrently with the execution of the Reorganization Agreement, the
Michael Family Shareholders, which own an aggregate of 5,685,100 shares (or
approximately 57%) of the outstanding Common Stock of NSU, entered into the
Orderly Disposition Agreement. Under the Orderly Disposition Agreement, the
Michael Family Shareholders have agreed until the Effective Time (i) not to
sell, offer to sell, hypothecate or transfer any shares of NSU, unless sold
pursuant to Rule 144 of the Securities and Exchange Commission, pledged to
secure certain surety bonds or transferred among the Michael Family
Shareholders, (ii) to cause NSU to vote in favor of the Merger, the Reverse
Stock Split, the Distribution and the election of directors
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nominated by the New Michael Board of Directors at any meeting of New Michael
shareholders called for such purpose, and (iii) prepare any necessary pre-merger
notifications as required under the HSR Act. The Michael Family Shareholders
have also agreed to refrain for a period of two years following the Effective
Date from selling, pledging or otherwise disposing of (i) shares of New Michael
Common Stock exceeding 5% of the outstanding shares of New Michael Common Stock,
or (ii) any of their shares to a purchaser who owns or would own more than 5% of
the outstanding New Michael Common Stock without giving an option to New Michael
to purchase such shares, except that they may pledge shares to secure certain
surety bonds. New Michael must exercise its option by completing the purchase of
the shares within twenty days of notification by the Michael Family Shareholders
of an intent to sell. The restrictions do not apply if a tender offer is made
for all of the outstanding New Michael Common Stock unless management of New
Michael announces opposition to the tender offer. In addition, the Michael
Family Shareholders are entitled during such two year period to certain
piggyback registration rights under the Act with respect to the New Michael
Common Stock if New Michael proposes to register common stock under the Act. The
Michael Family Shareholders also are entitled up to two times, during such two
year period, to request registration of a minimum of 500,000 shares for sale in
a public offering. However, New Michael would not be obligated to register
shares if registration would require a special audit and New Michael may delay
the registration for 120 days under certain circumstances. Each selling Michael
Family Shareholder will pay New Michael a pro rata share of the registration
expenses, the aggregate fees and disbursements of underwriters, underwriting
discounts and commissions and transfer taxes, if any, and fees and disbursements
of counsel to the Michael Family Shareholders in connection with any
registration.
Finally, for a period of two years following the Effective Time, the
Michael Family Shareholders will be entitled to nominate two directors to the
New Michael Board if they collectively own ten percent or more of the
outstanding common stock of New Michael and one director to the Board if their
ownership is below ten percent. The initial designees of the Michael Family
Shareholders to the New Michael Board are Jeffrey J. Michael and Miles E. Efron,
both of whom currently are Michael directors. A copy of the Orderly Disposition
Agreement is attached hereto as Exhibit E to the Reorganization Agreement
included in Appendix I.
Peter E. Flynn, Executive Vice President, Chief Financial Officer and
Secretary of NSU, is a party to an employment agreement with NSU and Transition
which terminates December 31, 1997. Pursuant to that agreement, if Mr. Flynn's
employment is terminated due to a "change in control" of NSU, Mr. Flynn is
entitled to receive a single lump sum payment of $297,000. Mr. Flynn holds
options to purchase an aggregate of 134,500 shares of NSU Common Stock with
exercise prices ranging from $4.00 per share to $10.125 per share. The latest
grant of such options was made on August 3, 1992 for 30,000 shares at an
exercise price of $4.63 per share. As of November 20, 1996, the value of such
options was $166,875, assuming a closing price of $7.75 per share of NSU Common
Stock on such date. If Mr. Flynn is terminated by NSU, all of such outstanding
options immediately become vested. The consummation of the Reorganization will
result in such a change in control under the terms of that agreement and Mr.
Flynn's employment with NSU will be terminated.
ACCOUNTING TREATMENT
The Merger will be accounted for as a business combination utilizing the
reverse acquisition method with Michael being the acquiror for accounting
purposes under generally accepted accounting principles. As such, the Merger
will be treated as an acquisition using the purchase method of accounting with
no change in the recorded amount of Michael's assets and liabilities. The assets
and liabilities of NSU that are acquired as a result of the Merger will be
recorded at their fair market values. The ENStar assets and liabilities will be
recorded at their historic amounts, as recorded in the books and records of NSU,
following the Distribution.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Consummation of the Reorganization is conditional upon receiving the
following rulings from the IRS or tax opinions addressed to both Michael and NSU
by counsel or independent certified public accountants
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acceptable to both Michael and NSU, based on customary reliance and subject to
customary qualifications, to the effect that for federal income tax purposes:
The Merger. The Merger will qualify as a reorganization within the
meaning of Section 368(a)(1)(B) of the Code and NSU and Michael will each
be a party to the reorganization within the meaning of Section 368(b) of
the Code. Accordingly: (i) no income, gain or loss will be recognized by
NSU or Michael as a result of the consummation of the Merger; (ii) no gain
or loss will be recognized by the holders of Michael Common Stock upon the
exchange of Michael Common Stock solely for New Michael Common Stock
pursuant to the Merger; (iii) the basis of the New Michael Common Stock
received by a stockholder of Michael pursuant to the Merger will be the
same as the basis of the Michael Common Stock surrendered in exchange
therefor; and (iv) the holding period of the New Michael Common Stock
received by a stockholder of Michael pursuant to the Merger will include
the period during which the Michael Common Stock surrendered therefor was
held, provided the Michael Common Stock is a capital asset in the hands of
the stockholder of Michael at the time of the Merger.
The Reverse Stock Split. The Reverse Stock Split will not be treated
as a stock distribution, or a transaction that has the effect of such a
distribution, to which Sections 301, 305(b) or 305(c) of the Code apply.
Accordingly, no taxable income will be recognized under such Sections by
any of the shareholders of NSU except for cash paid in lieu of fractional
shares, which cash payment shall be treated as received by the holder of
NSU Common Stock as a distribution in redemption of the fractional share
interest and such shareholder will recognize gain or loss, subject to the
provisions and limitations of Section 302 of the Code.
The Distribution. The Distribution will qualify as a tax-free
distribution under Sections 355 and 368(a)(1)(D) of the Code. Accordingly:
(i) NSU shareholders will not recognize income, gain or loss upon the
receipt of ENStar Common Stock; (ii) the tax basis of the shares of ENStar
Common Stock and New Michael Common Stock (including any fractional share
interests to which an NSU shareholder is entitled) held by an NSU
shareholder after the Distribution will be the same as the tax basis of the
shares of NSU Common Stock held by such shareholder immediately before the
Distribution, allocated in proportion to the fair market values of the
shares of ENStar Common Stock and New Michael Common Stock on the
Distribution Date; (iii) the holding period for the shares of ENStar Common
Stock received by the NSU shareholders will include the holding period of
the shares of NSU Common Stock with respect to which the Distribution was
made, provided that the shares of NSU Common Stock are held as a capital
asset on the Distribution Date; and (iv) where cash is received by a holder
of NSU Common Stock pursuant to the Distribution in lieu of fractional
share interests in NSU Common Stock, the cash payment will be treated as
received by the holder of NSU Common Stock as a distribution in redemption
of the fractional share interest and such shareholder will recognize gain
or loss, subject to the provisions and limitations of Section 302 of the
Code.
If such rulings or tax opinions are not received, the Reorganization will
not be consummated unless the conditions requiring their receipt are waived and
the approvals of Michael stockholders and NSU shareholders are resolicited by
means of an updated Proxy Statement/Prospectus.
Treasury regulations governing Section 355 of the Code require that each
NSU shareholder who receives shares of ENStar Common Stock pursuant to the
Distribution attach a statement to the federal income tax return that will be
filed by the shareholder for the taxable year in which such shareholder received
the shares of ENStar Common Stock, which statement shows the applicability of
Section 355 of the Code to the Distribution. ENStar has represented that it will
provide each ENStar shareholder with information necessary to comply with this
requirement.
The rulings described above will be based upon certain representations,
including representations that (i) the holders of Michael Common Stock do not
have any plan or intention to sell, exchange or otherwise dispose of a number of
shares of New Michael Common Stock received pursuant to the Merger that would
reduce the ownership of New Michael Common Stock by all of the pre-Merger
holders of Michael Common Stock to a number of shares having a value, as of the
date of the Merger, of less than 50% of the value of all of the formerly
outstanding Michael Common Stock as of the same date and (ii) the holders of
ENStar
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Common Stock do not have any plan or intention to sell, exchange or otherwise
dispose of any of their ENStar or New Michael Common Stock following and as part
of the Distribution.
Where cash is received by a holder of NSU Common Stock who exercises
dissenters' rights in connection with the Distribution, the cash payment will be
treated as received by the holder of NSU Common Stock as a distribution in
redemption of such shareholder's NSU Common Stock and such shareholder will
recognize gain or loss, subject to the provisions and limitations of Section 302
of the Code.
The foregoing is only a general description of certain anticipated federal
income tax consequences of the Merger, Reverse Stock Split, and Distribution
without regard to the particular facts and circumstances of the tax situation of
each stockholder of Michael or shareholder of NSU. It does not discuss all of
the consequences that may be relevant to Michael's stockholders or NSU's
shareholders entitled to special treatment under the Code (such as insurance
companies, dealers in securities, exempt organizations or foreign persons) or to
shareholders of NSU or stockholders of Michael who acquired their NSU Common
Stock or Michael Common Stock pursuant to the exercise of employee stock options
or otherwise as compensation. The summary set forth above does not purport to be
a complete analysis of all potential tax effects of the transactions
contemplated by the Reorganization Agreement or the Merger itself or the
Distribution Agreement or the Distribution itself. No information is provided
herein with respect to the tax consequences, if any, of the Merger, Reverse
Stock Split or Distribution under state, local or foreign tax laws.
THIS FEDERAL INCOME TAX DISCUSSION IS FOR GENERAL INFORMATION ONLY AND MAY NOT
APPLY TO ALL HOLDERS OF NSU COMMON STOCK OR TO ALL HOLDERS OF MICHAEL COMMON
STOCK. SUCH HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE
SPECIFIC TAX CONSEQUENCES OF THE REORGANIZATION.
REGULATORY APPROVALS
Antitrust. Under the HSR Act and the rules and regulations thereunder, the
Reorganization may not be consummated until notifications have been given and
certain information has been furnished to the Antitrust Division of the United
States Department of Justice (the "Antitrust Division") and the FTC and
specified waiting period requirements have been satisfied. NSU and Michael each
filed with the Antitrust Division and the FTC a Notification and Report Form
(the "Notification and Report Form") with respect to the Merger and the initial
waiting period for each of these filings expired at 11:59 p.m. on May 28, 1996.
LISTING OF NEW MICHAEL COMMON STOCK; DIVIDENDS
New Michael expects to continue the Nasdaq National Market listing of NSU
Common Stock, but will use the symbol MIKL, rather than NSRU, and will
discontinue the listing of New Michael Common Stock on the Pacific Stock
Exchange. The payment of future dividends on New Michael Common Stock will be a
business decision to be made by the New Michael Board from time to time based
upon the results of operations and financial condition of New Michael and such
other factors as the New Michael Board considers relevant.
LISTING OF ENSTAR COMMON STOCK; DIVIDENDS
ENStar has applied to have the ENStar Common Stock approved for quotation
on the Nasdaq National Market under the symbol "ENSR." Since ENStar will not
have been publicly traded prior to the Distribution, there can be no assurance
that an active market will develop or be sustained after the Distribution,
although NSU has been advised that certain market makers in NSU Common Stock
expect to make a market in ENStar Common Stock. Management of ENStar currently
intends to retain any earnings for use in its operations and does not anticipate
paying any cash dividends in the foreseeable future.
EFFECT ON STOCK OPTION PLANS
The 1987 Incentive Stock Option Plan of Michael, the 1987 Non-Qualified
Stock Option Plan of Michael, the 1992 Stock Option Plan for Non-Employee
Directors of Michael, the 1994 Executive Incentive
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Plan, and the 1994 Executive Performance Share Award Plan (the "Michael Stock
Plans") and the Michael Options will be assumed and adopted by New Michael in
accordance with the terms of the Michael Stock Plans and the Michael Options,
and will have the rights provided in such plans, which will remain unaffected by
the Merger. New Michael will reserve a sufficient number of authorized but
unissued shares of New Michael Common Stock for issuance under the Michael Stock
Plans. As required pursuant to the terms of the Reorganization Agreement, all
outstanding NSU stock options will be exercised or canceled by the Effective
Date and all NSU stock option plans will be terminated.
FEDERAL SECURITIES LAWS CONSEQUENCES
All shares of New Michael Common Stock received by Michael stockholders and
NSU shareholders in the Merger, and all shares of ENStar Common Stock received
by NSU shareholders in the Distribution, will be freely transferable, except
that shares of New Michael Common Stock received by persons who are deemed to be
"affiliates" (as such term is defined under the Securities Act), of Michael or
NSU prior to the Merger and shares of ENStar Common Stock received by persons
who are deemed to be "affiliates" of NSU or ENStar may be resold by them only in
transactions permitted by the resale provisions of Rule 145 promulgated under
the Securities Act (or Rule 144 in the case of such persons who become
affiliates of New Michael or ENStar) or as otherwise permitted under the
Securities Act. Persons who may be deemed to be affiliates of Michael, NSU,
ENStar or New Michael generally include individuals or entities that control,
are controlled by, or are under common control with, such party and may include
certain officers and directors of such party as well as principal stockholders
of such party.
DISSENTERS' RIGHTS
Under the Delaware General Corporation Law (the "DGCL"), holders of Michael
Common Stock are not entitled to dissenters' rights in connection with the
Merger because the Michael Common Stock is designated as a national market
system security on an interdealer quotation system by Nasdaq, Inc., and the
consideration which such holders will receive in the Merger consists solely of
New Michael Common Stock, which will also be designated as a national market
system security on an interdealer quotation system by Nasdaq, Inc.
Holders of NSU Common Stock who do not vote in favor of the Distribution
and who have properly complied with Sections 302A.471 and 302A.473 of the MBCA
will be entitled to dissenters' rights. Under the Reorganization Agreement, NSU
is not required to complete the Merger if holders of 1% or more of the
outstanding NSU Common Stock effectively elect dissenters' rights.
Shareholders of NSU that follow the procedures set forth in Section
302A.473 will be entitled to have their shares of NSU Common Stock appraised by
a Minnesota court and to receive payment of the "fair value" of such shares as
determined by that court. The shares of NSU Common Stock with respect to which
the holder has perfected a demand for dissenters' rights in accordance with
Section 302A.473 and has not effectively withdrawn or lost his rights to such
appraisal are referred to in this Proxy Statement/Prospectus as the "Dissenting
Shares."
Section 302A.473 entitles any holder of the NSU Common Stock who objects to
the Distribution, in lieu of receiving securities to which he or she would be
entitled to under the Reorganization Agreement and the Distribution Agreement,
to dissent therefrom and obtain payment for the "fair value" of his or her
shares of NSU Common Stock. Any shareholder of NSU contemplating the exercise of
these dissenters' rights should carefully review the provisions of Sections
302A.473 of the MBCA which has been provided as Appendix IV to this Proxy
Statement/Prospectus, particularly the specific procedural steps to perfect such
rights. SUCH RIGHTS WILL BE LOST IF THE PROCEDURAL REQUIREMENTS OF SECTION
302A.473 ARE NOT FULLY AND PRECISELY SATISFIED. Subject to the more complete
description below, the procedural requirements for the exercise of dissenters'
rights can be summarized as follows: (i) the dissenting NSU shareholder must
file with NSU before the vote on the Reorganization a written notice of intent
to demand the fair value of his or her shares of NSU Common Stock; (ii) the
shareholder must not vote in favor of the Reorganization; (iii) if the
Reorganization is approved, the shareholder must demand payment for his
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or her shares of NSU Common Stock and deposit the certificates representing such
shares with New Michael; (iv) New Michael will estimate the fair value of such
shares and pay the shareholder an amount equal to such value; and (v) if the NSU
dissenting shareholder disagrees with the estimate of such value, the
shareholder must demand payment from New Michael of the difference between the
amount claimed to be the fair value and the amount paid, which, if not agreed to
by Michael, will be submitted for determination by a Minnesota court.
Set forth below (to be read in conjunction with the full text of Section
302A.473 included with this Proxy Statement/Prospectus) is a brief description
of the procedures relating to the exercise of dissenters' rights. The following
description does not purport to be a complete statement of the provisions of
Section 302A.473 and is qualified in its entirety by reference thereto.
Under Section 302A.473, Subd. 3, a shareholder of NSU who wishes to
exercise dissenters' rights (a "Dissenter") must file with NSU at 6479 City West
Parkway, Eden Prairie, Minnesota 55344 before the vote on the NSU Proposals, a
written notice of intent to demand the "fair value" of NSU Common Stock owned by
such shareholder. A shareholder of NSU may not assert dissenters' rights as to
less than all of the shares registered in the name of such shareholder unless
that shareholder dissents with respect to all the shares that are beneficially
owned by another person but registered in the name of such shareholder and
discloses the name and address of each beneficial owner on whose behalf such
shareholder dissents. In that event, the rights of the Dissenter shall be
determined as if the shares as to which such shareholder dissented and the other
shares were registered in the names of different shareholders. A beneficial
owner of shares of NSU Common Stock who is not the record holder may assert
dissenters' rights with respect to shares held on behalf of the beneficial
owner, and shall be treated as a Dissenter, if the beneficial owner submits to
NSU a written consent of the record holder of such shares. IN ADDITION, THE
SHAREHOLDER MUST NOT VOTE HIS OR HER SHARES IN FAVOR OF THE DISTRIBUTION. A VOTE
AGAINST SUCH PROPOSAL WILL NOT IN ITSELF CONSTITUTE SUCH A WRITTEN NOTICE AND A
FAILURE TO VOTE WILL NOT AFFECT THE VALIDITY OF A TIMELY WRITTEN NOTICE.
HOWEVER, THE SUBMISSION OF A BLANK PROXY WILL CONSTITUTE A VOTE IN FAVOR OF SUCH
PROPOSAL AND A WAIVER OF STATUTORY DISSENTERS' RIGHTS.
If the Distribution is approved by the shareholders of NSU, New Michael
will send to all Dissenters who file the necessary notice of intent to demand
the fair value of their shares and who did not vote their shares in favor of
such proposals, a notice containing certain information required by Section
302A.473, Subd. 4, including without limitation the address to which a Dissenter
must send a demand for payment and certificates representing shares in order to
obtain payment for such shares and the date by which they must be received. In
order to receive the fair value of the shares under Section 302A.473, a
Dissenter must demand payment and deposit certificates representing shares of
NSU Common Stock within 30 days after such notice from New Michael is given.
Under Minnesota law, notice by mail is given by New Michael when deposited in
the United States mail. A SHAREHOLDER WHO FAILS TO MAKE DEMAND FOR PAYMENT AND
TO DEPOSIT CERTIFICATES AS REQUIRED BY SECTION 302A.473, SUBD. 4, WILL LOSE THE
RIGHT TO RECEIVE THE FAIR VALUE OF HIS OR HER SHARES UNDER SUCH SECTION
NOTWITHSTANDING THE TIMELY FILING OF NOTICE OF INTENT TO DEMAND PAYMENT UNDER
SECTION 302A.473, SUBD. 3.
Except as provided below, if demand for payment and deposit of stock
certificates is duly made by a Dissenter with New Michael as required by the
notice, then after the Effective Time or the receipt of the demand, whichever is
later, New Michael will pay the Dissenter an amount that New Michael estimates
to be the fair value of the Dissenter's shares of NSU Common Stock, with
interest, if any. Under Sections 302A.471 and 302A.473, "fair value" means the
value of the shares of NSU Common Stock immediately before the Effective Time
and "interest" means interest commencing five days after the Effective Date
until the time of payment, calculated at the rate provided in Minnesota Statutes
Section 549.09. If the Dissenter believes the payment received from New Michael
is less than the fair value of the shares of NSU Common Stock, with interest, if
any, such Dissenter must give written notice to New Michael of his or her own
estimate of the fair value of the shares of NSU Common Stock, with interest, if
any, within 30 days after the date of New
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Michael's remittance, and must demand payment of the difference between his or
her estimate and New Michael's remittance. If the Dissenter fails to give
written notice of such estimate to New Michael within the 30-day time period,
such Dissenter will be entitled only to the amount remitted by New Michael.
New Michael may withhold such remittance with respect to shares of NSU
Common Stock for which the Dissenter demanding payment (or persons on whose
behalf such Dissenter acts) was not the beneficial owner as of December 21,
1995, the first public announcement date of the Merger (the "Public Announcement
Date"). As to each Dissenter who has validly demanded payment, following the
Effective Time or the receipt of demand, whichever is later, New Michael will
mail its estimate of the fair market value of such Dissenter's shares of NSU
Common Stock and offer to pay this amount with interest, if any, to the
Dissenter upon receipt of such Dissenter's agreement to accept this amount in
full satisfaction. If such Dissenter believes that New Michael's offer is less
than the fair value of the shares of NSU Common Stock, with interest, if any,
such Dissenter must give written notice to New Michael of his or her own
estimate of the fair value of the shares of NSU Common Stock with interest, if
any, and demand payment of this amount. This demand must be mailed to New
Michael within 30 days after the mailing of New Michael's offer. If the
Dissenter fails to make this demand within such 30 day time period, such
Dissenter shall be entitled only to the amount offered by New Michael.
If New Michael and the Dissenter cannot reach a settlement within 60 days
after New Michael receives the Dissenter's estimate of the fair value of his or
her shares of NSU Common Stock, then New Michael must file a petition in the
district court of Hennepin County, Minnesota, requesting that the court
determine the statutory fair value of the NSU Common Stock, with interest, if
any. All Dissenters whose demands are not settled within the applicable 60-day
settlement period will be made parties to this proceeding.
The court will then determine whether each Dissenter in question has fully
complied with the provisions of Section 302A.473, and for all Dissenters who
have fully complied and not forfeited statutory dissenters' rights, will
determine the fair value of the Dissenters' shares, taking into account any and
all factors the court finds relevant (including, without limitation, the
recommendation of any appraisers that may have been appointed by the court),
computed by any method that the court, in its discretion, sees fit to use,
whether or not used by New Michael or a Dissenter. The fair value of the
Dissenters' shares as determined by the court is binding on all shareholders and
may be less than, equal to or greater than the consideration to the holders if
the Reorganization is completed. However, under the statute, Dissenters are not
liable to New Michael for the amount, if any, by which payments remitted to the
Dissenters exceed the fair value of such shares determined by the court, with
interest. The costs and expenses of this court proceeding will be assessed
against New Michael, except that the court may assess part or all of such costs
and expenses against a Dissenter whose action in demanding payment is found to
be arbitrary, vexatious or not in good faith.
Under Section 302A.471, Subd. 4, a shareholder of NSU has no right at law
or equity to set aside the consummation of the Merger, the Reverse Stock Split,
the Distribution or the New Articles, unless the adoption thereof is fraudulent
with respect to such shareholder or NSU.
FAILURE TO FOLLOW THE STEPS REQUIRED BY SECTION 302A.473 FOR PERFECTING
DISSENTERS' RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS. IN VIEW OF THE
COMPLEXITY OF THE PROVISIONS OF SECTION 302A.473, SHAREHOLDERS OF NSU WHO ARE
CONSIDERING DISSENTING FROM THE DISTRIBUTION SHOULD CONSULT THEIR OWN LEGAL
ADVISORS.
NSU shareholders considering exercising dissenters' rights should bear in
mind that the fair value of their NSU Common Stock determined under Section
302A.473 could be more than, the same as or less than the value of the
consideration they will receive pursuant to the Reorganization Agreement if they
do not exercise dissenters' rights. In addition, in most cases, NSU shareholders
who receive cash for the fair value of their shares of NSU Common Stock upon the
exercise of dissenters' rights will realize taxable gain or loss for federal
income tax purposes. EACH SHAREHOLDER OF NSU IS URGED TO CONSULT WITH HIS OR HER
OWN PERSONAL TAX AND FINANCIAL ADVISORS CONCERNING FEDERAL INCOME TAX
CONSEQUENCES OF THE EXERCISE OF DISSENTERS' RIGHTS, AS WELL AS ANY APPLICABLE
STATE, LOCAL, FOREIGN OR OTHER TAX CONSEQUENCES, BASED UPON SUCH SHAREHOLDER'S
OWN PARTICULAR FACTS AND CIRCUMSTANCES.
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THE REORGANIZATION AGREEMENT
The following information describes certain aspects of the Reorganization
Agreement. This description does not purport to be complete and is qualified in
its entirety by reference to the Appendices hereto, including the Reorganization
Agreement, the exhibits thereto and the Reorganization Agreement Amendment,
which are attached to this Proxy Statement/Prospectus as Appendix I and are
incorporated herein by reference. All stockholders are urged to read Appendix I
in its entirety. See also "THE DISTRIBUTION AGREEMENT."
GENERAL
The Reorganization Agreement provides that: (i) Merger Co. will be merged
with and into Michael and Michael will become a wholly-owned subsidiary of NSU;
(ii) in the Merger, each stockholder of Michael (other than NSU) will receive,
in exchange for each share of Michael Common Stock held by such stockholder, one
share of New Michael Common Stock; (iii) each share of Michael Common Stock held
by NSU will be canceled and retired; (iv) NSU will change its name to Michael
Foods, Inc. and will continue the business previously conducted by Michael
(Michael will change its name to Michael Foods of Delaware, Inc.); (v) prior to
the consummation of the Merger, NSU will have transferred to ENStar all of its
assets and liabilities other than certain indebtedness and cash, as determined
by NSU and other agreed upon assets and liabilities; (vi) the outstanding common
stock of ENStar will, conditioned upon the consummation of the Merger, be
distributed pro rata to the shareholders of NSU of record as of a record date
just prior to the Effective Date; and (vii) immediately prior to the Effective
Time, NSU will effectuate the Reverse Stock Split so as to cause the
shareholders of NSU prior to the Merger to hold fewer shares of common stock of
New Michael than the number of shares of Michael Common Stock held by NSU prior
to the Merger, which difference reflects the shares of Michael Common Stock
effectively surrendered in the Merger in exchange for Michael's assumption of
certain indebtedness of NSU. The ratio of the Reverse Stock Split will be
determined pursuant to the terms of the Reorganization Agreement in the manner
described below. See also "THE REORGANIZATION -- Effects of the Reorganization."
EFFECTS OF THE REORGANIZATION ON THE STOCKHOLDERS OF MICHAEL AND THE
SHAREHOLDERS OF NSU
Michael Stockholders. Upon consummation of the Merger, each outstanding
share of Michael Common Stock, other than the Michael Common Stock owned by NSU,
will be converted into the right to receive one share of New Michael Common
Stock. Upon the consummation of the Merger, each outstanding share of Michael
Common Stock owned by NSU will be canceled and retired without any payment
therefor.
On and after the Effective Date, and until surrendered for exchange, each
outstanding stock certificate which immediately prior to the Effective Time
represented shares of Michael Common Stock will be deemed for all purposes to
evidence ownership of and to represent the same number of whole shares of New
Michael Common Stock and the record holder of such outstanding certificate will,
after the Effective Date, be entitled to vote the shares of New Michael Common
Stock into which such shares of Michael Common Stock will have been converted on
any matters on which the holders of record of the New Michael Common Stock, as
of any date subsequent to the Effective Date, are entitled to vote. In any
matters relating to such certificates of Michael Common Stock, New Michael may
rely conclusively upon the record of stockholders maintained by Michael or its
agent containing the names and addresses of the holders of record of Michael
Common Stock on the Effective Time.
NSU Shareholders. On the Effective Date, immediately prior to the Effective
Time, but in any event subject to the consummation of the Merger, NSU will
effectuate the Reverse Stock Split. In the Reverse Stock Split, each outstanding
share of NSU Common Stock will be converted into a fraction of one share of New
Michael Common Stock determined by multiplying each such share by a fraction
where the denominator is the number of outstanding shares of NSU Common Stock
immediately prior to the Effective Date and the numerator is the number of
shares of Michael Common Stock owned by NSU at such date less the Retired
Michael Shares. For purposes of the Reorganization Agreement, NSU Net Assumed
Liabilities is defined to be the amount of outstanding NSU subordinated
debentures and fixed or extendible time certificates and the Dissenting Shares
Holdback less cash retained by New Michael. The Dissenting Shares
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Holdback is an amount to be mutually agreed upon by NSU and Michael based on the
number of Dissenting Shares. NSU has preliminarily indicated to Michael that the
NSU Net Assumed Liabilities to be retained by New Michael will be between $25
million and $29 million, except to the extent that the CorVel Stock Sale is
made, in which case the NSU Net Assumed Liabilities may be reduced below $25
million. Based on the closing price for shares of CorVel common stock on
November 20, 1996, which was $27.50, NSU estimates that the net after-tax
proceeds of the CorVel Stock Sale, if all 200,000 shares of CorVel common stock
were sold, would be $5.0 million. Pursuant to the Reorganization Agreement, as
amended, the NSU Net Assumed Liabilities must be greater than $15 million. The
number of shares of Michael Common Stock effectively retired as a result of the
Reorganization in consideration for the NSU Net Assumed Liabilities will be
determined by dividing the amount of NSU Net Assumed Liabilities by the Average
Price of Michael Common Stock after applying a certain percentage discount to
the Average Price of Michael Common Stock. The Discount Factor will be based
upon the amount of NSU Net Assumed Liabilities, ranging from 94% at $15 million
to 91% beginning at $28.75 million, resulting in an effective discount of
between 6% and 9%. The Discount Factor is determined pursuant to Exhibit A to
the Reorganization Agreement, a copy of which is included in Appendix I to this
Proxy Statement/Prospectus.
Pursuant to the Distribution Agreement between NSU and ENStar, prior to the
Merger, NSU will contribute and transfer to ENStar, all of NSU's assets, other
than: (i) such amount of cash as NSU may, in its sole discretion, determine to
retain at the Effective Date; (ii) 7,354,950 shares of Michael Common Stock
owned by NSU; (iii) the capital stock of Merger Co.; (iv) the rights of NSU
under the Reorganization Agreement, the Distribution Agreement and the Orderly
Disposition Agreement; and (v) all net operating loss carryforwards and other
tax attributes properly allocable to NSU following the Effective Date in
accordance with the relevant provisions of the Code (the "NSU Retained Assets").
ENStar also will assume all NSU liabilities other than: (i) liabilities arising
from assertion of dissenters' rights by NSU shareholders, (ii) liabilities under
the Reorganization Agreement, the Distribution Agreement or the Orderly
Disposition Agreement; and (iii) the NSU Net Indebtedness (including principal
and accrued interest, the "NSU Indebtedness") represented by NSU's outstanding
subordinated debentures, subordinated extendible time certificates, subordinated
fixed time certificates and bank debt (collectively, the "NSU Assumed
Liabilities"). In addition, with certain limited exceptions, all intercompany
receivables, payables and loans in existence as of the Effective Time between
NSU and any NSU subsidiary, will be eliminated, without the transfer of cash, by
dividend or capital contributions, as appropriate.
On or prior to the Effective Date, NSU will deliver to its transfer agent
certificates representing all of the outstanding shares of ENStar Common Stock.
On the Effective Date, immediately after the Effective Time, NSU will deliver to
such transfer agent an instruction to distribute as promptly as practicable
following the Effective Date to each holder of record of NSU Common Stock on the
record date for the Distribution stock certificates evidencing one share of
ENStar Common Stock for every three shares of NSU Common Stock held of record by
such shareholder on such record date for the Distribution and cash in lieu of
any fractional shares of ENStar Common Stock. No certificate or scrip
representing fractional shares of ENStar Common Stock will be issued as part of
the Distribution, and in lieu of receiving fractional shares each holder of NSU
Common Stock who would otherwise be entitled to receive a fractional share of
ENStar Common Stock pursuant to the Distribution will receive cash for such
fractional share.
NEW MICHAEL MANAGEMENT FOLLOWING THE REORGANIZATION
It is anticipated that the Board of Directors of New Michael (the "New
Michael Board") after the Merger will consist of ten members, six of whom will
be designated by the Michael Board. These designees are expected to include
Gregg A. Ostrander, Richard A. Coonrod, Arvid C. Knudtson, Joseph D. Marshburn,
Richard G. Olson, and Maureen B. Bellantoni. See "ELECTION OF MICHAEL DIRECTORS
- -- Nominees" for further information on the named individuals. Upon completion
of the transactions contemplated in the Papetti's Agreement, Stephen J. Papetti
and Arthur J. Papetti are also expected to be appointed to the Board. Two
additional directors are expected to be Jeffrey J. Michael and Miles E. Efron or
other substitute nominees of the Michael Family Shareholders, if either Mr.
Michael or Mr. Efron are unable to serve. Messrs. Michael and Efron currently
are directors of Michael. NSU and Michael currently contemplate
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that the members of the NSU Board other than Mr. Efron and Mr. Michael will
resign as of the Effective Time and Mr. Efron and Mr. Michael will name the
above-referenced individuals to the New Michael Board. The New Michael Board
will elect the officers of Michael as the officers of New Michael. The officers
of New Michael will be the officers of Michael on the Effective Date.
CONDITIONS
The obligations of NSU and Michael to effect the transactions contemplated
by the Reorganization Agreement are subject to the fulfillment or waiver on or
prior to the Effective Date of the following conditions: (i) no injunction or
other order entered by a state or federal court of competent jurisdiction has
been issued and remains in effect which would prohibit or make illegal the
consummation of the transactions contemplated in the Reorganization Agreement;
(ii) no law, statute, rule or regulation, domestic or foreign, has been enacted
or promulgated which would prohibit or make illegal the consummation of the
transactions contemplated in the Reorganization Agreement; (iii) the NSU
Registration Statement and the ENStar Registration Statement have been declared
effective and are not subject to a stop order of the Commission or any state
securities commission, and ENStar Common Stock has been registered pursuant to
the Exchange Act; (iv) Michael and NSU have received a private letter ruling
from the IRS or a tax opinion addressed to both Michael and NSU by counsel or
independent certified accountants mutually acceptable to Michael and NSU as to
certain tax issues (see "THE REORGANIZATION -- Certain Federal Income Tax
Consequences"); (v) New Michael Common Stock to be issued to holders of Michael
Common Stock as a result of the Merger and to the holders of NSU Common Stock as
a result of the Reverse Stock Split has been approved for listing on the Nasdaq
National Market; (vi) all material consents and approvals necessary to
consummate the transactions contemplated in the Reorganization Agreement have
been received; (vii) there are no threatened, instituted or pending actions or
proceedings before any court or governmental authority or agency, domestic or
foreign, challenging or seeking to make illegal, or to delay or otherwise
directly or indirectly to restrain or prohibit, the consummation of the
Reorganization or seeking to obtain material damages; (viii) no action has been
taken, or any statute, rule, regulation, judgment, order or injunction proposed,
enacted, entered, enforced, promulgated, issued or deemed applicable to the
transactions contemplated hereby by any federal, state or other court,
government or governmental authority or agency, which could reasonably be
expected to result, directly or indirectly, in any of the consequences referred
to in (vii) above; (ix) the conditions precedent to the Distribution have been
satisfied or waived; (x) the representations and warranties of Michael and NSU
in the Reorganization Agreement are true and correct as of the Effective Date,
except to the extent such representations and warranties are made as of a
specified date and, except where the failure to be true and correct would not
have, or would not reasonably be expected to have, a material adverse effect on
Michael or NSU; (xi) Michael and NSU have performed each obligation and
agreement and complied with each covenant to be performed and complied with by
them under the Reorganization Agreement at or prior to the Effective Time; and
(xii) the parties have exchanged confirming certification and other evidence of
satisfaction of all conditions.
The obligations of NSU to effect the transactions contemplated by the
Reorganization Agreement are subject to fulfillment or waiver prior to the
Effective Time of the following conditions: (i) the NSU Proposals have been
approved by the requisite NSU shareholder vote; and (ii) the number of shares of
NSU Common Stock with respect to which the holders thereof have effectively
dissented does not exceed one percent of the issued and outstanding shares of
NSU Common Stock as of the record date for the NSU Annual Meeting.
The obligations of Michael to effect the transactions contemplated by the
Reorganization Agreement are subject to fulfillment or waiver prior to the
Effective Time of the following conditions: (i) the Reorganization Agreement and
the Merger have been approved by the requisite Michael stockholder vote; (ii) no
event has occurred which, in the reasonable opinion of Michael and concurred in
by Grant Thornton LLP, would prevent the Merger, the Reverse Stock Split and the
Distribution from being accounted for as a business combination utilizing the
reverse acquisition method with Michael being the accounting acquiror for
accounting purposes under generally accepted accounting principles; (iii) NSU
has furnished Michael a certificate of the Chief Financial Officer of NSU
certifying the amounts of the NSU Assumed Liabilities, the NSU Indebtedness, the
Dissenting Shares Holdback and the cash held by NSU as a retained asset;
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(iv) Michael has received the executed Orderly Disposition Agreement and
Distribution Agreement; and (v) each of the officers of NSU have tendered
resignations, effective immediately after the Effective Time.
Neither NSU nor Michael has any present intention to modify or waive any of
the conditions to consummating the transactions contemplated by the
Reorganization Agreement; provided, however, that, depending upon the facts and
circumstances at the time, with prior board approval, either Michael or NSU may
modify or waive any of the conditions.
In the event that a material condition to the obligations of NSU or Michael
to consummate the Reorganization Agreement is waived by NSU or Michael,
including but not limited to waiver of the receipt of a private letter ruling
from the IRS or a tax opinion as to certain tax issues (see "THE
REORGANIZATION--Certain Federal Income Tax Consequences"), NSU and Michael
undertake to file a post-effective amendment to the Registration Statement and
to resolicit the approval of the Reorganization by Michael stockholders and the
approval of the NSU Proposals by NSU shareholders pursuant to an amended Proxy
Statement/Prospectus contained in the amended Registration Statement, or ENStar
Registration Statement, if such resolicitation is required by law or deemed
necessary by Michael or NSU, respectively, after consultation with counsel.
REPRESENTATIONS AND WARRANTIES
The Reorganization Agreement contains various representations and
warranties of Michael, in respect of itself and its subsidiaries, and NSU in
respect of NSU and its subsidiaries, relating, among other things, to the
following matters (which representations and warranties are subject, in certain
cases, to specified exceptions): (i) corporate organization, standing,
qualification and similar corporate matters; (ii) the absence of violation of
provisions of charter documents; (iii) capitalization; (iv) the authorization,
execution, delivery and enforceability of the Reorganization Agreement; (v) the
absence of conflict of the Reorganization Agreement with charter documents, laws
or agreements and required consents for the execution and delivery of the
Reorganization Agreement; (vi) the absence of conflict with, default under or
violation of agreements and laws, and the holding of permits necessary for the
conduct of business, except as could not reasonably be expected to have a
material adverse effect on the business, assets or financial condition of
Michael or NSU, as the case may be; (vii) reports and other documents filed with
the Commission, the absence of material misstatements in the information
contained therein, and the fair presentation of the financial statements
contained therein in accordance with generally accepted accounting principles;
(viii) conduct of business in the ordinary course; (ix) the absence of
litigation to prevent the Reorganization; and (x) the absence of any material
untrue statements in the Registration Statement and this Proxy
Statement/Prospectus.
CERTAIN COVENANTS
Conduct of Business by NSU. The Reorganization Agreement provides that
until the Effective Date, unless Michael otherwise agrees in writing or as
otherwise expressly contemplated or permitted by other provisions of the
Reorganization Agreement, NSU will not, directly or indirectly: (i) amend or
propose to amend its Articles or Bylaws except for the New Articles; (ii) issue,
sell or grant any of its equity securities other than NSU Common Stock,
securities convertible into or exchangeable for its equity securities other than
NSU Common Stock, warrants, options or other rights to acquire its equity
securities other than NSU Common Stock; (iii) reclassify any outstanding shares
of capital stock of NSU; (iv) acquire (by merger, exchange, consolidation,
acquisition of stock or assets or otherwise) any corporation, partnership, joint
venture or other business organization or division or assets thereof, except by
a NSU subsidiary and in a transaction in which NSU shall not have any
liabilities with respect thereto after the Effective Time; (v) sell, transfer,
pledge or otherwise encumber the Michael Common Stock owned by NSU other than as
collateral for indebtedness under a certain credit agreement; (vi) purchase or
otherwise acquire any additional shares of Michael Common Stock; (vii) default
in its obligations under any material debt, contract or commitment which default
results in the acceleration of obligations due thereunder; or (viii) enter into
or propose to enter into, or modify or propose to modify, any agreement,
arrangement, or understanding with respect to any of the foregoing matters.
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Conduct of Business by Michael. The Reorganization Agreement provides that
until the Effective Date, unless NSU otherwise agrees in writing or as otherwise
expressly contemplated or permitted by other provisions of the Reorganization
Agreement, Michael will not, directly or indirectly: (i) amend its charter or
bylaws; (ii) split, combine or reclassify any outstanding shares of capital
stock of Michael; (iii) declare, set aside, make or pay any dividend or
distribution in cash, stock, property or otherwise with respect to the capital
stock of Michael, except for regular quarterly dividends which are not in excess
of $.05 per share per quarter on the Michael Common Stock, or (iv) default in
its obligations under any material debt, contract or commitment which default
results in the acceleration of obligations due thereunder, except for such
defaults arising out of the Reorganization Agreement for which consent, waivers
or modifications are required to be obtained.
Conditions and Undertakings. The Reorganization Agreement contains a number
of undertakings that must be completed by the parties prior to the Effective
Date and other agreements. The parties agreed to cooperate in the filing of a
ruling request with the IRS and an HSR notification. NSU also agreed to enter
into the Distribution Agreement. In addition, the parties agreed to retain
certain information in confidence and to take appropriate action to complete the
Reorganization.
TERMINATION
The Reorganization Agreement may be terminated prior to the Effective Date
under the following conditions: (i) by mutual consent of Michael and NSU, by
majority vote of the entire board of directors of each; (ii) by either Michael
or NSU, if any of the conditions to its obligation to consummate the
transactions contemplated by the Reorganization Agreement have become impossible
to satisfy; (iii) by either Michael or NSU, if (a) the Merger is not duly
approved by the stockholders of Michael; or (b) any one of the NSU Proposals is
not approved by the shareholders of NSU; (iv) by either Michael or NSU if the
Effective Date is not on or before the later of March 31, 1997 or 90 days after
the earlier of the Michael stockholder or the NSU shareholder meetings approving
the Reorganization Agreement; or such later date as Michael and NSU may mutually
agree (unless the failure to consummate the Merger by such date shall be due to
the action or failure to act of the party seeking to terminate the Merger in
breach of such party's obligations); (v) by NSU if the Average Price of Michael
Common Stock is less than $11.00 per share; (vi) by Michael if the Average Price
of Michael Common Stock is more than $17.00 per share; or (vii) by Michael or
NSU after notice and an opportunity to cure if a representation or warranty
given by the other is updated in such a way to indicate that the party making
such update will suffer a material adverse effect or material liability.
EXPENSES
Except as provided below, all costs and expenses incurred in connection
with the Merger will be paid by the party incurring the cost or expense. NSU and
Michael will each pay one-half of (i) all filing fees required to be paid under
the HSR Act in connection with the Merger (but excluding any HSR filing in
connection with the Distribution), (ii) all cost of filing fees with respect to
the NSU Registration Statement, and (iii) all costs of qualifying New Michael
Common Stock to be issued in the Reorganization under state blue sky laws to the
extent such qualification is necessary.
In the event the Reorganization Agreement is properly terminated: (i) by
Michael or NSU due to the failure of NSU to obtain the requisite shareholder
approval for the NSU Proposals; (ii) by Michael due to the failure by NSU to
satisfy certain conditions or if any of NSU's warranties and representations are
not true and correct and the failure to be true and correct would have a
material adverse effect on NSU; (iii) by NSU if the Average Price of Michael
Common Stock is less than $11.00 per share; (iv) by Michael if a representation
or warranty given by NSU in the Reorganization Agreement is updated in such a
way that the information indicates that NSU has suffered or will suffer a
material adverse effect, or in the case of NSU's representation in the
Reorganization Agreement regarding NSU's liabilities as of the Effective Time,
Michael determines that NSU has suffered or will suffer a material liability,
which has not been cured within 15 days after notice to NSU of Michael's intent
to terminate because of the updated information; or (v) by NSU if holders of in
excess of 1% of the outstanding NSU Common Stock effectively exercise
dissenters' rights, then, within ten days after written demand from Michael, NSU
will pay to Michael an amount equal to the out of pocket
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<PAGE> 64
expenses incurred by Michael in connection with the transactions contemplated by
the Reorganization Agreement, up to an aggregate of $500,000, payable either, at
the option of NSU, in cash or in shares of Michael Common Stock having a fair
market value (determined on the basis of the average closing sales price of
Michael Common Stock during the twenty trading days immediately preceding such
termination) equal to such amount.
In the event the Reorganization Agreement is terminated (i) by Michael or
NSU due to the failure of Michael to obtain the requisite stockholder approval
for the Reorganization Agreement and the Merger; (ii) by NSU due to the failure
of Michael to satisfy certain conditions or, if any of Michael's warranties and
representations are not true and correct, and the failure to be true and correct
would have a material adverse effect on Michael; (iii) by Michael if the Average
Price of Michael Common Stock is more than $17.00 per share; (iv) by NSU after
notice to Michael and an opportunity to cure if a representation or warranty
given by Michael in the Reorganization Agreement is updated in such a way that
the information indicates that Michael has suffered or will suffer a material
adverse effect or material liability; or (v) the transactions contemplated by
this Agreement are not consummated solely because Michael has not obtained the
necessary modifications to its material debt instruments or prepaid such debt
instruments, then, within ten days after written demand from NSU, Michael must
pay to NSU an amount equal to the out of pocket expenses incurred by NSU in
connection with the transactions contemplated by this Agreement, up to an
aggregate of $500,000, payable either in cash, or in shares of Michael Common
Stock having a fair market value (determined on the basis of the average closing
sales price of Michael Common Stock during the twenty trading days immediately
preceding such termination) equal to such amount.
The expense reimbursement provisions in the Reorganization Agreement are
the sole and exclusive remedies of Michael and NSU for any termination of the
Reorganization Agreement.
THE DISTRIBUTION AGREEMENT
The following information describes certain aspects of the Distribution
Agreement. This description does not purport to be complete and is qualified in
its entirety by reference to the Appendices hereto, including the Reorganization
Agreement and the exhibits thereto, which are attached to this Proxy
Statement/Prospectus as Appendix I and are incorporated herein by reference and
the Distribution Agreement, which is attached to the Reorganization Agreement as
Exhibit C. All Michael stockholders and NSU shareholders are urged to read
Appendix I in its entirety. See also "THE REORGANIZATION AGREEMENT."
GENERAL
The Reorganization Agreement provides that NSU will, and will cause ENStar
to, execute and deliver the Distribution Agreement prior to the Effective Date.
The Distribution Agreement requires NSU to contribute and transfer to ENStar or
a ENStar subsidiary, as appropriate, all of NSU's assets (the "NSU Transferred
Assets"), except for the NSU Retained Assets. In addition, ENStar will assume
all liabilities of NSU (i) arising at any time prior to the Merger Effective
Date, other than the NSU Assumed Liabilities, or (ii) arising as a result of the
Distribution other than the NSU Assumed Liabilities (the NSU Transferred
Liabilities"). With certain limited exceptions, all intercompany receivables,
payables and loans between NSU and any NSU subsidiary in existence as of the
Effective Date will be eliminated.
The transfers of certain of the NSU Transferred Assets and the NSU
Transferred Liabilities, including NSU's shares of CorVel common stock and
shares of common stock of Americable and Transition, from NSU to ENStar as
contemplated by the Distribution have previously been made. Such transfers were
made for the purpose of commencing a self-underwritten, subordinated debenture
program at ENStar similar to the self-underwritten subordinated debenture and
time certificate programs previously maintained by NSU. Under such program
ENStar may offer and sell to the public up to $10 million of its subordinated
debentures. In addition, NSU has indicated that prior to the Distribution it may
cause ENStar to sell up to 200,000 shares of CorVel Common Stock and to
distribute the after-tax proceeds from such sale to NSU as a dividend in order
to fund NSU's operating expenses and maturing indebtedness prior to the Merger
and to reduce the amount of NSU Net Assumed Liabilities at the time of the
Merger. If all 200,000 shares are sold, ENStar
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<PAGE> 65
would own 1,025,000 shares of CorVel Common Stock, or approximately 22% of the
outstanding shares of CorVel as of September 30, 1996.
In the Distribution Agreement, ENStar acknowledges that NSU is not
representing or warranting in any way (i) as to the value or freedom from
encumbrance of, or any other matter concerning, any NSU Transferred Assets or
(ii) as to the legal sufficiency to convey title to any such assets or the
execution and delivery of the Distribution Agreement. All such assets are being
transferred as is, where is, and ENStar will bear all economic and legal risks
with respect to the NSU Transferred Assets.
CONDITIONS
The Distribution is expressly conditioned on the prior consummation of the
Merger. The Distribution will not occur (i) if, on the Effective Date, NSU has
not received an opinion of counsel or independent certified public accountants
or a private letter ruling from the IRS to the effect that the Distribution will
qualify as a tax-free spin-off under Section 355 of the Code, and (ii) unless
prior to such time the following conditions have been satisfied or waived: (a)
the transfer of the NSU Transferred Assets to and the assumption of the NSU
Transferred Liabilities by ENStar has been completed, (b) the ENStar Common
Stock has been approved for quotation on the Nasdaq National Market or listing
on a national securities exchange, (c) the ENStar Board has been elected by NSU,
as sole shareholder of ENStar; (d) the ENStar Registration Statement has been
declared effective by the Commission and the Form 8-A relating to the shares of
ENStar Common Stock to be distributed in the Distribution has become effective
under the Exchange Act; and (e) all conditions precedent to the obligations of
NSU and Michael under the Reorganization Agreement (other than consummation of
the Distribution) will have been satisfied or waived and the Merger has been
consummated.
THE DISTRIBUTION
On or prior to the Effective Date, NSU will deliver to its transfer agent
certificates representing all of the outstanding shares of ENStar Common Stock.
On the Effective Date, immediately after the Effective Time, NSU will deliver to
such transfer agent an instruction to distribute as promptly as practicable
following the Effective Date to each holder of record of NSU Common Stock on the
record date for the Distribution stock certificates evidencing one share of
ENStar Common Stock for every three shares of NSU Common Stock held of record by
such shareholder on such record date for the Distribution and cash in lieu of
any fractional shares of ENStar Common Stock. No certificate or scrip
representing fractional shares of ENStar Common Stock will be issued as part of
the Distribution, and in lieu of receiving fractional shares each such holder of
NSU Common Stock pursuant to the Distribution will receive cash for such
fractional share. If the number of outstanding shares of ENStar Common Stock
exceeds the amount to be distributed in the Distribution, then the remaining
shares will be deemed to have been contributed by NSU to the capital of ENStar
and retired and canceled. All of the shares of ENStar Common Stock issued in the
Distribution will be fully paid, nonassessable and free of preemptive rights.
CERTAIN COVENANTS
The Distribution Agreement provides that New Michael will not, nor will it
permit Michael to do any of the following during the two year period following
the Effective Date: (i) liquidate Michael; (ii) merge Michael with or into
another corporation, unless Michael is the surviving corporation and the merger
is not treated for tax purposes as a sale or other disposition of Michael Common
Stock; (iii) sell any shares of Michael Common Stock or cause Michael to issue
any shares of Michael Common Stock to any party other than NSU; or (iv) sell any
assets of New Michael to any third party not otherwise an affiliate of the
foregoing, except for (a) sales in the ordinary course of business or (b) sales
of assets if, after giving effect to such sales, Michael will retain at least
90% of the fair market value of its gross assets in active trades or businesses
within the meaning of Section 355 of the Code; provided, however, New Michael or
Michael may undertake any of the actions listed above if (1) ENStar consents
thereto or (2) New Michael obtains either a tax opinion or a favorable private
letter ruling from the IRS, in each case reasonably satisfactory to ENStar, to
the effect that the actions to be undertaken would not adversely affect the tax
free nature of the Merger or the Distribution to
60
<PAGE> 66
all of the parties thereto. The shareholders of record of NSU on the record date
for the Distribution are third party beneficiaries of the foregoing
restrictions.
As contemplated by the Distribution Agreement, ENStar and NSU have, as
required under the indentures governing the outstanding debentures and
outstanding subordinated extendible or fixed time certificates of NSU, executed
and delivered supplemental indentures evidencing ENStar's assumption of NSU's
obligations with respect to such outstanding debentures and subordinated
extendible and fixed time certificates. Notwithstanding such assumption, as
between NSU and ENStar, the NSU Indebtedness is not considered an NSU
Transferred Liability and New Michael, after the Effective Time, shall be
responsible for the payment in full, in accordance with the terms thereof of all
of the NSU Indebtedness and shall indemnify ENStar for any and all liabilities
with respect to the NSU Indebtedness.
INDEMNIFICATION
From and after the Effective Date, ENStar will indemnify New Michael,
Michael and all Michael subsidiaries and Merger Co. against: (i) all liabilities
(other than the NSU Net Assumed Liabilities) of NSU or any NSU subsidiary (other
than Michael and its subsidiaries), including any subsidiary owned by NSU prior
to the Effective Date but not owned by NSU on the Merger Effective Date, arising
out of: (a) the NSU Transferred Liabilities, and (b) the transactions
contemplated under the Distribution Agreement, including the Distribution and
any taxes as a result of the Distribution (other than (X) any liabilities
resulting from any breach by New Michael, after the Effective Date, of the
Distribution Agreement, (Y) any liability of NSU for taxes resulting from a
breach by New Michael of the restrictions set forth above relating to the two
year period after the Effective Date, and (Z) obligations, after the Effective
Date, expressly assumed by New Michael under the Distribution Agreement); (ii)
all liabilities arising from any claim made by any shareholder of ENStar on or
after the Effective Date or by any shareholder or former shareholder of NSU
prior to the Effective Date relating to any act or omission of NSU on or prior
to the Effective Date in connection with the Merger or any of the other
transactions as contemplated by the Reorganization Agreement; (iii) all
liabilities assumed by ENStar in the Distribution Agreement relating to the
employee benefit plans of NSU; (iv) all liabilities of ENStar or any subsidiary
of ENStar arising out of transactions or events entered into or occurring after
the Effective Date, or any action or inaction, including but not limited to,
contracts, commitments and litigation, with respect to, entered into or based
upon transactions or events occurring after the Effective Date with respect to
ENStar or any subsidiary of ENStar (other than the NSU Assumed Liabilities); (v)
any breach of the Distribution Agreement by ENStar or any subsidiary of ENStar
after the Effective Date; and (vi) damages, costs, and expenses including
attorney's fees incurred in defending and settling claims for such liabilities.
From and after the Effective Date, New Michael will indemnify ENStar and
any ENStar subsidiary against: (i) all liabilities of New Michael, Michael or
any subsidiary of New Michael or Michael arising out of transactions or events
entered into or occurring after the Effective Date, or any action or inaction,
including but not limited to, contracts, commitments and litigation, with
respect to, entered into or based upon transactions or events occurring after
the Effective Date with respect to New Michael, Michael, any subsidiary of New
Michael after the Effective Date or any subsidiary of Michael, other than any
liability arising out of the NSU Transferred Liabilities; (ii) all liabilities
relating to the NSU Assumed Liabilities; (iii) all liabilities of Michael or any
subsidiary of Michael arising before, on or after the Merger Effective Date;
(iv) all liabilities arising from any claim made by any current or former
Michael stockholder or shareholder of New Michael after the Effective Date who
was a Michael stockholder or NSU shareholder immediately prior to the Effective
Date relating to any act or omission of Michael in connection with the Merger or
any of the other transactions contemplated in the Reorganization Agreement or
the Distribution Agreement; (v) any breach of the Distribution Agreement by New
Michael after the Merger Effective Date; and (vi) damages, costs and expenses
including attorney's fees incurred in defending and settling claims for such
obligations, expenses or liabilities.
The Distribution Agreement provides for certain procedures for the parties
to assert claims for indemnification thereunder, including the mediation and
arbitration of disputes arising under the Distribution Agreement. In the event
that New Michael realizes a benefit in the form of a reduction in the federal or
state
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<PAGE> 67
income taxes which New Michael would otherwise be obligated to pay, as a result
of the net operating loss carryforwards properly allocable to New Michael from
all tax periods prior to or ending on the Effective Date, ENStar has the right
to set-off the amount of any such tax savings against any liability of ENStar
under the Distribution Agreement (including the indemnification obligations
described above).
In order to provide for the required payments to be made to satisfy
Dissenters' claims, New Michael will retain cash in an amount to be agreed upon,
in excess of the cash applied to NSU's indebtedness. Any cash not used for this
purpose will be delivered to ENStar after payment of all Dissenters' claims.
ENStar also is required to pay or cause the release of New Michael from certain
obligations of NSU under certain leases and NSU's guarantee of indebtedness of a
subsidiary of NSU within three years after the Effective Date (the date of the
release of such obligations, the "Release Date").
In order to further provide that ENStar will be able to meet its
indemnification obligations to New Michael under the Distribution Agreement,
ENStar has agreed in the Distribution Agreement that it will not: (i) pay any
dividends, whether in cash or in property, or make any other distribution to its
shareholders, or redeem any of its capital stock for cash or property; (ii)
sell, transfer or dispose of any material amount of its assets in a single
transaction or related series of transactions, except in the ordinary course of
its business or for fair value; or (iii) sell, transfer or dispose of all or
substantially all of its assets or engage in any merger, consolidation or
reorganization unless (a) in the case of the sale, transfer or other disposition
of all or substantially all of its assets, the purchaser assumes the obligations
of ENStar (jointly and severally with ENStar) under the Distribution Agreement,
(b) in the case of a merger, consolidation or reorganization, the surviving
entity assumes the obligations of ENStar under the Distribution Agreement, or
(c) the Market Value (as defined below) of ENStar immediately after giving
effect to such dividend, distribution, redemption or other transaction is at
least equal to the following amounts during the following periods: (X)
$9,000,000 during the period beginning on the Effective Date and continuing to
the later to occur of (a) the Release Date or (b) the third anniversary of the
Effective Date; (Y) $3,000,000 during the period from the end of the period
referenced in clause (X) above and continuing to the fifth anniversary of the
Effective Date. The term "Market Value" is defined in the Distribution Agreement
as the greater of: (a) the market capitalization of ENStar's outstanding equity
securities, if ENStar is a publicly traded company, or (b) the net book value of
ENStar computed in accordance with generally accepted accounting principles,
except that securities owned by ENStar which are publicly traded shall be valued
at their market value without any adjustment for lack of liquidity or control
premium, but reduced for any taxes payable on the disposition of such
securities, taking into account any and all tax benefits available to ENStar and
using ENStar's then applicable effective tax rate for purposes of such
calculations.
Under the Distribution Agreement, New Michael is required to repay in full
all of the NSU Indebtedness not later than six months after the Effective Date.
All such repayments (excluding any payments made with respect to any instruments
that have matured or otherwise become due and payable in accordance with their
respective terms prior to such repayment date) are to be effected on or about
the same date.
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<PAGE> 68
RECENT DEVELOPMENTS
On June 28, 1996, Michael entered into an Agreement and Plan of
Reorganization (the "Papetti's Agreement") with Papetti's Hygrade Egg Products,
Inc. and certain other related entities (collectively, "Papetti's"), pursuant to
which Michael agreed to acquire Papetti's Hygrade Egg Products, Inc. through a
partially tax-free merger, and the related entities through taxable mergers or
asset purchases (collectively the "Papetti's Acquisition"). The Papetti's
Acquisition is expected to be completed during the fourth quarter of 1996 or
first quarter of 1997 and is subject to obtaining the satisfaction of certain
conditions. The parties may terminate the Papetti's Agreement under certain
circumstances. The Papetti's Acquisition will be accounted for as a purchase.
The consideration to be delivered by Michael consists of 3,400,000 shares of
Michael Common Stock, the assumption by Michael of approximately $28 million of
Papetti's indebtedness and approximately $48 million in cash, subject to certain
adjustments.
Papetti's is a family-owned business based in Elizabeth, New Jersey, and is
the largest further-processed egg product producer in the United States with
annual sales in excess of $275 million. After the completion of the Papetti's
Acquisition, Michael will be the world's largest producer of further-processed
egg products. Papetti's produces and distributes liquid, frozen, and dried egg
products, along with other further-processed egg products, such as hardcooked
eggs, egg patties and omelettes for industrial, food service and retail use.
Papetti's major processing facilities are located in New Jersey, Pennsylvania,
Iowa and Missouri.
Upon completion of the Papetti's Acquisition, Papetti's will continue to
operate as a separate division of Michael's subsidiary MG Waldbaum Company
("Waldbaum"). Michael has agreed to enter into employment and non-competition
agreements with certain members of the Papetti family effective upon completion
of the Papetti's Acquisition. In addition, Michael has agreed to include two
designees of the Papetti family as management nominees to the Michael Board for
three years following completion of the acquisition. Stephen J. Papetti and
Arthur J. Papetti have been designated by the Papetti family to serve in that
capacity.
The completion of the Papetti's Acquisition is conditioned upon
satisfaction of a number of conditions, including obtaining third party
consents, the continued accuracy of the representation and warranties made by
the various Papetti's entities in the Papetti's Agreement, execution of the
employment and non-competition agreements described above, execution of an
agreement to settle pending patent litigation between Michael and North Carolina
State University and Papetti's Hygrade Egg Products, Inc., execution by Michael
and Waldbaum of certain leases of real property owned by the Papetti family and
used in the Papetti's business, execution of a shareholder agreement with the
shareholders of Papetti's and the absence of any material adverse event with
respect to either party.
Michael and the Papetti's shareholders have agreed to enter into a
shareholder agreement upon closing of the Papetti's Acquisition which, for a
period of three years, will prohibit the Papetti's shareholders from selling
Michael Common Stock received in the acquisition or acquiring additional Michael
Common Stock or combining their shares with others for voting purposes, except
in certain limited circumstances. During such three year period, Michael has
agreed to register the Michael Common Stock received by the Papetti's
shareholders under the Securities Act at the request of any of the Papetti's
shareholders.
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<PAGE> 69
COMPARATIVE PER SHARE MARKET PRICE AND DIVIDEND INFORMATION
The Michael Common Stock is listed on the Nasdaq National Market under the
symbol MIKL. The NSU Common Stock is listed on the Nasdaq National Market under
the symbol NSRU and the Pacific Stock Exchange under the symbol NSU.
The table below sets forth for the calendar quarters indicated, the
reported low and high sales prices of Michael Common Stock and NSU Common Stock
as reported on the Nasdaq National Market, in each case based on published
financial sources, and the dividends declared by Michael on such stock. NSU paid
no dividends during 1993, 1994 or 1995 and has paid no dividends to date in
1996.
<TABLE>
<CAPTION>
NSU
MICHAEL COMMON STOCK COMMON STOCK
----------------------------- --------------
LOW HIGH DIVIDENDS LOW HIGH
------ ------ --------- ----- -----
<S> <C> <C> <C> <C> <C> <C>
1993
First Quarter.................................. $ 8.13 $11.50 $ .05 $4.50 $7.13
Second Quarter................................. 6.50 9.38 .05 3.88 5.50
Third Quarter.................................. 8.63 10.75 .05 4.75 6.50
Fourth Quarter................................. 7.50 9.75 .05 4.50 6.88
1994
First Quarter.................................. 7.88 11.25 .05 4.63 5.63
Second Quarter................................. 9.00 12.38 .05 4.38 6.00
Third Quarter.................................. 10.13 13.25 .05 4.88 6.38
Fourth Quarter................................. 9.25 13.00 .05 4.38 5.75
1995
First Quarter.................................. 9.00 12.38 .05 4.25 5.63
Second Quarter................................. 10.25 13.25 .05 5.00 5.50
Third Quarter.................................. 10.63 14.50 .05 5.13 6.13
Fourth Quarter................................. 10.75 13.75 .05 5.63 8.13
1996
First Quarter.................................. 9.88 12.75 .05 7.13 8.38
Second Quarter................................. 10.25 11.88 .05 7.25 8.75
Third Quarter.................................. 9.50 13.50 .05 7.38 8.63
Fourth Quarter (through November 20, 1996)..... 10.13 12.63 7.50 8.00
</TABLE>
New Michael expects to continue the Nasdaq National Market listing of NSU,
but will discontinue the Pacific Stock Exchange Listing. It is expected that the
New Michael Common Stock will trade under the symbol MIKL.
ENStar has applied for quotation of the ENStar Common Stock on the Nasdaq
National Market under the symbol ENSR. There currently is no market for the
ENStar Common Stock.
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<PAGE> 70
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
The following Unaudited Pro Forma Condensed Combined Financial Statements
are prepared to give effect to the consummation of the Reorganization. The
Reorganization contemplates that prior to the Effective Date, NSU will transfer
certain of its assets, including its investment in CorVel, and certain of its
liabilities, other than certain indebtedness, to ENStar. The combined historical
net assets and results of the entities that NSU will contribute to ENStar are
contained in the columns labeled ENStar Historical.
The pro forma balance sheet and pro forma statements of earnings of NSU
give effect to the Distribution as if the Distribution had occurred at September
30, 1996 and January 1, 1995 and 1996, respectively. The unaudited pro forma
condensed combined balance sheet and unaudited condensed combined pro forma
statement of earnings of New Michael have been prepared as if the Reorganization
was consummated on September 30, 1996 and January 1, 1995 and 1996,
respectively.
Assumptions underlying the pro forma adjustments are described in the
accompanying notes which should be read in conjunction with these pro forma
statements. These statements should be read in conjunction with the historical
financial statements of NSU, Michael, ENStar and CorVel, and the notes thereto,
which are incorporated by reference herein. The pro forma statements do not
purport to be indicative of the actual results of operations which would have
occurred had the Reorganization been consummated at the beginning of the period,
or of the future results of operations which may be obtained by ENStar or New
Michael.
65
<PAGE> 71
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
SEPTEMBER 30, 1996
(IN THOUSANDS)
<TABLE>
<CAPTION>
NEW
NSU ENSTAR NSU MICHAEL MICHAEL
HISTORICAL HISTORICAL PRO FORMA HISTORICAL ADJUSTMENTS PRO FORMA
---------- ---------- --------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents........... $ 8,068 $ 174 $ 7,894 $ 2,966 $ (7,894)A $ 2,966
Accounts receivable, net............ 9,704 9,704 -- 50,472 -- 50,472
Inventories......................... 6,629 6,629 -- 57,875 -- 57,875
Prepaid expenses and other.......... 773 367 406 3,059 (406)B 3,059
Net assets held for sale............ -- -- -- -- -- --
-------- ------- ------- -------- -------- --------
Total current assets................ 25,174 16,874 8,300 114,372 (8,300) 114,372
Property and equipment, net........... 1,572 1,572 -- 186,583 -- 186,583
Investment in Michael Foods........... 70,269 -- 70,269 -- (70,269)B --
Investment in CorVel.................. 13,199 13,199 -- -- -- --
Goodwill, net......................... 4,841 4,841 -- 56,550 -- 56,550
Other assets.......................... 26 26 -- 12,564 (692)D 11,872
-------- ------- ------- -------- -------- --------
$115,081 $ 36,512 $78,569 $370,069 $ (79,261) $369,377
======== ======= ======= ======== ======== ========
LIABILITIES AND
SHAREHOLDERS' EQUITY
Current Liabilities
Notes payable....................... $ 1,115 $ 1,115 $ -- $ 38,700 $ -- $ 38,700
Current portion of long-term debt... 11,624 17 11,607 12,709 (7,894)A 16,422
Accounts payable.................... 5,829 5,829 -- 37,674 -- 37,674
Accrued liabilities................. 5,522 5,522 -- 23,009 -- 23,009
-------- ------- ------- -------- -------- --------
Total current liabilities........... 24,090 12,483 11,607 112,092 (7,894) 115,805
Long-term debt, net of current
maturities.......................... 22,310 146 22,164 42,910 400C 65,474
Deferred income taxes................. 26,725 3,490 23,235 29,758 (23,235)B 29,758
Shareholders' equity.................. 41,956 20,393 21,563 185,309 (21,563)B 185,309
Retired Michael shares................ -- -- -- -- (25,877)B (26,969 )
(400)C
(692)D
-------- ------- ------- -------- -------- --------
Total shareholders' equity............ 41,956 20,393 21,563 185,309 (48,532) 158,340
-------- ------- ------- -------- -------- --------
$115,081 $ 36,512 $78,569 $370,069 $ (79,261) $369,377
======== ======= ======= ======== ======== ========
</TABLE>
66
<PAGE> 72
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF EARNINGS
NINE MONTHS ENDED SEPTEMBER 30, 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NEW
NSU ENSTAR NSU PRO MICHAEL MICHAEL
HISTORICAL HISTORICAL FORMA HISTORICAL ADJUSTMENTS PRO FORMA
---------- ---------- --------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Revenues......................... $ 49,151 $ 49,151 $ -- $ 455,478 $ -- $ 455,478
Operating and product costs...... 36,147 36,147 -- 403,267 -- 403,267
------- ------- ------- -------- ------- --------
Gross profit................... 13,004 13,004 -- 52,211 -- 52,211
Selling, general, and
administrative expenses........ 12,744 12,594 150 33,597 (100)E 33,647
------- ------- ------- -------- ------- --------
Operating income (loss)........ 260 410 (150) 18,614 100 18,564
Interest expense, net............ (2,573) (191) (2,382) (5,474) 400F (6,836)
620G
Investment income................ 7,713 -- 7,713 -- (7,713)E --
------- ------- ------- -------- ------- --------
Income before income taxes and
equity in earnings of
unconsolidated subsidiaries.... 5,400 219 5,181 13,140 (6,593) 11,728
Income tax expense (benefit)..... 2,240 122 2,118 5,260 (2,687)H 4,691
------- ------- ------- -------- ------- --------
Income before equity in earnings
of unconsolidated
subsidiaries................... 3,160 97 3,063 7,880 (3,906) 7,037
Equity in earnings of
unconsolidated subsidiaries.... 2,750 956 1,794 -- (1,794)I --
------- ------- ------- -------- ------- --------
Income from continuing
operations..................... $ 5,910 $ 1,053 $ 4,857 $ 7,880 $(5,700) $ 7,037
======= ======= ======= ======== ======= ========
Net earnings per share --
Continuing Operations.......... $ 0.41 $ 0.42
Weighted average shares
outstanding.................... 19,379 (2,564)J 16,815
Pro forma income per share --
continuing operations.......... $ 0.32K
Pro forma weighted average shares
outstanding.................... 3,307K
</TABLE>
67
<PAGE> 73
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF EARNINGS
YEAR ENDED DECEMBER 31, 1995
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NEW
NSU ENSTAR NSU PRO MICHAEL MICHAEL
HISTORICAL HISTORICAL FORMA HISTORICAL ADJUSTMENTS PRO FORMA
---------- ---------- --------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Revenues........................ $ 54,891 $ 54,891 $ -- $ 536,627 $ -- $ 536,627
Operating and product costs..... 39,525 39,525 -- 454,652 -- 454,652
-------- -------- ------- --------- ------- ---------
Gross profit.................. 15,366 15,366 -- 81,975 -- 81,975
Selling, general, and
administrative expenses....... 14,882 14,333 549 45,729 (384)E 45,894
-------- -------- ------- --------- ------- ---------
Operating income (loss)....... 484 1,033 (549) 36,246 384 36,081
Interest expense, net........... (4,120) (247) (3,873) (7,635) 400F (9,446)
1,662G
-------- -------- ------- --------- ------- ---------
Income (loss) before income
taxes and equity in earnings
of unconsolidated
subsidiaries.................. (3,636) 786 (4,422) 28,611 2,446 26,635
Income tax expense (benefit).... (1,200) 405 (1,605) 11,020 839H 10,254
-------- -------- ------- --------- ------- ---------
Income (loss) before equity in
earnings of unconsolidated
subsidiaries.................. (2,436) 381 (2,817) 17,591 1,607 16,381
Equity in earnings of
unconsolidated subsidiaries... 5,526 1,191 4,335 -- (4,335)I --
-------- -------- ------- --------- ------- ---------
Income (loss) from continuing
operations.................... $ 3,090 $ 1,572 $ 1,518 $ 17,591 $(2,728) $ 16,381
======== ======== ======= ========= ======= =========
Net earnings per share.......... $ 0.91 $ 0.98
Weighted average shares
outstanding................... 19,328 (2,564)J 16,764
Pro forma income per share --
continuing operations......... $ .49K
Pro forma weighted average
shares outstanding............ 3,217K
</TABLE>
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NOTES TO THE UNAUDITED PRO FORMA CONDENSED
COMBINED FINANCIAL STATEMENTS
A. To apply the cash and cash equivalents of NSU to the current maturities of
NSU.
B. To reflect the reacquisition of 2,563,983 Retired Michael Shares and the
assumption of NSU Net Assumed Liabilities of $25,877,000. See "THE
REORGANIZATION -- Effects of the Reorganization" for an example of such
calculation. This entry also eliminates NSU's current equity in Michael and
the related deferred income taxes.
C. To apply fair value purchase accounting to the NSU Net Assumed Liabilities
acquired by New Michael as a part of the Merger. The NSU Net Assumed
Liabilities has an effective interest rate of approximately 10% and is
assumed to be retired and replaced with indebtedness having an effective
interest rate of approximately 7% six months after the Merger. See footnotes
F and G below.
D. To reclassify deferred transaction costs of Michael related to the
Reorganization as additional cost of the Retired Michael Shares.
E. To eliminate NSU's nonrecurring corporate general and administrative
expenses of $249,000 and to reflect reduced compensation levels at ENStar by
$135,000 for the year ended December 31, 1995 and by $100,000 for the nine
months ended September 30, 1996. NSU's continuing costs are the costs of
administering the NSU Net Assumed Liabilities retained by New Michael for
the respective periods. Also to eliminate the non-recurring gain on the sale
of the CorVel common stock.
F. To record the amortization of the fair market value adjustment recorded by
Michael related to the NSU Net Assumed Liabilities retained by New Michael.
(See footnote C above.)
G. To adjust interest expense related to the NSU Net Assumed Liabilities
retained by New Michael assuming such indebtedness, net of the cash
acquired, is retired and replaced with indebtedness having an effective
interest rate of approximately 7%. A 1/8 percent variance in interest rates
would result in an approximately $32,000 change in interest expense per
year.
H. To adjust income tax expense based on the effective income tax rate for
Michael for the respective periods.
I. To eliminate NSU's equity in earnings in unconsolidated subsidiaries.
J. To reduce the number of shares of Michael Common Stock outstanding to
reflect the Retired Michael Shares. The number of Retired Michael Shares was
computed based on the calculations set forth herein under "THE
REORGANIZATION -- Effect of the Reorganization."
K. To reflect the pro forma income per share of ENStar utilizing the weighted
average number of shares of NSU Common Stock outstanding for the nine months
ended September 30, 1996 and the year ended December 31, 1995. The
calculation assumes one share of ENStar will be distributed for every three
shares of NSU Common Stock.
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<PAGE> 75
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS
AND FINANCIAL CONDITION OF ENSTAR
GENERAL
ENStar is currently a subsidiary of NSU. On November 7, 1996, NSU
contributed its stock of Americable, Transition and CorVel to ENStar. At
November 7, 1996, NSU owned an approximate 26% ownership interest in CorVel. The
financial statements of ENStar reflect the investment in CorVel assuming ENStar
owned a 26% ownership interest for all periods presented. ENStar's investment in
CorVel is accounted for as an unconsolidated subsidiary using the equity method
of accounting. The common stock of CorVel is included on the Nasdaq National
Market under the symbol CRVL. In connection with the Distribution, ENStar
intends to transfer all of its CorVel Common Stock to Americable to satisfy
certain federal income tax requirements relating to the Merger and Distribution.
Americable has historically been a distributor of connectivity and
networking products. As part of its business strategy, Americable has recently
focused on increasing its level of service revenues, which are generally more
profitable. Service revenue is primarily derived from network integration
services such as network management, maintenance, design and implementation.
Americable intends to implement this strategy through continued internal
investments in additional sales, engineering and technical personnel at existing
and new geographic locations in order to enhance its ability to satisfy the
changing technology requirements of its customers. Americable expects that
increased operating expenses resulting from these investments will reduce its
profitability over the next twelve months to the extent it is unable to maintain
its gross margins or continued sales growth.
Historically, in excess of 90% of Transition's revenues have been derived
from the sale of its terminal and basic LAN products. These products have life
cycles of 18 to 36 months and are generally sold based on price, availability
and functionality. More recently, Transition has focused its product development
and marketing efforts on expanding its advanced LAN products in an effort to
increase sales with existing customers and participate in broader market
opportunities. Due to the increasing design and manufacturing complexities
associated with the integration of technologies, the development of advanced LAN
products requires a more substantial investment in engineering personnel and
related costs. As a result, Transition's future operations are highly dependent
on its ability to introduce advanced LAN products on a timely basis that meet
customer demands.
As described in Note 2 to the Combined Financial Statements of ENStar, the
Combined Statements of Income of ENStar include an allocation of general and
administrative costs incurred by NSU in the management of the operating
companies, investment holding and other assets of ENStar. Management believes
these allocations are reasonable and present the operations of ENStar as though
it had been operated on a stand alone basis prior to that time.
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The following are unaudited summarized operating results for each of
ENStar's operations for the nine months ended September 30, 1996 and September
30, 1995 and each of the three years ended December 31, 1995 (in thousands):
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------ -----------------------------
1996 1995 1995 1994 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Revenues
Americable................................... $38,221 $31,050 $42,160 $36,940 $38,266
Transition................................... 12,166 10,656 14,266 11,779 10,025
Eliminations................................. (1,236) (1,113) (1,535) (1,526) (1,535)
-------- -------- -------- -------- --------
$49,151 $40,593 $54,891 $47,193 $46,756
======== ======== ======== ======== ========
Gross Profit
Americable................................... $ 8,494 $ 7,551 $ 9,979 $ 8,262 $10,254
Transition................................... 4,510 3,967 5,387 4,603 3,903
-------- -------- -------- -------- --------
$13,004 $11,518 $15,366 $12,865 $14,157
======== ======== ======== ======== ========
Selling, General and Administrative Expenses
Americable................................... $ 7,510 $ 6,658 $ 8,814 $ 8,220 $10,075
Transition................................... 4,261 3,328 4,465 4,252 2,985
Restructuring charges........................ -- -- -- -- 1,953
Allocable corporate expenses................. 823 914 1,054 1,095 1,122
-------- -------- -------- -------- --------
$12,594 $10,900 $14,333 $13,567 $16,135
======== ======== ======== ======== ========
Operating Income (Loss)
Americable................................... $ 984 $ 893 $ 1,165 $ 42 $ 179
Transition................................... 249 639 922 351 918
Restructuring charges........................ -- -- -- -- (1,953)
Allocable corporate expenses................. (823) (914) (1,054) (1,095) (1,122)
-------- -------- -------- -------- --------
$ 410 $ 618 $ 1,033 $ (702) $(1,978)
======== ======== ======== ======== ========
</TABLE>
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1996 vs. NINE MONTHS ENDED SEPTEMBER 30, 1995
Consolidated revenues increased $8.5 million, or 21%, to $49.1 million from
$40.6 million in 1995.
Revenues at Americable increased approximately $7.2 million, or 23%, to
$38.2 million. Increased sales of networking products of approximately $8.0
million and increased revenues from installation and services of approximately
$900,000, both due primarily to higher demand, contributed to the increase in
sales at Americable. Included in these amounts is approximately $1.9 million of
higher sales of networking products to one customer, which is not expected to
continue during the remainder of the year and throughout 1997. For the period,
sales of networking products and services and installation were approximately
$20.1 million, or 53%, and $2.9 million, or 8%, of Americable's revenues,
respectively. Sales of cable and other connectivity products decreased
approximately $1.5 million, due primarily to lower volume to contractors and
resellers and lower demand for certain types of bulk cable due to increased
market supply of such product during the first three quarters of 1996. In
addition, sales of cable assemblies decreased approximately $200,000, due to
lower demand experienced between periods.
Revenues at Transition increased approximately $1.5 million, or 14.2%, to
$12.2 million. Sales of Transition's advanced LAN products increased
approximately $540,000, or 52%, to $1.6 million, reflecting additional revenues
from new products and product enhancements introduced during 1995 and 1996.
Sales from new product introductions and enhancements accounted for
approximately 13% of net sales for the nine months ended September 30, 1996
versus 41% for the comparable period in 1995. Sales of basic LAN and
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<PAGE> 77
terminal products increased approximately $970,000, or 10%, to $10.6 million.
Sales to domestic customers increased approximately $1.1 million, or 16%, to
$7.9 million which primarily reflects higher demand for Transition's products.
Sales to international customers increased approximately $400,000, or 10%, to
$4.3 million, which was primarily a result of the addition of new customers.
Transition's ability to maintain its present level of sales and its continued
sales growth is highly dependent upon its ability to offer new products that
meet customers' demands in a rapidly changing market, particularly in light of
the relatively short life cycle of its products.
Consolidated gross profit, as a percent of revenues, decreased to 26.5% in
1996 as compared to 28.4% in 1995. Decreased margins at Americable are primarily
attributable to a higher volume of lower margin networking products and lower
pricing on cable due to competition and overall higher market supply on certain
types of bulk cable. Margins at Transition were relatively unchanged between
years. ENStar expects its gross profit margins to decline due to expected
competitive pricing pressures on products sold by both Americable and
Transition.
ENStar's selling, general and administrative expenses increased
approximately $1.7 million or 15.5%, to $12.6 million from $10.9 million in
1995. The increase in operating expenses at Americable reflects increased
selling expenses of approximately $560,000 due to higher sales salaries,
commissions and related expenses and approximately $300,000 of higher
engineering expenses due to the addition of technical and engineering personnel.
Overall, general and administrative expenses of Americable were relatively
unchanged between years. Americable expects that its selling expenses, as a
percentage of revenues, may increase during the remainder of 1996 and throughout
1997. Such increases are expected to result from the addition of sales and
technical personnel and costs associated with the release of a new catalog in
the first quarter of 1996. If the company is unable to maintain current gross
profit margins and continued sales growth, the anticipated increases in
operating expenses may result in a reduction in operating profits at Americable.
Transition had increased operating expenses of approximately $933,000, or
28%, which reflects increased engineering expenses of approximately $445,000 due
to the addition of engineering personnel associated with new product
development. In addition, this increase also reflects higher sales and marketing
expenses of approximately $450,000, associated with advertising, participation
in trade shows, and other promotional expenses. In an effort to successfully
develop and launch new advanced LAN products, Transition anticipates the
increased levels of spending on engineering, marketing and promotional costs to
continue for the remainder of 1996 and throughout 1997. If such increased level
of spending does not result in the timely introduction of commercially
successful products, Transition may experience significantly reduced levels of
sales growth and operating results.
ENStar's research and development expenses (incurred exclusively within
Transition) were approximately $1.1 million versus $900,000 for the nine month
periods ended September 30, 1996 and 1995, respectively.
Corporate expenses decreased approximately $91,000, or 10%, primarily due
to lower professional fees.
Net interest expense decreased $19,000 to $191,000 from $210,000 in 1995,
due primarily to lower interest rates between years under the Americable and
Transition revolving credit facility.
The income tax provision in 1996 and 1995 reflects ENStar's estimated
effective annual tax rate. See Note 7 to Combined Financial Statements of
ENStar.
Equity in earnings of unconsolidated subsidiaries increased $84,000 to
$956,000 from $872,000 in 1995, which is a result of higher earnings at CorVel.
Further information with respect to the results of operations of CorVel is
contained in the Management's Discussion and Analysis of Financial Condition and
Results of Operation section of its annual and quarterly reports as filed on
Forms 10-K and 10-Q with the Securities and Exchange Commission.
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<PAGE> 78
1995 VERSUS 1994
Revenues at Americable increased approximately $5.2 million, or 14.1%, to
$42.1 million. This includes increased revenues of $4.5 million resulting from
higher demand for networking products. Of this amount, approximately $3.1
million of sales were attributable to higher volume of networking products with
a large end-user customer which is not expected to continue during 1996. The
increase in revenue of Americable also includes approximately $650,000 of higher
volume of service revenues due to increased focus on services and the addition
of technical personnel. In addition, sales of cable assemblies increased by
approximately $100,000, primarily as a result of higher demand of OEM assemblies
offset by reduced pricing within modular assembly applications due to
technological changes.
Revenues at Transition increased approximately $2.5 million, or 21% which
includes increased sales of approximately $1.1 million, or 25%, to international
customers and approximately $1.4 million, or 19% higher sales to domestic
customers. Sales to international customers consisted of 37% and 35% of
Transition's revenues in 1995 and 1994, respectively. This growth was due to
increased unit sales of its terminal products and both its basic and advanced
LAN product groups. Overall, these increases are primarily a result of new
product introductions during the end of 1994 and throughout 1995. During 1995,
new product introductions and enhancements accounted for $1.1 million, or 9% of
net sales. Transition's ability to maintain its present level of sales and its
continued sales growth is highly dependent upon its ability to offer new
products that meet customer's demands in a rapidly changing market, particularly
in light of the relatively short life cycle of its products.
Combined gross profit, as a percentage of revenues, increased to 28% in
1995 as compared to 27.3% in 1994. Increased margins at Americable were
primarily attributable to a higher mix of value-added service revenue and, to a
lesser extent, improved pricing and improved manufacturing efficiencies within
its cable assembly operations. Decreased margins at Transition were a result of
lower pricing on certain product lines due to increased competition. For 1996,
ENStar expects its gross profit margins to decline due to expected competitive
pricing pressures on products sold by both Americable and Transition.
ENStar's selling, general and administrative expenses increased $766,000,
or 5.6% to $14.3 million from $13.6 million in 1994. Operating expenses at
Americable increased approximately $600,000, or 7%. This increase reflects
higher selling expenses of approximately $700,000, primarily a result of higher
sales commissions and the addition of technical and engineering personnel, along
with additional expense for amounts earned under its incentive compensation
program of approximately $200,000. These increases were offset by the impact of
approximately $300,000 of annualized savings realized through reorganizations
effected within its U.S. operations in the third quarter of 1994 and the first
quarter of 1995. Americable expects that its selling expenses, as a percentage
of revenues, may increase during 1996 through the addition of sales and
technical personnel in new geographic locations in addition to costs associated
with a new catalog released in April 1996. These anticipated increases in
operating expenses may result in lower operating profits at Americable, if the
company is unable to maintain current gross profit margins and continued sales
growth.
ENStar's research and development expenses (incurred exclusively within
Transition) were approximately $1.0 million in 1995, compared to approximately
$1.2 million in 1994.
Transition increased operating expenses approximately $213,000 or 5%. This
includes approximately $125,000 of increased sales and marketing expenses due to
higher promotional and advertising expenses associated with new product
introductions and the company's name change, and approximately $220,000 of
increased engineering expenses associated with the additional personnel to
support new product development. In addition, this increase reflects higher
expenses of approximately $175,000 related to moving to a new facility and the
addition of administrative personnel and related facility expenses needed to
support its overall growth. These increases were offset by a decrease in
engineering expenses of approximately $300,000 due to lower spending on parts,
equipment, and other costs related to hardware development projects. This
reflects a shift towards higher software development associated with its
advanced LAN products. Transition expects that its research and development
expenses will increase in 1996 based on the planned addition of engineering
personnel for new product development. There can be no assurances, however, that
its research and development efforts will result in commercially successful new
products in the future. In addition, Transition
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believes that sales and marketing expenses may continue to increase in terms of
absolute dollars in an effort to differentiate its products and enhance its
competitive position. These anticipated increases in operating expenses are
expected to result in lower operating profit at Transition, particularly if the
company is unable to maintain its current gross profit margins and continued
sales growth.
Net interest expense decreased by approximately $100,000 due primarily to
lower outstanding borrowings under Americable's revolving credit facility.
ENStar's effective combined income tax rate was 51.5% in 1995 and (32.4%)
in 1994. See Note 7 to the Combined Financial Statements of ENStar.
Equity in earnings of ENStar's unconsolidated subsidiary increased $195,000
to approximately $1.2 million in 1995 from approximately $1.0 million in 1994,
which is a result of higher earnings at CorVel. CorVel's net earnings for the
twelve months ended December 31, 1995 were approximately $7.0 million, an
increase of approximately $1.5 million or 27% from the previous year.
1994 VERSUS 1993
Revenues at Americable, excluding approximately $4.6 million of revenue in
1993 from its Canadian operations, which were closed in December 1993, increased
$3.3 million, or 9.8%, to $36.9 million. This includes increased revenues of $5
million resulting from higher demand for value-added networking products and
services offset by decreased sales of bulk cable and other connectivity products
of $1.2 million due primarily to lower volume of sales to contractors and
resellers. In addition, sales of cable assemblies decreased by approximately
$500,000 as a result of reduced pricing within modular assembly applications due
to technological changes.
Revenues at Transition increased approximately $1.8 million, or 18% which
includes increased sales of approximately $1.1 million, or 33%, to international
customers and approximately $700,000, or 10% higher sales to domestic customers.
Sales to international customers consisted of 35% and 31% of Transition's
revenues in 1994 and 1993, respectively. Overall, these increases are primarily
a result of new product introductions during the end of 1993 and throughout
1994. During 1994, new product introductions and enhancements accounted for $3.3
million, or 28% of net sales.
Combined gross profit, as a percentage of revenues, decreased to 27.3% in
1994 as compared to 30.3% in 1993. Margins at Americable decreased due to
overall lower pricing resulting from increased competition. Margins at
Transition were unchanged in 1994 from 1993.
ENStar's selling, general and administrative expenses, excluding
restructuring charges, decreased $615,000, or 4.3% to $13.6 million from $14.2
million in 1993. Operating expenses at Americable decreased approximately $1.9
million, which reflects approximately $1.2 million of expenses eliminated
through the closure of its Canadian facilities effected in December 1993, and
$700,000 of other savings realized through a reorganization effected within its
U.S. operations in the third quarter. These decreases were offset by increased
expenses of $1.3 million at Transition due to the addition of sales and
engineering personnel and increased research and development expenses related to
new product introductions and additional administrative and support personnel
needed to support overall growth.
ENStar's research and development expenses (incurred exclusively within
Transition) were approximately $1.2 million in 1994, compared to approximately
$822,000 in 1993.
Net interest expense was relatively unchanged between 1994 and 1993.
ENStar's effective combined income tax benefit rate was 32.4% in 1994 and
3.0% in 1993. See Note 7 to the Combined Financial Statements.
Equity in earnings of unconsolidated subsidiary increased $251,000 to
approximately $1 million in 1994 from $745,000 in 1993 which is a result of
higher earnings at CorVel. CorVel's net earnings for 1994 were approximately
$5.5 million, an increase of approximately $1.7 million or 43% from the previous
year.
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CAPITAL RESOURCES AND LIQUIDITY
ENStar has experienced cash flow deficits from operations in certain prior
years and has experienced fluctuations in its working capital which are
primarily attributable to the increase in receivables and inventories associated
with growth in sales and timing of payments on accounts payable. Cash used in
operations was approximately $1 million in 1994 versus net cash provided from
operations of approximately $1.1 million in 1995. Cash provided by operations
was $640,000 for the nine months ended September 30, 1996, versus approximately
$1.0 million in 1995.
Since CorVel's initial public offering in July 1991, neither NSU nor ENStar
has had the use of cash generated by CorVel and its subsidiaries. Also, since
its initial public offering, CorVel has not declared any dividends and has
indicated that it does not anticipate doing so for the foreseeable future.
ENStar or, after the Distribution, Americable may from time to time, depending
on market conditions and other factors, sell a portion of its CorVel holdings.
The ability of ENStar or Americable to sell its CorVel holdings is limited,
however, to sales pursuant to Rule 144 of the Securities Act and the volume
limitations thereof, and to private negotiated sales, which may adversely affect
the ability of ENStar and Americable to sell a large portion of the CorVel
holdings at a given time.
NSU has indicated to ENStar that prior to the Distribution it may cause
ENStar to seek to sell up to 200,000 shares of CorVel Common Stock and to
distribute the after-tax net proceeds from such sale to NSU as a dividend in
order to fund NSU's operating expenses and maturing indebtedness prior to the
Merger and to reduce NSU's net indebtedness at the time of the Merger. The
simultaneous sale of 200,000 shares of CorVel Common Stock would require CorVel
to register the sale of such shares with the Commission. ENStar does not have an
agreement with CorVel requiring CorVel to register any of its shares of CorVel
Common Stock. If all 200,000 shares were sold, ENStar would own 1,025,000 shares
of CorVel Common Stock, or approximately 22% of the outstanding shares of CorVel
as of September 30, 1996.
On August 9, 1996, Americable and Transition amended the terms of their
revolving credit facility with First Bank National Association to provide
borrowings up to $4 million and $2 million, respectively, due in June 1998.
Borrowings under the amended revolving credit facility are based on eligible
accounts receivable and inventory with interest at prime (8.25% at September 30,
1996), with optional fixed rate advances at the London Interbank Offered Rate
("LIBOR") plus 2.5%. At September 30, 1996, there were outstanding borrowings of
approximately $1.1 million under the revolving line of credit, including
$857,000 of amounts transferred from the companies' previous term loan facility
which matured in May 1996. In addition, there were approximately $4.9 million of
available borrowings under this credit facility at September 30, 1996.
Previously, Americable and Transition maintained a revolving line of credit with
interest at prime plus 1.5%, and term loan facility with interest at 10.665%.
ENStar has initiated a program, similar to that historically maintained by
NSU, whereby it will sell up to $10 million of subordinated debentures of
various maturities to primarily individual investors. The debentures will be
offered on a continuous basis at interest rates that change from time to time
depending on market conditions. Proceeds from this program will be used to fund
the growth of ENStar's operating companies along with potential acquisitions and
general corporate purposes. There can be no assurance, however, that ENStar will
maintain this program or that it will be successful.
ENStar expects to be able to fund its working capital and capital
expenditure requirements for 1996 with cash flow from operations along with the
amounts available under the credit facilities of its operating companies. During
1996, ENStar's operating plans call for approximately $1 million in capital
expenditures.
BUSINESS OF ENSTAR
ENStar was formed on December 21, 1995, as a wholly owned subsidiary of
NSU. On November 7, 1996, NSU contributed its stock of Americable, Transition
and CorVel to ENStar. At November 7, 1996, NSU owned a 26% ownership interest in
CorVel. Prior to the Effective Date, pursuant to the terms of the Distribution
Agreement, NSU will transfer all of its remaining assets and liabilities to
ENStar, except the capital stock of Merger Co., all of the shares of Michael
Common Stock that it holds, certain of its
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outstanding indebtedness and a certain amount of cash, to be determined in the
discretion of NSU. The date of such transfer is hereinafter referred to as the
"Asset Transfer Date."
At the time of the Distribution, ENStar's operations will consist of the
operations of its direct and indirect operating companies, which consist of
Americable, Inc. ("Americable") and Transition Networks, Inc. ("Transition"). In
addition, at November 7, 1996, NSU owned 1,225,000 shares of the common stock,
$.0001 par value, of CorVel (the "CorVel Common Stock"), which represents
approximately 26% of the outstanding shares of CorVel Common Stock . The CorVel
Common Stock is traded on the Nasdaq National Market under the Symbol CRVL. The
closing price per share of the CorVel Common Stock on November 20, 1996 was
$27.50. All of the shares of CorVel Common Stock held by NSU were contributed to
ENStar on November 7, 1996. NSU has indicated that prior to the Distribution it
may cause ENStar to sell up to 200,000 shares of CorVel Common Stock (the
"CorVel Stock Sale") and to distribute the after-tax proceeds from such sale to
NSU as a dividend in order to fund NSU's operating expenses and maturing
indebtedness prior to the Merger and to reduce the amount of NSU Net Assumed
Liabilities at the time of the Merger. If all 200,000 shares are sold, ENStar
would own 1,025,000 shares of CorVel Common Stock, or approximately 22% of the
outstanding shares of CorVel as of September 30, 1996. Any such sale would be
made pursuant to Rule 144 of the Securities Act, or in a registered public
offering. Although ENStar does not have any contractual right to require CorVel
to register its shares of CorVel Common Stock, CorVel has indicated that it is
generally willing to register the shares held by ENStar. Proceeds from any such
sale or sales would be retained by NSU to reduce the amount of Net Indebtedness
to be assumed by New Michael in the Reorganization. ENStar contemplates that it
will directly employ seven management and administrative employees.
UNCONSOLIDATED SUBSIDIARY
CorVel. Since its initial public offering in June 1991, CorVel has been
operated as an independent company. As a less-than-majority-owned subsidiary of
ENStar, CorVel's operations have not been consolidated with ENStar, and ENStar's
investment in CorVel is accounted for under the equity method of accounting. The
following summary of CorVel's business has been prepared from information
reported by CorVel. Additional information regarding CorVel is available from
the reports and other documents prepared and filed by CorVel with the
Commission.
CorVel is an independent nationwide provider of medical cost containment
and managed care services designed to address escalating medical costs. CorVel's
services include preferred provider organizations, automated medical fee
auditing, medical case management, independent medical examinations, utilization
review and vocational rehabilitation services. Such services are provided to
insurance companies, third party administrators and employers to assist them in
managing the medical costs and monitoring the quality of care associated with
medical claims.
Since its initial public offering in June 1991, Jeffrey J. Michael and
Peter E. Flynn, each directors of NSU, have been members of the Board of
Directors of CorVel. Based on the past service of Messrs. Michael and Flynn on
CorVel's Board of Directors and ENStar's position as a significant shareholder
of CorVel, ENStar believes that Messrs. Michael and Flynn will continue to serve
as members of the CorVel Board of Directors and be nominated for re-election to
the CorVel Board at the next annual meeting of stockholders of CorVel. There are
no agreements, however, between ENStar and CorVel or any of CorVel's
stockholders requiring the nomination of Messrs. Michael and Flynn or any
designees of ENStar for election as directors of CorVel. In connection with the
Distribution, ENStar intends to transfer all of its CorVel Common Stock to
Americable to satisfy certain federal income tax requirements relating to the
Merger and Distribution. Neither ENStar nor Americable has any agreement with
CorVel requiring CorVel to register the shares of CorVel Common Stock currently
held by ENStar. In the absence of registration of its CorVel Common Stock the
ability of ENStar or, after the Distribution, Americable to sell the holdings of
the CorVel Common Stock will be limited to sales pursuant to Rule 144 of the
Securities Act, and the volume limitations thereof, and to private negotiated
sales, which may adversely affect the ability of ENStar and Americable to sell a
large portion of holdings of CorVel Common Stock at a given time.
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OPERATING SUBSIDIARIES
GENERAL
Americable. Americable was organized as a Minnesota corporation in 1981 and
was acquired by NSU in December 1986. Americable is a provider of networking and
connectivity products and services used in providing solutions for customers
operating a wide range of data communications systems. Americable's operations
are organized into three business units, Americable Network Technologies,
National Distribution Sales and Americable Custom Products, which are described
in more detail below.
Americable Network Technologies provides products and services designed to
build and manage local area network ("LAN") and wide area network ("WAN")
infrastructures for large and medium sized end-users. As a value-added reseller
("VAR"), Americable offers customized, integrated solutions to meet its
customers' LAN/WAN needs through a combination of a broad range of network
electronics and software from leading manufacturers and through high-quality
technical services.
Americable supplies a wide array of voice and data communication related
products such as cable (both copper and fiber optic), cable assemblies,
components (blocks, jacks, connectors, patch cords, patch panels) and networking
hardware. The principal focus of Americable's distribution business, conducted
primarily through National Distribution Sales in Minneapolis, Minnesota, is to
provide quality products, prompt reliable delivery of such products and strong
customer service both before and after the products are sold. Americable sells
to a wide range of customers throughout the United States in the voice and data
communications aftermarket, including resellers, other distributors, systems
integrators, installers and end-users.
Through Americable Custom Products, Americable manufactures a wide variety
of cable assemblies, subassemblies and specialty products for its customers.
While some of these products are manufactured to standard specifications for
sale by Americable through its distribution business, most are custom designed
and manufactured by Americable to customer specifications. These customer
designed products are manufactured for both end-users and OEMs.
Americable has historically been a distributor of connectivity and
networking products. As part of its business strategy, Americable has recently
focused on increasing its level of service revenues, which are generally more
profitable. Service revenue is primarily derived from network integration
services such as network management, maintenance, design and implementation.
Americable intends to implement this strategy through continued internal
investments in additional sales, engineering and technical personnel at existing
and new geographic locations in order to enhance its ability to satisfy the
changing technology requirements of its customers.
Transition. Transition develops, manufactures, markets and supports a broad
line of data networking hardware products that provide physical connectivity for
LANs and mini- and mainframe networks. Physical connectivity devices enable
computing and other electronic devices to communicate over a LAN. These devices
include high-speed switches, managed and unmanaged hubs, transceivers, media
converters and other related networking devices.
Transition's products include intelligent hubs and switches, passive and
active terminal network products, including baluns, media converters and
transceivers, unmanaged Ethernet and Token Ring hubs and related host modules,
multi-port multi-media repeaters, network adapter cards and other passive
devices. Transition sells its products to a number of volume distributors and
VARs throughout the United States and certain countries world-wide. The
customers that purchase Transition products through its network of distributors
and VARs include system integrators, installers and end-users.
Historically, in excess of 90% of Transition's revenues have been derived
from the sale of its terminal and basic LAN products. These products have life
cycles of 18 to 36 months and are generally sold based on price, availability
and functionality. More recently, Transition has focused its product development
and marketing efforts on expanding its advanced LAN products in an effort to
increase sales with existing customers and participate in broader market
opportunities. Due to the increasing design and manufacturing complexities
associated with the integration of technologies, the development of advanced LAN
products requires a more
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substantial investment in engineering personnel and related costs. As a result,
Transition's future operations are highly dependent on its ability to introduce
advanced LAN products on a timely basis that meet customer demands.
INDUSTRY
A growing number of organizations are re-engineering their businesses and
are using PC-based network technology to enhance productivity. PC networks
increase speed and flexibility, provide improved functionality to end-users and
provide greater productivity, often at lower costs. The growth in demand for
personal computers, along with recent advances in networking technology, have
led to an increase in demand for interconnected LANs and WANs. Such networks
facilitate efficient and rapid data communications among connected work groups
and departments providing for more effective utilization of information and
computing resources. As LANs have proliferated, demand for multi-vendor
interoperability has led to industry standard network protocols and access
methods such as Ethernet and Token-Ring.
More recently there has been an increasing demand to connect users of LANs
in other geographic areas using WANs. Applications such as online services,
electronic mail, sharing of databases, multi-site product development and
transaction processing are leading the demand for the inter-networking of LANs
and WANs. The integration of LANs and WANs requires data communication products
which efficiently, reliably and quickly transmit data to appropriate locations.
In the face of this rapidly changing technological environment, the
decision-making process that organizations face when planning, selecting and
implementing information technology solutions is growing more complex.
Organizations must select from numerous product options with shortening life
cycles. Although networks enhance business productivity, they typically present
complex management problems and increased administrative costs. Thus, many
organizations find it increasingly difficult and costly to maintain the internal
infrastructure needed to support their networks. As a result of these trends,
companies increasingly seek to outsource the management and support of their PC
network infrastructure.
According to Data Com Market Forecast, it is estimated that in 1995 the
overall market in the United States for networking products and services was
approximately $50 billion.
BUSINESS STRATEGY
Americable. Americable's objective is to be a leading provider of a
complete range of network products and services to medium to large sized
enterprises throughout the United States. To meet this goal, Americable believes
it must seek to maintain its current customer relationships and continually
expand its customer base in the regions in which it operates, continue to
develop strong relationships with its key suppliers, look for opportunities to
expand its branch locations and develop and enhance its value-added service
offerings.
During 1995, approximately 5,200 customers purchased products or services
from Americable. Management at Americable believes that preserving and enhancing
these relationships is a constant priority. Continuous quality improvement in
its operations along with expansion and enhancement of its product and service
offerings are some of the means that Americable utilizes to enhance its customer
relationships.
Management at Americable also believes that developing strong relationships
with the leading manufacturers of networking products allows Americable to offer
its customers name brand products that provide the best value in meeting their
networking needs. Americable has developed relationships with leading
manufacturers within each of its principal product lines, such as Bay Networks,
Inc., AMP Incorporated and Berk-Tek Inc. and seeks to add new relationships to
expand its value-added service capabilities. Americable believes that utilizing
a select range of suppliers allows it to provide superior customer service
because its technical personnel are more familiar with the products sold and
because such high quality products are generally more reliable. Further, such
strong relationships result in greater continuity of product supply.
From 1991 to 1995, Americable's domestic sales have increased from $27.6
million to $42.2 million. This increase in sales has been generated through
internal growth at Americable's four principal locations in Atlanta, Chicago,
Dallas and Minneapolis, primarily as a result of the addition of new sales,
engineering and
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technical personnel. Also during 1995, Americable opened smaller satellite
offices in Milwaukee, Wisconsin and Fargo, North Dakota. Americable plans to
continue its growth strategy through the addition of new sales, engineering and
technical personnel in both existing locations and new geographic markets.
Americable also intends to look for opportunities to acquire businesses in the
same or related industries in an effort to expand geographically or enhance its
value-added service offerings.
Since 1989, Americable has made substantial investments in the development
of its value-added networking capabilities primarily through the addition of
engineering and technical personnel. During 1995, Americable introduced a number
of service offerings designed to provide its customers with customized
integrated solutions to meet their unique network computing needs. Revenues from
technical services and installation in 1995 represented 7% of Americable's total
revenues, of which approximately 1% represents services performed by Americable
personnel. The remaining portion of these services are rendered primarily
through subcontractors engaged by Americable. Americable expects to continue
utilizing the services of outside contractors in addition to its internal
personnel in meeting its customers' needs. Americable believes there are
opportunities to increase Americable's overall gross margins by increasing the
volume of services that it currently offers to its customers and intends to
focus on increasing its service revenues.
Transition. The market for Transition's products is characterized by rapid
technological change, constantly evolving industry standards and rigorous
competition with respect to timely product innovation. Because the introduction
of products embodying new technology and the emergence of new industry standards
can render existing products obsolete and unmarketable, Transition believes that
its future success will depend upon its ability to develop, manufacture and
market new products and enhancements to existing products on a cost-effective
and timely basis. Transition seeks to identify niche market opportunities for
new or enhanced products and quickly respond by offering a new or enhanced
product that may have greater capabilities, better functionability or
flexibility, greater ease of use or equivalent capabilities or functionability
but a lower price point than other competitive products.
As LANs have proliferated, demand for multi-vendor interoperability has led
to industry standard network protocols and access methods such as Ethernet,
Token-Ring and Fiber Distributed Data Interface ("FDDI"). Transition has
developed the majority of its LAN products using industry standards, primarily
Ethernet. Ethernet's cabling media has evolved from coaxial cable to its
associated 10BaseTL fiber optic cabling. Management at Transition believes that
the LAN/WAN products market will continue to be driven by the migration of
end-users to new applications that demand more speed and flexibility.
Accordingly, Transition's research and development efforts have been targeted at
high speed (100Mbs+) LANs and the integration of LANs and WANs into a single
platform.
PRODUCTS AND SERVICES
Americable. The following is a summary of Americable's consolidated sales
by principal product group for 1995:
<TABLE>
<CAPTION>
AS A PERCENT OF SALES
---------------------
<S> <C>
Networking Products............................. 41%
Services and Installation....................... 7%
Cable Assemblies................................ 18%
Bulk Cable...................................... 18%
Other Connectivity Products..................... 16%
</TABLE>
In an effort to offer its customers a "One Company, One Call" solution,
each of the above products and service groups is delivered through one or more
of Americable's operating units. Each unit works in concert with the others to
leverage Americable's product and service offerings across its broad customer
base. Set forth below is a description of each unit's operations and market
focus.
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Americable Network Technologies
Through Americable Network Technologies, Americable provides products and
services designed to build and manage LAN and WAN infrastructures for large and
medium sized enterprises. As a network integrator, Americable offers the
following customized, integrated LAN/WAN solutions:
- Network Electronics -- Americable supplies, implements and supports a
select range of suppliers of electronics and software platforms from
manufacturers such as Bay Networks, Inc., 3Com Corp., Cisco Systems Inc.,
Shiva Corp., Novell Inc., Microsoft Corp., Sun Microsystems Inc. and
Compaq Computer Corporation. Americable's line of network products include
concentrators, hubs, switches and routers for both existing and emerging
technologies such as Ethernet, Token Ring, FDDI, Fast Ethernet and
Asynchronous Transfer Mode ("ATM").
- Network Integration -- Americable's advanced engineering group utilizes
network management and routing solutions in providing customers a range of
options from simple remote access solutions to the largest multi-protocol
inter-networking routers currently available.
- Network Management -- Americable's network management solutions provide
customers assistance with network troubleshooting, diagnostics, security,
optimization and proactive network maintenance. Americable installs Bay
Networks Optivity network management software, one of the leading network
management software systems in the industry. Americable can also supply
each of the four industry-leading network management system (NMS)
platforms including: Hewlett Packard's OpenView/UNIX and OpenView/DOS, Sun
Microsystems' SunNet Manager, IBM's NetView/6000 and Novell's NetWare
Management System (NMS).
- Network Applications -- Americable offers remote access products and
services that allow the end-user to operate outside of his or her office
while still being able to connect to his or her LAN.
- Structured Wiring Systems -- Americable provides project management,
design and implementation of structured wiring systems for data
communications.
- Network Maintenance Services -- Americable provides a broad line of
maintenance services including fixed fee network support, telephone
support, guaranteed response times, next business day on-site response for
problem resolution, "spare-in-the-air" hardware replacement and cabling
system diagnosis and repair. In addition, Americable offers several fixed
price service offerings for preventative maintenance such as CASE (Cable
Analysis Service) and EASE (Enterprise Analysis Service).
- Network Security -- Americable is capable of providing security services
for customers with Internet and intranetwork applications. Americable is
an authorized reseller of the CheckPoint Fire Wall - 1, a security product
offered by CheckPoint Software Technologies, Ltd.
Americable is committed to providing networking products, services and
systems to customers of all sizes in the geographic areas served by its four
principal regional offices. Sales from Americable Network Technologies
constituted approximately 74% of Americable's net sales in 1995. In addition to
value-added distribution sales, Americable Network Technologies will oversee the
design and implementation of projects involving multiple LANs across a wide area
network, consisting of multi-vendor hardware products and several thousand
nodes. Value-added projects generally range in size from $10,000 to $500,000.
During 1995, sales derived from value-added projects and services consisted of
approximately 18% of Americable's net sales. Value-added projects and services
sales include sales of products such as bulk cable, cable assemblies and
networking devices and services such as training, installation and maintenance.
National Distribution Sales
Through its distribution business, operated principally through National
Distribution Sales, Americable maintains a wide variety of high-quality products
in its inventory. Product inventory ranges from connectivity products such as
bulk cable, connectors, patch panels, racks and other cable accessories to more
complex networking electronic devices such as concentrators, hubs, switches and
routers. As a distributor, Americable generally inventories products from
multiple manufacturers. Principal manufacturers of connectivity products
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include Berk-Tek, Inc., Amp Incorporated, General Cable Corp., The Siemon
Company and Leviton Manufacturing, Inc. In addition, in an effort to reduce its
inventory levels, Americable purchases a number of networking products through
large distributors such as Tech Data Corporation, Gates/Arrow and Ingram Micro,
Inc.
Americable also maintains an integrated, real-time, on-line computerized
system for order entry, fulfillment and inventory control. This on-line computer
system allows sales personnel to advise customers over the phone of product
specifications, availability and order status. All orders are normally shipped
within 24 hours of receipt and, when necessary, can be shipped on a "same-day"
basis.
National Distribution Sales seeks to add value for its customers by
providing superior customer service. All of Americable's sales representatives
and other sales and marketing personnel are trained to assist customers in
product selection, implementation and system upgrading and expansion. The
National Distribution Sales sales representatives are supported by the technical
staff of Americable Network Technologies, who have a broad range of expertise in
various networking technologies.
National Distribution Sales services customers of all sizes in the voice
and data communications aftermarket. Customer orders range in size from under
$50 to several hundred thousand dollars. Average order size of the division
during 1995 was approximately $600. The distribution business of Americable
(including sales of cable assemblies) constituted approximately 26% of
Americable's net sales in 1995.
Americable Custom Products
As a natural extension of its distribution business, and consistent with
Americable's marketing strategy to be a single-source provider for its
customers, Americable Custom Products provides a manufacturing capability to
satisfy the individual needs of those customers that may require custom or
specialty cable assemblies. Americable, working to its customers'
specifications, can manufacture custom designed products such as copper,
fiber-optic, small computer system interface (SCSI) and AS/400 cable assemblies
and subassemblies.
All Americable manufactured products are subject to strict quality control
standards to insure that they are of the same high quality as other, vendor
manufactured, distributed products. During 1997, Americable expects to complete
the process of implementing the quality standards of ISO 9002 for its
manufacturing and primary distribution operation in Minneapolis. ISO 9002 is an
international protocol for documenting processes and procedures used in
establishing a consistent manufacturing quality system.
Sales from Americable Custom Products are generated from both end-user and
OEM customers. For 1995, sales to OEM customers constituted approximately 26% of
total cable assembly sales and approximately 5% of Americable net sales.
Transition. Transition's products encompass three inter-networking and
physical connectivity product families, which include (i) passive and active
terminal network products, (ii) basic LAN products and (iii) advanced LAN
products. These products encompass LAN and WAN components, which allow
Transition to offer work-group and enterprise-wide networking solutions. The
following table sets forth the percentage of sales attributable to each product
family:
<TABLE>
<CAPTION>
AS A PERCENT OF SALES
---------------------
<S> <C>
Terminal network products.................................... 27%
Basic LAN products........................................... 63%
Advanced LAN products........................................ 10%
</TABLE>
The terminal products family of products includes both passive and active
connectivity devices such as baluns, media converters, and transceivers that
attach personal computers to a network, thereby enabling the user to communicate
with other users in the LAN. In addition, Transition's "PowerStar" line of
active hubs provide cost-effective solutions for converting a S/3X or AS/400
Twinax daisy chain topology to an unshielded twisted pair star topology, thereby
improving network reliability and flexibility. During 1995, the terminal
products family comprised approximately 27% of Transition's net sales.
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Transition's basic LAN product line includes unmanaged Ethernet and Token
Ring hubs and related host modules; multi-port multi-media repeaters that
regenerate the signal, thereby allowing expansion capabilities and providing
connectivity and management of the different cabling schemes used throughout a
LAN; network adapter cards that provide direct connection from the personal
computer to a LAN; and other passive devices that provide a structured wiring
system for mini- and mainframe computer environments. Transition has developed
its Ethernet and Token Ring LAN products using industry standards. During 1995,
the basic LAN product line comprised approximately 63% of Transition's net
sales.
The advanced LAN product family of Transition is a potentially high growth
product area with devices that utilize computer processors and sophisticated
internal software to manage and direct information across complex networks.
Transition's advanced LAN products are led by a multi-function hybrid
bridge/router that allows high speed switching across networks. This group of
products also includes manageable, stackable Ethernet and Token Ring hubs.
Transition believes that as network centric systems continue to grow in
sophistication, this product area will provide additional revenue opportunities.
The majority of Transition's research and development has been concentrated in
advanced LAN products with new offerings planned for 1996. During 1995, the
advanced LAN product family comprised approximately 10% of Transition's net
sales. Transition expects a significant portion of its sales growth in the
future will be derived from the introduction of new advanced LAN products
provided, however, that there can be no assurance that Transition will be able
to develop and introduce new LAN products in a timely manner or at all or that
any such products will gain market acceptance and, accordingly, that the sales
growth will be achieved, if at all.
MARKETING AND CUSTOMERS
Americable. Americable provides its products and services to customers in
various industries, including health care, financial services, manufacturing and
education. Americable also sells products to a number of installers, resellers,
other distributors and system integrators. Customer relationships are developed
both face-to-face and via the telephone.
Americable's marketing strategy is two-tiered. A national effort is
centered on telemarketing through National Distribution Sales in Minneapolis,
Minnesota. Additionally, Americable operates each of its business units from its
four principal regional offices in order to provide its customers in each region
the full array of value-added networking products and services offered by the
company.
Americable employs 20 outside sales representatives in addition to 40
telemarketing and sales support representatives. The sales force is supplemented
by 30 regional technical service engineers and technicians and two corporate
product managers. Americable sales representatives undergo continuous training
and attend company-sponsored classes in order to enhance their technical
expertise and marketing techniques. Also, many of Americable's sales and
technical personnel attend vendor-sponsored training and education programs
mandated by such vendors in order for Americable to qualify as a licensed
reseller of their products.
Americable also uses direct mailings, brochures and catalogs in marketing
the products that it distributes. Americable's catalog, which generally is
published every 18 months, is designed to provide end-users with not only
product specifications, but additional technical information to assist them in
connection with their system design. Americable's latest catalog was released in
April 1996.
During 1995 and the first nine months of 1996, Mayo Foundation accounted
for approximately 11% and 14%, respectively, of net sales. In addition, in 1995
and the first nine months of 1996, Americable derived approximately 61% and 65%,
respectively, of its sales from its largest 100 customers.
Transition. Transition distributes its products through a number of volume
distributors and VARs throughout the United States and in over 50 countries
worldwide. Distributors and VARs purchase Transition's products at standard
discounts based on certain volume-based incentive programs. Transition's
international sales have accounted for a substantial portion of its sales
growth, coming primarily from the United Kingdom, South Africa, Australia and
Sweden. During 1995 and the first nine months of 1996, revenues from outside the
United States accounted for approximately 37% and 35%, respectively, of net
sales.
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Transition's continued growth will be dependent, in part, upon its ability
to expand its domestic and international distributor base with high quality
VARs. A significant benefit for a distributor or VAR is that Transition does not
sell directly to end users. Transition's distributors and VARs carry other
products that are complementary to, and compete with those of Transition, and
these non-exclusive distributors and VARs may choose to give higher priority to
products of other suppliers or competitors.
Transition has several marketing programs to support the sale and
distribution of its products. Its marketing programs are designed to generate
sales leads for its distribution channels, as well as to enhance brandname
recognition. Transition's marketing activities include frequent participation in
industry trade shows, advertising in major trade publications, public relations
campaigns, the distribution of sales literature and product specifications, and
ongoing communications with its distributors. In addition, Transition offers
comprehensive pre- and post-sales technical support, distributor/VAR product
training, and a strategic test partner program. Transition utilizes reseller
incentive programs such as co-op funds to increase localized print advertising
and name recognition. The marketing budget has been increased for both 1995 and
1996 to enhance Transition's image and name recognition.
RESEARCH AND DEVELOPMENT
Transition. Transition performs all of its research and development
activities at its headquarters in Eden Prairie, Minnesota. Transition believes
that its future success depends on its ability to achieve market acceptance of
new product offerings, especially in the advanced LAN products area. The
engineering staff has increased by 36% since the end of 1994, to accelerate
development in this area. Although there can be no assurance that its
development efforts will result in commercially successful products, Transition
intends to continue to make substantial investments in the development of new
and enhanced products. Research and development expenses were approximately $1.2
million (10% of net sales) in 1994, $1.0 million (7% of net sales) in 1995 and
$1.2 million (9% of net sales) for the nine months ended September 30, 1996.
MANUFACTURING
Americable. Americable's manufacturing operations consist of the
manufacture of custom or specialty cable assemblies including copper,
fiber-optic, small computer system interface (SCSI) and AS/400 cable assemblies
and subassemblies through its Americable Custom Products division.
Transition. Transition's manufacturing operations consist primarily of the
final assembly and quality control testing of materials, components and
subassemblies. Transition uses third parties to perform printed circuit board
assembly. Transition's products include certain components that are currently
available from single or limited sources and may require long order lead times.
Any reduction in supply or substantial change in costs of components could
affect Transition's ability to deliver its products in a timely and
cost-effective manner and may adversely impact Transition's operating results.
COMPETITION
Americable. Americable faces substantial competition within each of its
business segments from a large number of companies, some of which are larger,
have greater financial resources, broader name recognition and, in many cases,
lower product and operating costs than Americable. Americable Network
Technologies faces competition from large system integrators such as AmeriData
Technologies, Inc., Vanstar Corporation and a significant number of smaller
regional and network integrators. Significant competitors in National
Distribution Sales unit's business include Anixter International, Inc., and
Graybar Electric Co., Inc. The products of Americable Custom Products are not
protected from competition by virtue of any proprietary rights such as trade
secrets or patents. Americable Custom Products encounters competition from
domestic companies such as Kent Electronics Corporation and a number of smaller
domestic companies, in addition to a number of products manufactured outside the
United States.
Transition. The industry in which Transition operates is highly
competitive, and Transition believes that such competition will continue to
intensify. The industry is characterized by rapid technological change, short
product life-cycles, frequent product introductions and evolving industry
standards. Transition competes with a
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number of independent companies focused on designing and manufacturing products
for the LAN market, including, among others, 3Com Corp., Bay Networks, Inc.,
Cabletron System, Inc., Allied Telesyn International, and Digi International.
Most of Transition's competitors are established companies with significantly
greater financial resources, more extensive business experience, and greater
market and service capabilities than Transition. There can be no assurance that
Transition will be able to compete successfully.
Transition's ability to compete successfully depends upon its ability to
adapt to market changes on a timely basis. There are many networking products
currently being offered in the market segments in which Transition competes.
Transition believes that customers evaluate competing products on the basis of
required product features for a particular installation, performance, price and
ease of use. In addition, after installation, customers evaluate the suppliers'
ability to provide readily accessible on-site/remote technical support, if
required, and its reliability when deciding on future orders for additional
equipment. Failure to obtain significant customer satisfaction or market share
could have a material adverse effect on Transition.
PROPERTIES
Americable. Americable's headquarters are located in a 20,000 square foot
facility in a suburb of Chicago, Illinois. Americable's principal distribution
and manufacturing operations are located in Minneapolis, Minnesota (39,000
square feet). This facility includes office, warehouse and production space.
Americable also has branch operations in Dallas, Texas (10,000 square feet), and
Atlanta, Georgia (9,900 square feet) in addition to satellite offices in
Milwaukee, Wisconsin and Fargo, North Dakota. All of Americable's facilities are
leased.
Transition. Transition's headquarters, including its executive and
corporate administration offices, manufacturing, sales and technical support are
located in Eden Prairie, Minnesota, which consists of approximately 24,000
square feet of leased space.
LEGAL PROCEEDINGS
Americable and Transition are engaged in routine litigation incidental to
their respective businesses, which management believes will not have a material
adverse effect upon the business or consolidated financial position of either
company.
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DESCRIPTION OF NEW MICHAEL CAPITAL STOCK
Upon adoption of the New Articles by the shareholders of NSU, New Michael's
authorized capital stock will consist of 50,000,000 shares: 40,000,000 shares of
Common Stock, par value $.01 per share, and 10,000,000 shares of undesignated
stock. The following description assumes that the New Articles have been adopted
by the shareholders of NSU.
COMMON STOCK
The holders of the Common Stock of New Michael are entitled to receive
ratably such dividends, if any, as may be declared by the New Michael Board out
of funds legally available for the payment of dividends, after provision for
payment of preferred stock dividends, if any. In all matters to come before the
shareholders, holders of the New Michael Common Stock will be entitled to one
vote for each share of New Michael Common Stock held and are not entitled to
cumulate votes, which means that the holders of a majority of the total voting
power of such shares can elect all of the directors entitled to be elected by
the holders of New Michael Common Stock. Shareholders will have no preemptive
rights. In the event of the liquidation, dissolution or winding up of New
Michael, subject to the preferential rights, if any, of preferred shareholders,
the holders of New Michael Common Stock are entitled to share ratably in all
assets of New Michael remaining after provision for payment of liabilities. The
outstanding shares of NSU Common Stock are, and the shares of New Michael Common
Stock to be issued in the Reorganization, when issued as described herein, will
be validly issued, fully paid and nonassessable.
UNDESIGNATED STOCK
Pursuant to the New Articles, the New Michael Board is authorized, without
shareholder approval, to issue one or more classes or series of stock with
respect to which the New Michael Board may determine voting, conversion and
other rights which could adversely affect the rights of holders of New Michael
Common Stock. The rights of the holders of New Michael Common Stock generally
would be subject to the prior rights of any preferred stock with respect to
dividends, liquidation preferences and other matters. Among other things,
preferred stock could be issued by New Michael to raise capital or to finance
acquisitions. The issuance of preferred stock under certain circumstances could
have the effect of delaying or preventing a change of control of New Michael.
TRANSFER AGENT AND REGISTRAR
The First National Bank of Boston is the Transfer Agent for the Michael
Common Stock and will be appointed as the transfer agent for the New Michael
Common Stock.
BUSINESS COMBINATION STATUTE AND CONTROL SHARE ACQUISITION ACT
New Michael will be governed by the provisions of Sections 301A.671 and
302A.673 of the MBCA, which may deny shareholders the receipt of a premium for
their stock in the case of certain unfriendly acquisitions and which may also
have a depressive effect on the market price of New Michael's Common Stock. In
general, Section 302A.671 provides that the shares of a corporation acquired in
a "control share acquisition" have no voting rights unless voting rights are
approved in a prescribed manner. A "control share acquisition" is an
acquisition, directly or indirectly, of beneficial ownership of shares that
would, when added to all other shares beneficially owned by the acquiring
person, entitle the acquiring person to have voting power of 20% or more in the
election of directors. In general, Section 302A.673 prohibits a public Minnesota
corporation from engaging in a "business combination" with an "interested
shareholder" for a period of four years after the date of the transaction in
which the person became an interested shareholder, unless the business
combination is approved in a prescribed manner. "Business combination" includes
mergers, asset sales and other transactions resulting in a financial benefit to
the interested shareholder. An "interested shareholder" is a person who is the
beneficial owner, directly or indirectly, of 10% or more of the corporation's
voting stock or who is an affiliate or associate of the corporation and at any
time within four years prior to the
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date in question was the beneficial owner, directly or indirectly, of 10% or
more of the corporation's voting stock.
TAKEOVER OFFERS
Minnesota Statute sec. 80B.01 et seq. (the "Takeover Act") requires
registration of any takeover offer of a company which is an issuer of publicly
traded equity securities (i) which (a) has its principal place of business or
its principal executive office located in Minnesota, or (b) owns or controls
assets located in Minnesota which have a fair market value of at least
$1,000,000, and (ii) which (a) has more than ten percent of its beneficial or
record equity security holders resident in Minnesota, (b) has more than ten
percent of its equity securities owned beneficially or of record by residents in
Minnesota, or (c) has more than 1,000 beneficial or record equity security
holders resident in Minnesota. A takeover offer is an offer to acquire any
equity securities of the described companies from a resident of Minnesota
pursuant to a tender offer or request or invitation for tenders, if after the
acquisition of all securities acquired pursuant to the offer either (i) the
offeror would be directly or indirectly a beneficial owner of more than ten
percent of any class of the outstanding equity securities of the target company
and was directly or indirectly the beneficial owner of less than ten percent of
any class of the outstanding equity securities of the target company prior to
the commencement of the offer; or (ii) the beneficial ownership by the offeror
of any class of the outstanding equity securities of the target company would be
increased by more than ten percent of that class and the offeror was directly or
indirectly the beneficial owner of ten percent or more of any class of the
outstanding equity securities of the target company prior to the commencement of
the offer. A takeover offer does not include: (a) An offer in connection with
the acquisition of a security which, together with all other acquisitions by the
offeror of securities of the same class of equity securities of the issuer,
would not result in the offeror having acquired more than two percent of such
class during the preceding 12-month period; (b) an offer by the issuer to
acquire its own equity securities unless the offer is made during the pendency
of a takeover offer by a person who is not an associate or affiliate of the
issuer; or (c) an offer in which the target company is an insurance company
subject to regulation by the Minnesota Commissioner of Commerce, a financial
institution regulated by the Minnesota Commissioner of Commerce, or a public
service utility subject to regulation by the public utilities commission.
Certain limitations exist which provide that the offer must be made on
substantially the same terms inside and outside the state. The offeree has
certain rights to withdraw securities tendered and the Takeover Act provides
penalties for failure to comply with any provision of the Takeover Act of up to
$25,000 and/or up to 5 years in prison. Shares acquired in violation of the Act
are nontransferable and are denied voting rights for one year after acquisition.
New Michael can call the shares for redemption at the price that the shares were
acquired. Any seller who sells to an offeror who violates the Takeover Act can
sue, subject to the limitations period, in law or in equity, and may sue for
rescission.
COMPARISON OF RIGHTS OF NSU SHAREHOLDERS
BEFORE AND AFTER THE REORGANIZATION
If the Reorganization is consummated, then after the Effective Time shares
of Common Stock of NSU will be exchanged for shares of Common Stock of New
Michael and ENStar. Like NSU and New Michael, ENStar is a Minnesota corporation
governed by Minnesota law, its Articles of Incorporation and its Bylaws.
Pursuant to the Reorganization, the existing Amended and Restated Bylaws of NSU
will become the Bylaws of New Michael. Such Amended and Restated Bylaws are
substantially the same as the Bylaws of ENStar. The existing Restated Articles
of Incorporation of NSU are referred to herein as the "NSU Articles." A copy of
the Amended and Restated Articles of Incorporation of NSU that will be adopted
if approved by the shareholders of NSU at the NSU Annual Meeting is included as
Exhibit D to Appendix I hereto. See "PROPOSAL NUMBER FOUR: PROPOSAL TO ADOPT AN
AMENDMENT TO THE RESTATED ARTICLES OF INCORPORATION OF NSU." Such Restated
Articles of Incorporation are referred to herein as the "New Articles." The
Restated Articles of Incorporation of ENStar are referred to herein as the
"ENStar Articles." There are certain differences between the NSU Articles, the
New Articles and the ENStar Articles. The following is a summary of some of the
significant differences.
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<PAGE> 92
The NSU Articles provide for authorized Capital Stock of 100,035,000
shares, comprised of 100,000,000 shares of Common Stock with a par value of $.25
per share and 35,000 shares of preferred stock with a par value of $100 per
share. The New Articles will provide for authorized Capital Stock of 50,000,000
shares, comprised of 40,000,000 shares of common stock with a par value of $.01
per share and 10,000,000 undesignated shares. The New Articles will eliminate
the existing designation of the rights and preferences of NSU Common Stock and
NSU Preferred Stock. The Board of Directors will be able to establish by
resolution different classes or series of shares and to fix the rights and
preferences of any New Michael Preferred Stock to be issued. The rights and
preferences of New Michael Common Stock will be as provided under Minnesota law.
The ENStar Articles provide for authorized capital stock of 100,000,000,
comprised of 80,000,000 shares of Common Stock with a par value of $.01 per
share and 20,000,000 shares of Preferred Stock with a par value of $.01 per
share. All shares of ENStar Common Stock are voting shares and are entitled to
one vote per share. The board of directors has the authority to fix the rights
and preferences of preferred shares.
The NSU Articles mandate that the Board of Directors consist of at least
one but not more than 15 directors. The New Articles will set the minimum number
of directors at three but will not fix a maximum number. It will also permit the
board, in its discretion, to elect honorary, non-voting directors. The ENStar
Articles fix the initial number of directors at five. Thereafter, the number of
directors may be fixed by the board or by the affirmative vote of voting power
of outstanding ENStar Common Stock.
Under the NSU Articles, directors may take written action in lieu of action
at a meeting unless the matter requires shareholder approval. The number of
directors required to approve a written action is an absolute majority. Under
the New Articles, a written action on a matter requiring shareholder approval
must be signed by all directors. Written action on other matters may be taken by
an absolute majority of directors. The ENStar Articles are identical to the New
Articles in this respect.
The NSU Articles do not explicitly require indemnification of directors,
officers or employees. The New Articles require NSU to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, including an action by or in the right
of NSU to the fullest extent permitted under the MBCA. The ENStar Articles also
require such indemnification.
EXECUTIVE OFFICERS AND DIRECTORS OF ENSTAR
EXECUTIVE OFFICERS AND DIRECTORS OF ENSTAR
The following table sets forth certain information as to the persons who
are expected to serve as directors and/or executive officers of ENStar following
the consummation of the Reorganization:
<TABLE>
<CAPTION>
NAME AGE POSITION
--------------------------- --- --------------------------------------------------
<S> <C> <C>
James H. Michael........... 75 Chairman of the Board of Directors
Miles E. Efron............. 69 Director
Richard J. Braun........... 51 Director
Jeffrey J. Michael......... 39 Director, President and Chief Executive Officer
Peter E. Flynn............. 36 Executive Vice President
Thomas S. Wargolet......... 33 Chief Financial Officer and Secretary
Gary L. Eizenga............ 49 President and Chief Executive Officer, Americable
C.S. Mondelli.............. 45 President and Chief Executive Officer, Transition
</TABLE>
See "ELECTION OF NSU DIRECTORS" for biographical information for Messrs.
Miles E. Efron, James H. Michael, Jeffrey J. Michael, Richard J. Braun and Peter
E. Flynn.
Mr. Thomas Wargolet joined NSU in September 1989 and has been its
Controller since that time. Mr. Wargolet was also the Director of Finance of
Americable from September 1991 until January 1995. Since January 1995, Mr.
Wargolet has been the Vice President of Finance and Operations of Americable.
Prior to joining NSU in 1989, Mr. Wargolet was an Audit Senior with Arthur
Andersen & Co.
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<PAGE> 93
Mr. Gary Eizenga joined Americable in September 1989 as Chief Operating
Officer and held that position until January 1991, at which time Mr. Eizenga
became President and Chief Executive Officer of Americable. Prior to joining
Americable, Mr. Eizenga held various positions with American Hospital Supply, a
division of Baxter International.
Mr. C.S. (Sal) Mondelli joined Transition in February 1995 as Vice
President of Sales and Marketing, prior to becoming President and Chief
Executive Officer of Transition in May 1996. Prior to joining Transition Mr.
Mondelli was an Executive Vice President with Prodea Software Corporation and
served in a variety of marketing and management positions with IBM Corporation.
Officers of ENStar will be elected annually by the Board of Directors.
COMPENSATION OF EXECUTIVE OFFICERS OF ENSTAR
ENStar will rely on the Compensation Committee of the Board of Directors
(composed of non-employee members) (the "Compensation Committee") to recommend
the form and amount of compensation to be paid to ENStar executive officers.
At the Compensation Committee meeting held on March 5, 1996, base annual
salaries for Messrs. Jeffrey J. Michael, Flynn and Wargolet of $175,000,
$150,000 and $90,000, respectively, were established by the Compensation
Committee and approved by the ENStar Board of Directors, subject to consummation
of the Reorganization. The Compensation Committee also discussed a proposed
bonus program that would provide for the payment of certain cash bonuses to the
ENStar officers based on ENStar's financial performance. Similar to the cash
bonus arrangements that NSU has established from time to time in the past, cash
bonuses for officers of ENStar would be earned based on a structured formula.
Performance targets would be established based on budgeted annual operating
results and cash bonuses would be calculated as a percentage of such officers'
base salary depending on actual financial performance compared to the
performance targets. It is anticipated that such bonuses will range from 0% to
75% of the officers' base salaries, depending upon the officer's position with
the Company. The establishment of the bonus program, the performance targets
relating thereto and the percentage of an officer's salary subject to such bonus
will be determined subsequent to the consummation of the Reorganization.
Mr. Eizenga will continue to receive the same base compensation and
participate in the incentive compensation programs at Americable. Mr. Eizenga
was paid a base salary of $162,500 in 1995, and received a bonus of $65,000,
based on Americable's 1995 financial performance.
Mr. Mondelli will be paid a base salary of $120,000 in 1996 and is eligible
to receive a bonus based on Transition's 1996 financial performance.
The Compensation Committee also approved the granting of non-qualified
stock options under the ENStar 1996 Stock Incentive Plan to each of Messrs.
Jeffrey J. Michael, Flynn and Wargolet at its March 5, 1996 meeting. Such
options provide for the purchase of 28,500, 23,500 and 14,250 shares of ENStar
Common Stock, respectively, at an exercise price per share of $9.00. The options
granted to Messrs. Jeffrey J. Michael, Flynn and Wargolet vest 25% per year over
four years and have a term of ten years. Such options terminate automatically if
the Reorganization is not consummated prior to the first anniversary of the date
of grant. The Compensation Committee currently does not plan to issue stock
options to Messrs. Mondelli and Eizenga.
The Compensation Committee intends to generally adhere to compensation
policies that reflect the belief that ENStar must attract and retain individuals
of outstanding ability and motivate and reward such individuals for sustained
performance. The Committee also believes the ENStar levels of compensation
should generally be in line with what the executive officers of ENStar were
offered in their capacities as executive officers of NSU. On an ongoing basis,
the type and amount of compensation to be paid by ENStar to its officers will be
entirely discretionary and within the subjective judgment of the Compensation
Committee. It is currently anticipated that none of the officers of ENStar,
other than Messrs. Mondelli and Eizenga, will have employment agreements with
ENStar.
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<PAGE> 94
For information concerning the compensation paid to the executive officers
of NSU for the 1995 fiscal year, see "ELECTION OF NSU DIRECTORS."
COMPENSATION OF DIRECTORS OF ENSTAR
Directors who are not officers or employees of ENStar will receive an
annual retainer of $8,000. Such directors will also receive $300 per meeting for
each meeting of a committee of the Board of Directors that they attend.
Directors incurring travel expenses to attend meetings are reimbursed in full.
ENStar non-employee directors will also be eligible to receive certain stock
options pursuant to the ENStar 1996 Stock Incentive Plan discussed below.
COMMITTEES OF THE BOARD OF ENSTAR
Audit Committee. ENStar has established a standing Audit Committee, which
consists of Mr. Efron and Mr. Braun with Mr. Braun serving as Chairman. The
Audit Committee will review and make recommendations and reports to the Board
with respect to (i) the independent auditors, (ii) the quality and effectiveness
of internal controls, (iii) engagement or discharge of the independent auditors,
(iv) professional services provided by the independent auditors, and (v) the
review and approval of major changes in NSU's accounting principals and
practices.
Compensation Committee. ENStar has a standing Compensation Committee which
consists of Mr. Efron as Chairman and Mr. Braun. The Compensation Committee will
consider and recommend to the Board salary schedules and other remuneration for
ENStar's executive officers. This committee will also administer the ENStar 1996
Stock Incentive Plan.
1996 STOCK INCENTIVE PLAN
On March 5, 1996, the Board of Directors of ENStar approved and adopted,
and NSU, as sole shareholder of ENStar, approved the ENStar 1996 Stock Incentive
Plan (the "Plan"). The Plan permits the granting of a variety of different types
of awards: (i) stock options, including incentive stock options and non-
qualified stock options; (ii) stock appreciation rights; (iii) restricted stock
and restricted stock units; (iv) performance awards; (v) dividend equivalents;
and (vi) other awards valued in whole or in part by reference to or otherwise
based upon ENStar Common Stock. The Plan contains limitations on the number of
shares an employee may be granted annually and on assignment or transfer of
awards. The aggregate number of shares of ENStar Common Stock that may be issued
under all awards granted under the Plan is 300,000 (subject to adjustment in
certain circumstances). The Compensation Committee has the authority to select
the individuals to whom awards under the Plan are granted and to determine the
terms and types of awards to be granted.
Any employee, officer, consultant or independent contractor of ENStar and
its affiliates selected by the Committee is eligible to receive an award under
the Plan. Each non-employee director of ENStar, upon his or her initial election
as a director, will be granted an option to purchase 4,000 shares of ENStar
Common Stock. Commencing with the 1997 Annual Meeting, each non-employee
director of ENStar also will be granted an option to purchase 1,000 shares of
ENStar Common Stock on the date of the annual meeting of shareholders each year
if the director will remain in office immediately following such meeting. The
exercise price of each option shall be equal to 100 percent of the fair market
value per share on the date of grant. Such options shall be non-qualified stock
options, shall become exercisable six months after the date of grant, and shall
terminate on the fifth anniversary of the date of grant or earlier, under
certain circumstances.
In connection with their election as directors and the adoption of the
Plan, each of Messrs. James H. Michael, Miles E. Efron and Richard J. Braun were
granted an option to purchase 4,000 shares of ENStar Common Stock. The exercise
price of such options is at $9.00 per share. The options are expressly subject
to the consummation of the Reorganization.
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<PAGE> 95
EIZENGA AGREEMENT
Gary L. Eizenga is a party to a Stock Option Agreement, dated September 27,
1989, pursuant to which he was granted an option to purchase from NSU up to 500
shares of the common stock of Americable, or approximately 2.5% of the
outstanding shares of Americable, subject to adjustment in the event of a
recapitalization, stock-split or stock dividend, at a price per share equal to
the book value per share as of September 30, 1989, which was $873.12. Such
option is exercisable through October 1, 1999, except that in the event of
termination of Mr. Eizenga's employment, the option may be exercised only for a
period of 90 days after such termination. The option may terminate as of an
earlier date in the event of dissolution or liquidation of Americable. Mr.
Eizenga and NSU are currently discussing a possible restructuring of Mr.
Eizenga's option in connection with the Reorganization.
MONDELLI AGREEMENT
C.S. Mondelli is a party to a Stock Option and Repurchase Agreement,
pursuant to which he was granted an option from Transition to purchase
approximately 2% of the outstanding common stock of Transition. The exercise
price of the option is the fair value per share on the date of grant as
determined by the board of directors of Transition. The option is immediately
exercisable to the extent of 20% of the shares. The remainder will vest at a
rate of 20% per year for four years beginning February 20, 1997. The option is
exercisable through October 1, 2006, except that in the event of termination of
Mr. Mondelli's employment, the option may be earlier terminated. The option may
also terminate in the event of dissolution or liquidation of Transition. The
shares received upon exercise of the option are subject to restrictions on
resale.
PROPOSAL NUMBER FOUR:
PROPOSAL TO ADOPT AN AMENDMENT TO THE
RESTATED ARTICLES OF INCORPORATION OF NSU
On March 5, 1996, the Board of Directors of NSU unanimously adopted a
resolution approving amendments to and a restatement of NSU's existing Restated
Articles of Incorporation, subject to the consummation of the Reorganization.
The Board further resolved that the amendments be submitted to shareholders of
NSU for their approval, subject to the consummation of the Reorganization. A
copy of the Amended and Restated Articles of Incorporation is included in
Appendix I as Exhibit D to the Reorganization Agreement. Such Amended and
Restated Articles of Incorporation are referred to herein as the "New Articles."
If approved by the shareholders of NSU, the New Articles would be filed with the
Minnesota Secretary of State on the Effective Date.
Michael has requested the changes to the Restated Articles of Incorporation
of NSU as described below, as a condition to the Merger, in order to ensure that
the Articles of New Michael will better conform to the existing Certificate of
Incorporation of Michael. The Board of Directors of NSU believes that the
amendments are appropriate in light of the Reorganization.
Under the New Articles, NSU's name will be changed to Michael Foods, Inc.
Article IV of the existing Restated Articles of Incorporation of NSU would
be amended by decreasing the number of shares of authorized Capital Stock of NSU
from 100,035,000 shares, comprised of 100,000,000 shares of Common Stock with a
par value of $.25 per share and 35,000 shares of preferred stock with a par
value of $100 per share, to 50,000,000 shares comprised of 40,000,000 shares of
common stock with a par value of $.01 per share and 10,000,000 undesignated
shares. Each share of New Michael Common Stock will be entitled to one vote on
all matters presented to the shareholders for a vote. Article IV of the New
Articles would eliminate the current designation of the rights and preferences
of NSU Common Stock and NSU Preferred Stock. The Board of Directors will be able
to establish by resolution different classes or series of shares and to fix the
rights and preferences of any New Michael Preferred Stock to be issued. The
rights and preferences of New Michael Common Stock will be as provided under
Minnesota law.
The current Restated Articles of Incorporation of NSU mandate that the
Board of Directors consist of at least one but not more than 15 directors.
Article VI of the New Articles will set the minimum number of
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<PAGE> 96
directors at three but will not fix a maximum number. It will also permit the
board, in its discretion, to elect honorary, non-voting directors. In addition,
Article VI of the New Articles will explicitly state that the Board of Directors
has all the powers conferred upon directors under the MBCA.
Under the existing Restated Articles of Incorporation of NSU, an absolute
majority of directors may take written action in lieu of action at a meeting,
except when the matter to be acted on requires shareholder approval. When an
action taken by the board must be approved by shareholders, however, a written
action must be approved by an absolute majority of directors. Under the New
Articles, a written action on a matter requiring shareholder approval must be
signed by all directors. Other matters may be acted upon by written action
signed by an absolute majority of the directors.
The New Articles will also require New Michael to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, including an action by or in the right
of NSU to the fullest extent permitted under the MBCA. The existing Restated
Articles of Incorporation of NSU do not explicitly require such indemnification.
If approved, the amendments to and restatement of the Restated Articles of
Incorporation of NSU will, subject to the consummation of the Reorganization,
become effective upon filing with the Minnesota Secretary of State, which would
take place on the Effective Date. The Board of Directors recommends a vote FOR
approval of the New Articles. Under Minnesota law the affirmative vote of a
majority of the outstanding shares of NSU Common Stock is necessary to approve
the New Articles.
PROPOSAL NUMBER FIVE:
ELECTION OF NSU DIRECTORS
The Board of Directors of NSU has recommended that the number of Directors
to be elected for the coming year be set at six. The Board of Directors
recommends that shareholders elect the nominees named below as Directors of NSU
for the ensuing year and until their successors are elected and qualified.
Unless otherwise indicated thereon, the persons named in the enclosed form of
proxy intend to vote FOR the election of the six nominees listed below. The
affirmative vote of a majority of the shares of NSU Common Stock present (or
represented by proxy) and entitled to vote at the 1996 Annual Meeting is
required to elect each of the nominees as Directors for the ensuing year or
until their successors are elected and have qualified. All of the nominees are
members of the present Board of Directors. If for any reason any nominee shall
be unavailable for election to the Board of Directors, votes will be cast
pursuant to authority granted by the enclosed proxy for such other candidate or
candidates as may be nominated by the Board of Directors. The Board of Directors
has no reason to believe that any of the nominees listed below will be unable to
serve if elected to office. If the Reorganization is consummated, NSU and
Michael currently contemplate that the members of the Board of Directors of NSU
other than Mr. Efron and Mr. Michael will resign as of the Effective Date and
Mr. Efron and Mr. Michael will name certain Michael-designated individuals to
the Board of Directors of New Michael. See "THE REORGANIZATION AGREEMENT -- New
Michael Management Following the Reorganization."
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<PAGE> 97
NOMINEES
The following table sets forth certain information regarding the nominees
for election as Directors, including the amount and percentage of outstanding
shares of NSU Common Stock beneficially owned by such persons as of November 22,
1996.
<TABLE>
<CAPTION>
SHARES OF
FIRST COMMON
BECAME A STOCK
DIRECTOR BENEFICIALLY PERCENT
NAME BIOGRAPHICAL INFORMATION OF NSU OWNED OF CLASS
- ---------------------- ------------------------------------------ -------- ------------ --------
<S> <C> <C> <C> <C>
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
Miles E. Efron........ Chairman of the Board since July 1991 and 1968 438,400 4.42%
Age 69 a senior advisor to NSU. Mr. Efron was
President and Chief Executive Officer from
October 1988 to December 31, 1990, and was
Senior Vice President of NSU from 1985
until October of 1988. Mr. Efron also is a
director of Michael.
James H. Michael...... Chairman of the Board until July 1991. Mr. 1968 3,084,400(1) 31.11%
Age 75 Michael is Chairman of the Board of
Michael, and is the father of Jeffrey J.
Michael, NSU's President and Chief
Executive Officer.
Jeffrey J. Michael.... President and Chief Executive Officer 1987 2,600,700(1) 26.24%
Age 39 since December 1990. Mr. Michael served as
Vice President-Finance from April 1989 to
December 1990. Prior to April 1989, Mr.
Michael was employed by NSU in various
capacities. Jeffrey J. Michael is the son
of James H. Michael. Mr. Michael is also a
director of Michael and CorVel.
Fred E. Stout......... Mr. Stout is the retired President and 1988 7,750 0.08%
Age 75 Chief Executive Officer of Superior Water,
Light and Power Company. Mr. Stout also
served as a director of NSU from 1984 to
1986.
Peter E. Flynn........ Executive Vice President, Chief Financial 1991 134,500(2) 1.34%
Age 36 Officer and Secretary of NSU since
December 1990. In December 1992, he also
became the President and Chief Operating
Officer of Transition. Mr. Flynn served as
Treasurer of NSU from April 1989 to
December 1990. Prior to joining NSU in
1990, Mr. Flynn was an Audit Manager with
Arthur Andersen & Co. Mr. Flynn was
elected to the Board of Directors in July
1991, and also serves as a director of
CorVel.
</TABLE>
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<PAGE> 98
<TABLE>
<CAPTION>
SHARES OF
FIRST COMMON
BECAME A STOCK
DIRECTOR BENEFICIALLY PERCENT
NAME BIOGRAPHICAL INFORMATION OF NSU OWNED OF CLASS
- ---------------------- ------------------------------------------ -------- ------------ --------
<S> <C> <C> <C> <C>
Richard J. Braun...... Mr. Braun currently serves as Chief 1994 None 0.00%
Age 51 Executive Officer of Silicon Biology,
Inc., a technology company specializing in
generic classification technology, and as
a principal of Excelsior Investment Group
Ltd. Mr. Braun was the Managing Director
of Headwaters Capital Management L.L.C.
during 1995. From 1992- 1994, Mr. Braun
served as Chief Operating Officer and a
Director of Employee Benefit Plans, Inc.,
and from 1989-1991 was Executive Vice
President, Chief Operating Officer and a
Director of Reich and Tang L.P., a
publicly held investment advisor and
broker-dealer. From 1988-1989, Mr. Braun
served as President and Chief Executive
Officer of Super Cycle, Inc., a former
subsidiary of NSU. Mr. Braun is a director
of RSI Systems, Inc.
</TABLE>
- -------------------------
(1) The 4J2R1C Limited Partnership ("4J2R1C", formerly The Michael Partnership)
owns 2,826,494 shares of NSU Common Stock. Mr. James H. Michael is the
managing general partner and a limited partner of 4J2R1C and by reason of
his status as the managing general partner is deemed to beneficially own all
shares held by 4J2R1C. Mr. James H. Michael exercises sole voting and
dispositive power with respect to the shares held by 4J2R1C. Mr. Jeffrey J.
Michael is the general partner of 3J2R Limited Partnership ("3J2R"), which
owns 2,597,000 shares of NSU Common Stock. By reason of his status as 3J2R's
general partner, Mr. Jeffrey J. Michael is deemed to beneficially own the
shares of NSU Common Stock held by 3J2R. Mr. Jeffrey J. Michael exercises
sole voting and dispositive power with respect to the shares held by 3J2R.
(2) Shares shown as beneficially owned include 134,500 shares of NSU Common
Stock not outstanding but which may be acquired within 60 days through the
exercise of stock options.
CERTAIN INFORMATION REGARDING THE BOARD OF DIRECTORS
During the year ended December 31, 1995, the Board of Directors of NSU held
ten meetings.
During the year ended December 31, 1995, the members of NSU's Audit
Committee were Messrs. Flynn, Stout and Braun. The Audit Committee reviews and
makes recommendations to the Board of Directors with respect to designated
financial and accounting matters. The Audit Committee held one meeting during
the year ended December 31, 1995.
For the year ended December 31, 1995, the members of NSU's Executive
Committee were Messrs. Michael, Michael and Efron. The Executive Committee
reviews and makes recommendations to the Board of Directors regarding certain
employee benefit matters. The Executive Committee held one meeting during the
year ended December 31, 1995.
NSU has no nominating committee.
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<PAGE> 99
DIRECTOR COMPENSATION
During 1995, Directors of NSU, other than Messrs. Jeffrey J. Michael and
Flynn, who are also executive officers of NSU, received a monthly retainer of
$600 for serving as members of NSU's Board of Directors. Directors incurring
travel expenses to attend meetings are reimbursed in full. Members of the Audit
Committee, other than Mr. Flynn, each receive an additional $300 for each
committee meeting held. The total of all such payments for the year ended
December 31, 1995 was $30,000.
REPORT OF THE EXECUTIVE COMMITTEE OF THE BOARD OF DIRECTORS ON EXECUTIVE
COMPENSATION
General. The Executive Committee of the Board of Directors (the
"Committee") establishes the specific compensation for each of NSU's named
executive officers. The Committee is made up of three members, James H. Michael,
Miles E. Efron and Jeffrey J. Michael. With respect to compensation matters
concerning Mr. Jeffrey J. Michael, NSU's President and Chief Executive Officer,
Mr. Jeffrey J. Michael is excluded from Committee deliberations. After
consideration of the Committee recommendations, the full Board of Directors
reviews and approves the salaries of each named executive officer. The Committee
is responsible for administering all other elements of executive compensation,
including annual incentive awards and stock option grants.
Executive Compensation Philosophy and Goals. During 1991 NSU initiated a
strategic process to strengthen its balance sheet and focus its management
resources on its key holdings. In connection with this process NSU sold several
of its smaller businesses and substantially cut corporate overhead. As a result,
NSU has only two executive officers, Jeffrey J. Michael, President and Chief
Executive Officer, and Peter E. Flynn, Executive Vice President, Chief Financial
Officer and Secretary. The Committee believes that NSU's success depends to a
significant extent on the continuing efforts and dedication of Messrs. Jeffrey
J. Michael and Flynn. The executive compensation arrangements are designed to
motivate and reward these executives for attaining the financial and strategic
objectives essential to NSU's success and continued growth, while at the same
time allowing NSU to retain high-caliber executives. The key components of NSU's
compensation program are base salary, cash bonuses and, to a lesser extent,
stock option awards.
Base Salaries. While the Committee has not conducted formal independent
salary comparisons in determining individual executive compensation, the
Committee believes that base salaries should be moderate, yet competitive in
relation to salaries commanded by persons in similar positions. The base salary
for each named executive officer is reviewed annually and is set on the basis of
personal performance, the relative importance of the functions the officer
performs, the scope of the officer's ongoing responsibilities and the estimated
salary levels in effect at comparable companies for comparable positions. The
weight given to each of these factors varies between individuals.
Cash Bonuses. Annual cash bonuses are designed to reward executives with
operating responsibility for personal contributions to the success of NSU and
generally are earned under a structured formula. Historically, individual
performance targets have been established based on an annual operating budget
which is submitted for review and approval by the Chief Executive Officer of NSU
after consultation with the Committee. After the end of the calendar year, the
Chief Executive Officer has evaluated actual financial performance against the
individual performance targets. In the case of Mr. Flynn, who had day-to-day
responsibility for the operation of Transition during 1995 (in addition to his
responsibilities as an executive officer of NSU), the Committee departed from
this practice in 1995 because of the change in Mr. Flynn's responsibilities on
April 1, 1995, which are described below in this report. In 1993, the Committee
discontinued payment of discretionary bonuses for officers without direct
operating responsibility. Accordingly, Mr. Michael has not received a cash bonus
since 1992.
Stock Options. Incentive stock options are periodically granted to motivate
executives to achieve positive long-term financial results, thereby enhancing
shareholder value. Due to the limited corporate staff, NSU does not have formal
policies or formulas for determining the timing, amount or particular vesting
schedules for stock option awards. Furthermore, NSU's stock performance is
significantly affected by changes in the value of its equity holdings in Michael
and, to a lesser extent, the value of its CorVel holdings. Although North Star
has representatives on the boards of directors of both Michael and CorVel, NSU
does not have direct
94
<PAGE> 100
management control over the operations of either business. Accordingly, the
Committee believes that NSU's stock performance is often not the best indicator
of the performance of NSU's management team, and, as a result, has not granted
significant options to NSU's executives. Further, because of the substantial
beneficial holdings of Mr. Michael's family in NSU's Common Stock, the Committee
believes Mr. Michael's interests in stock performance already parallel those of
NSU's other shareholders. As a result, the Committee historically has not
granted any stock options to Mr. Michael. During 1995, there were no stock
options granted to any executive officer.
1995 Executive Compensation. Mr. Jeffrey J. Michael, as Chief Executive
Officer of North Star, has overall responsibility for the strategic direction of
NSU and for the performance of NSU's wholly owned operating companies. Mr.
Michael was elected to his present position in December 1990 and is not a party
to an employment agreement. During 1994 and 1995, Mr. Michael was paid a base
salary of $235,000. In establishing Mr. Michael's base salary, the Committee
took into account that Mr. Michael does not participate in NSU's incentive cash
bonus program or employee stock option plan. Mr. Michael's base salary was
continued at $235,000 in 1996.
As described in more detail below, Mr. Flynn entered into an employment
agreement with NSU and Transition effective April 1, 1993, in connection with
his assumption of the duties of President of Transition, which agreement was
modified effective as of April 1, 1995. The modification to his agreement with
NSU and Transition provided that Mr. Flynn devote more of his time to NSU
matters while continuing to oversee the day-to-day operations of Transition.
During 1995, approximately 24% of Mr. Flynn's base salary was paid by Transition
and related to his work as President of that company. The remainder of his base
salary in 1995 was paid by NSU recognizing his greater involvement in NSU
matters. In 1995, Mr. Flynn's base salary remained relatively unchanged from his
base salary in 1994. Also, for 1995, Mr. Flynn was awarded a bonus of $25,000
based on the performance of Transition through the first quarter of 1995, and a
discretionary bonus of $75,000, based on his performance in executing NSU's
strategic plans.
This report of the Committee shall not be deemed incorporated by reference
by any general statement incorporating by reference this Proxy
Statement/Prospectus into any filing under the Securities Act or under the
Exchange Act, except to the extent that NSU specifically incorporates this
information by reference, and shall not otherwise be deemed filed under such
Acts.
JAMES H. MICHAEL
MILES E. EFRON
JEFFREY J. MICHAEL
The Members of the Committee
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Jeffrey J. Michael, James H. Michael and Miles E. Efron served on the
Executive Committee of NSU for the past fiscal year. The Executive Committee
determines compensation levels for NSU's executive officers. Each of Messrs.
James H. Michael and Efron was formerly an executive officer of NSU, and James
H. Michael has on occasion borrowed funds from NSU. As of September 30, 1996 all
of such funds had been repaid.
Effective September 1, 1985, the Board of Directors established a formal
policy governing future loans to officers. The policy permits unsecured loans to
officers of up to $50,000. Loans in excess of $50,000 must be approved in
advance by the Board of Directors and must be secured by readily marketable
negotiable securities. Loans to officers will bear interest at one percent over
the prevailing prime rate of interest and must mature within five years.
Interest is to be paid quarterly. In addition to the foregoing, an officer may
borrow annually an amount not exceeding 10 percent of annual compensation. These
loans are without interest and are payable on termination of employment. Mr.
James H. Michael's loans from NSU predate this policy.
95
<PAGE> 101
Although Jeffrey J. Michael, NSU's President and Chief Executive Officer,
served on NSU's Executive Committee during 1993 and 1994, as previously
indicated, he did not participate in any decisions regarding his own
compensation as an executive officer.
SUMMARY OF CASH AND CERTAIN OTHER COMPENSATION
The following table provides certain summary information concerning
compensation paid or accrued by NSU to or on behalf of Jeffrey J. Michael, NSU's
President and Chief Executive Officer, and Peter E. Flynn, NSU's only other
executive officer, for the fiscal years ended December 31, 1993, 1994 and 1995.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
AWARDS
ANNUAL ------------
COMPENSATION SECURITIES
--------------------- UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY(1) BONUS OPTIONS COMPENSATION(2)(3)(4)
- ---------------------------------- ---- --------- -------- ------------ ---------------------
<S> <C> <C> <C> <C> <C>
Jeffrey J. Michael................ 1995 $ 235,000 $ -- -- $ 6,703
President and Chief Executive
Officer 1994 235,000 -- -- 6,703
1993 188,200 -- -- 6,580
Peter E. Flynn.................... 1995 170,255 100,000 -- 5,679
Executive Vice President, Chief 1994 173,816 45,000 -- 5,679
Financial Officer and Secretary 1993 173,011 97,500 -- 5,556
</TABLE>
- -------------------------
(1) In 1993, Messrs. Michael and Flynn earned $7,200, and $6,600, respectively,
in their capacities as Directors of NSU. Such fees are included in each
officer's calculation of annual salary amounts. NSU discontinued the payment
of such fees to Messrs. Michael and Flynn commencing January 1, 1994.
(2) Represents amounts contributed by NSU for the benefit of each of Messrs.
Michael and Flynn pursuant to NSU's 401(k) Plan.
(3) Neither of the named executive officers held or received any awards of
restricted shares.
(4) Includes life and disability insurance premiums paid by NSU for the benefit
of each of Messrs. Michael and Flynn.
STOCK OPTIONS, AWARDS, EXERCISES AND HOLDINGS
During 1995, there were no stock options for NSU Common Stock granted to
any executive officer.
OPTION EXERCISES AND HOLDINGS
The following table provides information concerning the exercise of options
during the last fiscal year and unexercised options held as of the end of the
fiscal year.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR-END OPTION VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED IN-THE-MONEY
OPTIONS AT FY-END OPTIONS AT FY-END
SHARES ACQUIRED ---------------------------- ----------------------------
NAME ON EXERCISE EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
- ---------------------------------- --------------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C>
Jeffrey J. Michael................ 0 0 0 $ 0 $ 0
Peter E. Flynn.................... 0 134,500 0 $ 166,875 $ 0
</TABLE>
96
<PAGE> 102
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT ARRANGEMENTS
Effective December 31, 1990, Mr. Efron's employment agreement with NSU was
terminated, and he resigned as President and Chief Executive Officer of NSU. Mr.
Efron continues as an employee of NSU, providing advisory and consulting
services. Pursuant to an agreement with NSU, he continues to receive annual
compensation of $50,000 through December 1996 for his consulting and advisory
services to NSU and is eligible to participate in other fringe benefits
established by NSU for its executive officers.
Mr. Flynn is a party to an employment agreement with NSU and Transition,
which terminates December 31, 1997, subject to annual extensions thereafter at
the option of the parties. Mr. Flynn's employment agreement was modified
effective April 1, 1995. As modified, the agreement provides for an annual base
salary of $136,000 for services rendered for the benefit of NSU, plus annual
compensation of $42,500 in connection with Mr. Flynn's duties as President and
Chief Operating Officer of Transition. The agreement entitles Mr. Flynn to
participate in other fringe benefits established by NSU for its executive
officers. In addition, Mr. Flynn was awarded a bonus of $25,000 based on the
performance of Transition through the first quarter of 1995, and Mr. Flynn was
made eligible for a discretionary bonus in 1996 based upon his performance in
1995 in executing NSU's strategic plans. Under the terms of the agreement, the
amount of the discretionary bonus was limited to $75,000, as determined by NSU's
Board of Directors. The Board subsequently determined that Mr. Flynn should be
awarded the maximum amount of the discretionary bonus.
Upon the voluntary termination of his employment with NSU, Mr. Flynn is
entitled to receive a single lump sum payment equal to his then current base
salary plus $25,000. If Mr. Flynn dies, he becomes disabled and unable to
continue his employment, his employment is terminated by NSU for any reason, or
he voluntarily terminates his employment following certain actions by NSU
constituting constructive termination, Mr. Flynn is entitled to receive a single
lump sum payment equal to two times his then current base salary plus $25,000.
If Mr. Flynn's employment is terminated due to a change in control of NSU, Mr.
Flynn is entitled to receive a single lump sum payment of $297,000. Also, if Mr.
Flynn is terminated by NSU, all of his then outstanding options immediately
become vested.
97
<PAGE> 103
STOCK PRICE PERFORMANCE GRAPH AND TABLE
The following graph and table compare the yearly percentage change in the
cumulative total shareholder return on NSU's Common Stock during the five year
period ended December 31, 1995, with the cumulative total return on each of the
S&P 500 Index, the S&P Foods Index, the S&P Healthcare Composite Index and the
S&P Computer Systems Index. Each of the component S&P indices represents each of
NSU's separate lines of business. The comparison assumes $100 was invested on
December 31, 1990 in NSU's Common Stock and in each of the foregoing indices and
assumes reinvestment of dividends.
<TABLE>
<CAPTION>
Measurement Period North Star Health Care- Computer
(Fiscal Year Covered) Universal S&P 500 Foods Composite Systems
<S> <C> <C> <C> <C> <C>
DEC 90 100 100 100 100 100
DEC 91 132.3 130.5 145.9 154.00 88.9
DEC 92 80.7 140.4 145.5 128.9 65.2
DEC 93 62.9 154.6 133.6 118.1 67.7
DEC 94 58.1 156.6 149.3 133.6 87.4
DEC 95 100.0 215.5 190.4 210.9 116.4
</TABLE>
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Section 16(a) of the Securities Exchange Act of 1934 requires executive
officers and directors and persons who beneficially own more than ten percent
(10%) of NSU's Common Stock to file initial reports of ownership and reports of
changes in ownership with the Commission. Executive officers, directors, and
greater than ten percent (10%) beneficial owners are required by Commission
regulations to furnish NSU with copies of all Section 16(a) forms they file.
Based solely on a review of the copies of such forms furnished to NSU and
written representations from the executive officers and directors of NSU, NSU
believes that its executive officers, directors and 10% shareholders complied
with all Section 16(a) filing requirements applicable to them, except that
Messrs. James H. Michael and Jeffrey J. Michael each reported one transaction
late for the year ending December 31, 1995.
98
<PAGE> 104
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of NSU Common Stock of NSU as of November 22, 1996, by each
shareholder who is known by NSU to own beneficially more than 5 percent of the
outstanding Common Stock of NSU, and by all officers and Directors of NSU as a
group.
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF PERCENT
NAME AND ADDRESS OF BENEFICIAL OWNER BENEFICIAL OWNERSHIP OF CLASS
- ------------------------------------------------------------------ -------------------- --------
<S> <C> <C>
James H. Michael.................................................. 3,084,400(1) 31.11%
142 North Mississippi River Blvd.
St. Paul, MN 55104
Jeffrey J. Michael................................................ 2,600,700(2) 26.23%
5745 Seven Oaks Court
Minnetonka, Minnesota 55345
Heartland Advisors, Inc........................................... 994,300(3) 10.52%
790 North Milwaukee Street
Milwaukee, Wisconsin 53202
All officers and directors as a group (6 persons)................. 6,265,750(4) 63.19%
</TABLE>
- -------------------------
(1) Includes 2,826,494 shares of Common Stock held by 4J2R1C Limited
Partnership, as to which Mr. James H. Michael, as managing general partner,
exercises sole voting and dispositive power. Mr. James H. Michael has
disclaimed any beneficial ownership of the shares beneficially owned by Mr.
Jeffrey J. Michael.
(2) Includes 2,597,000 shares of Common Stock held by 3J2R Limited Partnership
as to which Mr. Jeffrey J. Michael, as general partner, exercises sole
voting and dispositive power. Mr. Jeffrey J. Michael has disclaimed any
beneficial ownership of the shares beneficially owned by Mr. James H.
Michael.
(3) Based on information in a Schedule 13D Report delivered to NSU showing
information as of February 9, 1996 and indicating that Heartland Advisors,
Inc. is an investment adviser registered under Section 203 of the Investment
Advisers Act of 1940, and that Heartland Advisors, Inc. has sole voting
power over 872,000 of such shares and sole dispositive power over all such
shares.
(4) Shares shown as beneficially owned include 134,500 shares not outstanding,
but which may be acquired within 60 days through the exercise of stock
options by all officers and Directors as a group.
AUDITORS
The Board of Directors of NSU intends to appoint Grant Thornton LLP as
independent auditors for NSU for the year ending December 31, 1996, if the
Reorganization is not consummated. Grant Thornton LLP audited the financial
statements of NSU for the year ended December 31, 1995. Representatives of Grant
Thornton LLP will be present at the Annual Meeting and will be given an
opportunity to make a statement if they desire to do so and to respond to
appropriate questions raised at the meeting.
LEGAL MATTERS
The validity of the ENStar Common Stock to be issued in connection with the
Distribution and the validity of the shares of New Michael Common Stock to be
issued in connection with the Merger will be passed upon for ENStar and NSU,
respectively, by Dorsey & Whitney LLP.
99
<PAGE> 105
EXPERTS
The consolidated financial statements and schedule of Michael as of
December 31, 1995 and 1994, and for each of the three years in the period ended
December 31, 1995 appearing in Michael's Annual Report on Form 10-K have been
audited by Grant Thornton LLP, independent auditors, as set forth in their
reports thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such reports given upon the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements and schedule of NSU as of December
31, 1995 and 1994, and for each of the three years in the period ended December
31, 1995 appearing in NSU's Annual Report on Form 10-K have been audited by
Grant Thornton LLP, independent auditors, as set forth in their reports thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
reports given upon the authority of said firm as experts in auditing and
accounting.
The combined financial statements and schedule of ENStar (an operating unit
of NSU) as of December 31, 1995 and 1994, and for each of the three years in the
period ended December 31, 1995 appearing herein have been audited by Grant
Thornton LLP, independent auditors, as set forth in their reports included
herein and are included in reliance upon such reports given upon the authority
of said firm as experts in auditing and accounting.
The consolidated financial statements of CorVel as of March 31, 1995 and
1994 and for each of the three years in the period ended March 31, 1995
appearing in NSU's Annual Report on Form 10-K have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of said firm as experts in auditing and accounting.
SHAREHOLDER PROPOSALS FOR 1997 MEETING OF SHAREHOLDERS
In the event that the Reorganization is not consummated and NSU conducts an
annual meeting in 1997, any proposal by a shareholder to be presented at such
annual meeting must be received at NSU's principal executive offices at 6479
City West Parkway, Eden Prairie, Minnesota 55344, not later than February 1,
1997. Any such proposal must be in the form required under the rules and
regulations promulgated by the Securities and Exchange Commission.
OTHER MATTERS
The Board of Directors of NSU knows of no other matters that are intended
to be brought before the Annual Meeting. If other matters, of which the Board of
Directors is not aware, are presented for action, it is the intention of the
persons named in the enclosed form of proxy to vote on such matters in their
sole discretion.
100
<PAGE> 106
APPENDIX I
-------------------------
AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
MICHAEL FOODS, INC.,
NORTH STAR UNIVERSAL, INC.
AND
NSU MERGER CO.
-------------------------
-------------------------
DECEMBER 21, 1995
-------------------------
<PAGE> 107
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
--------
<C> <S> <C>
ARTICLE 1. DEFINITIONS AND PRELIMINARY TRANSACTIONS............................ I-1
1.1 Definitions......................................................... I-1
1.2 Distribution of Spinco Common Stock................................. I-5
1.3 Reverse Stock Split................................................. I-5
1.4 No Fractional Shares................................................ I-5
1.5 NSU Dissenters' Rights.............................................. I-5
1.6 NSU Stock Option Plans.............................................. I-5
ARTICLE 2. MERGER.............................................................. I-6
2.1 Effect of Merger.................................................... I-6
2.2 Effect on Michael Capital Stock and Merger Sub Capital Stock........ I-6
2.3 Rights of Holders of Michael Capital Stock.......................... I-7
2.4 Procedure for Exchange of Stock..................................... I-7
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF MICHAEL........................... I-10
3.1 Organization and Qualification...................................... I-10
3.2 Authority Relative to this Agreement; Non-Contravention............. I-10
3.3 Capitalization...................................................... I-10
3.4 Exchange Act Reports................................................ I-11
3.5 Subsidiaries........................................................ I-11
3.6 Litigation.......................................................... I-11
3.7 No Brokers or Finders............................................... I-11
3.8 Prospectus/Proxy Statement.......................................... I-11
3.9 Disclosure.......................................................... I-12
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF NSU............................... I-12
4.1 Organization and Qualification...................................... I-12
4.2 Authority Relative to this Agreement; Non-Contravention............. I-12
4.3 Capitalization...................................................... I-13
4.4 Exchange Act Reports................................................ I-13
4.5 Subsidiaries........................................................ I-13
4.6 Absence of Certain Developments..................................... I-13
4.7 Litigation.......................................................... I-13
4.8 No Brokers or Finders............................................... I-14
4.9 Prospectus/Proxy Statement.......................................... I-14
4.10 Validity of the Surviving Corporation Common Stock.................. I-14
4.11 Ownership of Michael Common Stock................................... I-14
4.12 Liabilities......................................................... I-14
4.13 Disclosure.......................................................... I-14
ARTICLE 5. CONDUCT OF BUSINESS PENDING THE MERGER.............................. I-15
5.1 Conduct of Business by NSU.......................................... I-15
5.2 Conduct of Business by Michael...................................... I-15
ARTICLE 6. ADDITIONAL COVENANTS AND AGREEMENTS................................. I-15
6.1 Governmental Filings................................................ I-15
6.2 Expenses............................................................ I-15
6.3 Access to Information; Confidentiality.............................. I-16
6.4 Registration Statement.............................................. I-16
6.5 Accounting and Tax Treatment........................................ I-17
6.6 Michael Stock Plans................................................. I-17
6.7 Press Releases...................................................... I-17
6.8 Directors and Officers Insurance.................................... I-17
</TABLE>
i
<PAGE> 108
<TABLE>
<CAPTION>
PAGE NO.
--------
<S> <C>
6.9 Securities Reports.................................................. I-18
6.10 Stock Listing....................................................... I-18
6.11 Shareholder Approvals............................................... I-18
6.12 No Solicitation..................................................... I-18
6.13 Failure to Fulfill Conditions....................................... I-18
6.14 Tax Ruling or Opinion............................................... I-19
6.15 Resignations and Election of Directors.............................. I-19
6.16 Orderly Disposition and Registration Rights Agreement............... I-19
6.17 Shareholder Vote.................................................... I-19
6.18 Filing of Reports Necessary for use of Rule 145..................... I-19
6.19 Notification of Certain Matters..................................... I-19
6.20 Notification of Anticipated NSU Net Indebtedness.................... I-20
6.21 Distribution Agreement.............................................. I-20
ARTICLE 7. CONDITIONS.......................................................... I-20
7.1 Conditions to Obligations of Each Party............................. I-20
7.2 Additional Conditions to Obligation of NSU.......................... I-21
7.3 Additional Conditions to Obligation of Michael...................... I-22
ARTICLE 8. TERMINATION, AMENDMENT AND WAIVER................................... I-23
8.1 Termination......................................................... I-23
8.2 Effect of Termination............................................... I-23
8.3 Amendment........................................................... I-24
8.4 Waiver.............................................................. I-24
ARTICLE 9. GENERAL PROVISIONS.................................................. I-24
9.1 Public Statements................................................... I-24
9.2 Notices............................................................. I-24
9.3 Interpretation...................................................... I-25
9.4 Severability........................................................ I-25
9.5 Miscellaneous....................................................... I-25
9.6 Non-Survival of Representations, Warranties and Covenants........... I-26
9.7 Schedules........................................................... I-26
9.8 Counterparts........................................................ I-26
9.9 Third Party Beneficiaries........................................... I-26
ARTICLE 10. DISPUTE RESOLUTION.................................................. I-26
10.1 Mediation and Binding Arbitration................................... I-26
10.2 Initiation.......................................................... I-26
10.3 Submission to Mediation............................................. I-26
10.4 Selection of Mediator............................................... I-26
10.5 Mediation and Arbitration........................................... I-26
10.6 Selection of Arbitrators............................................ I-27
10.7 Cost of Arbitration................................................. I-27
EXHIBITS
Exhibit A -- Discount Factor.................................................. I-29
Exhibit B -- Form of Certificate of Merger
Exhibit C -- Form of Distribution Agreement
Exhibit D -- Form of New Articles
Exhibit E -- Form of Orderly Disposition and Registration Rights Agreement
</TABLE>
ii
<PAGE> 109
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated December 21, 1995, by and
between MICHAEL FOODS, INC., a Delaware corporation ("Michael"), NORTH STAR
UNIVERSAL, INC., a Minnesota corporation ("NSU"), and NSU MERGER CO., a Delaware
corporation and a wholly-owned subsidiary of NSU ("Merger Sub")
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Michael and NSU have determined that it
is in the best interests of Michael and NSU and their respective shareholders to
consummate the merger (the "Merger") of Merger Sub, a newly-formed subsidiary of
NSU, with and into Michael with Michael as the surviving corporation;
WHEREAS, Michael and NSU desire that the Merger be made on the terms and
subject to the conditions set forth in this Agreement and qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended;
WHEREAS, as a condition of the Merger, Michael requires that NSU distribute
and NSU is willing to distribute immediately after the Merger to NSU
shareholders of record prior to the Merger, all of the capital stock of a newly
incorporated wholly owned subsidiary, to which, prior to the Merger, all of the
assets of NSU will be assigned, contributed or otherwise transferred other than
(i) the shares of Merger Sub, (ii) the shares of Michael Common Stock (defined
below) owned by NSU on the date hereof, (iii) cash held by NSU, and (iv) certain
other assets as the parties mutually agree, and that NSU be released from, or
mutually acceptable adequate provisions be made for, all liabilities and
obligations other than as mutually agreed by the parties, so that, after giving
effect to the Merger and such distribution, the business and operations of NSU
after the Merger will be the business and operations of Michael;
WHEREAS, the distribution contemplated by the previous WHEREAS clause will
be made in accordance with the Distribution Agreement (as defined below);
WHEREAS, as a further condition of the Merger, Michael requires and NSU is
willing to reduce the number of outstanding shares of NSU Common Stock (as
defined below) to an amount equal to the number of shares of Michael Common
Stock owned by NSU less a number of shares determined by formula to reflect the
amount of the liabilities retained by NSU at the time of the Merger net of the
cash retained by NSU at the time of the Merger; and
WHEREAS, Michael is requiring such reduction in the number of outstanding
shares of NSU Common Stock so that each share of Michael Common Stock will be
exchangeable for one share of the Surviving Corporation Common Stock (as defined
below) after the Merger.
NOW, THEREFORE, in consideration of the representations, warranties and
covenants contained herein, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND PRELIMINARY TRANSACTIONS
1.1 Definitions. As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
Affiliate: as defined in Regulation 12b-2 promulgated under the Exchange
Act, as such Regulation is in effect on the date hereof.
Anticipated NSU Net Indebtedness: as defined in Section 6.20.
Average Price of Michael Common Stock: the average closing sales price per
share of Michael Common Stock reported on the NASDAQ-NMS as published by The
Wall Street Journal during the twenty (20) trading days ending on the third
trading day immediately preceding the Effective Date.
I-1
<PAGE> 110
Certificate of Merger: the Certificate of Merger in substantially the form
of Exhibit B hereto.
Code: the Internal Revenue Code of 1986, as amended, or any successor
legislation.
Continuing Options: as defined in Section 2.2(b).
Credit Agreement: the Credit Agreement between NSU and First Bank National
Association, a national banking association, including any amendments thereto,
and any replacement credit agreement or facility.
Discount Factor: the factor determined in accordance with the table in
Exhibit A based on the amount of the NSU Net Assumed Liabilities at the
Effective Time.
Dissenting Shares: as defined in Section 1.5.
Dissenting Shares Holdback: shall be an amount mutually agreed upon by NSU
and Michael based on the number of Dissenting Shares for which such Liability
has not been paid by the Effective Date plus a reasonable amount to assure that
the Surviving Corporation will not incur any Liability with respect to such
Dissenting Shares in excess of the amount mutually agreed by Michael and NSU.
Distribution: the distribution, on the Distribution Date, of all of the
outstanding shares of Spinco Common Stock by NSU to the holders of record of NSU
Common Stock on the Distribution Record Date, which distribution shall be deemed
to have been effected by NSU upon delivery by NSU to the distribution agent of
an instruction directing the distribution agent to effect the distribution of
the Spinco Common Stock in accordance with Section 3.03 of the Distribution
Agreement and such distribution shall not be effected nor deemed to have been
effected until after the Effective Time.
Distribution Agreement: the Distribution Agreement between NSU and Spinco
in substantially the form of Exhibit C hereto.
Distribution Date: the Effective Date; provided, however, that the
Distribution shall not occur until after the Effective Time of the Merger.
Distribution Record Date: the close of business on the date to be
determined by the NSU Board as the record date for the Distribution, which date
shall be prior to the Effective Date.
DGCL: the Delaware General Corporation Law, as amended.
Effective Date: as defined in Section 2.1(d).
Effective Time: as defined in Section 2.1(d).
Exchange Act: the Securities Exchange Act of 1934, as amended.
Exchange Agent: as defined in Section 2.4(a).
Exchange Fund: as defined in Section 2.4(c).
Exchange Ratio: as defined in Section 2.2(a).
GAAP: generally accepted accounting principles.
HSR Act: the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
IRS: the Internal Revenue Service.
Liabilities: any and all debts, liabilities, accounts payable, Taxes,
claims and other obligations, absolute or contingent, mature or not mature,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising (unless otherwise specified in this Agreement), including all costs and
expenses relating thereto, and including, without limitation, those debts,
liabilities and obligations arising under any law, rule, regulation, or any
actual or threatened action, suit, proceeding or investigation by or before any
court, any governmental or other regulatory or administrative agency or
commission or any arbitration tribunal, any order or consent decrees of any
governmental entity or any award of any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
I-2
<PAGE> 111
Material Adverse Effect: with respect to an entity means any condition,
event, change or occurrence that has had or may reasonably be expected to have a
material adverse effect on the business, operations, results of operations or
financial condition of such entity on a consolidated basis.
MBCA: Minnesota Business Corporation Act, as amended.
Merger: as defined in the preambles of this Agreement.
Michael 10-K Reports: as defined in Section 3.4.
Michael 10-Q Reports: as defined in Section 3.4.
Michael Board: the Board of Directors of Michael.
Michael Common Stock: the common stock, par value $.01 per share, of
Michael.
Michael Stock Plans: as defined in Section 2.2(b).
Michael Subsidiary: as defined in Section 3.5.
NASDAQ-NMS: the NASDAQ National Market System.
New Articles: the amended and restated articles of incorporation of NSU in
substantially the form of Exhibit D hereto which will be effective on the
Effective Date.
NSU 10-K Reports: as defined in Section 4.4.
NSU 10-Q Reports: as defined in Section 4.4.
NSU Assumed Liabilities: the NSU Indebtedness and the NSU Retained
Liabilities.
NSU Board: the Board of Directors of NSU prior to the Merger Effective
Date.
NSU Common Stock: the Common Stock, par value $1.00 per share, of NSU,
prior to the Merger Effective Date.
NSU Indebtedness: indebtedness (principal and accrued interest) represented
by NSU's outstanding subordinated debentures and subordinated extendable and
fixed time certificates and the NSU indebtedness (principal and accrued
interest) owing pursuant to the Credit Agreement.
NSU Net Assumed Liabilities: an amount equal to (i) the NSU Indebtedness as
of the Effective Time plus the amount of the Dissenting Shares Holdback, less
(ii) the amount of cash included in the NSU Retained Assets as of the Effective
Time, provided that such amount shall be no less than $25,000,000 and no more
than $38,000,000.
NSU Options: as defined in Section 1.6.
NSU Stock Option Plans: as defined in Section 1.6.
NSU Subsidiary: as defined in Section 4.5.
NSU Retained Assets: the following assets:
(i) such amount of cash as NSU may, in its sole discretion, determine
to hold at the Effective Time;
(ii) 7,354,950 shares of Michael Common Stock owned by NSU as of the
date of this Agreement;
(iii) the capital stock of Merger Sub;
(iv) the rights of NSU under this Agreement, the Distribution
Agreement and the Orderly Disposition and Registration Rights Agreement;
and
(v) any and all net operating loss carryforwards and other Tax
attributes properly allocable to NSU following the Effective Date in
accordance with the relevant provisions of the Code.
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NSU Retained Liabilities: the following Liabilities:
(i) any Liability arising from any NSU shareholders who have
effectively dissented from the NSU shareholder action in connection with
the Merger and the Distribution in accordance with Sections 471 and 473 of
the MBCA;
(ii) any Liability of NSU (Surviving Corporation) under the
Distribution Agreement arising after the Effective Date;
(iii) any Liability of NSU (Surviving Corporation) under this
Agreement after the Effective Date; and
(iv) any Liability of NSU (Surviving Corporation) under the Orderly
Distribution and Registration Rights Agreement arising after the Effective
Date.
NSU Transferred Assets: all assets of NSU other than the NSU Retained
Assets.
NSU Transferred Liabilities: all Liabilities of NSU (i) arising at any time
prior to the Effective Date other than the NSU Assumed Liabilities, or (ii)
arising as a result of the Distribution (other than any liability of NSU for
Taxes resulting from a breach of Section 2.07 of the Distribution Agreement by
NSU (Surviving Corporation) after the Effective Date).
Orderly Disposition and Registration Rights Agreement: the Orderly
Disposition and Registration Rights Agreement dated the date hereof between NSU
and certain shareholders of NSU in the form of Exhibit E hereto.
Prospectus/Proxy Statement: as defined in Section 6.4.
Registration Statement: as defined in Section 6.4.
Repurchased Michael Common Stock: the number of shares of Michael Common
Stock owned by NSU equal to (i) the NSU Net Assumed Liabilities, divided by (ii)
the product of the Discount Factor multiplied by the Average Price of Michael
Common Stock.
Requisite Michael Shareholder Vote: as defined in Section 3.2.
Requisite NSU Shareholder Vote: as defined in Section 4.2.
Reverse Stock Split: as defined in Section 1.3.
SEC: the Securities and Exchange Commission.
Securities Act: the Securities Act of 1933, as amended.
Spinco: the wholly owned subsidiary of NSU to which NSU will transfer the
NSU Transferred Assets and the NSU Transferred Liabilities.
Spinco Common Stock: the Common Stock, par value $.01 per share, of Spinco.
Subsidiary: with respect to any entity shall mean each corporation in which
such entity owns directly or indirectly fifty percent or more of the voting
securities of such corporation and shall, unless otherwise indicated, be deemed
to refer to both direct and indirect subsidiaries of such entity.
Surviving Corporation: as defined in Article 2.
Surviving Corporation Common Stock: the common stock, par value $.01 per
share, of the Surviving Corporation.
Taxes: any federal, state, local or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
property or windfall profits taxes, environmental taxes, customs duties, capital
stock, franchise, employees' income withholding, foreign or domestic
withholding, social security, unemployment, disability, workers' compensation,
employment-related insurance, real property, personal property, sales, use,
transfer, value added, alternative or add-on minimum or other governmental tax,
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fee, assessment or charge of any kind whatsoever including any interest,
penalties or additions to any Tax or additional amounts in respect of the
foregoing.
1.2 Distribution of Spinco Common Stock.
(a) Provided that this Agreement shall not have been terminated in
accordance with Section 8.1 and the conditions set forth in Article 7 shall have
been fulfilled or waived,
(i) NSU shall, prior to the Effective Date, contribute to Spinco all
of the NSU Transferred Assets in accordance with the Distribution
Agreement;
(ii) NSU shall use all reasonable efforts to obtain releases from,
cause Spinco to assume, indemnify NSU and Merger Sub from or, in accordance
with the terms of the Distribution Agreement, otherwise provide for the
payment or recovery by NSU or Merger Sub with respect to the NSU
Transferred Liabilities; and
(iii) NSU shall declare the Distribution to NSU shareholders of record
on the Distribution Record Date which shall be payable conditioned only
upon the Merger on the Distribution Date.
(b) The Distribution will be effected in accordance with the terms of the
Distribution Agreement, which will also govern the relative rights and
obligations of Spinco and the Surviving Corporation after the Merger. NSU shall
cause the Distribution to be conducted in accordance with all applicable federal
and state securities laws.
1.3 Reverse Stock Split. Provided that this Agreement shall not have been
terminated in accordance with Section 8.1 and the conditions set forth in
Article 7 have been fulfilled or waived, NSU shall authorize and effect a
combination of the outstanding NSU Common Stock in the form of a reverse stock
split (the "Reverse Stock Split") effective on the Effective Date and
immediately prior to the Effective Time so that, immediately prior to the
Effective Time and after giving effect to the Reverse Stock Split, the aggregate
number of shares of NSU Common Stock outstanding on a fully diluted basis
(excluding any Dissenting Shares) is equal to: (i) the number of shares of
Michael Common Stock then owned directly or beneficially by NSU, less (ii) the
number of shares of Repurchased Michael Common Stock.
1.4 No Fractional Shares. No fractional shares of the Surviving Corporation
Common Stock, and no certificates representing such fractional shares, shall be
issued in connection with the Reverse Stock Split. In lieu of any fractional
share, the Surviving Corporation shall pay to each holder of NSU Common Stock
subject to the Reverse Stock Split who otherwise would be entitled to receive a
fractional share of NSU Common Stock as a result of the Reverse Stock Split an
amount of cash (without interest) determined by multiplying (a) the Average
Price of Michael Common Stock times (b) the fractional share interest to which
such holder would otherwise be entitled. The payment for fractional shares shall
be made upon the surrender for exchange of certificates representing NSU Common
Stock which were subject to the Reverse Stock Split.
1.5 NSU Dissenters' Rights. Notwithstanding anything in this Agreement to
the contrary, shares of NSU Common Stock that are issued and outstanding on the
record date for the meeting of NSU shareholders referred to in Section 6.11 and
which are held by NSU shareholders who shall have effectively dissented from the
NSU shareholder action with respect to the Distribution in accordance with the
MBCA (the "Dissenting Shares") shall not be converted into shares of the
Surviving Corporation, shall not be subject to the Reverse Stock Split and shall
not be entitled to the Distribution, unless and until such holder shall have
failed to perfect or shall have effectively withdrawn or lost its, his or her
right to appraisal and payment under the MBCA. The Dissenting Shares shall have
only those rights granted to dissenting shares under the MBCA.
1.6 NSU Stock Option Plans. NSU shall cause all options (the "NSU Options")
outstanding under the 1986 Incentive Stock Option Plan of NSU, the 1986
Non-Qualified Stock Option Plan of NSU, the 1988 Nonqualified Stock Option Plan
of NSU (the "NSU Stock Option Plans") or otherwise disclosed in Schedule 4.3 to
be cancelled or exercised prior to the Effective Time. At or prior to the
Effective Time, all of the NSU Stock Option Plans shall be terminated.
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ARTICLE 2
MERGER
Subject to the satisfaction or waiver of the conditions set forth in
Article 7, on a date mutually satisfactory to the parties as soon as practicable
following satisfaction or waiver of such conditions, (i) Merger Sub will merge
with and into Michael, (ii) Michael will become a wholly-owned subsidiary of
NSU, (iii) Michael will change its name to "Michael Foods of Delaware, Inc.,"
(iv) NSU will complete the Distribution, and (v) NSU will change its name to
"Michael Foods, Inc." NSU, in its capacity as the publicly held entity owning
Michael as a wholly-owned subsidiary after giving effect to the Merger, the
Reverse Stock Split and Distribution, is then defined herein as the "Surviving
Corporation." The Merger will be effected pursuant to the Certificate of Merger
and pursuant to the provisions of, and with the effect provided in Section 251
of the DGCL.
2.1 Effect of Merger.
(a) On the Effective Date, (i) Merger Sub shall be merged with and into
Michael and the separate existence of Merger Sub shall cease, (ii) Michael will
become a wholly-owned subsidiary of NSU, (iii) Michael will change its name to
"Michael Foods of Delaware, Inc.," and (iv) NSU will change its name to "Michael
Foods, Inc." On the Effective Date, effective at the Effective Time, the
articles of incorporation of the Surviving Corporation will be amended and
restated as the New Articles. The Board of Directors of the Surviving
Corporation immediately after the Effective Time will consist of nine (9)
members of which two (2) directors will be designated in accordance with Section
8 of the Orderly Disposition and Registration Rights Agreement and the remaining
directors will be designated by the Michael Board. Immediately after the
Effective Time the Board of Directors of the Surviving Corporation will elect
the officers of Michael immediately prior to the Effective Time as the officers
of Surviving Corporation.
(b) At the Effective Time, Michael shall thereupon and thereafter be
responsible and liable for all the liabilities, debts and obligations of each of
Michael and the Merger Sub.
(c) At the Effective Time, Michael shall thereupon and thereafter possess
all the rights, privileges, immunities and franchises, of a public as well as of
a private nature, of each of Michael and the Merger Sub; all property, real,
personal and mixed, and all debts due on whatever account, and all and every
other interest, of or belonging to or due to each of Michael and the Merger Sub,
shall be taken and deemed to be transferred to and vested in Michael without
further act or deed; and the title to any real estate or any interest therein,
vested in Michael and the Merger Sub shall not revert or be in any way impaired
by reason of the Merger.
(d) Subject to the provisions of Articles 7 and 8 hereof, the closing of
the transactions contemplated hereby shall take place at such location, on such
date and at such time as Michael and NSU mutually agree at the earliest
practicable time after the satisfaction or waiver of the conditions in Article
7, but in no event later than ten (10) business days after all such conditions
have been satisfied or waived, or on such other date as may be mutually agreed
by the parties hereto. On the closing date, to effect the Merger, the parties
hereto will cause a Certificate of Merger to be filed with the Delaware
Secretary of State in accordance with the DGCL. Also on the Effective Date, the
parties hereto will effect the other transactions contemplated hereby, including
the filing of the New Articles with the Minnesota Secretary of State. The Merger
shall be effective when the Certificate of Merger is filed with the Delaware
Secretary of State (the "Effective Time"). As used herein, the term "Effective
Date" shall mean the date on which the Certificate of Merger is filed with the
Delaware Secretary of State.
2.2 Effect on Michael Capital Stock and Merger Sub Capital Stock.
To effectuate the Merger, and subject to the terms and conditions of this
Agreement, at the Effective Time:
(a) each issued and outstanding share of Michael Common Stock (other than
shares of Michael Common Stock (i) held as treasury stock of Michael or (ii)
held directly or indirectly by NSU) shall be converted into and exchangeable for
one share (the "Exchange Ratio") of the Surviving Corporation Common Stock
(after giving effect to the adoption of the New Articles on the Effective Date
as provided in
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Section 2.1(a) above) and the Surviving Corporation shall issue to holders of
Michael Common Stock shares of the Surviving Corporation Common Stock based on
the Exchange Ratio in exchange for the outstanding shares of Michael Common
Stock;
(b) the 1987 Incentive Stock Option Plan of Michael, the 1987 Non-Qualified
Stock Option Plan of Michael, the 1992 Stock Option Plan for Non-Employee
Directors of Michael and the 1994 Executive Incentive Plan (the "Michael Stock
Plans") and all outstanding options (the "Michael Options") to purchase shares
of Michael Common Stock issued pursuant to the Michael Stock Plans shall be
assumed and adopted by the Surviving Corporation in accordance with the terms of
the Michael Stock Plans and the Michael Options shall have the rights provided
in such plans (the "Continuing Options"). In the case of any option to which
Section 421 of the Code applies by reason of its qualification under Section 422
of the Code, the option price, the number of shares purchasable pursuant to such
option and the terms and conditions of exercise of such options shall be
determined in order to comply with Section 424(a) of the Code; and
(c) each share of Michael Common Stock held as treasury stock of Michael or
held directly or indirectly by NSU shall be canceled, retired and cease to
exist, and no exchange or payment shall be made with respect thereof.
(d) all outstanding shares of common stock, $.01 par value, of the Merger
Sub held by the Surviving Corporation shall be converted into one thousand
(1,000) shares of Michael Common Stock at the Effective Time and will remain
outstanding after the Effective Date as capital stock of Michael held by the
Surviving Corporation and all other outstanding shares of Michael Common Stock
shall be canceled.
2.3 Rights of Holders of Michael Capital Stock.
(a) On and after the Effective Date and until surrendered for exchange,
each outstanding stock certificate which immediately prior to the Effective Date
represented shares of Michael Common Stock shall be deemed for all purposes, to
evidence ownership of and to represent the number of whole shares of the
Surviving Corporation Common Stock into which such shares of Michael Common
Stock shall have been converted, and the record holder of such outstanding
certificate shall, after the Effective Date, be entitled to vote the shares of
the Surviving Corporation Common Stock into which such shares of Michael Common
Stock shall have been converted on any matters on which the holders of record of
the Surviving Corporation Common Stock, as of any date subsequent to the
Effective Date, shall be entitled to vote. In any matters relating to such
certificates of Michael Common Stock, the Surviving Corporation may rely
conclusively upon the record of shareholders maintained by Michael containing
the names and addresses of the holders of record of Michael Common Stock on the
Effective Date.
(b) On and after the Effective Date, the Surviving Corporation shall
reserve a sufficient number of authorized but unissued shares of the Surviving
Corporation Common Stock for issuance in connection with the conversion of
Michael Common Stock into the Surviving Corporation Common Stock and the shares
of Michael Common Stock reserved for issuance under the Michael Stock Plans,
including the shares issuable upon exercise of the Continuing Options.
2.4 Procedure for Exchange of Stock.
(a) After the Effective Date, holders of certificates theretofore
evidencing outstanding shares of Michael Common Stock, upon surrender of such
certificates to an exchange agent appointed by Michael (the "Exchange Agent"),
shall be entitled to receive certificates representing the number of whole
shares of the Surviving Corporation Common Stock into which shares of Michael
Common Stock theretofore represented by the certificates so surrendered shall
have been converted as provided in Section 2.2(a) hereof. As soon as practicable
after the Effective Date, the Surviving Corporation shall cause the Exchange
Agent to mail appropriate and customary transmittal materials (which shall
specify that delivery shall be effected, and risk of loss and title to the
certificates theretofore representing shares of Michael Common Stock shall pass,
only upon proper delivery of such certificates to the Exchange Agent) to each
holder of Michael Common Stock of record as of the Effective Date advising such
holder of the effectiveness of the Merger and the procedure for surrendering to
the Exchange Agent outstanding certificates formerly evidencing ownership of the
Michael Common Stock in exchange for new certificates evidencing ownership of
the Surviving Corporation Common
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Stock. The Surviving Corporation shall not be obligated to deliver the
consideration to which any former holder of shares of Michael Common Stock is
entitled as a result of the Merger until such holder surrenders the certificate
or certificates representing such shares for exchange as provided in such
transmittal materials and this Section 2.4(a). Upon surrender, each certificate
evidencing Michael Common Stock shall be canceled.
(b) After the Effective Date, holders of certificates theretofore
evidencing outstanding shares of NSU Common Stock subject to the Reverse Stock
Split, upon surrender of such certificates to the Exchange Agent, shall be
entitled to receive (i) certificates representing the whole number of shares of
the Surviving Corporation Common Stock into which the shares of NSU Common Stock
subject to the Reverse Stock Split so surrendered shall have been combined as a
result of the Reverse Stock Split, and (ii) cash payments in lieu of fractional
shares, if any, as provided in Section 1.4 hereof. As soon as practicable after
the Effective Date, the Surviving Corporation shall cause the Exchange Agent to
mail appropriate and customary transmittal materials (which shall specify that
delivery shall be effected, and risk of loss and title to the certificates
theretofore representing shares of NSU Common Stock subject to the Reverse Stock
Split shall pass, only upon proper delivery of such certificates to the Exchange
Agent) to each holder of NSU Common Stock subject to the Reverse Stock Split of
record as of the Effective Date advising such holder of the effectiveness of the
Merger, the Reverse Stock Split and the Distribution and the procedure for
surrendering to the Exchange Agent outstanding certificates formerly evidencing
ownership of the NSU Common Stock subject to the Reverse Stock Split in exchange
for new certificates evidencing ownership of the Surviving Corporation Common
Stock. The Surviving Corporation shall not be obligated to deliver the
consideration to which any former holder of shares of NSU Common Stock subject
to the Reverse Stock Split is entitled as a result of the Merger and the Reverse
Stock Split until such holder surrenders the certificate or certificates
representing such shares for exchange as provided in such transmittal materials
and this Section 2.4(b). Notwithstanding the immediately preceding sentence, as
provided in the Distribution Agreement and in accordance with the terms thereof,
the certificates evidencing the Spinco Common Stock shall be mailed on the
Distribution Date to the NSU shareholders of record on the Distribution Record
Date, other than holders of Dissenting Shares, and the surrender of the
certificates evidencing the NSU Common Stock subject to the Reverse Stock Split
shall not be a condition to the delivery, after the Effective Date, of the
certificates evidencing the Spinco Common Stock. Upon surrender, each
certificate evidencing NSU Common Stock subject to the Reverse Stock Split shall
be canceled.
(c) On the Effective Date, the Surviving Corporation shall deposit, or
shall cause to be deposited, with the Exchange Agent, for exchange in accordance
with this Section 2.4, certificates representing the shares of the Surviving
Corporation Common Stock and cash in lieu of fractional shares (such
certificates and cash are hereinafter referred to as the "Exchange Fund") to be
issued or paid by the Surviving Corporation pursuant to Articles 1 and 2 in
connection with the Merger and the Reverse Stock Split. As provided in the
Distribution Agreement, the certificates evidencing the Spinco Common Stock
shall have been deposited by NSU with the transfer agent of NSU on or prior to
the Effective Date, for distribution on the Distribution Date in accordance with
the terms of the Distribution Agreement and the terms hereof. After the
Effective Date, the Surviving Corporation shall, on the payment or distribution
date, tender to the Exchange Agent as an addition to the Exchange Fund all
dividends and other distributions applicable to certificates held in the
Exchange Fund for shares of the Surviving Corporation Common Stock issuable in
respect of the NSU Common Stock subject to the Reverse Stock Split.
(d) Until outstanding certificates representing NSU Common Stock subject to
the Reverse Stock Split are surrendered as provided in Section 2.4(b) hereof, no
dividend or distribution payable to such holders of record of NSU Common Stock,
except the Spinco Common Stock payable in connection with the Distribution,
shall be paid to any holder of such outstanding certificates, but upon surrender
of such outstanding certificates by such holder there shall be paid to such
holder the amount of any dividends or distributions (without interest)
theretofore paid with respect to the whole shares of the Surviving Corporation
Common Stock into which such shares are converted as a result of the Reverse
Stock Split, but not paid to such holder, and which dividends or distributions
had a record date occurring subsequent to the Effective Date.
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(e) After the Effective Date, there shall be no further registration of
transfers on the records of Michael of outstanding certificates formerly
representing shares of Michael Common Stock at the Effective Date (other than
the shares of the Merger Sub which are converted into Michael Common Stock
pursuant to Section 2.3(c)) and there shall be no further registration of
transfers on the records of the Surviving Corporation of outstanding
certificates representing shares of NSU Common Stock subject to the Reverse
Stock Split. If any such certificate is presented to Michael or the Surviving
Corporation, it shall be forwarded to the Exchange Agent for cancellation and
exchange for certificates representing shares of the Surviving Corporation
Common Stock as herein provided.
(f) All shares of the Surviving Corporation Common Stock issued upon the
surrender for exchange of Michael Common Stock in accordance with the above
terms and conditions shall be deemed to have been issued and paid in full
satisfaction of all rights pertaining to such shares of Michael Common Stock.
All shares of the Surviving Corporation Common Stock issued upon the surrender
for exchange of NSU Common Stock subject to the Reverse Stock Split in
accordance with the above terms and conditions shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of NSU
Common Stock.
(g) Any portion of the Exchange Fund (including the proceeds of any
investments thereof, any shares of the Surviving Corporation Common Stock and
any dividends or distributions thereon) that remains unclaimed by the holders of
Michael Common Stock or NSU Common Stock subject to the Reverse Stock Split, as
the case may be, for six months after the Effective Date shall be returned or
repaid to the Surviving Corporation. Any holders of Michael Common Stock or NSU
Common Stock subject to the Reverse Stock Split who have not theretofore
complied with this Section 2.4 shall thereafter look only to the Surviving
Corporation for issuance of their shares of the Surviving Corporation Common
Stock, cash in lieu of fractional shares and any unpaid dividends and
distributions on the Surviving Corporation Common Stock deliverable in respect
of the shares of NSU Common Stock subject to the Reverse Stock Split that such
holder holds as determined pursuant to this Agreement, in each case, without any
interest thereon. If outstanding certificates for shares of Michael Common Stock
or NSU Common Stock subject to the Reverse Stock Split are not surrendered or
the payment for them not claimed prior to the date on which such payments would
otherwise escheat to or become the property of any governmental unit or agency,
the unclaimed items shall, to the extent not prohibited by abandoned property
and any other applicable law, become the property of the Surviving Corporation
(and to the extent not in its possession shall be paid over to it), free and
clear of all claims or interest of any person previously entitled to such
claims. Notwithstanding the foregoing, none of Surviving Corporation, Michael,
NSU, the Exchange Agent or any other person shall be liable to any former holder
of Michael Common Stock or NSU Common Stock subject to the Reverse Stock Split
for any amount delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(h) In the event any certificate for Michael Common Stock or NSU Common
Stock subject to the Reverse Stock Split shall have been lost, stolen or
destroyed, the Exchange Agent shall issue and pay in exchange for such lost,
stolen or destroyed certificate, upon the making of an affidavit of that fact by
the holder thereof, such shares of the Surviving Corporation Common Stock and
cash for fractional shares, if any, as may be required pursuant to this
Agreement; provided, however, that the Surviving Corporation, in its discretion
and as a condition precedent to the issuance and payment thereof, may require
the owner of such lost, stolen or destroyed certificate to deliver a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Surviving Corporation, Michael, NSU, the Exchange Agent or any other
party with respect to the certificate alleged to have been lost, stolen or
destroyed.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF MICHAEL
Michael hereby represents and warrants to NSU as follows:
3.1 Organization and Qualification. Michael is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power to carry on its business as now
conducted. Each of the Michael Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation. The copies of the Charter and Bylaws of Michael which have been
made available to NSU prior to the date of this Agreement are correct and
complete copies of such documents as in effect as of the date of this Agreement.
As used in this Agreement, the term "Charter" with respect to any corporation
shall mean those instruments that at that time constitute its charter as filed
or recorded under the general corporation or other applicable law of the
jurisdiction of its incorporation or organization, including the articles or
certificate of incorporation and any and all amendments thereto. Each of Michael
and the Michael Subsidiaries is licensed or qualified to do business in every
jurisdiction in which the nature of its business or its ownership of property
requires it to be licensed or qualified, except where the failure to be so
licensed or qualified would not have a Material Adverse Effect on Michael.
3.2 Authority Relative to this Agreement; Non-Contravention. Michael has
the requisite corporate power and authority to enter into this Agreement and the
Certificate of Merger and to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and the Certificate of Merger by
Michael and the consummation by Michael of the transactions contemplated hereby
and thereby have been duly authorized by the Board of Directors of Michael and,
except for approval of this Agreement and the Merger by the requisite vote of
Michael's shareholders, no other corporate proceedings on the part of Michael
are necessary to authorize this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Michael and, assuming it is a valid and binding obligation of NSU,
constitutes a valid and binding obligation of Michael enforceable in accordance
with its terms except as enforcement may be limited by general principles of
equity whether applied in a court of law or a court of equity and by bankruptcy,
insolvency and similar laws affecting creditors' rights and remedies generally.
Except as set forth in Schedule 3.2, neither Michael nor any of the Michael
Subsidiaries is subject to, or obligated under, any provision of (a) its Charter
or Bylaws, (b) any agreement, arrangement or understanding, (c) any license,
franchise or permit or (d) subject to obtaining the approvals referred to in the
next sentence, any law, regulation, order, judgment or decree, which would be
breached or violated, or in respect of which a right of termination or
acceleration or any encumbrance on any of its assets would be created, by the
execution, delivery or performance of this Agreement, the Certificate of Merger,
or the consummation of the transactions contemplated hereby or thereby, other
than any such breaches, violations, rights of termination or acceleration or
encumbrances which, in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect on Michael. Except for (a) the filing required by
the HSR Act and the termination of any waiting period thereunder, (b) the filing
with the SEC of a joint proxy statement in definitive form relating to the
meetings of Michael's and NSU's shareholders to be held in connection with this
Agreement and the transactions contemplated hereby, (c) the filing with the SEC
of the Registration Statement and effectiveness of the Registration Statement,
(d) the approval of the Merger, the Certificate of Merger and this Agreement by
the requisite vote of the shareholders of Michael (the "Requisite Michael
Shareholder Vote"), (e) approvals under applicable Blue Sky laws, (f) the filing
of the Certificate of Merger with the Delaware Secretary of State in accordance
with the DGCL, and (g) such filings, authorizations or approvals as may be set
forth in Schedule 3.2, no authorization, consent or approval of, or filing with,
any public body, court or authority is necessary on the part of Michael or any
of the Michael Subsidiaries for the consummation by Michael of the transactions
contemplated by this Agreement, except for such authorizations, consents,
approvals and filings as to which the failure to obtain or make the same will
not, in the aggregate, have a Material Adverse Effect on Michael or adversely
affect the consummation of the transactions contemplated hereby.
3.3 Capitalization. The authorized, issued and outstanding shares of
capital stock of Michael as of the date hereof is correctly set forth on
Schedule 3.3. The issued and outstanding shares of capital stock of
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Michael are duly authorized, validly issued, fully paid and nonassessable and
have not been issued in violation of any preemptive rights.
3.4 Exchange Act Reports. Prior to the execution of this Agreement, Michael
has delivered or made available to NSU complete and accurate copies of (a)
Michael's Annual Reports on Form 10-K for the years ended December 31, 1990,
1991, 1992, 1993 and 1994 (the "Michael 10-K Reports") as filed with the SEC,
(b) all Michael proxy statements and annual reports to shareholders used in
connection with meetings of Michael shareholders held since January 1, 1991 and
(c) Michael's Quarterly Reports on Form 10-Q for the quarters ended March 31,
June 30, and September 30, 1995 (the "Michael 10-Q Reports") as filed with the
SEC. As of their respective dates or as subsequently amended prior to the date
hereof, such documents (i) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading and (ii) complied as to form in all material respects
with the applicable rules and regulations of the SEC. Since January 1, 1991,
Michael has filed in a timely manner all reports that it was required to file
with the SEC pursuant to the Exchange Act, as amended, and the rules and
regulations promulgated thereunder. The Michael financial statements (including
any footnotes thereto) contained in the Michael 10-K Reports and the Michael
10-Q Reports were prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as otherwise noted therein) and fairly
present the financial condition of Michael as of the dates thereof, except, in
the case of unaudited interim financial statements, subject to normal year-end
adjustments and the omission of footnotes.
3.5 Subsidiaries. Schedule 3.5 correctly sets forth the name and
jurisdiction of incorporation of each Subsidiary of Michael (each a "Michael
Subsidiary" and collectively the "Michael Subsidiaries"). Except as disclosed on
Schedule 3.5, all of the issued and outstanding shares of capital stock of each
Michael Subsidiary are owned directly or indirectly by Michael free and clear of
any lien, pledge, security interest, encumbrance or charge of any kind.
3.6 Litigation. As of the date hereof, there are no actions, suits,
proceedings, orders or investigations pending or, to the knowledge of Michael,
threatened against Michael, at law or in equity, or before or by any federal,
state or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign which challenges or seeks to make illegal
or to delay or otherwise directly or indirectly to restrain or prohibit the
consummation of the transactions contemplated hereby or seeks to obtain material
damages in connection with the transactions contemplated hereby. As used in this
Agreement, the phrase "to the knowledge of," or words of similar import, with
respect to an entity means to the knowledge of management officials of such
entity having responsibility for the matter in question.
3.7 No Brokers or Finders. Except as disclosed on Schedule 3.7, there are
no claims for brokerage commissions, finders' fees, investment advisory fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement, understanding, commitment or agreement made
by or on behalf of Michael or any of the Michael Subsidiaries.
3.8 Prospectus/Proxy Statement. At the time the Registration Statement
becomes effective and at the time the Prospectus/Proxy Statement is mailed to
the shareholders of Michael and NSU in order to obtain approvals referred to in
Section 6.11 and at all times subsequent to such mailing up to and including the
times of such approvals, the Registration Statement and the Prospectus/Proxy
Statement (including any amendments or supplements thereto), with respect to all
information furnished to NSU by Michael as provided in Section 6.4(b) below) for
inclusion in the Prospectus/Proxy Statement or consistent with information so
furnished by Michael relating to Michael (including the Michael Subsidiaries)
and its shareholders, Michael Common Stock, the Michael Stock Plans, the
Continuing Options, this Agreement, the Certificate of Merger, the Merger and
all other transactions contemplated hereby, will (a) comply in all material
respects with applicable provisions of the Securities Act and the Exchange Act
and the rules and regulations promulgated thereunder, and (b) not contain any
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements contained therein, in
light of the circumstances under which they are made, not misleading.
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3.9 Disclosure. The representations and warranties of Michael contained in
this Agreement are true and correct in all material respects, and such
representations and warranties do not omit any material fact necessary to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to Michael which has not been
disclosed to NSU pursuant to this Agreement, the Schedules hereto, the Michael
10-K Reports and the Michael 10-Q Reports, all taken together as a whole, which
has had or could reasonably be expected to have a Material Adverse Effect on
Michael or materially adversely affect the ability of Michael to consummate in a
timely manner the transactions contemplated hereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF NSU
NSU hereby represents and warrants to Michael as follows:
4.1 Organization and Qualification. NSU is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota,
and has the requisite corporate power to carry on its business as now conducted.
Each of the NSU Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation. The
copies of the Charter and Bylaws of NSU and Merger Sub which have been made
available to Michael on or prior to the date of this Agreement are correct and
complete copies of such documents as in effect as of the date of this Agreement.
Each of NSU and the NSU Subsidiaries is licensed or qualified to do business in
every jurisdiction in which the nature of its business or its ownership of
property requires it to be licensed or qualified, except where the failure to be
so licensed or qualified would not have a Material Adverse Effect on NSU.
4.2 Authority Relative to this Agreement; Non-Contravention. Each of NSU,
the Merger Sub and Spinco has the requisite corporate power and authority to
enter into this Agreement, the Certificate of Merger and the Distribution
Agreement to which it is or will be a party and to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement, the
Certificate of Merger and the Distribution Agreement by NSU, the Merger Sub and
Spinco to which it is or will be a party, and the consummation by NSU, the
Merger Sub and Spinco of the transactions contemplated hereby and thereby have
been duly authorized by the Boards of Directors of NSU, the Merger Sub and
Spinco. Except for approval of this Agreement, the Merger, the New Articles, the
Reverse Stock Split and the Distribution by the requisite vote of NSU's
shareholders, no other corporate proceedings on the part of NSU, Merger Sub or
Spinco are necessary to authorize this Agreement, the Certificate of Merger and
the Distribution Agreement and the consummation of the transactions contemplated
hereby and thereby. This Agreement has been duly executed and delivered by NSU
and Merger Sub and, assuming it is a valid and binding obligation of Michael,
constitutes a valid and binding obligation of NSU and Merger Sub enforceable in
accordance with its terms except as enforcement may be limited by general
principles of equity whether applied in a court of law or a court of equity and
by bankruptcy, insolvency and similar laws affecting creditors' rights and
remedies generally. Except as set forth in Schedule 4.2, neither NSU nor any of
the NSU Subsidiaries is subject to, or obligated under, any provision of (a) its
Charter or Bylaws, (b) any agreement, arrangement or understanding, (c) any
license, franchise or permit or (d) subject to obtaining the approvals referred
to in the next sentence, any law, regulation, order, judgment or decree, which
would be breached or violated, or in respect of which a right of termination or
acceleration or any encumbrance on any of its assets would be created, by the
execution, delivery or performance of this Agreement, the Certificate of Merger,
the Distribution Agreement or the consummation of the transactions contemplated
hereby or thereby, other than any such breaches, violations, rights of
termination or acceleration or encumbrances which, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect on NSU. Except for (a)
the filings, notices, consents and approvals described in Section 3.2 hereof,
(b) the filing with the SEC of a registration statement on Form S-1 registering
the shares of Spinco Common Stock to be distributed in the Distribution, if
required, (c) approval of the Merger and this Agreement, the New Articles, the
Reverse Stock Split and the Distribution by the requisite vote of the
shareholders of NSU (the "Requisite NSU Shareholder Vote"), (d) the filing of
the New Articles with the Minnesota Secretary of State, and (e) such filings,
authorizations or approvals as may
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be set forth in Schedule 4.2, no authorization, consent or approval of, or
filing with, any public body, court or authority is necessary on the part of NSU
or any of the NSU Subsidiaries for the consummation by NSU or the Merger Sub of
the transactions contemplated by this Agreement, except for such authorizations,
consents, approvals and filings as to which the failure to obtain or make the
same will not, in the aggregate, have a Material Adverse Effect on NSU or
adversely affect the consummation of the transactions contemplated hereby.
4.3 Capitalization. The authorized, issued and outstanding shares of
capital stock of each of NSU and Merger Sub as of the date hereof is correctly
set forth on Schedule 4.3. The issued and outstanding shares of capital stock of
each of NSU, Merger Sub and Spinco are duly authorized, validly issued, fully
paid and nonassessable and have not been issued in violation of any preemptive
rights. Except as disclosed on Schedule 4.3, there are no options, warrants,
conversion privileges or other rights, agreements, arrangements or commitments
obligating NSU or Merger Sub to issue, sell, purchase or redeem any shares of
its capital stock or securities or obligations of any kind convertible into or
exchangeable for any shares of its capital stock. Schedule 4.3 contains true and
correct copies of all such agreements, arrangements (including all stock plans,
but excluding individual stock option agreements) or commitments. The
outstanding shares of NSU Common Stock have been duly listed for trading on the
Pacific Stock Exchange and the NASDAQ-NMS.
4.4 Exchange Act Reports. Prior to the execution of this Agreement, NSU has
delivered or made available to Michael complete and accurate copies of (a) NSU's
Annual Reports on Form 10-K for the years ended December 31, 1990, 1991, 1992,
1993 and 1994 (the "NSU 10-K Reports") as filed with the SEC, (b) all NSU proxy
statements and annual reports to shareholders used in connection with meetings
of NSU shareholders held since January 1, 1991 and (c) NSU's Quarterly Reports
on Form 10-Q for the quarters ended March 31, June 30, and September 30, 1995
(the "NSU 10-Q Reports") as filed with the SEC. As of their respective dates or
as subsequently amended prior to the date hereof, such documents (i) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statement therein, in
light of the circumstances under which they were made, not misleading and (ii)
complied as to form in all material respects with the applicable rules and
regulations of the SEC. Since January 1, 1991, NSU has filed in a timely manner
all reports that it was required to file with the SEC pursuant to the Exchange
Act. The NSU financial statements (including footnotes thereto) contained in the
NSU 10-K Reports and the NSU 10-Q Reports were prepared in accordance with GAAP
applied on a consistent basis during the periods involved (except as otherwise
noted therein) and fairly present the financial condition of NSU as of the dates
thereof, except in the case of unaudited interim financial statements subject to
normal year-end adjustments and the omission of footnotes.
4.5 Subsidiaries. Schedule 4.5 correctly sets forth the name and
jurisdiction of incorporation of each corporation, fifty percent or more of the
voting securities of which is owned directly or indirectly by NSU (each a "NSU
Subsidiary" and collectively the "NSU Subsidiaries"). All of the issued and
outstanding shares of capital stock of each NSU Subsidiary are owned directly or
indirectly by NSU free and clear of any lien, pledge, security interest,
encumbrance or charge of any kind.
4.6 Absence of Certain Developments. Except as disclosed in NSU's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1995 or on Schedule 4.6,
unless otherwise expressly contemplated or permitted by this Agreement, since
September 30, 1995 to the date hereof, neither NSU nor any of the NSU
Subsidiaries has:
(a) issued or sold any of its equity securities other than NSU Common
Stock, securities convertible into or exchangeable for its equity
securities other than NSU Common Stock, warrants, options or other rights
to acquire its equity securities other than NSU Common Stock;
(b) reclassified any of its outstanding shares of capital stock; or
(c) agreed to do any of the foregoing.
4.7 Litigation. As of the date hereof, there are no actions, suits,
proceedings, orders or investigations pending or, to the knowledge of NSU,
threatened against NSU or any of the NSU Subsidiaries, at law or in equity, or
before or by any federal, state or other governmental department, commission,
board, bureau,
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agency or instrumentality, domestic or foreign which challenges or seeks to make
illegal or to delay or otherwise directly or indirectly to restrain or prohibit
the consummation of the transactions contemplated hereby or seeks to obtain
material damages in connection with the transactions contemplated hereby.
4.8 No Brokers or Finders. Except as disclosed on Schedule 4.8, there are
no claims for brokerage commissions, finders' fees, investment advisory fees or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement, understanding, commitment or agreement made
by or on behalf of NSU or any of the NSU Subsidiaries.
4.9 Prospectus/Proxy Statement. At the time the Registration Statement
becomes effective and at the time the Prospectus/Proxy Statement is mailed to
the shareholders of NSU and Michael in order to obtain approvals referred to in
Section 6.11 hereof and at all times subsequent to such mailing up to and
including the times of such approvals, the Registration Statement and the
Prospectus/Proxy Statement (including any amendments or supplements thereto),
with respect to all information set forth therein relating to NSU (including the
NSU Subsidiaries) and its shareholders, this Agreement, the Certificate of
Merger, the Distribution and all other transactions contemplated hereby, will
(a) comply in all material respects with applicable provisions of the Securities
Act and the Exchange Act, and (b) not contain any untrue statement of material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements contained therein, in light of the circumstances under
which they are made, not misleading, except that, in each case, no such
representations shall apply to any written information, including financial
statements, of or provided by Michael for such Prospectus/Proxy Statement.
4.10 Validity of the Surviving Corporation Common Stock. The shares of the
Surviving Corporation Common Stock to be issued to holders of Michael Common
Stock pursuant to this Agreement will be, when issued, duly authorized, validly
issued, fully paid and nonassessable.
4.11 Ownership of Michael Common Stock. As of the date hereof, NSU owns
good and valid title to 7,354,950 shares of Michael Common Stock, free and clear
of any liens, claims, encumbrances or restrictions (other than restrictions
imposed by securities laws) except as disclosed on Schedule 4.11.
4.12 Liabilities. As of the Effective Time, (a) NSU shall have no known
Liabilities other than (i) the NSU Assumed Liabilities for which the Surviving
Corporation shall be responsible, and (ii) the contingent liabilities listed in
Schedule 4.12 hereto against which the Surviving Corporation and its
Subsidiaries will be indemnified pursuant to Section 5.01 of the Distribution
Agreement, and (b) Merger Sub shall have no Liabilities, except its obligations
under this Agreement.
4.13 Disclosure. The representations and warranties of NSU contained in
this Agreement are true and correct in all material respects, and such
representations and warranties do not omit any material fact necessary to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading. There is no fact known to NSU and the NSU
Subsidiaries which has not been disclosed to Michael pursuant to this Agreement,
the Schedules hereto and the NSU 10-K Reports and the NSU 10-Q Reports, all
taken together as a whole, which has had or could reasonably be expected to have
a Material Adverse Effect on NSU or materially adversely affect the ability of
NSU to consummate in a timely manner the transactions contemplated hereby.
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ARTICLE 5
CONDUCT OF BUSINESS PENDING THE MERGER
5.1 Conduct of Business by NSU. From the date of this Agreement to the
Effective Date, unless Michael shall otherwise agree in writing or as otherwise
expressly contemplated or permitted by other provisions of this Agreement,
including but not limited to, this Section 5.1, NSU shall not, directly or
indirectly, (a) amend or propose to amend its Charter or Bylaws except for the
New Articles, (b) issue, sell or grant any of its equity securities other than
NSU Common Stock, securities convertible into or exchangeable for its equity
securities other than NSU Common Stock, warrants, options or other rights to
acquire its equity securities other than NSU Common Stock, (c) reclassify any
outstanding shares of capital stock of NSU, (d) acquire (by merger, exchange,
consolidation, acquisition of stock or assets or otherwise) any corporation,
partnership, joint venture or other business organization or division or assets
thereof, except by a NSU Subsidiary and in a transaction in which NSU shall not
have any Liabilities with respect thereto after the Effective Date, (e) sell,
transfer, pledge or otherwise encumber the Michael Common Stock owned by NSU
other than as collateral for indebtedness under the Credit Agreement, (f)
purchase or otherwise acquire any additional shares of Michael Common Stock, (g)
default in its obligations under any material debt, contract or commitment which
default results in the acceleration of obligations due thereunder, or (h) enter
into or propose to enter into, or modify or propose to modify, any agreement,
arrangement, or understanding with respect to any of the foregoing matters.
5.2 Conduct of Business by Michael. From the date of this Agreement to the
Effective Date, unless NSU shall otherwise agree in writing or as otherwise
expressly contemplated or permitted by other provisions of this Agreement,
including but not limited to, this Section 5.2, Michael shall not, directly or
indirectly, (a) amend its Charter or Bylaws, (b) split, combine or reclassify
any outstanding shares of capital stock of Michael, (c) declare, set aside, make
or pay any dividend or distribution in cash, stock, property or otherwise with
respect to the capital stock of Michael, except for regular quarterly dividends
which are not in excess of $.05 per share per quarter on the Michael Common
Stock, or (d) default in its obligations under any material debt, contract or
commitment which default results in the acceleration of obligations due
thereunder, except for such defaults arising out of this Agreement for which
consents, waivers or modifications are required to be obtained as set forth on
Schedule 3.2.
ARTICLE 6
ADDITIONAL COVENANTS AND AGREEMENTS
6.1 Governmental Filings. Each party will use all reasonable efforts and
will cooperate with the other party in the preparation and filing, as soon as
practicable, of all filings, applications or other documents required under
applicable laws, including the Securities Act, the Exchange Act and the HSR Act,
to consummate the transactions contemplated by this Agreement. Prior to
submitting each filing, application, registration statement or other document
with the applicable regulatory authority, each party will, to the extent
practicable, provide the other party with an opportunity to review and comment
on each such application, registration statement or other document to the extent
permitted by applicable law. Each party will use all reasonable efforts and will
cooperate with the other party in taking any other actions necessary to obtain
such regulatory or other approvals and consents at the earliest practicable
time, including participating in any required hearings or proceedings. Subject
to the terms and conditions herein provided, each party will use all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
as promptly as practicable the transactions contemplated by this Agreement.
6.2 Expenses. Except as otherwise provided in this Agreement, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses. Any such costs or expenses incurred by NSU shall be paid prior to the
Effective Time. Notwithstanding the foregoing, NSU and Michael will each pay,
when due, one-half of (i) all filing fees required to be paid under the HSR Act
by Michael, NSU or any shareholder of NSU who may be an "Ultimate Parent Entity"
under the HSR Act in connection with the Merger (but excluding the
Distribution), (ii) all
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costs of all SEC filing fees with respect to the Registration Statement as those
fees relate to the shares of Surviving Corporation Common Stock issuable to the
holders of Michael Common Stock as a result of the Merger, and (iii) all costs
of qualifying the Surviving Corporation securities to be issued in connection
with the transactions contemplated by this Agreement under state blue sky laws
to the extent necessary.
6.3 Access to Information; Confidentiality.
(a) Each party shall permit and shall cause each of its subsidiaries to
permit the other party full access on reasonable notice and at reasonable hours
to its properties and shall disclose and make available (together with the right
to copy) to the other party and its officers, employees, attorneys, accountants
and other representatives, all books, papers and records relating to the assets,
stock, properties, operations, obligations and liabilities of such party and its
subsidiaries, including, without limitation, all books of account (including,
without limitation, the general ledger), tax records, minute books of directors'
and shareholders' meetings, organizational documents, bylaws, contracts and
agreements, filings with any regulatory authority, accountants' work papers,
litigation files (including, without limitation, legal research memoranda),
documents relating to assets and title thereto (including, without limitation,
abstracts, title insurance policies, surveys, environmental reports, opinions of
title and other information relating to the real and personal property), plans
affecting employees, securities transfer records and shareholder lists, and any
books, papers and records relating to other assets or business activities in
which such party may have a reasonable interest; provided, however, that the
foregoing rights granted to each party shall, whether or not and regardless of
the extent to which the same are exercised, in no way affect the nature or scope
of the representations, warranties and covenants of the respective party set
forth herein.
(b) Each party shall comply with the provisions of its confidentiality
letter dated December 1, 1995 with the other party. This Agreement does not
supersede or modify the terms of such confidentiality letters.
6.4 Registration Statement.
(a) For the purpose (i) of holding meetings of shareholders of Michael and
NSU to approve the Merger and this Agreement and, in the case of NSU, to approve
the New Articles, the Reverse Stock Split and the Distribution, and (ii) of
registering with the SEC and with applicable state securities authorities the
securities of the Surviving Corporation to be issued as contemplated by this
Agreement, the parties hereto shall cooperate in the preparation of an
appropriate registration statement (such registration statement, together with
all and any amendments and supplements thereto, being herein referred to as the
"Registration Statement"), which shall include a prospectus/joint proxy
statement satisfying all applicable requirements of the Securities Act, the
Exchange Act, applicable state securities laws and the rules and regulations
thereunder (such prospectus/joint proxy statement, together with any and all
amendments or supplements thereto, being herein referred to as the
"Prospectus/Proxy Statement").
(b) Michael shall furnish such information concerning Michael and the
Michael Subsidiaries as is necessary in order to cause the Prospectus/Proxy
Statement, insofar as it relates to Michael, the Michael Subsidiaries and
Michael securities, to be prepared in accordance with Section 6.4(a). Michael
agrees promptly to advise NSU if at any time prior to the Michael or NSU
shareholders' meetings any information provided by Michael in the
Prospectus/Proxy Statement becomes incorrect or incomplete in any material
respect, and to share with NSU the information needed to correct such inaccuracy
or omission.
(c) NSU shall furnish Michael with such information concerning NSU and the
NSU Subsidiaries as is necessary in order to cause the Prospectus/Proxy
Statement, insofar as it relates to NSU, the NSU Subsidiaries and the NSU
securities, to be prepared in accordance with Section 6.4(a). NSU agrees
promptly to advise Michael if at any time prior to the Michael or NSU
shareholders' meetings any information provided by NSU in the Prospectus/Proxy
Statement becomes incorrect or incomplete in any material respect, and to
provide Michael with the information needed to correct such inaccuracy or
omission.
(d) NSU shall use all reasonable efforts to promptly prepare and (subject
to receipt of audited financial statements of each of NSU and Michael for the
year ended December 31, 1995) file the Registration Statement with the SEC and
applicable state securities agencies. NSU shall use reasonable efforts to cause
the Registration Statement to become effective under the Securities Act and
applicable state securities laws at
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the earliest practicable date. NSU agrees to provide Michael with reasonable
opportunity to review and comment on the Registration Statement and any
amendment thereto before filing with the SEC or any other governmental entity
and agrees not to make such filing if Michael reasonably objects to the
completeness or accuracy of any information contained therein. Michael
authorizes NSU to utilize in the Registration Statement the information
concerning Michael, the Michael Subsidiaries and Michael securities provided to
NSU for the purpose of inclusion in the Prospectus/Proxy Statement. NSU shall
advise Michael promptly when the Registration Statement has become effective and
of any supplements or amendments thereto, and NSU shall furnish Michael with
copies of all such documents. Prior to the Effective Date or the termination of
this Agreement, each party shall consult with the other with respect to any
material (other than the Prospectus/Proxy Statement) that might constitute a
"prospectus" relating to the Merger within the meaning of the Securities Act.
(e) Michael shall use reasonable efforts to cause to be delivered to NSU a
letter relating to the financial statements of Michael included in the
Registration Statement from Grant Thornton LLP, Michael's independent auditors,
dated a date within two business days before the date on which the Registration
Statement shall become effective and addressed to NSU, in form and substance
reasonably satisfactory to NSU and customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Registration Statement.
(f) NSU shall use reasonable efforts to cause to be delivered to Michael a
letter relating to the financial statements of NSU included in the Registration
Statement from Grant Thornton LLP, NSU's independent auditors, dated a date
within two business days before the date on which the Registration Statement
shall become effective and addressed to Michael, in form and substance
reasonably satisfactory to Michael and customary in scope and substance for
letters delivered by independent public accountants in connection with
registration statements similar to the Registration Statement.
(g) NSU shall bear all printing and mailing costs in connection with the
preparation and mailing of the Prospectus/Proxy Statement to NSU shareholders.
Michael shall bear all printing and mailing costs in connection with the
preparation and mailing of the Prospectus/Proxy Statement to Michael
shareholders. Michael and NSU shall each bear their own legal and accounting
expenses in connection with the Registration Statement.
6.5 Accounting and Tax Treatment. Neither NSU nor Michael, nor Surviving
Corporation after the Effective Date, shall, directly or indirectly, voluntarily
take any action which would disqualify the Merger, the Reverse Stock Split and
the Distribution as a business combination utilizing the reverse acquisition
concept with Michael being the accounting acquiror for accounting purposes and
the Merger as a "reorganization" that would be tax free to the shareholders of
NSU and Michael pursuant to Section 368(a) of the Code.
6.6 Michael Stock Plans. At or prior to the Effective Time, NSU shall take
all corporate action necessary to authorize and reserve for issuance a
sufficient number of shares of the Surviving Corporation Common Stock, equal to
the number of shares of Michael Common Stock reserved for issuance under the
Michael Stock Plans to be adopted and assumed by the Surviving Corporation at
the Effective Time, including the shares issuable upon exercise of the
Continuing Options, in accordance with Section 2.2(b).
6.7 Press Releases. Michael and NSU shall agree with each other as to the
form and substance of any press release related to this Agreement or the
transactions contemplated hereby, and shall consult with each other as to the
form and substance of other public disclosures which may relate to the
transactions contemplated by this Agreement, provided, however, that nothing
contained herein shall prohibit either party, following notification to the
other party, from making any disclosure which is required by law or regulation.
6.8 Directors and Officers Insurance. Each of NSU and Michael will use its
reasonable efforts to obtain a quote for "tail policy" coverage for a period of
three years after the Effective Date under its officers and directors liability
insurance for claims asserted after the Effective Date against any person who
was an officer or director of NSU or any NSU Subsidiary prior to the Effective
Date which claims relate to the period prior to the Effective Date. If such
coverage is available, NSU will, prior to the Effective Date, select which
coverage it prefers and purchase or reimburse Michael for the cost of such
coverage.
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6.9 Securities Reports. Each of Michael and NSU agree to provide to the
other party copies of all reports and other documents filed under the Securities
Act or Exchange Act with the SEC by it between the date hereof and the Effective
Date within two days after the date such reports or other documents are filed
with the SEC. Upon delivery of any such report or document, the delivering party
shall be deemed to have made the representations to the receiving party with
respect thereto as set forth in Sections 3.4 and 4.4, respectively.
6.10 Stock Listing. NSU shall use all reasonable efforts to list on the
NASDAQ-NMS the shares of the Surviving Corporation Common Stock to be issued in
connection with the Merger and the Reverse Stock Split, and to change the
trading symbol for the Surviving Corporation Common Stock to MIKL on the
Effective Date.
6.11 Shareholder Approvals. Each of Michael and NSU shall call a meeting of
its shareholders for the purpose of voting upon this Agreement and the Merger,
and, in the case of NSU, the New Articles, the Reverse Stock Split and the
Distribution, and shall hold such meeting on the later of (a) June 6, 1996, or
(b) such other date(s) as mutually agreed by NSU and Michael, but such mutually
agreed date(s) shall not be later than forty-five (45) days after the
effectiveness of the Registration Statement. The Board of Directors of each of
Michael and NSU shall recommend approval of this Agreement and the Merger, and,
in the case of NSU, the New Articles, the Reverse Stock Split and the
Distribution, and use all reasonable efforts (including, without limitation,
soliciting proxies for such approvals) to obtain approvals thereof from its
shareholders, provided, however, the Board of Directors of either may fail to
make the recommendation, and/or to seek to obtain the shareholder approval
referred to in this sentence, or withdraw, modify or change any such
recommendation, if such Board of Directors determines, after consultation with
counsel, that the making of such recommendation, the seeking to obtain such
shareholder approval, or the failure to so withdraw, modify or change its
recommendation, is reasonably likely to constitute a breach of the fiduciary or
legal obligations of such Board of Directors.
6.12 No Solicitation.
(a) Unless and until this Agreement shall have been terminated pursuant to
Section 8.1, neither NSU nor its officers, directors or agents shall, directly
or indirectly, encourage, solicit or initiate discussions or negotiations with,
or engage in negotiations or discussions with, or provide non-public information
to, any corporation, partnership, person or other entity or groups concerning
any merger or sale of substantial assets, except for the sale of NSU assets
other than the Michael Common Stock owned by NSU; provided that NSU may engage
in such discussion in response to an unsolicited proposal from an unrelated
party if the Board of Directors of NSU determines, after consultation with
counsel, that the failure to engage in such discussions is reasonably likely to
constitute a breach of the fiduciary or legal obligations of the Board of
Directors of NSU. NSU will promptly advise Michael if it receives a proposal or
inquiry with respect to the matters described above.
(b) Unless and until this Agreement shall have been terminated pursuant to
Section 8.1, neither Michael nor its officers, directors or agents shall,
directly or indirectly, encourage, solicit or initiate discussions or
negotiations with, or engage in negotiations or discussions with, or provide
non-public information to, any corporation, partnership, person or other entity
or groups concerning any merger or sale of substantial assets, except if (i)
Michael is the surviving corporation in such transaction, and (ii) the
shareholders of Michael immediately preceding such transaction will own at least
51% of the outstanding shares of Michael after giving effect to such
transaction; provided that Michael may engage in such discussion in response to
an unsolicited proposal from an unrelated party if the Board of Directors of
Michael determines, after consultation with counsel, that the failure to engage
in such discussions is reasonably likely to constitute a breach of the fiduciary
or legal obligations of the Board of Directors of Michael. Michael will promptly
advise NSU if it receives a proposal or inquiry with respect to the matters
described above.
6.13 Failure to Fulfill Conditions. In the event that either of the parties
hereto determines that a condition to its respective obligations to consummate
the transactions contemplated hereby cannot be fulfilled on or prior to the
termination of this Agreement, it will promptly notify the other party.
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6.14 Tax Ruling or Opinion. Michael and NSU shall reasonably cooperate with
each other in submitting the request for private letter ruling by the IRS
contemplated by Section 7.1(d), shall promptly notify the other of any
communications with or from the IRS with respect to the ruling request, and
shall not submit any written material to the IRS in connection with the ruling
request without consulting with the other.
6.15 Resignations and Election of Directors. At the Effective Time, NSU
shall deliver the voluntary resignations of each officer of NSU and each
director of NSU who is not designated to be a director of the Surviving
Corporation in accordance with Section 2.1(a) and shall elect the other persons
who shall be directors of the Surviving Corporation in accordance with Section
2.1(a) to be directors of the Surviving Corporation upon the consummation of the
Merger.
6.16 Orderly Disposition and Registration Rights Agreement. Contemporaneous
with the execution and delivery of this Agreement, NSU shall execute and deliver
and shall cause the parties other than NSU to execute and deliver the Orderly
Disposition and Registration Rights Agreement. NSU covenants and agrees that the
provisions of the Orderly Disposition and Registration Rights Agreement will not
be amended, waived, terminated or otherwise modified prior to the Effective Date
without the prior written consent of Michael.
6.17 Shareholder Vote. NSU will vote the shares of Michael Common Stock
owned by NSU in favor of the Merger, this Agreement, the Certificate of Merger
and the persons nominated by the Michael Board of Directors for election as
directors of Michael at the meeting of the Michael shareholders contemplated by
Section 6.11, provided the number of nominees is not greater than nine and
provided further that James H. Michael, Miles E. Efron and Jeffrey J. Michael
are nominees of Michael.
6.18 Filing of Reports Necessary for use of Rule 145. After the Effective
Date, Surviving Corporation shall use reasonable efforts to file all reports and
data with the SEC necessary to permit the shareholders of Michael and NSU who
may be deemed "underwriters" (within the meaning of Rule 145 under the
Securities Act) of Michael Common Stock to sell the Surviving Corporation Common
Stock received by them in connection with the Merger pursuant to Rules 144 and
145(d) under the Securities Act if they would otherwise be so entitled. After
the Effective Date, Surviving Corporation will use reasonable efforts to file
with the SEC reports, statements, and other materials required by the federal
securities laws on a timely basis.
6.19 Notification of Certain Matters.
(a) Each party shall give prompt notice to the other party of (i) the
occurrence or failure to occur of any event or the discovery of any information,
which occurrence, failure or discovery would be likely to cause any
representation or warranty on its part contained in this Agreement to be untrue,
inaccurate or incomplete after the date hereof in any material respect or, in
the case of any representation or warranty given as of a specific date, would be
likely to cause any such representation or warranty on its part contained in
this Agreement to be untrue, inaccurate or incomplete in any material respect as
of such specific date, and (ii) any material failure of such party to comply
with or satisfy any covenant or agreement to be complied with or satisfied by it
hereunder.
(b) From time to time after the date hereof and prior to the Effective
Time, each party shall promptly supplement or amend any of its representations
and warranties which apply to the period after the date hereof by delivering an
updated Schedule to the other party pursuant to this Section 6.19(b) with
respect to any matter hereafter arising which would render any such
representation or warranty after the date of this Agreement materially untrue,
inaccurate or incomplete as a result of such matter arising. Such supplement or
amendment to a party's representations and warranties contained in an updated
Schedule delivered pursuant to this Section 6.19(b) shall be deemed to have
modified the representations and warranties of the disclosing party, and no such
supplement or amendment, or the information contained in such updated Schedule,
shall constitute a breach of a representation or warranty of the disclosing
party; provided that no such supplement or amendment may cure any breach of a
covenant or agreement of any party under Articles 5 or 6. Within fifteen (15)
days after receipt of such supplement or amendment, the receiving party may
terminate this Agreement pursuant to Section 7.1(g) hereof if (i) the
information in such supplement or amendment together with the information in any
and all of the supplements or amendments previously provided by the
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disclosing party indicate that the disclosing party has suffered or is
reasonably likely to suffer a Material Adverse Effect or, in the case of an
updated Schedule 4.12 is, in Michael's reasonable determination a material
liability, and (ii) the disclosing party has not cured the matters giving rise
to such termination within fifteen (15) days after the receiving party notifies
the disclosing party that it is exercising its right to terminate this Agreement
under this Section 6.19(b).
6.20 Notification of Anticipated NSU Net Indebtedness. No later than thirty
(30) days after the initial filing of the Registration Statement, NSU shall
notify Michael of the anticipated amount of the NSU Indebtedness at the
Effective Time, less the amount of cash to be included in the Retained Assets at
the Effective Time (the "Anticipated NSU Net Indebtedness"). NSU covenants that
the amount of the NSU Net Assumed Liabilities at the Effective Time less the
amount of the Dissenting Shares Holdback will be an amount within the range of
(i) the Anticipated NSU Net Indebtedness less $2,000,000, and (ii) the
Anticipated NSU Net Indebtedness plus $2,000,000.
6.21 Distribution Agreement. Prior to the Effective Date, NSU shall and
shall cause Spinco to duly execute and deliver the Distribution Agreement. NSU
shall perform all of its obligations under the Distribution Agreement which are
to be performed thereunder prior to the Effective Time and NSU shall cause
Spinco to perform all of its obligations under the Distribution Agreement which
are to be performed thereunder prior to the Effective Time. NSU covenants that
the Distribution Agreement will not be amended, waived, terminated or otherwise
modified prior to the Effective Time without the prior written consent of
Michael.
ARTICLE 7
CONDITIONS
7.1 Conditions to Obligations of Each Party. The respective obligations of
each party to effect the transactions contemplated hereby shall be subject to
the fulfillment or waiver at or prior to the Effective Date of the following
conditions:
(a) No Injunction. No injunction or other order entered by a state or
federal court of competent jurisdiction shall have been issued and remain in
effect which would prohibit or make illegal the consummation of the transactions
contemplated hereby.
(b) No Prohibitive Change of Law. There shall have been no law, statute,
rule or regulation, domestic or foreign, enacted or promulgated which would
prohibit or make illegal the consummation of the transactions contemplated
hereby.
(c) Registration Statement. The Registration Statement and the registration
statement relating to the Spinco Common Stock to be distributed in the
Distribution, if required, shall have been declared effective and shall not be
subject to a stop order of the SEC, the Spinco Common Stock shall have been
registered pursuant to the Exchange Act and, if the offer and sale of the
Surviving Corporation securities in the Merger or the Spinco Common Stock in the
Distribution pursuant to this Agreement is required to be registered under the
securities laws of any state, the registration statements shall have been
declared effective and shall not be subject to a stop order of the securities
commission in such state.
(d) Tax Ruling or Federal Tax Opinion. Michael and NSU shall have received
a private letter ruling from the IRS or tax opinion addressed to both Michael
and NSU by counsel or independent certified accountants mutually acceptable to
Michael and NSU based on customary reliance and subject to customary
qualifications, to the effect that for federal income tax purposes:
(i) The formation of Merger Sub and the merger of Merger Sub into
Michael will be disregarded for federal income tax purposes, and the
transaction will be treated as an acquisition by NSU of the stock of
Michael in exchange solely for the shares of the Surviving Corporation
Common Stock.
(ii) The acquisition by NSU of all of the stock of Michael held by
stockholders other than NSU solely in exchange for the Surviving
Corporation Common Stock will qualify as a reorganization under
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Section 368(a)(1)(B) of the Code. NSU and Michael will each be a party to
the reorganization within the meaning of Section 368(b) of the Code.
(iii) The transfer by NSU of all of the stock of the NSU Subsidiaries
(other than Spinco and the Merger Sub) held, directly and indirectly, by
NSU to Spinco will qualify as a reorganization under Section 368(a)(i)(D)
of the Code.
(iv) No gain or loss will be recognized by NSU upon the distribution
of the stock of Spinco to persons who were stockholders of NSU on the
record date for the distribution pursuant to Section 361(c)(1) of the Code.
(v) No gain or loss will be recognized by stockholders of NSU upon the
receipt of the Spinco stock distributed by NSU pursuant to Section
355(a)(1) of the Code.
(vi) The Reverse Stock Split will not be treated as a stock
distribution, or a transaction that has the effect of such a distribution,
to which Sections 301, 305(b) or 305(c) apply. As a result, no taxable
income will be recognized under such Sections by any of the stockholders of
Michael or NSU, except for cash paid in lieu of fractional shares to
holders of NSU Common Stock.
(e) Listing. The Surviving Corporation Common Stock to be issued to holders
of Michael Common Stock as a result of the Merger and to the holders of NSU
Common Stock as a result of the Reverse Stock Split shall have been approved for
listing on the NASDAQ-NMS.
(f) Consents and Approvals. All material consents and approvals necessary
to consummate the transactions contemplated by this Agreement shall have been
obtained, including those set forth on Schedules 3.2 and 4.2, but excluding any
consents or approvals required pursuant to the Credit Agreement.
(g) Adverse Proceedings. There shall not be threatened, instituted or
pending any action or proceeding before any court or governmental authority or
agency, domestic or foreign, challenging or seeking to make illegal, or to delay
or otherwise directly or indirectly to restrain or prohibit, the consummation of
the transactions contemplated hereby or seeking to obtain material damages in
connection with the transactions contemplated hereby.
(h) Governmental Action. There shall not be any action taken, or any
statute, rule, regulation, judgment, order or injunction proposed, enacted,
entered, enforced, promulgated, issued or deemed applicable to the transactions
contemplated hereby by any federal, state or other court, government or
governmental authority or agency, which could reasonably be expected to result,
directly or indirectly, in any of the consequences referred to in Section
7.1(g).
(i) Distribution Agreement Conditions. The conditions precedent to the
Distribution (other than consummation of the Merger) set forth in Section 3.02
of the Distribution Agreement shall have been satisfied or waived.
7.2 Additional Conditions to Obligation of NSU. The obligation of NSU to
consummate the transactions contemplated hereby in accordance with the terms of
this Agreement is also subject to the fulfillment or waiver of the following
conditions:
(a) Representations and Compliance. The representations and warranties of
Michael set forth in Article 3 shall have been true and correct as of the date
hereof, and, except to the extent such representations and warranties are made
as of a specified date, shall be true and correct as of the Effective Date as if
made at and as of the Effective Date, except where the failure to be true and
correct would not have, or would not reasonably be expected to have, a Material
Adverse Effect on Michael. Michael shall in all material respects have performed
each obligation and agreement and complied with each covenant to be performed
and complied with by it hereunder at or prior to the Effective Date.
(b) Officers' Certificate. Michael shall have furnished to NSU a
certificate of the Chief Executive Officer and the Chief Financial Officer of
Michael, dated as of the Effective Date, in which such officers shall certify
that, to their best knowledge, they have no reason to believe that the
conditions set forth in Section 7.2(a) have not been fulfilled.
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(c) Secretary's Certificate. Michael shall have furnished to NSU (i) copies
of the text of the resolutions by which the corporate action on the part of
Michael necessary to approve this Agreement, the Certificate of Merger and the
transactions contemplated hereby and thereby were taken, (ii) a certificate
dated as of the Effective Date executed on behalf of Michael by its corporate
secretary or one of its assistant corporate secretaries certifying to NSU that
such copies are true, correct and complete copies of such resolutions and that
such resolutions were duly adopted and have not been amended or rescinded and
(iii) an incumbency certificate dated as of the Effective Date executed on
behalf of Michael by its corporate secretary or one of its assistant corporate
secretaries certifying the signature and office of each officer of Michael
executing this Agreement, the Certificate of Merger or any other agreement,
certificate or other instrument executed pursuant hereto by Michael.
(d) Shareholder Approval. This Agreement and the Merger, the New Articles,
the Reverse Stock Split and the Distribution shall have been approved by the
Requisite NSU Shareholder Vote.
(e) Fairness Opinion. Within five days prior to mailing the
Prospectus/Proxy Statement to the shareholders of NSU, NSU shall have received a
written opinion in a form reasonably acceptable to NSU from Goldsmith Agio &
Company (or another investment banking firm reasonably acceptable to NSU) to the
effect that the Merger and the Distribution, together, are fair from a financial
point of view to the holders of NSU Common Stock prior to the Effective Date.
(f) Dissenting Shares. The number of shares of NSU Common Stock with
respect to which the holders thereof have effectively dissented from the NSU
shareholder action contemplated hereby pursuant to the provisions of the MBCA
shall not exceed one percent (1%) of the issued and outstanding shares of NSU
Common Stock as of the record date for the meeting relating to such NSU
shareholder action.
7.3 Additional Conditions to Obligation of Michael. The obligation of
Michael to consummate the transactions contemplated hereby in accordance with
the terms of this Agreement is also subject to the fulfillment or waiver of the
following conditions:
(a) Representations and Compliance. The representations and warranties of
NSU set forth in Article 4 shall have been true and correct as of the date
hereof, and, except to the extent such representations and warranties are made
as of a specified date, shall be true and correct as of the Effective Date as if
made at and as of the Effective Date, except where the failure to be true and
correct would not have, or would not reasonably be expected to have, a Material
Adverse Effect on NSU. NSU shall in all material respects have performed each
obligation and agreement and complied with each covenant to be performed and
complied with by it hereunder at or prior to the Effective Date.
(b) Officers' Certificate. NSU shall have furnished to Michael a
certificate of the Chief Executive Officer and the Chief Financial Officer of
NSU, dated as of the Effective Date, in which such officers shall certify that,
to their best knowledge, they have no reason to believe that the conditions set
forth in Section 7.3(a) have not been fulfilled.
(c) Secretary's Certificate. NSU shall have furnished to Michael (i) copies
of the text of the resolutions by which the corporate action on the part of NSU
necessary to approve this Agreement, the Certificate of Merger, the
Distribution, the Reverse Stock Split, the election of the directors of the
Surviving Corporation pursuant to Section 2.1, the Distribution Agreement and
the transactions contemplated hereby and thereby were taken, (ii) certificates
dated as of the Effective Date executed on behalf of NSU by its corporate
secretary or one of its assistant corporate secretaries certifying to Michael
that such copies are true, correct and complete copies of such resolutions and
that such resolutions were duly adopted and have not been amended or rescinded
and (iii) an incumbency certificate dated as of the Effective Date executed on
behalf of NSU by its corporate secretary or one of its assistant corporate
secretaries certifying the signature and office of each officer of NSU executing
this Agreement, the Certificate of Merger or any other agreement, certificate or
other instrument executed pursuant hereto.
(d) Shareholder Approval. This Agreement and the Merger shall have been
approved by the Requisite Michael Shareholder Vote.
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(e) Accounting Matters. No event shall have occurred which, in the
reasonable opinion of Michael and concurred in by Grant Thornton LLP, would
prevent the Merger, the Reverse Stock Split and the Distribution from being
accounted as a business combination utilizing the reverse acquisition concept
with Michael being the accounting acquiror for accounting purposes under
generally accepted accounting principles.
(f) Fairness Opinion. Within five days prior to mailing the
Prospectus/Proxy Statement to the shareholders of Michael, Michael shall have
received a written opinion in a form reasonably acceptable to Michael from Piper
Jaffray Inc. (or another investment banking firm reasonably acceptable to
Michael) to the effect that the Merger is fair from a financial point of view to
Michael.
(g) Net Assumed Debt Certificate. NSU shall have furnished to Michael a
certificate of the Chief Financial Officer of NSU certifying the amounts of the
NSU Net Assumed Liabilities, the NSU Indebtedness, the Dissenting Shares
Holdback and the cash held by NSU as a Retained Asset at the Effective Time.
(h) Other Agreements and Resignations. Michael shall have received the
Orderly Disposition and Registration Rights Agreement and the Distribution
Agreement duly executed by the parties thereto. Each of the officers of NSU
immediately prior to the Effective Time shall deliver duly executed resignations
from their positions with NSU effective immediately after the Effective Time.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 Termination. This Agreement may be terminated prior to the Effective
Date:
(a) by mutual consent of Michael and NSU, if the board of directors of each
so determines by vote of a majority of the members of its entire board;
(b) by either Michael or NSU, if any of the conditions to such party's
obligation to consummate the transactions contemplated in this Agreement shall
have become impossible to satisfy;
(c) by either Michael or NSU, if (i) the Merger and this Agreement is not
duly approved by the shareholders of each of Michael or NSU, including if a
shareholder meeting is not held as contemplated by the first sentence of Section
6.11, or (ii) the New Articles, the Reverse Stock Split and the Distribution are
not approved by the shareholders of NSU, including if a shareholder meeting is
not held as contemplated by the first sentence of Section 6.11;
(d) by either Michael or NSU if the Effective Date is not on or before
September 30, 1996 or such later date as Michael and NSU may mutually agree
(unless the failure to consummate the Merger by such date shall be due to the
action or failure to act of the party seeking to terminate this Agreement in
breach of such party's obligations under this Agreement);
(e) by NSU if the Average Price of Michael Common Stock is less than $11.00
per share;
(f) by Michael if the Average Price of Michael Common Stock is more than
$17.00 per share; or
(g) by Michael or NSU pursuant to Section 6.19(b) in accordance with the
provisions of Section 6.19(b).
Any party desiring to terminate this Agreement shall give written notice of
such termination and the reasons therefor to the other party.
8.2 Effect of Termination.
(a) In the event this Agreement is properly terminated (i) by NSU as
provided in Section 8.1(b) due to the failure to satisfy the condition under
Section 7.2(d), (ii) by Michael under Section 8.1(b) due to the failure of the
condition under Section 7.3(a), (b) or (c), (iii) by Michael or NSU pursuant to
Section 8.1(c) due to the failure of the shareholders of NSU to approve the
Merger, this Agreement, the New Articles, the Reverse Stock Split or the
Distribution, (iv) by NSU pursuant to Section 8.1(e), (v) by Michael pursuant to
Section 8.1(g), or (vi) by NSU as provided in Section 8.1(b) due to the failure
to satisfy the condition under
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Section 7.2(f), then, within ten days after written demand from Michael, NSU
shall pay to Michael an amount equal to the out of pocket expenses incurred by
Michael in connection with the transactions contemplated by this Agreement,
including but not limited to the fees and expenses of Michael's attorneys,
accountants and investment banker, up to an aggregate of $500,000 payable
either, at the option of NSU, in immediately available funds or in shares of
Michael Common Stock having a fair market value (determined on the basis of the
average closing sales price of Michael Common Stock during the twenty (20)
trading days immediately preceding such termination) equal to such amount.
(b) In the event this Agreement is properly terminated (i) by Michael
pursuant to Section 8.1(b) due to the failure to satisfy the condition under
Section 7.3(d), (ii) by NSU under Section 8.1(b) due to the failure of the
condition under Section 7.2(a), (b) or (c), (iii) by Michael or NSU pursuant to
Section 8.1(c) due to the failure of the shareholders of Michael to approve the
Merger and this Agreement, (iv) by Michael pursuant to Section 8.1(f), (v) by
NSU pursuant to Section 8.1(g), or (vi) the transactions contemplated by this
Agreement are not consummated solely because Michael shall not have obtained the
necessary modifications to its material debt instruments as disclosed in
Schedule 3.2 or prepaid such debt instruments, then, within ten days after
written demand from NSU, Michael shall pay to NSU an amount equal to the out of
pocket expenses incurred by NSU in connection with the transactions contemplated
by this Agreement, including but not limited to the fees and expenses of NSU's
attorneys, accountants and investment banker, up to an aggregate of $500,000,
payable either, at the option of Michael, in immediately available funds or in
shares of Michael Common Stock having a fair market value (determined on the
basis of the average closing sales price of Michael Common Stock during the
twenty (20) trading days immediately preceding such termination) equal to such
amount.
Notwithstanding anything contained in this Agreement to the contrary, the
expense reimbursement provisions of this Section 8.2(a) or (b), shall be the
sole and exclusive remedies of the parties to this Agreement for any violation
or breach hereof and shall be in lieu of any and all claims that the
non-breaching party has, or might have at law or in equity.
8.3 Amendment. This Agreement may not be amended except by an instrument in
writing approved by the parties to this Agreement and signed on behalf of each
of the parties hereto.
8.4 Waiver. At any time prior to the Effective Date, any party hereto may
(a) extend the time for the performance of any of the obligations or other acts
of the other party hereto or (b) waive compliance with any of the agreements of
the other party or with any conditions to its own obligations, in each case only
to the extent such obligations, agreements and conditions are intended for its
benefit. Any such extension or waiver shall only be effective if made in writing
and duly executed by the party giving such extension or waiver.
ARTICLE 9
GENERAL PROVISIONS
9.1 Public Statements. Neither Michael nor NSU shall make any public
announcement or statement with respect to the Merger, this Agreement, the
Reverse Stock Split, the Distribution or any related transactions without the
approval of the other party; provided, however, that either Michael or NSU may,
upon reasonable notice to the other party, make any public announcement or
statement that it believes is required by federal securities law. To the extent
practicable, each of Michael and NSU will consult with the other with respect to
any such public announcement or statement.
9.2 Notices. All notices and other communications hereunder shall be in
writing and shall be sufficiently given if made by hand delivery, by fax, by
telecopier, by overnight delivery service, or by registered or certified
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mail (postage prepaid and return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by it by like notice):
If to Michael:
Michael Foods, Inc.
324 Park National Building
5353 Wayzata Boulevard
Minneapolis, MN 55416
Attn: President and Chief Executive Officer
with copies to:
Maun & Simon, PLC
2900 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4133
Attn: Albert A. Woodward
If to NSU:
North Star Universal, Inc.
610 Park National Bank Building
5353 Wayzata Boulevard
Minneapolis, MN 55416
Attention: President and Chief Executive Officer
with copies to:
Dorsey & Whitney
Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402
Attention: J. Andrew Herring
All such notices and other communications shall be deemed to have been duly
given as follows: when delivered by hand, if personally delivered; when
received, if delivered by registered or certified mail (postage prepaid and
return receipt requested); when receipt acknowledged, if faxed or telecopied;
and the next day delivery after being timely delivered to a recognized overnight
delivery service.
9.3 Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References to Sections and Articles refer to
Sections and Articles of this Agreement unless otherwise stated. Words such as
"herein," "hereinafter," "hereof," "hereto," "hereby" and "hereunder," and word
of like import, unless the context requires otherwise, refer to this Agreement
(including the Exhibits and Schedules hereto). As used in this Agreement, the
masculine, feminine and neuter genders shall be deemed to include the others if
the context requires.
9.4 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, 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, and the parties shall negotiate
in good faith to modify this Agreement and to preserve each party's anticipated
benefits under this Agreement.
9.5 Miscellaneous. This Agreement (together with all other documents and
instruments referred to herein): (a) constitutes the entire agreement, and
supersedes all other prior agreements and undertakings, both written and oral,
among the parties, with respect to the subject matter hereof; (b) shall be
governed in all respects, including validity, interpretation and effect, by the
internal laws of the State of Minnesota, without
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giving effect to the principles of conflict of laws thereof; and (c) shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, but shall not be assignable by either party hereto
without the prior written consent of the other party hereto. This Agreement may
be executed in two or more counterparts which together shall constitute a single
agreement.
9.6 Non-Survival of Representations, Warranties and Covenants. The
representations and warranties of the parties set forth herein shall not survive
the consummation of the Merger, but covenants that specifically relate to
periods, activities or obligations subsequent to the Merger shall survive the
Merger. In addition, if this Agreement is terminated pursuant to Section 8.1,
the covenants contained in Section 6.3(b) and 8.2 shall survive such
termination.
9.7 Schedules. The Schedules and other disclosure referred to in this
Agreement shall be delivered as of the date hereof under cover of a letter from
the Chief Executive Officer or Chief Financial Officer of Michael or NSU, as the
case may be.
9.8 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
9.9 Third Party Beneficiaries. Except as provided in the next following
sentence, each party hereto intends that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person other than the
parties hereto. The provisions of Section 6.18 are intended for the benefit of
Affiliates of NSU and Michael.
ARTICLE 10
DISPUTE RESOLUTION
10.1 Mediation and Binding Arbitration. If a dispute arises between NSU and
Michael as to the interpretation of this Agreement or any other agreement
entered into pursuant hereto, NSU and Michael agree to use the following
procedures, in lieu of either party pursuing other available remedies and as the
sole remedy, to resolve the dispute.
10.2 Initiation. A party seeking to initiate the procedures shall give
written notice to the other party, describing briefly the nature of the dispute.
A meeting shall be held between the parties within 10 days of the receipt of
such notice, attended by individuals with decision-making authority regarding
the dispute, to attempt in good faith to negotiate a resolution of the dispute.
10.3 Submission to Mediation. If, within 30 days after such meeting, the
parties have not succeeded in negotiating a resolution of the dispute, they
agree to submit the dispute to mediation in accordance with the Center for
Public Resources Model ADR Procedure -- Mediation of Business Disputes, as
modified herein, and to bear equally the costs of the mediation.
10.4 Selection of Mediator. The parties will jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from the Center for
Public Resources or another mutually agreed-upon organization if they have been
unable to agree upon such appointment within 20 days from the conclusion of the
negotiation period.
10.5 Mediation and Arbitration. The parties agree to participate in good
faith in the mediation and negotiations related thereto for a period of 30 days
following the initial mediation session. If the parties are not successful in
resolving the dispute through the mediation by the end of such 30-day period,
then the parties agree to submit the matter to binding arbitration in accordance
with the Center for Public Resources Rules for Non-Administered Arbitration of
Business Disputes, as modified herein, by a panel of three arbitrators, in
Minneapolis, Minnesota, selected in accordance with the provisions of Section
10.6 hereof. The arbitration shall be governed by the Rules of the American
Arbitration Association then in effect and as modified herein, and judgment upon
the award rendered by the arbitrator may be entered by any court having
jurisdiction thereof. The arbitrators shall not, under any circumstances, have
any authority to award punitive, exemplary or
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similar damages and may not, in any event, make any ruling, finding or award
that does not conform to the terms and conditions of this Agreement. Nothing
contained in this Article 10 shall limit or restrict in any way the right or
power of a party at anytime to seek injunctive relief in any court and to
litigate the issues relevant to such request for injunctive relief before such
court (i) to restrain the other party from breaching this Agreement or (ii) for
specific enforcement of this Article 10. The parties agree that any legal remedy
available to a party with respect to a breach of this Article 10 will not be
adequate and that, in addition to all other legal remedies, each party is
entitled to an order specifically enforcing this Article 10.
10.6 Selection of Arbitrators. The parties shall have 10 days from the end
of the mediation period to agree upon mutually acceptable neutral persons not
affiliated with either of the parties to act as arbitrators. If the panel of
arbitrators has not been selected within such time, the parties agree jointly to
request the Center for Public Resources or another mutually agreed-upon
organization to supply within 10 days a list of potential arbitrators with
qualifications as specified by the parties in the joint request. Within five
days of receipt of the list, the parties shall independently rank the proposed
candidates, shall simultaneously exchange rankings, and shall select as the
arbitrator the individual receiving the highest combined ranking who is
available to serve. Neither party nor the arbitrators may disclose the existence
or results of any arbitration under this Agreement or any evidence presented
during the course of arbitration without the prior consent of both parties,
except as required to fulfill applicable disclosure and reporting requirements,
or as otherwise required by law.
10.7 Cost of Arbitration. Each party shall bear its own costs incurred in
the arbitration. If either party refuses to submit to arbitration any dispute
required to be submitted to arbitration pursuant to this Article 10, and instead
commences any other proceeding, including litigation, then the party who seeks
enforcement of the obligation to arbitrate shall be entitled to its attorneys'
fees and costs incurred in any such proceeding.
IN WITNESS WHEREOF, NSU and Michael have caused this Agreement to be
executed on the date first written above by their respective officers.
MICHAEL FOODS, INC.
By /s/ GREGG A. OSTRANDER
------------------------------------
Gregg A. Ostrander
President and Chief Executive
Officer
NORTH STAR UNIVERSAL, INC.
By /s/ JEFFREY J. MICHAEL
------------------------------------
Jeffrey J. Michael
President and Chief Executive
Officer
NSU MERGER CO.
By /s/ JEFFREY J. MICHAEL
------------------------------------
Jeffrey J. Michael
President and Chief Executive
Officer
I-27
<PAGE> 136
STATE OF MINNESOTA
COUNTY OF HENNEPIN
ss.
The foregoing instrument was acknowledged before me this 21st day of
December, 1995 by Gregg A. Ostrander, President and Chief Executive Officer of
Michael Foods, Inc., a Delaware corporation, on behalf of the corporation.
/s/
--------------------------------------
Notary Public
[SEAL]
STATE OF MINNESOTA
COUNTY OF HENNEPIN
ss.
The foregoing instrument was acknowledged before me this 21st day of
December, 1995 by Jeffrey J. Michael, President and Chief Executive Officer of
North Star Universal, Inc., a Minnesota corporation, on behalf of the
corporation.
/s/
--------------------------------------
Notary Public
[SEAL]
STATE OF MINNESOTA
COUNTY OF HENNEPIN
ss.
The foregoing instrument was acknowledged before me this 21st day of
December, 1995 by Jeffrey J. Michael, President and Chief Executive Officer of
NSU Merger Co., a Delaware corporation, on behalf of the corporation.
/s/
--------------------------------------
Notary Public
[SEAL]
I-28
<PAGE> 137
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION
BY AND BETWEEN
MICHAEL FOODS, INC., NORTH STAR UNIVERSAL, INC.
AND NSU MERGER CO.
This Amendment No. 1 is entered into to be effective as of the 27th day of
September, 1996, by and between MICHAEL FOODS, INC., a Delaware corporation
("Michael"), NORTH STAR UNIVERSAL, INC., a Minnesota corporation ("NSU"), and
NSU MERGER CO., a Delaware corporation ("Merger Sub").
WHEREAS, under date of December 21, 1995, Michael, NSU and Merger Sub
entered into an Agreement and Plan of Reorganization (the "Reorganization
Agreement"); and
WHEREAS, Michael, NSU and Merger Sub now desire to amend the Reorganization
Agreement in certain respects.
NOW, THEREFORE, IN CONSIDERATION of the mutual promises and covenants
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The definition of "Average Price of Michael Common Stock" shall be
amended in its entirety to read as follows: "the average closing sales price per
share of Michael Common Stock reported on the NASDAQ-NMS as published by The
Wall Street Journal during any consecutive ten (10) trading days beginning nine
days prior to the date of the meeting of stockholders of Michael at which the
Reorganization Agreement is approved and ending on March 26, 1997, as designated
by NSU by written notice to Michael within two (2) business days after the end
of the ten (10) trading day period so designated by NSU, or in the absence of
such designation, the ten (10) trading days ending on the third trading day
preceding the Closing Date."
2. The definition of "NSU Net Assumed Liabilities" shall be amended in its
entirety to read as follows: "an amount equal to (i) the NSU Indebtedness as of
the Effective Time plus the amount of the Dissenting Shares Holdback, less (ii)
the amount of cash included in the NSU Retained Assets as of the Effective Time,
provided that such amount shall be no less than $15,000,000 and no more than
$29,000,000."
3. The definition "Anticipated NSU Indebtedness" shall be deleted, Section
6.20 shall be deleted, and Section 6.21 shall be renumbered as Section 6.20.
4. Paragraph 2.1(d) shall be amended by deleting the first sentence thereof
and replacing it with the following:
"Subject to the provisions of Articles 7 and 8 hereof, the closing of the
transactions contemplated hereby shall take place at such location, on such
date and at such time as Michael and NSU mutually agree at the earliest
practicable time after (i) the satisfaction or waiver of the conditions in
Article 7 and (ii) the establishment of the Average Price of Michael Common
Stock by NSU pursuant to the notice described in the definition of Average
Price of Michael Common Stock, but in no event later than ten (10) business
days after the conditions set forth in clauses (i) and (ii) above have been
satisfied or later than March 31, 1997, or on such other date as may be
mutually agreed by the parties hereto.
5. Paragraph 2.1(a) shall be amended to provide that the Board of Directors
of the Surviving Corporation immediately after the Effective Time will consist
of "eleven (11) members."
6. Paragraph 8.1(d) shall be amended in its entirety to read as follows:
"(d) by either Michael or NSU if the Effective Date is not on or before the
later of (i) March 31, 1997, or (ii) 90 days following the earlier of NSU
shareholder or Michael stockholder approval of the Reorganization Agreement, or
such later date as Michael and NSU may mutually agree (unless the failure to
consummate the Merger by such date shall be due to the action or failure to act
of the party seeking to terminate this Agreement in breach of such party's
obligations under this Agreement);"
I-29
<PAGE> 138
7. The last line of Exhibit A shall be deleted and the following added:
<TABLE>
<CAPTION>
AMOUNT OF NSU NET ASSUMED LIABILITIES DISCOUNT FACTOR
---------------------------------------------------------------- ---------------
<S> <C>
More than $23,750,000 and less than or equal to $25,000,000..... 0.9200
More than $22,500,000 and less than or equal to $23,750,000..... 0.9225
More than $21,250,000 and less than or equal to $22,500,000..... 0.9250
More than $20,000,000 and less than or equal to $21,250,000..... 0.9275
More than $18,750,000 and less than or equal to $20,000,000..... 0.9300
More than $17,500,000 and less than or equal to $18,750,000..... 0.9325
More than $16,250,000 and less than or equal to $17,500,000..... 0.9350
More than $15,000,000 and less than or equal to $16,250,000..... 0.9375
$15,000,000..................................................... 0.9400
</TABLE>
8. Except as otherwise provided herein, the Reorganization Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment the day
and year first above written.
MICHAEL FOODS, INC.
By: /s/ JOHN D. REEDY
------------------------------------
John D. Reedy
Chief Financial Officer
NORTH STAR UNIVERSAL, INC.
By: /s/ JEFFREY J. MICHAEL
------------------------------------
Jeffrey J. Michael
President and Chief Executive
Officer
NSU MERGER CO.
By: /s/ JEFFREY J. MICHAEL
------------------------------------
Jeffrey J. Michael
President and Chief Executive
Officer
I-30
<PAGE> 139
EXHIBIT A
DISCOUNT FACTOR
<TABLE>
<CAPTION>
AMOUNT OF NSU NET ASSUMED LIABILITIES DISCOUNT FACTOR
- ------------------------------------------------------------------------------ ---------------
<S> <C>
More than $33,750,000 and less than
or equal to $38,000,000..................................................... 0.9000
More than $32,500,000 and less than
or equal to $33,750,000..................................................... 0.9025
More than $31,250,000 and less than
or equal to $32,500,000..................................................... 0.9050
More than $30,000,000 and less than
or equal to $31,250,000..................................................... 0.9075
More than $28,750,000 and less than
or equal to $30,000,000..................................................... 0.9100
More than $27,500,000 and less than
or equal to $28,750,000..................................................... 0.9125
More than $26,250,000 and less than
or equal to $27,500,000..................................................... 0.9150
More than $25,000,000 and less than
or equal to $26,250,000..................................................... 0.9175
$25,000,000................................................................... 0.9200
</TABLE>
A-1
<PAGE> 140
EXHIBIT B
CERTIFICATE OF MERGER
OF
NSU MERGER SUB CO.
INTO
MICHAEL FOODS, INC.
Pursuant to Section 251 of the Delaware General Corporation Law, the
undersigned President and Secretary of MICHAEL FOODS, INC., a Delaware
corporation, hereby certify that:
1. The constituent corporations are: NSU Merger Sub Co., a Delaware
corporation, and Michael Foods, Inc., a Delaware corporation.
2. An Agreement and Plan of Reorganization has been adopted, approved,
executed, certified and acknowledged by each of the constituent
corporations in accordance with section 251(c) of the Delaware General
Corporation Law.
3. Michael Foods, Inc. shall be the surviving corporation.
4. The certificate of incorporation of Michael Foods, Inc. shall be
the certificate of incorporation of the surviving corporation.
5. The executed Agreement and Plan of Reorganization is on file at the
principal office of Michael Foods, Inc. at 5353 Wayzata Boulevard, 324 Park
National Building, Minneapolis, Minnesota 55416.
6. A copy of the Agreement and Plan of Reorganization will be
furnished by Michael Foods, Inc., on request and without cost, to any
stockholder of any constituent corporation.
IN WITNESS WHEREOF, Michael Foods, Inc. has caused this certificate to be
executed by Gregg A. Ostrander, its President and attested by Jeffrey M.
Shapiro, its Secretary, this day of , 1996.
MICHAEL FOODS, INC.
By
--------------------------------------
Gregg A. Ostrander, President
ATTEST:
By
- -----------------------------------------------------
Jeffrey M. Shapiro, Secretary
B-1
<PAGE> 141
EXHIBIT C
DISTRIBUTION AGREEMENT
BY AND BETWEEN
NORTH STAR UNIVERSAL, INC.
AND
NEW HOLDING COMPANY, INC.
, 1996
<PAGE> 142
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I DEFINITIONS.......................................................... C-1
Section 1.01 General.............................................................. C-1
Section 1.02 Exhibits, etc........................................................ C-4
ARTICLE II REORGANIZATION AND RELATED TRANSACTIONS.............................. C-5
Section 2.01 Sequence of Events................................................... C-5
Section 2.02 Transfers of Assets; Assumption of Liabilities....................... C-5
Section 2.03 Elimination of Intercompany Accounts................................. C-5
Section 2.04 Transfers Not Effected At or Prior to the Distribution; Transfers
Deemed Effective as of the Distribution Date......................... C-5
Section 2.05 No Representations or Warranties..................................... C-6
Section 2.06 Conveyancing and Assumption Instruments.............................. C-6
Section 2.07 Tax Treatment........................................................ C-6
ARTICLE III THE DISTRIBUTION..................................................... C-7
Section 3.01 Cooperation Prior to the Distribution................................ C-7
Section 3.02 NSU Board Action; Conditions Precedent to the Distribution........... C-7
Section 3.03 The Distribution..................................................... C-8
Section 3.04 Fractional Shares.................................................... C-8
ARTICLE IV SPINCO ASSUMPTION OF CERTAIN NSU INDEBTEDNESS........................ C-8
Section 4.01 Assumption of Certain NSU Indebtedness............................... C-8
ARTICLE V INDEMNIFICATION...................................................... C-9
Section 5.01 Indemnification by Spinco............................................ C-9
Section 5.02 Indemnification by NSU............................................... C-9
Section 5.03 Procedure for Indemnification........................................ C-10
Section 5.04 Set-Off Rights....................................................... C-11
ARTICLE VI EMPLOYEE BENEFIT PLANS............................................... C-11
Section 6.01 The 401(k) Savings Plan.............................................. C-11
Section 6.02 Welfare Plans........................................................ C-12
Section 6.03 NSU Employees........................................................ C-12
Section 6.04 Other Liabilities and Obligations.................................... C-12
Section 6.05 Preservation of Rights To Amend or Terminate Plans................... C-12
ARTICLE VII TAX MATTERS.......................................................... C-12
Section 7.01 Allocation of Items of Income or Deduction for Reporting Purposes.... C-12
Section 7.02 Spinco Indemnification for Tax Periods Prior to Distribution Date.... C-12
Section 7.03 NSU Liable for Filing and Payment of Spinco's Taxes Prior to
Distribution Date.................................................... C-13
Section 7.04 Spinco Liable for Filing and Payment of Its Own Taxes for Tax Periods
Beginning Prior to Distribution Date and Ending After Distribution
Date................................................................. C-13
Section 7.05 Spinco's Right to Make Section 172(b)(3) Election and Qualified Right
to Subsequent Refund................................................. C-13
Section 7.06 Scope of NSU's Power to Negotiate Settlement During Audit for Periods
after the Merger Effective Date...................................... C-13
Section 7.07 Rights of Parties With Respect to an Asserted Tax Liability.......... C-13
Section 7.08 Mutual Duty to Cooperate and Act in Good Faith With Respect to Filing
or Amending of Returns, Claiming Refunds, or Conducting Audit........ C-14
ARTICLE VIII CERTAIN ADDITIONAL MATTERS........................................... C-15
Section 8.01 The Spinco Board..................................................... C-15
Section 8.02 Spinco Charter and By-Laws........................................... C-15
Section 8.03 NSU Long-Term Liabilities; Minimum Value of Spinco................... C-15
Section 8.04 Adjustment for Dissenting Shares Liability........................... C-15
</TABLE>
C-i
<PAGE> 143
<TABLE>
<S> <C> <C>
Section 8.05 NSU Covenants........................................................ C-16
ARTICLE IX ACCESS TO INFORMATION AND SERVICES................................... C-16
Section 9.01 Provision of Corporate Records....................................... C-16
Section 9.02 Access to Information................................................ C-16
Section 9.03 Provision of Services................................................ C-16
Section 9.04 Production of Witnesses.............................................. C-16
Section 9.05 Reimbursement........................................................ C-16
Section 9.06 Retention of Records................................................. C-17
Section 9.07 Confidentiality...................................................... C-17
ARTICLE X DISPUTE RESOLUTION................................................... C-17
Section 10.01 Mediation and Binding Arbitration.................................... C-17
Section 10.02 Initiation........................................................... C-17
Section 10.03 Submission to Mediation.............................................. C-17
Section 10.04 Selection of Mediator................................................ C-17
Section 10.05 Mediation and Arbitration............................................ C-17
Section 10.06 Selection of Arbitrators............................................. C-18
Section 10.07 Cost of Arbitration.................................................. C-18
ARTICLE XI MISCELLANEOUS........................................................ C-18
Section 11.01 Complete Agreement; Construction..................................... C-18
Section 11.02 Survival of Agreements............................................... C-18
Section 11.03 Expenses............................................................. C-18
Section 11.04 Governing Law........................................................ C-18
Section 11.05 Notices.............................................................. C-18
Section 11.06 Amendments........................................................... C-19
Section 11.07 Successors and Assigns............................................... C-19
Section 11.08 Termination.......................................................... C-19
Section 11.09 Subsidiaries......................................................... C-19
Section 11.10 No Third Party Beneficiaries......................................... C-19
Section 11.11 Titles and Headings.................................................. C-20
Section 11.12 Exhibits and Schedules............................................... C-20
Section 11.13 Legal Enforceability................................................. C-20
</TABLE>
C-ii
<PAGE> 144
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT, dated as of , 1996 (this
"Agreement"), is entered into by and between NORTH STAR UNIVERSAL, INC., a
Minnesota corporation ("NSU"), and NEW HOLDING COMPANY, INC., a Minnesota
corporation and a wholly owned subsidiary of NSU ("Spinco"). This Agreement is
intended to survive and continue after the "Merger" and the "Distribution" (as
such terms are hereinafter defined), and any reference to NSU in this Agreement
shall be deemed to include NSU from and after the consummation of the Merger and
the change of the name of NSU to "Michael Foods, Inc."
WHEREAS, NSU is a party to an Agreement and Plan of Reorganization dated
December 21, 1995 (the "Merger Agreement"), providing for the merger (the
"Merger") of NSU Merger Co. ("Merger Sub"), a Delaware corporation and a newly
formed and wholly-owned subsidiary of NSU, with and into Michael Foods, Inc., a
Delaware corporation ("Michael"), with Michael as the surviving corporation;
WHEREAS, Michael has required that, as a condition of the Merger, the
non-food businesses, including assets and liabilities, be separated from the
food business of NSU represented by the shares of common stock of Michael owned
by NSU;
WHEREAS, to satisfy this condition to the Merger, the parties hereto have
agreed that (i) immediately following the Merger, NSU will distribute to NSU
shareholders of record prior to the Merger, all assets of NSU other than (A) any
issued and outstanding shares of common stock, $.01 par value, of Merger Sub,
(B) the shares of common stock, $.01 par value, of Michael ("Michael Common
Stock") owned by NSU as of the date of the Merger Agreement, (C) a certain
amount of cash held by NSU at the time of the consummation of the Merger, and
(D) such other assets as to which the parties may mutually agree, and (ii) NSU
will be released from, or adequate provisions be made for all liabilities and
obligations of NSU other than as mutually agreed by the parties, so that after
giving effect to the Merger and such distribution, the business and operations
of NSU after the Merger will be the business and operations of Michael, except
for certain known and specified NSU indebtedness and certain obligations and
liabilities to be retained by NSU subsequent to the consummation of the Merger;
and
WHEREAS, NSU and Spinco have determined that it is necessary and desirable
to set forth the principal corporate transactions required to effect such
distribution and to set forth other agreements that will govern certain other
matters following such distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 General. Any term not otherwise defined herein shall have the
meaning ascribed to it in the Merger Agreement. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
Actual Payment: as defined in Section 8.03(b) of this Agreement.
Affiliate: as defined in Regulation 12b-2 promulgated under the Exchange
Act, as such Regulation is in effect on the date hereof.
Agent: the distribution agent for the shareholders of record of NSU on the
Record Date, as appointed by NSU, to distribute shares of Spinco Common Stock
pursuant to the Distribution (as defined below).
Code: the Internal Revenue Code of 1986, as amended, or any successor
legislation.
Commission: the Securities and Exchange Commission.
Contracts: as defined in Section 2.02 of this Agreement.
C-1
<PAGE> 145
Conveyancing and Assumption Instruments: collectively, the various
agreements, instruments and other documents, in form and substance mutually
satisfactory to NSU and Spinco, to be entered into to effect the transfer of
assets and the assumption of Liabilities in the manner contemplated by this
Agreement.
Credit Agreement: the Credit Agreement dated , 199 between NSU
and First Bank National Association, a national banking association, including
any amendments thereto and any replacement credit agreement or credit facility.
Dissenting Shares: as defined in Section 1.5 of the Merger Agreement.
Dissenting Shares Holdback: as defined in Section 1.1 of the Merger
Agreement.
Dissenting Shares Liability: as defined below under the definition of "NSU
Retained Liabilities."
Distribution: the distribution, on the Distribution Date, of all of the
outstanding shares of Spinco Common Stock by NSU to the holders of record of NSU
Common Stock on the Record Date, which distribution shall be deemed to have been
effected by NSU upon delivery by NSU to the Agent of an instruction directing
the Agent to effect the distribution of the Spinco Common Stock in accordance
with Section 3.03 of this Agreement and such distribution shall not be effected
nor deemed to have been effected until after the Effective Time.
Distribution Date: the Merger Effective Date; provided, however, that the
Distribution shall not occur until after the Effective Time.
Eagle Guaranty: the obligations of NSU under that certain Guaranty
Agreement dated May 1, 1989 between NSU and American National Bank & Trust
Company pursuant to which NSU guaranteed the payment of the principal of,
premium, if any, and interest on $1,470,000 City of Welcome, Minnesota
Industrial Development Revenue Bonds, Series 1989.
Effective Time: as defined in Section 2.1(d) of the Merger Agreement.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Exchange Ratio: the ratio of one share of Spinco Common Stock for each
shares of NSU Common Stock (outstanding on the Record Date), or such
other ratio determined by NSU and Spinco to be the number of shares (or fraction
of a share) of Spinco Common Stock to be distributed in the Distribution for
each share of NSU Common Stock (outstanding on the Record Date).
IRS: the Internal Revenue Service.
Liabilities: any and all debts, liabilities, accounts payable, Taxes,
claims and other obligations, absolute or contingent, mature or not mature,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising (unless otherwise specified in this Agreement), including all costs and
expenses relating thereto, and including, without limitation, those debts,
liabilities and obligations arising under any law, rule, regulation, or any
actual or threatened action, suit, proceeding or investigation by or before any
court, any governmental or other regulatory or administrative agency or
commission or any arbitration tribunal, any order or consent decrees of any
governmental entity or any award of any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
Merger: as defined in the preambles of this Agreement.
Merger Agreement: as defined in the preambles of this Agreement.
Merger Effective Date: the date, pursuant to the terms of the Merger
Agreement, on which the Merger is effective.
Michael: as defined in the first paragraph of this Agreement.
Michael Common Stock: as defined in Section 1.1 of the Merger Agreement.
NSU: as defined in the first paragraph of this Agreement.
C-2
<PAGE> 146
NSU Assumed Liabilities: the NSU Indebtedness and the NSU Retained
Liabilities.
NSU Board: the Board of Directors of NSU prior to the Merger Effective
Date.
NSU Common Stock: the Common Stock, par value $1.00 per share, of NSU,
prior to the Merger Effective Date.
NSU Indebtedness: indebtedness (principal and accrued interest) represented
by NSU's outstanding subordinated debentures and subordinated extendable and
fixed time certificates and the NSU indebtedness owing pursuant to the Credit
Agreement.
NSU Long-Term Liabilities: the Liability of NSU relating to the U.K. Leases
and the Eagle Guaranty.
NSU Retained Assets: the following assets:
(i) such amount of cash as NSU may, in its sole discretion, determine
to hold at the Merger Effective Date;
(ii) 7,354,950 shares of Michael Common Stock owned by NSU as of the
date of this Agreement;
(iii) the capital stock of Merger Sub;
(iv) the rights of NSU under this Agreement, the Merger Agreement and
the Orderly Disposition and Registration Rights Agreement; and
(v) any and all net operating loss carryforwards and other Tax
attributes properly allocable to NSU following the Merger Effective Date in
accordance with the relevant provisions of the Code.
NSU Retained Liabilities: the following Liabilities:
(i) any Liability arising from any NSU shareholders who have
effectively dissented from the NSU shareholder action in connection with
the Merger and the Distribution in accordance with Section 471 and 473 of
the MBCA ("Dissenting Shares Liability");
(ii) any Liability of NSU under this Agreement arising after the
Merger Effective Date;
(iii) any Liability of NSU under the Merger Agreement arising after
the Merger Effective Date; and
(iv) any Liability of NSU under the Orderly Disposition and
Registration Rights Agreement arising after the Merger Effective Date.
NSU Transferred Assets: all assets of NSU other than the NSU Retained
Assets, specifically including Spinco rights under this Agreement (including
Spinco's rights pursuant to Section 8.05 and Section 5.04).
NSU Transferred Liabilities: all Liabilities of NSU (i) arising at any time
prior to the Merger Effective Date, other than the NSU Assumed Liabilities, or
(ii) arising as a result of the Distribution (other than any liability of NSU
for Taxes resulting from a breach of Section 2.07 by NSU after the Merger
Effective Date).
Orderly Disposition and Registration Rights Agreement: the Orderly
Disposition and Registration Rights Agreement, dated December 21, 1995, between
NSU and certain shareholders of NSU in the form of Exhibit E to the Merger
Agreement.
Record Date: the close of business on the date to be determined by the NSU
Board as the record date for the Distribution, which date shall be prior to the
Merger Effective Date.
Registration Statement: that certain registration statement on Form S-1
registering under the Securities Act the Spinco Common Stock to be distributed
in the Distribution.
Release Date: the date upon which Spinco shall have taken one of the
following actions with respect to each of the NSU Long-Term Liabilities:
(i) obtained a release and discharge of the NSU Long-Term Liabilities;
(ii) provided evidence to NSU, after the Merger Effective Date, of the
satisfaction of the NSU Long-Term Liabilities in a form reasonably
satisfactory to NSU; or
C-3
<PAGE> 147
(iii) obtained an irrevocable stand-by letter of credit (the "L/C")
approved as to issuer, form and content by NSU (which approval will not be
unreasonably withheld), to be issued in favor of NSU for an amount at least
equal to the present value of any remaining Liability with respect to the
NSU Long-Term Liabilities, such present value calculation to be based on a
discount rate of 6%.
Securities Act: the Securities Act of 1933, as amended.
Spinco: as defined in the first paragraph of this Agreement.
Spinco Board: the Board of Directors of Spinco.
Spinco By-Laws: the By-Laws of Spinco, substantially in the form of Exhibit
A to be in effect at the Distribution Date.
Spinco Charter: the Restated Articles of Incorporation of Spinco,
substantially in the form of Exhibit B, to be in effect at the Distribution
Date.
Spinco Common Stock: the Common Stock, par value $.01 per share, of Spinco.
Spinco Employee: any individual who, prior to the Merger Effective Date,
was employed by NSU or any Subsidiary of NSU and who, on or after the Merger
Effective Date, or otherwise in connection with the Distribution, is employed by
Spinco or a Subsidiary of Spinco.
Subsidiary: with respect to any entity shall mean each corporation in which
such entity owns directly or indirectly fifty percent or more of the voting
securities of such corporation and shall, unless otherwise indicated, be deemed
to refer to both direct and indirect subsidiaries of such entity.
Taxes: any federal, state, local or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
property or windfall profits taxes, environmental taxes, customs duties, capital
stock, franchise, employees' income withholding, foreign or domestic
withholding, social security, unemployment, disability, workers' compensation,
employment-related insurance, real property, personal property, sales, use,
transfer, value added, alternative or add-on minimum or other tax, fee,
assessment or charge of any kind whatsoever including any interest, penalties or
additions to any Tax or additional amounts in respect of the foregoing.
Transfer Effective Date: the date, as determined by the NSU Board, on which
the transfers of assets by NSU to Spinco and the assumption of liabilities by
Spinco, as described in Section 2.02 shall be effective, which in any case shall
be prior to the Merger Effective Date.
U.K. Leases: (i) the Lease of Unit 4 Bracknell Business Centre, Downmill
Road, Bracknell, Berkshire, United Kingdom dated August 1, 1984 between
Queensgate Developments Limited and The Burton Group Public Limited Company and
assigned to C.E. Services (Europe) Ltd. (f.k.a. Landmark Communications Services
Limited) guaranteed by C.E. Services, Inc. (as the successor in interest to
Landmark Communications Services, Inc.) pursuant to a License to Assign dated
March 15, 1990 and assumed by NSU in connection with the Stock Purchase
Agreement by and between Amdahl Corporation and NSU dated May 5, 1995 and
pursuant to the terms of an Assumption Agreement dated , 1995
between NSU and Queensgate Developments Limited, and (ii) the Lease of Unit 5
Bracknell Business Centre, Downmill Road, Bracknell, Berkshire, United Kingdom
dated March 22, 1985, between Benton Nominees Limited and Robert David Grant and
Susan Margaret Grant trading as Grants Electrical Supplies and assigned to C.E.
Services (Europe) Ltd. (f.k.a. Landmark Communications Services Limited) and
guaranteed by Richard Charles Jones and Dennis Leonard Western pursuant to a
License to Assign dated June 28, 1991 and assumed by NSU in connection with a
Stock Purchase Agreement by and between Amdahl Corporation and NSU dated May 5,
1995 and pursuant to the terms of an Assumption Agreement dated ,
1995 between NSU and Benton Nominees Limited.
Section 1.02 Exhibits, etc. References to an "Exhibit" or to a "Schedule"
are, unless otherwise specified, to one of the Exhibits or Schedules attached to
this Agreement, and references to a "Section" or an "Article" are, unless
otherwise specified, to one of the Sections or Articles of this Agreement.
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ARTICLE II
REORGANIZATION AND RELATED TRANSACTIONS
Section 2.01 Sequence of Events. It is the intention of the parties hereto
that the transactions contemplated by this Article II shall, to the extent
practicable, be effected in the order in which such transactions are set forth
in this Article II.
Section 2.02 Transfers of Assets; Assumption of Liabilities. (a) Subject to
the terms and conditions of this Agreement, effective at the start of business
on the Transfer Effective Date:
(i) NSU shall contribute and transfer to Spinco or a Spinco
Subsidiary, as appropriate, all of NSU's right, title and interest in and
to all of the NSU Transferred Assets.
(ii) NSU shall assign and transfer, and Spinco shall assume, all of
NSU's rights, benefits and Liabilities arising pursuant to and under all
contracts, agreements, real and personal property leases, licenses,
instruments, arrangements and commitments (collectively, "Contracts")
entered into or made by NSU prior to the Merger Effective Date, other than#
the Contracts relating to the NSU Assumed Liabilities (the "Assumed
Contracts"); provided, however, that no Assumed Contract shall be assigned
contrary to law or the terms of such Assumed Contract and, with respect to
the Assumed Contracts that cannot be assigned or novated to Spinco on the
Transfer Effective Date, the performance obligations of NSU thereunder
shall, unless not permitted by such Assumed Contract, be subcontracted or
subleased to Spinco until such Assumed Contract has been fully performed by
Spinco or assigned or novated. NSU and Spinco shall use reasonable efforts
to obtain all necessary consents and Spinco shall take all necessary
actions to perform and complete all Assumed Contracts in accordance with
their terms even if neither assignment, novation, subcontracting nor
subleasing is permitted by the other party. As provided in Article V
hereof, Spinco shall indemnify NSU from and against any Liabilities under
the Assumed Contracts. NSU covenants and agrees that it shall promptly pay
over to Spinco any amounts received by NSU after the Transfer Effective
Date as a result of the performance by Spinco of any of the Assumed
Contracts.
(iii) Spinco shall assume and agrees to pay, perform or discharge all
the NSU Transferred Liabilities.
(b) Whether or not all of the NSU Transferred Assets or the NSU Transferred
Liabilities shall have been legally transferred to Spinco as of the Transfer
Effective Date, NSU and Spinco agree that, as of the Transfer Effective Date,
Spinco shall have, and shall be deemed to have acquired, complete and sole
beneficial ownership over all the NSU Transferred Assets together with all of
NSU's rights, powers and privileges incident thereto, and shall be deemed to
have assumed the NSU Transferred Liabilities and all of NSU's duties,
obligations and responsibilities incident thereto.
Section 2.03 Elimination of Intercompany Accounts. All intercompany
receivables, payables and loans in existence as of the Merger Effective Date
between NSU, on the one hand, and any NSU Subsidiary, on the other hand (other
than accounts, if any, relating to intercompany contractual or other obligations
which are to survive the Distribution as provided herein) shall be eliminated,
as of the Merger Effective Date, without the transfer of cash, by dividend or
capital contributions, as appropriate.
Section 2.04 Transfers Not Effected At or Prior to the Distribution;
Transfers Deemed Effective as of the Distribution Date. To the extent that any
transfers and assumptions contemplated by this Article II shall not have been
consummated on or prior to the Transfer Effective Date, the parties shall
cooperate to effect such transfers and assumptions as promptly following the
Transfer Effective Date as shall be practicable, it nonetheless being agreed and
understood by the parties that no party shall be liable in any manner to any
other party for any failure of any of the transfers contemplated by this Article
II to be consummated prior to the Transfer Effective Date and that this Section
2.04 shall in no way affect the indemnification obligations of the parties
pursuant to Article V. Subject to the provisions of Section 3.02, nothing herein
shall be deemed to require the transfer of any assets or the assumption of any
Liabilities which by their terms or by operation of law cannot be transferred or
assumed; provided that Spinco shall indemnify NSU against all NSU Transferred
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Liabilities pursuant to Section 5.01. In the event that any such transfer of the
NSU Transferred Assets (other than capital stock of corporations to be
transferred hereunder) or assumption of the NSU Transferred Liabilities has not
been consummated, effective as of and after the Transfer Effective Date (i) NSU
shall thereafter hold such assets for the benefit of Spinco (at the expense of
Spinco) and retain any such Liabilities for the account of Spinco, and take such
other action as may be reasonably requested by Spinco, at Spinco's expense, in
order to place such party, insofar as reasonably possible, in the same position
as would have existed had such asset or Liability been transferred as of the
Transfer Effective Date, (ii) NSU shall, at Spinco's expense, continue to be
bound under any agreements relating to the NSU Transferred Assets or NSU
Transferred Liabilities that cannot be so transferred, and (iii) unless not
permitted by law, Spinco shall pay, perform and discharge fully all obligations
of NSU thereunder from and after the Transfer Effective Date and indemnify NSU
for all indemnifiable losses arising out of such performance by Spinco pursuant
to the provisions of Article V hereto. NSU shall, without further consideration
therefor, pay and remit to Spinco promptly all monies, rights and other
considerations received in respect of any such performance. NSU shall exercise
its rights and options under any such agreements relating to the NSU Transferred
Assets or NSU Transferred Liabilities only as reasonably directed by Spinco, and
at Spinco's expense. As and when any such asset or liability becomes
transferable, such transfer shall be effected forthwith. Notwithstanding the
foregoing, the parties shall use their best efforts to obtain all consents and
approvals, to enter into all amendatory agreements and to make all filings and
applications which may be required for the consummation of the transactions
contemplated by this Agreement, including, without limitation, all applicable
regulatory filings or consents under federal or state environmental laws.
Section 2.05 No Representations or Warranties. Spinco understands and
agrees that NSU is not, in this Agreement or in any other agreement or document
contemplated by this Agreement or otherwise, representing or warranting in any
way (i) as to the value or freedom from encumbrance of, or any other matter
concerning, any NSU Transferred Assets or (ii) as to the legal sufficiency to
convey title to any such assets or the execution, delivery and filing of this
Agreement, including, without limitation, any Conveyancing or Assumption
Instruments, it being agreed and understood that all such assets are being
transferred AS IS, WHERE IS, and that the party to which such assets are to be
transferred hereunder shall bear the economic and legal risk that any
conveyances of such assets shall prove to be insufficient or that Spinco or any
of its Subsidiaries' title to any such assets shall be other than good and
marketable and free from encumbrances. Similarly, each party hereto understands
and agrees that no party hereto is, in this Agreement or in any other agreement
or document contemplated by this Agreement or otherwise, representing or
warranting in any way that the obtaining of any consents or approvals, the
execution and delivery of any amendatory agreements and the making of any
filings or applications contemplated by this Agreement will satisfy the
provisions of any or all applicable agreements or the requirements of any or all
applicable laws or judgments, it being agreed and understood that the party to
which any assets are transferred shall bear the economic and legal risk that any
necessary consents or approvals are not obtained or that any requirements of
laws or judgments are not complied with.
Section 2.06 Conveyancing and Assumption Instruments. In connection with
the transfers of the NSU Transferred Assets other than capital stock and the
assumptions of the NSU Transferred Liabilities contemplated by this Agreement,
the parties shall execute or cause to be executed by the appropriate entities
the Conveyancing and Assumption Instruments in such forms as the parties shall
agree. The transfer of capital stock shall be effected by means of delivery of
stock certificates and executed stock powers and notation on the stock record
books of the corporation.
Section 2.07 Tax Treatment. During the two year period following the Merger
Effective Date, NSU shall not, nor shall it permit Michael to do any of the
following, and neither of them has any plan or intention to:
(a) liquidate Michael;
(b) merge Michael with or into another corporation, unless Michael is
the surviving corporation and the merger is not treated for tax purposes as
a sale or other disposition of Michael common stock;
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(c) sell any shares of Michael Common Stock or cause Michael to issue
any of shares of Michael Common Stock to any party other than NSU; or
(d) sell any assets of NSU to any third party not otherwise an
affiliate of the foregoing, except for (i) sales in the ordinary course of
business or (ii) sales of assets if, after giving effect to such sales,
Michael will retain at least 90% of the fair market value of its gross
assets in active trades or businesses within the meaning of Section 355 of
the Code.
provided, however, NSU or Michael may undertake any of the actions listed above
if (i) Spinco consents thereto or (ii) NSU obtains either a tax opinion or a
favorable private letter ruling from the Internal Revenue Service, in each case
reasonably satisfactory to Spinco, to the effect that the actions to be
undertaken would not adversely affect the tax free nature of the Merger or the
Distribution to all of the parties thereto. The shareholders of record of NSU on
the Record Date shall be third party beneficiaries of the provisions of this
Section 2.07.
ARTICLE III
THE DISTRIBUTION
Section 3.01 Cooperation Prior to the Distribution. Prior to the Merger
Effective Date:
(a) NSU and Spinco shall prepare and shall use all reasonable efforts to
cause the Registration Statement to become effective under the Securities Act.
Once declared effective under the Securities Act, NSU shall mail to the holders
of NSU Common Stock the prospectus included in the Registration Statement, which
shall set forth appropriate disclosure concerning Spinco, the Distribution and
other matters. NSU and Spinco shall also prepare, and Spinco shall file with the
Commission, a Form 8 -A, to register the Spinco Common Stock under the Exchange
Act. NSU and Spinco shall use all reasonable efforts to cause the Form 8-A to
become effective under the Exchange Act.
(b) NSU and Spinco shall cooperate in preparing, filing with the Commission
and causing to become effective any registration statements or amendments
thereof which are appropriate to reflect the establishment of, or amendments to,
any employee benefit and other plans contemplated by Article VI.
(c) NSU and Spinco shall take all such action as may be necessary or
appropriate under the securities or blue sky laws of states or other political
subdivisions of the United States in connection with the Distribution and the
other transactions contemplated by this Agreement.
(d) NSU and Spinco shall prepare, and Spinco shall file and pursue, an
application to permit listing of the Spinco Common Stock on the NASDAQ National
Market.
Section 3.02 NSU Board Action; Conditions Precedent to the
Distribution. The NSU Board shall, in its discretion, establish the Record Date,
the Transfer Effective Date and the Distribution Date (which shall be the same
as the Merger Effective Date) and any appropriate procedures in connection with
the Distribution. The Distribution is expressly conditioned on the prior
consummation of the Merger. Additionally, in no event shall the Distribution
occur (i) if at the Distribution Date NSU shall not have received an opinion of
tax counsel or a private letter ruling from the IRS to the effect that the
Distribution will qualify as a tax-free spin-off under Section 355 of the Code,
and (ii) unless prior to such time the following conditions shall have been
satisfied or waived by the parties hereto:
(a) the transactions contemplated by Sections 2.02 hereof, shall have been
consummated in all material respects;
(b) the Spinco Common Stock shall have been approved for quotation on the
NASDAQ National Market or listing on a national securities exchange, subject to
official notice of issuance;
(c) the Spinco Board, comprised as contemplated by Section 8.01, shall have
been elected by NSU, as sole shareholder of Spinco, and the Spinco Charter and
Spinco ByLaws shall have been adopted and shall be in effect;
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(d) the Registration Statement shall have been declared effective by the
Commission and the Form 8-A relating to the shares of Spinco Common Stock to be
distributed in the Distribution shall have become effective under the Exchange
Act; and
(e) all conditions precedent to the obligations of NSU and Michael under
the Merger Agreement (other than consummation of the Distribution) shall have
been satisfied or waived and the Merger shall have been consummated.
The satisfaction or waiver of such conditions shall create an obligation on the
part of NSU to effect the Distribution on the Distribution Date.
Section 3.03 The Distribution. On or prior to the Distribution Date, NSU
shall deliver to the Agent the certificate for all of the outstanding shares of
Spinco Common Stock which are owned by NSU. On the Distribution Date, after the
Effective Time of the Merger, NSU shall deliver to the Agent an instruction to
distribute as promptly as practicable following the Distribution Date to each
holder of record of NSU Common Stock on the Record Date stock certificates
evidencing such number of shares of Spinco Common Stock equal to the product of
the Exchange Ratio times the number of shares of NSU Common Stock held of record
by such holder on the Record Date and cash in lieu of any fractional share of
Spinco Common Stock obtained in the manner provided in Section 3.04 hereof. If
the number of outstanding shares of Spinco Common Stock exceeds the amount to be
distributed in the Distribution, then the remaining shares shall be deemed to
have been contributed by NSU to the capital of Spinco and retired and canceled.
Spinco agrees to provide to the Agent sufficient certificates in such
denominations as the Agent may request in order to effect the Distribution. All
of the shares of Spinco Common Stock issued in the Distribution shall be fully
paid, nonassessable and free of preemptive rights. The Distribution shall, for
all purposes under this Agreement, be deemed to have been effected at the time
NSU delivers to the Agent the instruction directing the Agent to distribute the
certificates evidencing Spinco Common Stock and cash in lieu of fractional
shares.
Section 3.04 Fractional Shares. No certificate or scrip representing
fractional shares of Spinco Common Stock shall be issued as part of the
Distribution, and in lieu of receiving fractional shares each holder of NSU
Common Stock who would otherwise be entitled to receive a fractional share of
Spinco Common Stock pursuant to the Distribution will receive cash for such
fractional share. NSU and Spinco agree that NSU shall instruct the Agent to
determine the number of whole shares and fractional shares of Spinco Common
Stock allocable to each holder of record of NSU Common Stock as of the Record
Date, to aggregate all such fractional shares into whole shares and sell the
whole shares obtained thereby in the open market pursuant to Rule 236 under the
Securities Act, if available, at then prevailing prices on behalf of holders who
otherwise would be entitled to receive fractional share interests and to
distribute to each such holder such holder's ratable share of the total proceeds
of such sale. Spinco shall bear the costs of commissions incurred in connection
with such sale. If the Agent is unable to sell such shares in the open market
pursuant to Rule 236, Spinco will pay to such holders of NSU Common Stock in
lieu of any fractional share or amount of cash determined by multiplying (a) the
average closing price per share of Spinco Common Stock on the NASDAQ National
Market during the five days following the Distribution Date times (b) the
fractional share interest to which such holder would otherwise be entitled.
ARTICLE IV
SPINCO ASSUMPTION OF CERTAIN NSU INDEBTEDNESS
Section 4.01 Assumption of Certain NSU Indebtedness. Spinco and NSU shall,
on or prior to the Distribution Date, to the extent required under any indenture
with respect to any of the outstanding debentures or any of the outstanding
subordinated extendable or fixed time certificates, execute and deliver
supplemental indentures or other agreements or instruments evidencing Spinco's
assumption of NSU's obligations with respect to such outstanding debentures and
subordinated extendable and fixed time certificates; provided, however, that as
provided herein, and as contemplated by the Merger Agreement, as between NSU and
Spinco, the NSU Indebtedness is not an NSU Transferred Liability and NSU shall
be responsible for the payment in full, in accordance with the terms thereof of
all of the NSU Indebtedness and
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shall indemnify, pursuant to Section 5.02 of this Agreement, Spinco for any and
all Liabilities with respect to the NSU Indebtedness.
ARTICLE V
INDEMNIFICATION
Section 5.01 Indemnification by Spinco.
(a) From and after the Merger Effective Date, Spinco shall indemnify,
defend, assume and hold harmless NSU, Michael, all Michael Subsidiaries and
Merger Sub and any of them (together, the "NSU Indemnified Parties") from and
against: (i) all Liabilities (other than the NSU Assumed Liabilities) of NSU or
any NSU Subsidiary (other than Michael and its Subsidiaries), including any
Subsidiary owned by NSU prior to the Merger Effective Date but not owned by NSU
on the Merger Effective Date, arising out of: (A) the NSU Transferred
Liabilities, specifically including the Assumed Contracts, and (B) the
transactions contemplated under this Agreement, including the Distribution and
any Taxes as a result of the Distribution (other than (X) any liabilities
resulting from any breach by NSU, after the Merger Effective Date, of this
Agreement, (Y) any liability of NSU for Taxes resulting from a breach by NSU,
after the Merger Effective Date, of Section 2.07, and (Z) obligations, after the
Merger Effective Date, expressly assumed by NSU hereunder); (ii) all Liabilities
arising from any claim made by any shareholder of Spinco on or after the
Distribution Date or by any shareholder or former shareholder of NSU prior to
the Merger Effective Date relating to any act or omission of NSU on or prior to
the Merger Effective Date in connection with the Merger or any of the other
transactions as contemplated by the Merger Agreement; (iii) all Liabilities
assumed by Spinco pursuant to Article VI; (iv) all Liabilities of Spinco or any
Subsidiary of Spinco arising out of transactions or events entered into or
occurring after the Merger Effective Date, or any action or inaction, including
but not limited to, contracts, commitments and litigation, with respect to,
entered into or based upon transactions or events occurring after the Merger
Effective Date with respect to Spinco or any Subsidiary of Spinco (other than
the NSU Assumed Liabilities); (v) any breach of this Agreement by Spinco or any
Subsidiary of Spinco after the Merger Effective Date; and (vi) damages, costs,
and expenses including attorney's fees incurred in defending and settling claims
for such Liabilities.
(b) The obligations to indemnify the NSU Indemnified Parties shall be
unconditional and shall not be subject to any claim of setoff, contribution or
waiver, except as provided in Section 5.04.
Section 5.02 Indemnification by NSU.
(a) From and after the Merger Effective Date, NSU shall indemnify, defend,
assume and hold harmless Spinco and any Spinco Subsidiary and any of them
(together, the "Spinco Indemnified Parties") from and against: (i) all
Liabilities of NSU, Michael or any Subsidiary of NSU or Michael arising out of
transactions or events entered into or occurring after the Merger Effective
Date, or any action or inaction, including but not limited to, contracts,
commitments and litigation, with respect to, entered into or based upon
transactions or events occurring after the Merger Effective Date with respect to
NSU, Michael, any Subsidiary of NSU after the Merger Effective Date or any
Subsidiary of Michael, other than any Liability arising out of the NSU
Transferred Liabilities, including the Assumed Contracts; (ii) all Liabilities
relating to the NSU Assumed Liabilities; (iii) all Liabilities of Michael or any
Subsidiary of Michael arising before, on or after the Merger Effective Date;
(iv) all Liabilities arising from any claim made by any current or former
Michael shareholder or shareholder of NSU after the Merger Effective Date who
was a Michael shareholder immediately prior to the Merger Effective Date
relating to any act or omission of Michael in connection with the Merger or any
of the other transactions contemplated in the Merger Agreement or this
Agreement; (v) any breach of this Agreement by NSU after the Merger Effective
Date; and (vi) damages, costs and expenses including attorney's fees incurred in
defending and settling claims for such obligations, expenses or Liabilities.
(b) The obligations to indemnify the Spinco Indemnified Parties shall be
unconditional and shall not be subject to any claim of setoff, contribution or
waiver, except as provided herein.
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Section 5.03 Procedure for Indemnification.
(a) The Spinco Indemnified Parties or the NSU Indemnified Parties (each
referred to hereinafter as an "Indemnified Party"), as the case may be, shall
promptly give notice to the indemnifying party hereunder (the "Indemnifying
Party") after obtaining knowledge of any claim, demand or request for payment
against any Indemnified Party for any Liabilities indemnifiable hereunder and
shall permit the Indemnifying Party to pay or assume the defense of such
Liability, and any litigation arising from such Liability. Notwithstanding the
foregoing notice requirement, the right to indemnification hereunder shall not
be affected by the failure of the party seeking indemnification to give such
notice or any delay by such party in giving such notice unless, and only to the
extent that, the rights and remedies of the Indemnifying Party shall have been
prejudiced as a result of the failure to give, or the delay in giving, such
notice. The failure by an Indemnifying Party to notify the Indemnified Party of
its election to defend any such Liability within ten (10) days after notice
thereof shall have been given to the Indemnifying Party, shall be deemed a
waiver by the Indemnifying Party of its right to defend such Liability.
(b) If an Indemnifying Party assumes the defense of any Liability and any
litigation that results from such Liability, then the obligations of the
Indemnifying Party as to such litigation shall include employing counsel
reasonably satisfactory to the Indemnified Party, taking all steps necessary in
the defense or settlement of such litigation and holding the Indemnified Party
harmless from and against any and all claims and expenses caused by or arising
out of any settlement approved by the Indemnified Party or any judgment in
connection with such litigation. Without the prior written consent of the
Indemnified Party, the Indemnifying Parties shall not, in the defense of any
such litigation, consent to the entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof, the giving by
the claimant or the plaintiff to the Indemnified Party of a full release, in
form reasonably satisfactory to the Indemnified Party, from all liability in
respect of such litigation. The Indemnified Party shall be entitled to
participate in the defense of any litigation at its own expense. If the
defendants in any such action include both the Indemnified Party and the
Indemnifying Party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it which are different from or
additional to those available to the Indemnifying Party, the Indemnified Party
shall have the right, at the expense of the Indemnifying Party, to select
separate counsel reasonably satisfactory to the Indemnifying Party to assume
such additional legal defenses, and to otherwise participate in the defense of
such action on behalf of the Indemnified Party.
(c) If the Indemnifying Party does not assume the defense of any Liability
within ten (10) days after the Indemnified Party gives notice thereof to the
Indemnifying Party, then the Indemnified Party may defend against such Liability
and any litigation with respect thereto, in such manner as it deems appropriate
and the Indemnified Party may settle any such litigation on such terms as it
deems appropriate and the Indemnifying Party shall, in accordance with the
provisions of Sections 5.01 or 5.02, as the case may be, reimburse the
Indemnified Party for the amount of such settlement and for all losses and
expenses, including attorney's fees, incurred by the Indemnified Party in
connection with the defense of such Liability.
(d) The Indemnified Party and the Indemnifying Party agree to cooperate
with each other in resolving or attempting to resolve any claim as to which
indemnification is sought under this Agreement and will permit the other party
access to all books and records which might be useful for such purpose during
normal business hours and at the place where such books and records are normally
kept. The Indemnified Party and the Indemnifying Party further agree to make
available, at reasonable times, such of their respective employees, officers and
agents who may have knowledge of matters relating to any claim arising out of
this agreement for the purpose of providing testimony or assisting in the
preparation or prosecution of a defense to any claim by a third party as to
which indemnification is sought under this Agreement.
(e) Any dispute arising between the parties hereto as to the obligations
under this Article V shall be resolved pursuant to Article X hereto. If there is
no dispute with respect to any payment under this Article V from an Indemnifying
party to an Indemnified Party, then within ten (10) days after written demand
for such payment by the Indemnified Party, the Indemnifying Party shall pay to
the Indemnified Party the amount of any loss, expense, damage or other payment
suffered, incurred or made by the Indemnified Party against which the
Indemnified Party is indemnified by the Indemnifying Party under this Article V.
In the event the
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Indemnifying Party fails to pay such undisputed amount within said ten (10) day
period, or it is determined pursuant to the provisions of Article X that the
Indemnifying Party is obligated to pay an amount which it had previously
disputed, the Indemnified Party shall be entitled to collect the following from
the Indemnifying Party: (i) interest from the date of the Indemnified Party's
demand for payment on the amount owing to the Indemnified Party at the rate
equal to the reference rate as publicly announced from time to time by First
Bank National Association plus two (2) percentage points, compounded monthly,
until the full amount owing, including any interest, has been paid in full with
all payments being applied first against accrued and unpaid interest, and (ii)
all costs and expenses, including reasonable attorneys fees, incurred by the
Indemnified Party in collecting the amounts owing from the Indemnifying Party
under this Article V.
Section 5.04 Set-Off Rights. If and when, as a result of the net operating
loss carryforwards properly allocable to NSU from all Tax periods prior to or
ending on the Merger Effective Date, NSU unconditionally realizes a benefit in
the form of a reduction in the federal or state income Taxes which NSU would
otherwise be obligated to pay, Spinco may set-off the amount of any such Tax
savings against any Liability of Spinco under this Agreement (including the
indemnification obligations under Section 5.01) or, in the event Spinco has
already made payments pursuant to its indemnification obligations hereunder, NSU
will reimburse Spinco for payments previously made by Spinco to or on behalf of
an NSU Indemnified Party with respect to its obligations under this Agreement.
The benefit shall not be finally and unconditionally determined for any year
until such year is closed for any future adjustment of federal income Tax
liability. Any amount set-off by Spinco or reimbursed to Spinco by NSU hereunder
shall bear interest from and after the date that such benefit was reflected on
the consolidated Tax return of NSU or taken into account in an NSU estimated Tax
payment to the date of such off-set or reimbursement at the rate of 6% per
annum. NSU shall promptly provide Spinco notice of each and every time it has
filed a Tax report or return wherein it has claimed or used such Tax benefit.
ARTICLE VI
EMPLOYEE BENEFIT PLANS
Section 6.01 The 401(k) Savings Plan. (a) As soon as practicable after the
date hereof (i) effective as of the Merger Effective Date, Spinco shall assume
and be solely responsible for, all Liabilities of NSU under the [NORTH STAR
UNIVERSAL 401(K) SAVINGS PLAN] (the "Savings Plan") and (ii) prior to the Merger
Effective Date, NSU agrees to take such actions as may be necessary in order for
Spinco or a Subsidiary of Spinco effectively to maintain and administer such
Savings Plan. Spinco and NSU shall each take, or cause to be taken, all such
actions as may be necessary or appropriate in order to establish Spinco or a
Subsidiary of Spinco as successor to NSU as to all rights, assets, duties and
Liabilities of NSU under, or with respect to, the Savings Plan, including, but
not limited to, the rights, assets, duties and Liabilities of NSU under, or with
respect to, any and all trust agreements to the extent that they relate solely
to the Savings Plan. Any action taken by NSU pursuant to this Section 6.01 after
the Merger Effective Date shall be at Spinco's expense.
(b) Upon Spinco or a Subsidiary of Spinco becoming the successor employer
or successor plan sponsor to NSU or any of its subsidiaries under the Savings
Plan, NSU agrees to take such actions as may be necessary to amend any trust
agreement required to be amended in order for Spinco or a Subsidiary of Spinco
effectively to assume and administer the Savings Plan.
(c) Transfers pursuant to this Section 6.01 shall be effected, where
practicable, so as to preserve each plan participant's investment election.
(d) NSU and Spinco shall, in connection with the transfers described in
this Section 6.01, cooperate in making all appropriate filings required under
the Code or ERISA, and the regulations thereunder and any applicable securities
laws, and take all such action as may be necessary and appropriate to cause such
transfers to take place as soon as practicable after the Distribution Date.
(e) From and after the Merger Effective Date, NSU and its Subsidiaries
thereafter shall cease to have any liability or obligation whatsoever with
respect to the Savings Plan. As provided in Article V, Spinco shall indemnify
NSU and such Subsidiaries against any such liability.
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Section 6.02 Welfare Plans.
(a) Except as otherwise specifically provided in this Section 6.02, as of
the Merger Effective Date, Spinco shall assume all Liabilities of NSU in
connection with claims brought under any of NSU's or its Subsidiaries' medical,
dental, life insurance, health, accident, disability or other welfare benefit
plans in existence on or prior to the Merger Effective Date and from and after
the Merger Effective Date, NSU and its Subsidiaries thereafter shall cease to
have any such liability or obligation. From and after the Merger Effective Date,
NSU shall no longer be a participating employer in such welfare benefit plans.
(b) As of the Merger Effective Date, Spinco shall assume and shall be
solely responsible for, all Liabilities of NSU in connection with claims for
post-employment welfare benefits (including, but not limited to, medical, health
and life insurance benefits) made by or in respect of (i) any Spinco Employee or
(ii) any employee of NSU prior to the Merger Effective Date who shall have
retired or whose employment otherwise terminates on or before the Merger
Effective Date, regardless of whether such claim shall relate to events which
occurred prior or subsequent to the Merger Effective Date. Spinco shall also
assume all "COBRA" continuation Liabilities of NSU as of the Merger Effective
Date.
(c) Prior to the Merger Effective Date, NSU and Spinco shall take all
actions necessary and appropriate to effect the assumption of the NSU welfare
plans by Spinco or a Subsidiary of Spinco and to provide the benefit coverage
otherwise necessary to assume the Liabilities which are or shall become the
responsibility of Spinco under this Section 6.02.
Section 6.03 NSU Employees. Effective as of the Merger Effective Date,
Spinco agrees to assume the employment of all employees of NSU who have not
resigned or been terminated on or prior to such date. Spinco shall assume and be
solely responsible for all Liabilities in connection with claims made by or on
behalf of such NSU employees in respect of salary, benefits, severance pay,
salary continuation and similar obligations relating to the employment or the
termination or alleged termination of the employment of any such person,
regardless of whether such termination or alleged termination occurred prior to
or subsequent to the Merger Effective Date.
Section 6.04 Other Liabilities and Obligations. As of the Merger Effective
Date, Spinco shall assume and be solely responsible for all Liabilities of NSU
with respect to claims made by persons who were, prior to the Merger Effective
Date, employees of NSU, relating to any employee liability or obligation not
otherwise provided for in this Agreement.
Section 6.05 Preservation of Rights To Amend or Terminate Plans. No
provisions of this Agreement shall be construed as a limitation on the right of
Spinco or any Spinco Subsidiary to amend such plan or terminate its
participation therein which Spinco or any Spinco Subsidiary would otherwise have
under the terms of such plan or otherwise, and no provision of this Agreement
shall be construed to create a right in any employee or beneficiary of such
employee under a plan which such employee or beneficiary would not otherwise
have under the terms of the plan itself.
ARTICLE VII
TAX MATTERS
Section 7.01 Allocation of Items of Income or Deduction for Reporting
Purposes. NSU, in consultation with and subject to the approval of Spinco, shall
either (i) cause Spinco to close its permanent books and records (including work
papers) as of the Distribution Date, in accordance with Treasury Regulations
Section 1.1502-76(b)(2) in order to permit Spinco's taxable income for the
taxable period ending on the Distribution Date to be reported and determined on
the basis of income shown on its permanent books and records (including work
papers) or (ii) allocate items of income or deduction between tax periods ending
on or before the Distribution Date and tax periods beginning after the
Distribution Date in accordance with Treasury Regulations Section
1.1502-76(b)(2)(ii).
Section 7.02 Spinco Indemnification for Tax Periods Prior to Distribution
Date. Spinco agrees to indemnify and hold harmless NSU from and against any
liability for Taxes attributable to NSU or Spinco
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(specifically including for all purposes of this Article VII, Taxes attributable
to all NSU Transferred Assets and NSU Transferred Liabilities transferred
pursuant to Article II) for Tax periods or portions thereof ending on or before
the Distribution Date. For purposes of this Section 7.02, "Spinco" shall mean
Spinco, itself, as well as all of its Subsidiaries eligible to be included in a
consolidated federal income tax return filed by Spinco as the common parent,
including any Subsidiary owned by NSU prior to the Merger Effective Date but not
then owned by NSU, and "NSU" shall mean NSU, itself, as well as all of its
Subsidiaries eligible to be included in a consolidated federal income tax return
filed by NSU as the common parent.
Section 7.03 NSU Liable for Filing and Payment of Spinco's Taxes Prior to
Distribution Date. NSU, in consultation with and subject to the approval of
Spinco, shall, at Spinco's expense, file (or shall cause to be filed) all tax
returns of Spinco for tax periods ending on or before the Distribution Date. NSU
shall, to the extent permissible, include (or cause to be included) the results
of the operations of Spinco in NSU's consolidated federal tax return and in any
other consolidated, unitary, or combined tax return for tax periods ending on or
before the Distribution Date and shall, subject to the indemnification
obligations under Section 7.02, pay all Taxes due for such periods with respect
to Spinco.
Section 7.04 Spinco Liable for Filing and Payment of Its Own Taxes for Tax
Periods Beginning Prior to Distribution Date and Ending After Distribution
Date. Spinco shall file (or shall cause to be filed) all Tax returns of Spinco
for any Tax period which begins before the Distribution Date and ends on or
after the Distribution Date. Spinco shall also file (or shall cause to be filed)
all Tax returns of Spinco for all subsequent Tax periods. Accordingly, Spinco
shall pay all Taxes shown as due on such returns or ultimately determined to be
due with respect to such periods and shall be entitled to keep and retain for
itself any refunds of Taxes or credits paid on behalf of or made available to
it. All Tax returns and any schedules to be included therewith for the Tax
period which begins before the Distribution Date and ends after the Distribution
Date shall be prepared on a basis consistent with those prepared for prior Tax
periods and consistent with the method used by NSU to allocate items of Spinco's
income or deduction for the Tax period ending on the Distribution Date pursuant
to Section 7.01 hereof, and shall be subject to the approval of NSU prior to
being filed by Spinco, which approval shall not be unreasonably withheld.
Section 7.05 Spinco's Right to Make Section 172(b)(3) Election and
Qualified Right to Subsequent Refund. Spinco shall have the right and option to
make an election pursuant to Section 172(b)(3) of the Code to carry forward any
of its net operating losses incurred in tax periods beginning after the
Distribution Date which, if carried back, would be carried back to a tax period
ending on or before the Distribution Date. Notwithstanding the foregoing,
whether or not Spinco makes such an election, Spinco shall be entitled to any
and all tax refunds, whether received by NSU or Spinco, that result from a
carryback of net operating losses or credits of Spinco arising in a tax period
beginning after the Distribution Date to a tax period ending on or before the
Distribution Date.
Section 7.06 Scope of NSU's Power to Negotiate Settlement During Audit for
Periods after the Merger Effective Date. In the event that any Taxing authority
conducts an audit to determine the amount of any net operating loss
carryforwards of NSU as of the Merger Effective Date for any Tax period
beginning after the Distribution Date, NSU shall notify Spinco and allow Spinco
to participate with NSU in contesting such issue and each party shall pay its
own expenses relating to the contesting of such issue. Notwithstanding the
foregoing, NSU shall have the right to finally resolve such issue.
Section 7.07 Rights of Parties With Respect to an Asserted Tax
Liability. Promptly after receipt by NSU of a written notice of any demand,
claim or circumstance, including any Tax audit, which, after the lapse of time,
would or might give rise to a claim or commencement of any action, proceeding,
or investigation with respect to which indemnity may be sought under Section
7.02 hereof (an "Asserted Tax Liability"), NSU shall give written notice thereof
to Spinco (the "Tax Claim Notice"). The Tax Claim Notice shall contain factual
information (to the extent known to NSU) describing in reasonable detail the
Asserted Tax Liability and shall include copies of any notice or other document
received from any taxing authority in respect of such Asserted Tax Liability. If
NSU fails to give Spinco prompt notice of an Asserted Tax Liability as required
by this Section 7.07, and if such failure results in an irrevocable financial
detriment to Spinco, then any amount which Spinco is otherwise required to pay
NSU pursuant to Section 7.02 hereof with respect to such Asserted
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Tax Liability shall be reduced by the amount of such irrevocable financial
detriment. Spinco may elect to direct, through counsel of its own choosing
reasonably acceptable to NSU and at its own expense, the compromise or contest,
either administratively or in the courts, of any Asserted Tax Liability. If
Spinco elects to direct the compromise or contest of any Asserted Tax Liability,
it shall, either within 30 calendar days after receiving the Tax Claim Notice
with respect to such Asserted Tax Liability (or sooner, if the nature of the
Asserted Tax Liability so requires) notify NSU of its intent to do so, and NSU
shall cooperate at its own expense in the compromise or contest of such Asserted
Tax Liability. Spinco, at its discretion, may enter into a settlement agreement
with respect to, or otherwise resolve, any Asserted Tax Liability without the
express consent of NSU, unless such settlement affects the Tax returns of NSU
after the Merger Effective Date, in which case the consent of NSU shall be
required and shall not be unreasonably withheld. If Spinco (1) within 30
calendar days after receiving the Tax Claim Notice with respect to such Asserted
Tax Liability (or sooner, if the nature of the Asserted Tax Liability so
requires) notifies NSU that it has elected not to direct the compromise or
contest of the Asserted Tax Liability, or (2) fails to properly notify NSU
within such period of its election to direct or not to direct the compromise or
contest of the Asserted Tax Liability, NSU may pay, compromise, or contest at
its own expense and in its sole discretion such Asserted Tax Liability. If NSU
or Spinco elects to direct the compromise or contest of any liability for Taxes
as provided herein, the other party shall promptly empower (by power of attorney
and such other documentation as may be appropriate) such representative of the
empowered party as the empowered party may designate to represent the empowering
party in any audit, claim for refund or administrative or judicial proceeding
insofar as such audit, claim for refund or proceeding involves an asserted
liability for Taxes for which Spinco would be liable under Section 7.02 hereof.
For all purposes of this Section 7.07, the right to participate in all
proceedings either administratively or in the courts relating to an Asserted Tax
Liability shall include the right to attend and be kept fully informed of all of
the foregoing but shall not include, unless expressly provided for herein, the
power to compromise, contest or make any other decisions with respect to an
Asserted Tax Liability.
Section 7.08 Mutual Duty to Cooperate and Act in Good Faith With Respect to
Filing or Amending of Returns, Claiming Refunds, or Conducting Audit. NSU and
Spinco shall provide each other with such cooperation and information as either
reasonably may request of the other in filing any tax return, amended return, or
claim for refund, in determining a liability for Taxes or a right to a refund of
Taxes, or in conducting any audit or proceeding in respect of Taxes. Such
cooperation and information shall include providing copies of relevant tax
returns or portions thereof, together with accompanying schedules and related
work papers and documents relating to rulings or other determinations by tax
authorities. Each party shall make its employees available on a mutually
convenient basis to provide explanation of any documents or information provided
hereunder. NSU shall make available to Spinco, with respect to all tax years in
which Spinco was includable in NSU's affiliated group (as defined in Section
1504 of the Code) copies of all work papers and schedules relating to the
preparation of Spinco's pro forma federal and state income tax returns which
were included in NSU's federal consolidated and state income tax returns which
are necessary to reconcile such pro forma returns with the amounts actually
included in such consolidated returns. NSU and Spinco shall make available to
each other all other books and records relating to Taxes of Spinco with respect
to all tax years in which Spinco was includable in NSU's affiliated group (as
defined in Section 1504 of the Code). NSU and Spinco agree to maintain and
preserve for a period of eight (8) years after the period to which such
documents relate, and, upon written request, to provide to the other party, such
factual information as that party reasonably requires for filing tax returns,
tax planning, and contesting any tax audit that only NSU or Spinco, as the case
may be, actually possesses.
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ARTICLE VIII
CERTAIN ADDITIONAL MATTERS
Section 8.01 The Spinco Board. Spinco and NSU shall take all actions which
may be required to elect or otherwise appoint, as of the Distribution Date, the
following [five] persons as directors of Spinco:
Section 8.02 Spinco Charter and By-Laws. Prior to the Merger Effective
Date, Spinco shall adopt the Spinco Charter and the Spinco By-Laws and shall
file the Spinco Charter with the Secretary of State of the State of Minnesota.
Section 8.03 NSU Long-Term Liabilities; Minimum Value of Spinco.
(a) Release Date. Prior to the third anniversary of the Merger Effective
Date, Spinco shall have caused the Release Date to have occurred with respect to
each of the NSU Long-Term Liabilities.
(b) Minimum Value. Spinco shall not (A) pay any dividends, whether in cash
or in property, or make any other distribution to its shareholders, or redeem
any of its capital stock for cash or property, (B) sell, transfer or dispose of
any material amount of its assets in a single transaction or related series of
transactions, except in the ordinary course of its business or for fair value,
or (C) sell, transfer or dispose of all or substantially all of its assets or
engage in any merger, consolidation or reorganization unless (X) in the case of
the sale, transfer or other disposition of all or substantially all of its
assets, the purchaser assumes the obligations of Spinco (jointly and severally
with Spinco) under this Agreement, (Y) in the case of a merger, consolidation or
reorganization, the surviving entity assumes the obligations of Spinco under
this Agreement, or (Z) the Market Value (as defined below) of Spinco immediately
after giving effect to such dividend, distribution, redemption or other
transaction is at least equal to the following amounts during the following
periods:
(i) $9,000,000 during the period beginning on the Merger Effective
Date and continuing to the later to occur of (x) the Release Date or (y)
the third anniversary of the Merger Effective Date;
(ii) $3,000,000 during the period from the end of the period
referenced in clause (i) above and
continuing to the fifth anniversary of the Merger Effective Date.
The term "Market Value" shall mean the greater of: (a) the market capitalization
of Spinco's outstanding equity securities, if Spinco is a publicly traded
company, or (b) the net book value of Spinco computed in accordance with
generally accepted accounting principles, except that securities owned by Spinco
which are publicly traded shall be valued at their market value without any
adjustment for lack of liquidity or control premium, but reduced for any taxes
payable on the disposition of such securities, taking into account any and all
tax benefits (e.g., net operating loss carryforward, tax credits, deductions or
exclusions) available to Spinco and using Spinco's then applicable effective tax
rate for purposes of such calculations.
Section 8.04 Adjustment for Dissenting Shares Liability. If the actual
amount paid after the Merger Effective Date with respect to the Dissenting
Shares (the "Actual Payment") is less than the Dissenting Shares Holdback, then
within ten days after the date of determination of the Actual Payment, NSU shall
pay to Spinco by wire transfer of immediately available funds to a designated
account the amount of such shortfall. Notwithstanding anything herein or in the
Merger Agreement to the contrary, with respect to the Dissenting Shares and the
Dissenting Shares Liability, NSU agrees that it shall promptly give notice to
Spinco after obtaining knowledge of any threatened or pending claim regarding
the Dissenting Shares or the Dissenting Shares Liability and Spinco shall, at
its expense, assume and direct the negotiation, settlement or defense of such
claim and any litigation arising from such claim, and NSU agrees to cooperate
with Spinco in resolving or attempting to resolve any such claim or litigation;
provided that Spinco shall not, without NSU's prior
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consent, settle any such claim after the Merger Effective Date if such
settlement may result in the Dissenting Shares Liability exceeding the
Dissenting Shares Holdback.
Section 8.05 NSU Covenants.
(a) From and after the Merger Effective Date, NSU shall be solely
responsible for the payment, performance and discharge of the NSU Assumed
Liabilities and shall pay, perform and discharge the NSU Assumed Liabilities in
accordance with the governing instruments and applicable laws related thereto.
Subject to the prior consummation of the Merger, NSU covenants and agrees to
repay in full all of the NSU Indebtedness not later than six months after the
Merger Effective Date, all such repayments (excluding any payments made with
respect to any instruments that have matured or otherwise become due and payable
in accordance with their respective terms prior to such repayment date) to be
effected on or about the same date.
ARTICLE IX
ACCESS TO INFORMATION AND SERVICES
Section 9.01 Provision of Corporate Records. NSU shall arrange as soon as
practicable following the Distribution Date for the transportation at Spinco's
cost to Spinco of existing corporate records in its possession relating to the
NSU Transferred Assets and the NSU Transferred Liabilities, including original
corporate minute books, stock ledgers and certificates and corporate seals of
Spinco and the Spinco Subsidiaries, and all active agreements, active litigation
files and filings with governmental agencies, except to the extent such items
are already in the possession of Spinco or a Spinco Subsidiary. NSU shall also
provide to Spinco, unless already in the possession of Spinco or a Spinco
Subsidiary and only to the extent that NSU maintains them, lists of trademarks,
patents (design and mechanical) and copyrights included in the Spinco Assets.
Such records shall be the property of Spinco, but shall be available to NSU for
review and duplication until NSU shall notify Spinco in writing that such
records are no longer of use to NSU.
Section 9.02 Access to Information. From and after the Distribution Date,
NSU shall afford to Spinco and its authorized accountants, counsel and other
designated representatives reasonable access (including using reasonable efforts
to give access to persons or firms possessing information) and duplicating
rights during normal business hours to all records, books, contracts,
instruments, computer data and other data and information (collectively,
"Information") within NSU's possession relating to Spinco, the NSU Transferred
Assets or the NSU Transferred Liabilities, insofar as such access is reasonably
required by Spinco. Information may be requested under this Article IX for,
without limitation, audit, accounting, claims, litigation and tax purposes, as
well as for purposes of fulfilling disclosure and reporting obligations and for
performing this Agreement and the transactions contemplated hereby.
Section 9.03 Provision of Services. In addition to any services
contemplated to be provided following the Distribution Date by this Agreement,
each party, upon written request, shall make available to the other party,
during normal business hours and in a manner that will not unreasonably
interfere with such party's business, its financial, tax, accounting, legal,
employee benefits and similar staff and services (collectively "Services")
whenever and to the extent that they may be reasonably required in connection
with the preparation of tax returns, audits, claims, litigation or
administration of employee benefit plans, and otherwise to assist in effecting
an orderly transition following the Distribution.
Section 9.04 Production of Witnesses. At all times from and after the
Distribution Date, each of Spinco and NSU shall use reasonable efforts to make
available to the other upon written request, its and its subsidiaries' officers,
directors, employees and agents as witnesses to the extent that such persons may
reasonably be required in connection with any legal, administrative or other
proceedings in which the requesting party may from time to time be involved.
Section 9.05 Reimbursement. Except to the extent otherwise contemplated by
this Agreement, a party providing Information or Services to the other party
under this Article IX shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts, relating to
supplies,
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disbursements and other out-of-pocket expenses, as may be reasonably incurred in
providing such Information or Services.
Section 9.06 Retention of Records. Except as otherwise required by law, or
agreed to in writing, each of NSU and Spinco shall retain, and shall cause its
Subsidiaries to retain, for a period of at least eight years following the
Distribution Date, all information relating to the other and the other's
subsidiaries.
Section 9.07 Confidentiality. NSU and Spinco shall hold, and shall cause
their respective officers, employees, agents and consultants and advisors to
hold, in strict confidence, unless compelled to disclose by judicial or
administrative process or, in the opinion of its independent legal counsel, by
other requirements of law, all confidential information concerning the other
party furnished to it by such other party or its representatives pursuant to
this Agreement (except to the extent that such information can be shown to have
been (i) available to such party on a non-confidential basis prior to its
disclosure by the other party, (ii) in the public domain through no fault of
such party or (iii) later lawfully acquired from other sources by the party to
which it was furnished), and each party shall not release or disclose such
information to any other person, except its auditors, attorneys, financial
advisors, bankers and other consultants and advisors who shall be bound by the
provisions of this Section 9.07. Each party shall be deemed to have satisfied
its obligation to hold confidential information concerning or supplied by the
other party if it exercises the same care as it takes to preserve
confidentiality for its own similar information.
ARTICLE X
DISPUTE RESOLUTION
Section 10.01 Mediation and Binding Arbitration. If a dispute arises
between NSU and Spinco as to the interpretation of this Agreement or any other
agreement entered into pursuant hereto, including, without limitation, any
indemnification obligations pursuant to Article V, NSU and Spinco agree to use
the following procedures, in lieu of either party pursuing other available
remedies and as the sole remedy, to resolve the dispute.
Section 10.02 Initiation. A party seeking to initiate the procedures shall
give written notice to the other party, describing briefly the nature of the
dispute. A meeting shall be held between the parties within 10 days of the
receipt of such notice, attended by individuals with decision-making authority
regarding the dispute, to attempt in good faith to negotiate a resolution of the
dispute.
Section 10.03 Submission to Mediation. If, within 30 days after such
meeting, the parties have not succeeded in negotiating a resolution of the
dispute, they agree to submit the dispute to mediation in accordance with the
Center for Public Resources Model ADR Procedure -- Mediation of Business
Disputes, as modified herein, and to bear equally the costs of the mediation.
Section 10.04 Selection of Mediator. The parties will jointly appoint a
mutually acceptable mediator, seeking assistance in such regard from the Center
for Public Resources or another mutually agreed-upon organization if they have
been unable to agree upon such appointment within 20 days from the conclusion of
the negotiation period.
Section 10.05 Mediation and Arbitration. The parties agree to participate
in good faith in the mediation and negotiations related thereto for a period of
30 days following the initial mediation session. If the parties are not
successful in resolving the dispute through the mediation by the end of such
30-day period, then the parties agree to submit the matter to binding
arbitration in accordance with the Center for Public Resources Rules for
Non-Administered Arbitration of Business Disputes, as modified herein, by a
panel of three arbitrators, in Minneapolis, Minnesota, selected in accordance
with the provisions of Section 10.06 hereof. The arbitration shall be governed
by the Rules of the American Arbitration Association then in effect and as
modified herein, and judgment upon the award rendered by the arbitrator may be
entered by any court having jurisdiction thereof. The arbitrators shall not,
under any circumstances, have any authority to award punitive, exemplary or
similar damages and may not, in any event, make any ruling, finding or award
that does not conform to the terms and conditions of this Agreement. Nothing
contained in this Article X shall limit or
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restrict in any way the right or power of a party at any time to seek injunctive
relief in any court and to litigate the issues relevant to such request for
injunctive relief before such court (i) to restrain the other party from
breaching this Agreement or (ii) for specific enforcement of this Article X. The
parties agree that any legal remedy available to a party with respect to a
breach of this Article X will not be adequate and that, in addition to all other
legal remedies, each party is entitled to an order specifically enforcing this
Article X.
Section 10.06 Selection of Arbitrators. The parties shall have 10 days from
the end of the mediation period to agree upon mutually acceptable neutral
persons not affiliated with either of the parties to act as arbitrators. If the
panel of arbitrators has not been selected within such time, the parties agree
jointly to request the Center for Public Resources or another mutually
agreed-upon organization to supply within 10 days a list of potential
arbitrators with qualifications as specified by the parties in the joint
request. Within five days of receipt of the list, the parties shall
independently rank the proposed candidates, shall simultaneously exchange
rankings, and shall select as the arbitrator the individual receiving the
highest combined ranking who is available to serve. Neither party nor the
arbitrators may disclose the existence or results of any arbitration under this
Agreement or any evidence presented during the course of arbitration without the
prior consent of both parties, except as required to fulfill applicable
disclosure and reporting requirements, or as otherwise required by law.
Section 10.07 Cost of Arbitration. Each party shall bear its own costs
incurred in the arbitration. If either party refuses to submit to arbitration
any dispute required to be submitted to arbitration pursuant to this Article X,
and instead commences any other proceeding, including litigation, then the party
who seeks enforcement of the obligation to arbitrate shall be entitled to its
attorneys' fees and costs incurred in any such proceeding.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Complete Agreement; Construction. This Agreement, including
the Schedules and Exhibits and other agreements and documents referred to
herein, shall constitute the entire agreement between the parties with respect
to the subject matter hereof and shall supersede all previous negotiations,
commitments and writings with respect to the subject matter.
Section 11.02 Survival of Agreements. Except as otherwise contemplated by
this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
Section 11.03 Expenses. All costs and expenses arising prior to the
Distribution Date (whether or not then payable) in connection with the
preparation, execution, delivery and implementation of this Agreement and with
the consummation of the transactions contemplated by this Agreement shall be
paid in accordance with Section 6.2 of the Merger Agreement.
Section 11.04 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota, without regard
to the principles of conflicts of laws thereof.
Section 11.05 Notices. All notices and other communications hereunder shall
be in writing and shall be delivered by hand or mailed by registered or
certified mail (return receipt requested) to the parties at the
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following addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which such
notice is received:
To NSU:
with a copy to:
To Spinco:
with a copy to:
Section 11.06 Amendments. This Agreement may not be modified or amended
except by an agreement in writing signed by the parties.
Section 11.07 Successors and Assigns. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
Section 11.08 Termination. This Agreement may be terminated and the
Distribution abandoned at any time prior to the Merger Effective Date by and in
the sole discretion of the NSU Board without the approval of Spinco or NSU's
shareholders. In the event of such termination, no party shall have any
liability of any kind to any other party.
Section 11.09 Subsidiaries. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any subsidiary of such party
which is contemplated to be a subsidiary of such party on and after the
Distribution Date.
Section 11.10 No Third Party Beneficiaries. Except for the provisions of
Article V relating to Indemnified Parties and as specified in Section 2.07, this
Agreement is solely for the benefit of the parties hereto and their respective
subsidiaries and Affiliates and should not be deemed to confer upon third
parties any remedy, claim, Liability, reimbursement, claim of action or other
right in excess of those existing without reference to this Agreement.
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Section 11.11 Titles and Headings. Titles and headings to sections herein
are inserted for the convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
Section 11.12 Exhibits and Schedules. The Exhibits and Schedules 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.
Section 11.13 Legal Enforceability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision or remedies otherwise available to any party
hereto. Without prejudice to any rights or remedies otherwise available to any
party hereto, each party hereto acknowledges that damages would be an inadequate
remedy for any breach of the provisions of this Agreement and agrees that the
obligations of the parties hereunder shall be specifically enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written
NORTH STAR UNIVERSAL, INC.
By
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Name
----------------------------------
Its
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NEW HOLDING COMPANY, INC.
By
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Name
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Its
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EXHIBIT D
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
NORTH STAR UNIVERSAL, INC.
We, the undersigned, respectively the President and Secretary of North Star
Universal, Inc., a corporation subject to the provisions of Minnesota Statutes
Chapter 302A., known as the Minnesota Business Corporation Act, do hereby
certify that at a meeting of the shareholders of said corporation duly called
and held at , at p.m. on , 1996,
pursuant to notice mailed to all shareholders entitled to vote thereon, the
following Amended and Restated Articles of Incorporation were adopted by a
majority vote of all of the shares of stock present at such meeting and entitled
to vote to supersede and take the place of the existing articles of
incorporation and all amendments and restatements thereto, to wit:
ARTICLE I.
NAME
The name of this corporation shall be Michael Foods, Inc.
ARTICLE II.
PURPOSE
This corporation shall have general business purposes.
ARTICLE III.
REGISTERED OFFICE
The registered office of this corporation shall be 324 Park National Bank
Building, 5353 Wayzata Boulevard, Minneapolis, Minnesota, 55416, County of
Hennepin.
ARTICLE IV.
CAPITAL STOCK
This corporation shall have authorized capital stock consisting of
50,000,000 shares, which shall be composed of 40,000,000 shares of common stock
having a par value of $.01 per share and 10,000,000 undesignated shares. Each
share of common stock shall be entitled to one vote on all matters presented to
the shareholders for a vote.
The Board of Directors may, from time to time, establish by resolution,
different classes or series of shares and may fix the rights and preferences of
said shares in any class or series. The Board of Directors shall have the
authority to issue shares of a class or series, shares of which may then be
outstanding to holders of shares of another class or to effectuate share
dividends, splits, or conversions of its outstanding shares.
ARTICLE V.
CERTAIN SHAREHOLDER RIGHTS
Shareholders shall have no preemptive rights to purchase, subscribe for or
otherwise acquire any new or additional securities of the corporation. No
shareholder shall be entitled to cumulative voting rights.
<PAGE> 165
ARTICLE VI.
DIRECTORS
1. The business of this corporation shall be managed by or under the
direction of a board of directors consisting of not less than three (3)
directors. Directors need not be shareholders of the corporation. The Board of
Directors in its discretion may elect honorary directors who shall serve without
voting power.
2. Directors shall be elected for a term of one (1) year and until their
successors are elected and qualified. If any vacancy occurs in the board of
directors, the remaining directors, by the affirmative vote of a majority
thereof, shall elect a director or directors to fill the vacancy until the next
regular meeting of the shareholders.
3. The directors shall have all of the powers conferred upon directors by
the Minnesota Business Corporation Act.
4. An action required or permitted to be taken by the board of directors of
this corporation may be taken by written action signed by the number of
directors that would be required to take the same action at a meeting of the
board at which all directors are present except as to those matters which
require shareholder approval, in which case the written action must be signed by
all members of the board of directors.
5. To the full extent permitted by the Minnesota Business Corporation Act,
as it exists on the date hereof or may hereafter be amended, a director of this
corporation shall not be liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director. No amendment to or
repeal of this section shall apply to or have any effect on the liability or
alleged liability of any director of the corporation for or with respect to acts
or omissions of such director occurring prior to such amendment or repeal.
ARTICLE VII.
INDEMNIFICATION
The corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(including an action by or in the right of the corporation) to the full extent
permitted by the Minnesota Business Corporation Act.
ARTICLE VIII.
The private property of the shareholders of this corporation shall not be
subject to the payment of corporate debts to any extent whatsoever.
IN TESTIMONY WHEREOF, we have hereunto set our hands this day of
, 1996.
--------------------------------------
GREGG A. OSTRANDER
President
--------------------------------------
JEFFREY M. SHAPIRO
Secretary
D-2
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<TABLE>
<S> <C> <C>
STATE OF MINNESOTA E
F ss.
COUNTY OF HENNEPIN H
</TABLE>
The foregoing instrument was acknowledged before me this day of
, 1996, by Gregg A. Ostrander and Jeffrey M. Shapiro, President and
Secretary respectively of North Star Universal, Inc., a Minnesota corporation,
on behalf of the Corporation.
--------------------------------------
Notary Public
D-3
<PAGE> 167
EXHIBIT E
FORM OF ORDERLY DISPOSITION AND
REGISTRATION RIGHTS AGREEMENT
ORDERLY DISPOSITION AND REGISTRATION RIGHTS AGREEMENT
This Agreement made and entered into this day of December, 1995, by
and between NORTH STAR UNIVERSAL, INC., a Minnesota corporation, which, upon the
effective date of the Merger defined in the first recital hereof, will be the
parent corporation to the surviving corporation resulting from the merger of
Merger Sub and Michael as described in the first recital hereof ("Michael
Minnesota)", and 4J2R1C, a Minnesota limited partnership, 3J2R, a Minnesota
limited partnership, JAMES H. MICHAEL and JEFFREY J. MICHAEL (such individuals
and partnerships, together with any immediate family members of such individuals
or any corporation, partnership of trust in which such individuals or their
immediate family members are the sole shareholders, partners or beneficiaries
thereof, to be hereinafter collectively referred to as the "Michael
Shareholders").
WITNESSETH:
WHEREAS, Michael Minnesota is a party to an Agreement and Plan of
Reorganization dated December , 1995 (the "Merger Agreement") providing for
the merger (the "Merger") of NSU Merger Co. ("Merger Sub"), a newly formed
Delaware corporation and wholly-owned subsidiary of Michael Minnesota, with and
into Michael Foods, Inc., a Delaware corporation ("Michael"), as the surviving
corporation; and
WHEREAS, under Section 6.16 of the Merger Agreement, Michael Minnesota
agreed to execute and deliver and to cause the Michael Shareholders to execute
and deliver this Orderly Disposition and Registration Rights Agreement.
NOW THEREFORE, IN CONSIDERATION of the premises and of the terms and
conditions hereinafter set forth, the parties agree as follows:
1. Definitions. Unless the context otherwise requires or unless otherwise
defined in this agreement, capitalized terms shall have the meanings ascribed to
them in the Merger Agreement. Any references to Michael Minnesota shall include
North Star Universal, Inc. and Michael Minnesota from and after the consummation
of the Merger and the change of its name to Michael Foods, Inc.
2. Actions Pending Effective Time. From the date of this Agreement until
the Effective Time, the Michael Shareholders, individually and collectively,
shall:
a. not sell or offer to sell, hypothecate or transfer any shares of Michael
Minnesota common stock, except that this limitation shall not apply to sales of
Michael Minnesota common stock made pursuant to Rule 144 of the Securities and
Exchange Commission (the "SEC"), or the pledge of Michael Minnesota common stock
to secure surety bonds for Michael-Curry Companies, Inc. or transfers of Michael
Minnesota common stock among Michael Shareholders;
b. vote in favor of the Merger, the Spinoff, the Reverse Stock Split and
the election of directors nominated by Michael Minnesota management at any
meeting of shareholders duly called and held for such purposes; and
c. prepare and file any pre-merger notification to the Federal Trade
Commission required in connection with the Merger under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 and the rules of the Federal Trade Commission
thereunder.
3. Restrictions Upon Disposition. For a period of twenty-four (24) months
following the Effective Date, the Michael Shareholders, individually or
collectively, shall not:
a. sell or offer to sell shares of common stock of Michael Minnesota
exceeding five percent (5%) of the then outstanding shares of common stock of
Michael Minnesota to any person or group in any single
<PAGE> 168
transaction or series of transactions without providing to Michael Minnesota the
first right to buy such shares as provided in Section 5 below;
b. sell or offer to sell any shares of common stock of Michael Minnesota to
any person or group which owns five percent (5%) or more of the outstanding
common stock of Michael Minnesota without providing to Michael Minnesota the
first right to buy such shares as provided in Section 5 below; or
c. pledge, hypothecate, or encumber any shares of Michael Minnesota owned
by any of the Michael Shareholders except to secure surety bonds obtained by
Michael-Curry Companies, Inc.
For purposes of this agreement, the term "group" shall mean any two or more
persons who agree to act together for the purpose of acquiring, holding, voting
or disposing of common stock of Michael Minnesota.
4. Shares Covered. This agreement shall apply to all shares of common stock
of Michael Minnesota which are owned by the Michael Shareholders at the date of
this agreement or which are acquired by the Michael Shareholders prior to the
Effective Date or as a result of the Merger, but shall not apply to any shares
of common stock of Michael Minnesota which are purchased or otherwise acquired
by any of the Michael Shareholders subsequent to the Effective Date unless such
shares were subject to this agreement at the time they were so acquired by a
Michael Shareholder.
5. Option to Purchase. Upon the occurrence of any of the events described
in Section 3(a) or (b), the Michael Shareholders or Shareholder proposing to
sell or offer shares of common stock of Michael Minnesota shall provide written
notice thereof to Michael Minnesota and shall offer to Michael Minnesota the
right to purchase such shares. The notice shall state the number of shares
offered and the price per share and any other conditions of the proposed sale or
offer and shall include a copy of any written document setting forth the terms
of the proposed sale or offer between the Michael Shareholders and the purchaser
or offeree. Michael Minnesota shall have twenty (20) days from its receipt of
such notice within which to purchase the shares so offered. In the event Michael
Minnesota does not complete the purchase within such twenty (20) day period, the
Michael Shareholders or Shareholder sending the notice shall be permitted for a
period of thirty (30) days thereafter to sell Michael Minnesota shares equal in
number to the shares offered in such notice free of any restrictions of this
agreement at a price no less than the purchase price per share set forth in such
notice and under terms and conditions no more favorable to the purchaser than
the terms and conditions offered to Michael Minnesota in such notice.
6. Tender Offer. The restrictions set forth in Section 3 and the option to
purchase granted to Michael Minnesota in Section 5 shall not apply if a tender
offer is made for all or substantially all of the outstanding Michael Minnesota
common stock and the management of Michael Minnesota does not, within seven (7)
days of the commencement of such tender offer, announce its opposition to the
tender offer. Notwithstanding the foregoing, the following additional terms and
conditions shall apply in the event of a tender offer:
a. In the event that one or more of the Michael Shareholders has offered
shares to Michael Minnesota pursuant to Section 5 hereof and, prior to
acceptance of such offer by Michael Minnesota, a tender offer is made for all or
substantially all of the outstanding Michael Minnesota common stock, Michael
Minnesota shall, within twenty (20) days of the date such Michael Shareholder(s)
have made such offer, have the right to acquire the shares offered by such
Michael Shareholder(s) at the higher of the price offered by the Michael
Shareholder(s) or the tender offer price, regardless of whether Michael
Minnesota's management has announced it opposition to such tender offer.
b. In the event that one or more of the Michael Shareholders has offered
shares to Michael Minnesota pursuant to Section 5 hereof and, following
acceptance of such offer by Michael Minnesota but prior to the closing of such
transaction, either a tender offer is made for all or substantially all of the
outstanding Michael Minnesota common stock or the management of Michael
Minnesota rescinds an earlier opposition to such a tender offer, Michael
Minnesota shall have the option of (a) rescinding its agreement to purchase the
shares from such Michael Shareholder(s) within two (2) days of the commencement
of such tender offer or its announcement of its rescindment of its opposition to
the tender offer; or (b) acquiring such shares at the higher of the price
offered by such Michael Shareholder(s) at the tender offer price.
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<PAGE> 169
7. Legend. Each of the Michael Shareholders shall forthwith deliver to the
secretary of Michael Minnesota all certificates representing shares of common
stock of Michael Minnesota which are subject to this agreement for the purpose
of placing thereon the following legend:
"The shares represented by this certificate are subject to certain
restrictions on the transfer, sale or other disposition of the shares
pursuant to an agreement dated , 1995 between the issuer and
the registered owner hereof, a copy of which may be obtained from the
secretary of the corporation."
The secretary shall promptly return the legended certificates to the Michael
Shareholders.
8. Directors. For a period of twenty-four (24) months following the
Effective Date, the Board of Directors of Michael Minnesota shall include
representatives of the Michael Shareholders as provided below. The first board
of directors of Michael Minnesota at the Effective Date shall include Jeffrey J.
Michael and Miles E. Efron or other substitute nominees of the Michael
Shareholders if either of them are unable or unwilling to serve as
representatives of the Michael Shareholders. Within thirty (30) days following
the end of each calendar year after the Effective Date and within the
twenty-four (24) months following the Effective Date, the Michael Shareholders
shall give notice to Michael Minnesota of their nominee or nominees for Board of
Directors. If the Michael Shareholders collectively own 10% or more of the
outstanding common stock of Michael Minnesota, they shall be entitled to
nominate two (2) directors. If the Michael Shareholders own less than 10% of the
outstanding common stock of Michael Minnesota, they shall be entitled to
nominate one (1) director. Notice hereunder shall be given by Jeffrey J.
Michael, as representative of all the Michael Shareholders.
9. Registration Rights.
a. Piggyback Rights. If at any time within twenty-four (24) months
following the Effective Date, Michael Minnesota proposes to register common
stock under the Securities Act of 1933, as amended (the "Securities Act") in
connection with a public offering of common stock for its own account solely for
cash (other than a registration on form S-4 or S-8 or any successor form
thereof) in a manner that would permit registration of all or a portion of the
Michael Minnesota common stock owned by the Michael Shareholders, it will give
prompt notice thereof to the Michael Shareholders. Upon written notice of any
Michael Shareholders to Michael Minnesota received within fifteen (15) days
after delivery of notice of the proposed offering by Michael Minnesota, Michael
Minnesota will use its best efforts to effect the registration of the Michael
Minnesota shares covered by such notice under the Securities Act; provided,
however, that Michael Minnesota shall have the right to abandon the registration
in its entirety at any time and shall not be required to register shares of the
Michael Shareholders if the underwriters in any underwritten offering reasonably
object to the inclusion of such shares in the registration, and provided
further, that in any underwritten offering, the Michael Shareholders
participating in the registration agree to sell their shares to the underwriters
on the same terms and conditions as apply to Michael Minnesota, with such
differences as customarily apply in combined primary and secondary offerings.
b. Requested Registration. If, at any time commencing on the Effective Date
and continuing for a period of twenty-four (24) months thereafter, Michael
Minnesota shall receive a written request from one or more Michael Shareholders
that Michael Minnesota effect the registration under the Securities Act of all
or a part of such Michael Shareholder's(') shares of Michael Minnesota common
stock constituting in the aggregate at least 500,000 shares (such number of
shares to be adjusted to reflect any stock split, stock dividend or other
combination or reclassification of Michael Minnesota's capital stock after the
Effective Date) and requesting that such shares be sold in a registered public
offering in accordance with this Section 9, then Michael Minnesota will, within
ten (10) days after receipt thereof, give notice to all other Michael
Shareholders of the receipt of such request and each such holder may elect by
written notice received by Michael Minnesota within ten (10) days from the date
of the notice by Michael Foods to have all or part of his shares of Michael
Minnesota common stock included in such registration; provided, however, that
the Michael Shareholders collectively shall only have the right to cause Michael
Minnesota to effect a registration pursuant to this section on two occasions
during such twenty-four (24) month period. Upon receipt of such notice, Michael
Minnesota will, as soon as practicable, use reasonable efforts to effect the
registration under the Securities Act of all registrable securities which it has
been so requested to register and provided further, that Michael
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Minnesota: (i) shall not be obligated to cause any special audit to be
undertaken in connection with any such registration; (ii) shall be entitled to
postpone for a reasonable period of time, but not in excess of one hundred
twenty (120) days, the filing of any registration statement otherwise required
to be prepared pursuant to this section if Michael Minnesota is, at such time,
conducting or about to conduct an underwritten public offering of equity
securities (or securities convertible into equity securities) and is advised in
writing by its managing underwriter that such offer would, in its opinion, be
adversely effected by the registration so requested; and (iii) shall be entitled
to postpone such requested registration for up to 120 days if Michael Minnesota
determines, in view of the advisability of deferring public disclosure of
material corporate developments or other information, that such registration and
the disclosure required to be made pursuant thereto would not be in the best
interest of Michael Minnesota at such time.
c. Form of Requested Registration. All registrations proposed to be
effected under this Section shall be made on Form S-3 unless the registration
shall be in connection with underwritten public offering and the managing
underwriter shall advise Michael Minnesota in writing that, in its opinion, the
use of another form of registration statement is of material importance to the
success of such proposed offering. In such case, the registration shall be
effected on such other form. During the term of this agreement, Michael
Minnesota shall take all such reasonable actions as may be necessary to maintain
its eligibility to use such form(s).
d. Expenses. In connection with any registration statement pursuant to this
section and whether or not the sale of the shares is consummated, each selling
Michael Shareholder will pay: (i) a pro rata portion of the aggregate
registration expenses and other expenses incurred by Michael Minnesota in
connection with the registration of the sale of the shares and the sale of the
shares offered based on the number of such Michael Shareholder's(') registrable
securities included in the registration statement at the time the registration
statement is filed with the SEC relative to the total number of securities
covered by such registration statement at such time, (ii) a pro rata portion
(based on the number of such Michael Shareholder's registrable securities
included in the registration statement at the time the registration statement is
filed with the SEC relative to the total number of securities covered by such
registration statement at such time) of the aggregate fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, including
liability insurance if Michael Minnesota so desires or if the underwriters so
require, and the reasonable fees and expenses of any special experts retained in
connection with the requested registration; (iii) the fees and disbursements of
counsel to Michael Shareholder(s); and (iv) all underwriting discounts and
commissions and transfer taxes, if any, applicable to shares of registrable
securities to be sold on behalf of Michael Shareholder(s). All such amounts
shall be due and payable at the request of Michael Minnesota at the closing of
any underwritten offering, the effective date of the registration statement in
the case of a non-underwritten offering or upon abandonment of the registration.
e. Completion. A registration requested pursuant to this section will not
be deemed to have been effected unless it has become effective under the
Securities Act, provided that, if within 180 days after it has become effective
the offering of registrable securities pursuant to such registration is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court, such registration will be deemed
not to have been effected.
f. Selection of Underwriter and Investment Manager. If a requested
registration pursuant to this section involves an underwritten offering, Michael
Minnesota shall have the exclusive right to select an investment banker or
bankers and managers to administer the offering. The offer or sale of Michael
Minnesota shares to an underwriter in a registered public offering shall not
constitute a sale or offer to sell the shares for purposes of Section 3(a) or
3(b).
g. Registration. If and whenever Michael Minnesota is required to use its
reasonable efforts to cause the registration of any registrable securities under
the Securities Act as provided in this agreement, Michael Minnesota will, as
expeditiously as reasonably possible: (i) prepare and file with the SEC a
registration statement with respect to such registrable securities and use its
best efforts to cause such registration statement to become effective and, upon
the request of the holders of a majority of the registrable securities
registered by the Michael Shareholder(s) hereunder, keep such registration
statement effective for one hundred eighty (180) days; (ii) prepare and file
with the SEC such amendments and supplements to such
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<PAGE> 171
registration statement and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement; (iii)
furnish to each Michael Shareholder seeking registration hereunder such number
of copies of the prospectus included in such registration statement (including
each preliminary prospectus and summary prospectus), and such other documents as
each such Michael Shareholder may reasonably request in order to facilitate the
disposition of the registrable securities by such seller but only while it shall
be required under the provisions hereof to cause the registration statement to
remain current; (iv) use its reasonable efforts to register or qualify such
registrable securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as the sellers shall
reasonably request, except that Michael Minnesota shall not, for any purpose, be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this clause, it would not be
obligated to be so qualified, to subject itself to taxation in any such
jurisdiction, or consent to general service of process in any such jurisdiction;
(v) use its reasonable efforts to list the securities being registered on the
National Association of Securities Dealers, Inc. National Market System
("NASDAQ-NMS"), if such registrable securities are not already so listed.
h. Information. Michael Minnesota may require each selling Michael
Shareholder to furnish it with such information regarding such selling Michael
Shareholder and pertinent to the disclosure requirements relating to the
registration and the distribution of such securities as Michael Minnesota may
from time to time reasonably request in writing.
i. Underwriting Agreement. The selling Michael Shareholders shall execute
and deliver an underwriting agreement in customary form in connection with any
underwritten offering made pursuant to a registration hereunder.
10. Indemnification and Contribution. As a condition to the registration of
registrable securities of the Michael Shareholders pursuant to this agreement,
Michael Minnesota may require the selling Michael Shareholders to enter into an
Indemnification and Contribution Agreement with respect to claims or liabilities
arising under the Securities Act or the Securities Exchange Act of 1934 as a
result of the representations and warranties made by the selling Michael
Shareholder(s) in connection with their offer or sale of the registrable
securities. Such agreement shall be in customary form and shall contain mutual
cross indemnity and contribution provisions.
11. General Provisions.
a. Governing Law. This agreement shall be governed by and interpreted and
enforced in accordance with the laws of the State of Minnesota without giving
effect to any conflicts of law provisions.
b. Remedies. Michael Minnesota, on the one hand, and the Michael
Shareholders, on the other, acknowledges and agrees that the other would not
have an adequate remedy at law for money damages in the event that any of the
covenants or agreements in this agreement of such party were not performed in
accordance with its terms, and it is therefore agreed that in addition to and
without limiting any other remedy or right such party may have, any party will
have the right to an injunction or other equitable relief (including specific
performance) in any court of competent jurisdiction, enjoining any such breach
and enforcing specifically the terms and provisions hereof. All rights, powers
and remedies provided under this agreement or otherwise available in respect
hereof at law or in equity shall be cumulative and not alternative.
Notwithstanding the foregoing, Michael Minnesota hereby acknowledges and agrees
that, from the date hereof until and including the Effective Date, it shall not
be entitled hereunder to any claim for money damages against the Michael
Shareholder, it being the intention of the parties hereto that any claim for
damages arising out of a failure of the Merger to become effective shall be
limited to the damages specified in Section 8.2(a) of the Merger Agreement,
which such damages shall be payable by North Star Universal, Inc., a Minnesota
corporation which is a constituent party to the proposed Merger.
c. Notices. All notices, demands, requests, certificates or other
communications under this Agreement and all legal processes in regard hereto
shall be in writing and shall be decreed to be validly given, made or served
when delivered personally or deposited in the U.S. mail, postage prepaid, for
delivery by express,
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<PAGE> 172
registered or certified mail, or delivered to a recognized overnight courier
service guaranteeing next Business Day delivery, addressed as follows:
If to North Star Universal, Inc.: Michael Foods, Inc.
5353 Wayzata Boulevard
324 Park National Bank Building
Minneapolis, Minnesota 55416
Attention: President
If to the Michael Shareholders: Jeffrey J. Michael
5745 Seven Oaks Court
Minnetonka, Minnesota 55345
d. Severability. If any term, provision, covenant or restriction of this
agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The parties agree that they will use their
best efforts at all times to support and defend this agreement.
e. Amendments. This agreement may be amended only by an agreement in
writing signed by all of the parties hereto.
f. Descriptive Headings. Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of any provision of this
agreement.
g. Counterparts. This agreement shall become binding when one or more
counterparts hereof, individually or taken together, bears the signatures of
each of the parties hereto. This agreement may be executed in any number of
counterparts, each of which shall be an original as against the party whose
signature appears thereon, or on whose behalf such counterpart is executed, but
all of which when taken together shall be one and the same statement.
h. Successors and Assigns. This agreement shall be binding upon and inure
to the benefit of and be enforceable by the successors and assigns of the
parties hereto, provided that a Michael Shareholder may not assign any of his
rights or obligations hereunder to any person without the prior written consent
of Michael Minnesota. Notwithstanding the foregoing, the consent of Michael
Minnesota shall not be required in connection with the assignment of this
agreement to the estate of a Michael Shareholder.
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<PAGE> 173
IN WITNESS WHEREOF, the parties hereto intending to be legally bound have
duly executed this agreement, all as of the day and year first above written.
NORTH STAR UNIVERSAL, INC.
By: /s/ JEFFREY J. MICHAEL
--------------------------------------
Its: President and Chief Executive
Officer
--------------------------------------
4J2R1C, A LIMITED PARTNERSHIP
By: /s/ JEFFREY J. MICHAEL
------------------------------------
A General Partner
3J2R, A LIMITED PARTNERSHIP
By: /s/ JEFFREY J. MICHAEL
------------------------------------
A General Partner
/s/ JAMES H. MICHAEL
--------------------------------------
JAMES H. MICHAEL
/s/ JEFFREY J. MICHAEL
--------------------------------------
JEFFREY J. MICHAEL
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APPENDIX II
OPINION OF PIPER JAFFRAY INC.
<PAGE> 175
----------------------
PIPER JAFFRAY
COMPANIES
Piper Jaffray Companies
Inc.
222 South Ninth Street
Minneapolis, MN
55402-3804
612 342-6000
November 22, 1996
Board of Directors
Michael Foods, Inc.
324 Park National Bank Building
5353 Wayzata Boulevard
Minneapolis, MN 55416
Members of the Board:
This letter relates to the proposed merger of Michael Foods, Inc. ("Michael
Foods") and a newly formed merger subsidiary ("Merger Sub") of North Star
Universal, Inc. ("NSU") (the "Merger") pursuant to the Agreement and Plan of
Reorganization, as amended, by and between Michael Foods, NSU and Merger Sub
(the "Agreement"). Prior to the Merger, NSU will transfer to a subsidiary
("Spinco") all assets (other than its shares of Michael Foods and other mutually
agreed assets) and liabilities (other than $15 to $29 million of net debt (the
"Debt")) of NSU and will then spin off the shares of Spinco on a pro rata basis
to the NSU shareholders before the Merger. In connection with the Merger, NSU
shareholders will receive their pro rata share of Michael Foods stock owned by
NSU before the Merger after a portion of those shares are repurchased by Michael
Foods. The amount of shares repurchased will be equal to the amount of Debt
assumed by Michael Foods in the Merger divided by the product of the Discount
Factor (as defined in the Agreement) times the average price of Michael Foods
common stock during the twenty trading days ending the third trading day
immediately preceding the effective date of the Merger. It is our understanding,
and for purposes of this opinion we have assumed, that the Debt shall not be
less than $15,000,000 nor more than $29,000,000 and that NSU will have no
liabilities following the Merger other than liabilities assumed from Michael
Foods, the NSU Retained Liabilities (as defined in the Agreement) and
liabilities which are fully indemnified against by Spinco. In connection with
the Merger, all shares of Michael Foods common stock held by shareholders other
than NSU will be exchanged for NSU common stock. You have requested our opinion
as to the fairness to Michael Foods, from a financial point of view, of the
effective price per share that Michael Foods is paying NSU in the form of Debt
assumed (the "Consideration") for the shares of Michael Foods common stock that
it is repurchasing from NSU, and the exchange of Michael Foods common stock for
NSU common stock.
Piper Jaffray Inc. ("Piper Jaffray"), as a customary part of its investment
banking business, is engaged in the valuation of businesses and their securities
in connection with mergers and acquisitions, underwritings and secondary
distributions of securities, private placements, and valuations for estate,
corporate and other purposes. Piper Jaffray makes a market in the Common Stock
of Michael Foods and also provides research coverage for Michael Foods. We acted
as comanager of public offerings of Michael Foods common stock in 1987, 1988 and
1991 and an offering of senior notes in 1989. For our services in rendering this
opinion, Michael Foods will pay us a fee and indemnify us against certain
liabilities. The fee is not contingent upon the consummation of the Merger.
<PAGE> 176
In arriving at our opinion, we have undertaken such reviews, analyses and
inquiries as we deemed necessary and appropriate under the circumstances. Among
other things, we have:
1. Reviewed the Agreement and Plan of Reorganization by and between
Michael Foods, NSU and Merger Sub dated December 21, 1995 as amended
September 27, 1996.
2. Reviewed the annual reports, Form 10-K's and audited financial
statements for Michael Foods for the three years ended December 31, 1995.
3. Reviewed the Form 10-Q's for Michael Foods for the quarters ended
March 31, June 30 and September 30, 1996.
4. Reviewed the annual reports, Form 10-K's and audited financial
statements for NSU for the three years ended December 31, 1995.
5. Reviewed the Form 10-Q's for NSU for the quarters ended March 31,
June 30 and September 30, 1996.
6. Reviewed two-year financial forecasts for Michael Foods furnished by
Michael Foods management.
7. Conducted discussions with members of senior management of Michael
Foods, including the President and Chief Executive Officer, Chief Financial
Officer and Executive Vice President and Assistant Treasurer. Topics
discussed included, but were not limited to, the background and rationale
for the proposed Merger, the financial condition, operating performance,
balance sheet characteristics and prospects of Michael Foods business
independently and the financial and operating prospects for the combined
company after consummation of the proposed Merger.
8. Conducted discussions with members of senior management of NSU,
including the Chief Financial Officer. Topics discussed included, but were
not limited to, the background and rationale of the proposed Merger, the
financial condition, operating performance, and the balance sheet
characteristics of NSU and the prospects for the combined company after
consummation of the proposed Merger.
9. Reviewed the historical prices and trading activity for Michael Foods
common stock and NSU common stock.
10. Reviewed the financial terms, to the extent publicly available, of
certain comparable transactions which we deemed relevant.
11. Considered the proforma effect of the proposed Merger on Michael
Foods earnings per share for the two fiscal years ending December 31, 1998.
12. Compared certain financial and securities data of Michael Foods
with certain financial and securities data of companies deemed similar to
Michael Foods or representative of the business sector in which Michael
Foods operates.
13. Reviewed such other financial data, performed such other analyses
and considered such other information as we deemed necessary and
appropriate under the circumstances.
We have relied upon and assumed the accuracy and completeness of the
financial statements and other information provided by Michael Foods, NSU or
otherwise made available to us and have not attempted independently to verify
such information. We have further relied upon the assurances of Michael Foods'
management that the information provided pertaining to Michael Foods has been
prepared on a reasonable basis and, with respect to financial planning data,
reflects the best currently available estimates and that they are not aware of
any information or facts that would make the information provided to us
incomplete or misleading. In that regard, we have assumed with your consent that
any projections or forecasts, reflect best currently available estimates and
judgments of the Michael Foods management, and that such projections and
forecasts will be realized in the amounts and in the time periods currently
estimated by the management of Michael Foods. For the purpose of this opinion,
we have assumed that neither Michael Foods nor NSU is a party to any pending
transaction (including Michael's pending transaction with Papetti's, any effect
of which
II-2
<PAGE> 177
has been excluded from our opinion), including external financing,
recapitalizations, acquisitions or merger discussions, other than the Merger or
in the ordinary course of business. We have also assumed, with your consent,
that the Merger will qualify as a tax-free exchange.
In arriving at our opinion, we have not performed any appraisals or
valuations of specific assets of Michael Foods or NSU and express no opinion
regarding the liquidation value of Michael Foods or NSU. Our opinion is
necessarily based upon information available to us, facts and circumstances and
economic, market and other conditions as they exist and are subject to
evaluation on the date hereof; events occurring after the date hereof could
materially affect the assumptions used in preparing this opinion. We have not
undertaken to reaffirm or revise this opinion or otherwise comment upon any
events occurring after the date hereof. We express no opinion herein as to the
prices at which shares of Michael Foods common stock may trade at any future
time.
This opinion shall not be published or otherwise used, nor shall any public
references to Piper Jaffray be made without our written consent, except for
inclusion in the full proxy/prospectus to be sent to all stockholders of Michael
Foods and NSU and in any filings or disclosures required by law. This opinion is
not intended to be and does not constitute a recommendation to any stockholder
as to how such stockholder should vote with respect to the Merger. In connection
with this opinion, we were not requested to opine as to, and this opinion does
not address, the merits of the basic business decision to proceed with or effect
the Merger.
Based upon and subject to the foregoing and based upon such other factors
as we consider relevant, it is our opinion that the Consideration for the
repurchase of the Michael Foods common stock and the exchange of Michael Foods
common stock for NSU common stock is fair, from a financial point of view, to
Michael Foods.
Sincerely,
/s/ PIPER JAFFRAY INC.
II-3
<PAGE> 178
APPENDIX III
OPINION OF
GOLDSMITH, AGIO, HELMS SECURITIES INC.
<PAGE> 179
GOLDSMITH, AGIO, HELMS AND COMPANY
Private Investment Bankers
FIRST BANK PLACE THE FORTY-SIXTH FLOOR
TEL 612 339 0500 FAX 612 339 0507
601 Second Avenue South, Minneapolis, Minnesota 55402
NOVEMBER 22, 1996
PERSONAL AND CONFIDENTIAL
Board of Directors
NORTH STAR UNIVERSAL, INC.
5353 Wayzata Boulevard -- Suite 610
Minneapolis, MN 55416-1370
RE: Fairness Opinion
Gentlemen:
In connection with the proposed transaction (the "Reorganization"),
consisting of the Merger together with the Distribution as defined below,
whereby Michael Foods, Inc. ("Michael") will merge (the "Merger") into a newly
organized subsidiary of North Star Universal, Inc. ("NSU"), immediately before
the distribution (the "Distribution") to NSU's shareholders, as constituted
prior to the merger (the "Current Shareholders"), of all of the outstanding
shares of second newly organized subsidiary of NSU ("ENStar"), you have
requested our opinion ("Opinion") as to the fairness, from a financial point of
view, of the Reorganization to NSU's Current Shareholders.
As a customary part of its investment banking business, Goldsmith, Agio,
Helms Securities, Inc. ("GAHS") is engaged in the valuation of businesses and
securities in connection with mergers and acquisitions, private placements, and
valuations for estate, corporate, and other purposes. GAHS does not make a
market for NSU's common stock. GAHS is a party to a separate engagement
agreement with NSU whereby GAHS is providing advisory services to NSU with
respect to the Reorganization, pursuant to which GAHS contingent on consummation
of the Reorganization. In return for GAHS' services in connection with providing
this Opinion, NSU will pay GAHS a fee of $100,000, twenty-five percent of which
fee is not contingent upon the consummation of the Reorganization, with the
balance payable to GAHS upon closing of the Reorganization. In addition, NSU
will indemnify GAHS against certain liabilities.
In arriving at our opinion, we have undertaken such reviews, analyses and
inquiries as we deemed necessary and appropriate under the circumstances. Among
other things, we have reviewed the Merger Agreement, as amended, the
Distribution Agreement, and financial and other information relating to NSU and
Michael. We reviewed the reported price and trading activity of the common stock
of NSU and of Michael. We compared certain financial and stock market
information with respect to NSU and Michael with similar information for certain
other companies, the securities of which are publicly traded. We have made
inquiries of NSU's management as to NSU's financial condition, operating
results, business outlook, plans and opportunities.
We have relied upon and assume the accuracy, completeness, and fairness of
the financial statements and other information of NSU, and have not attempted
independently to verify such information. We have further relied upon assurances
by NSU that the information provided to us has a reasonable basis, and with
respect to projections and other business outlook information, reflects the best
currently available estimates, and that NSU is not aware of any information or
fact that would make the information provided to us incomplete or misleading.
Our Opinion is not based on any specific appraisal of the liquidation value of
NSU, or any of its assets, or of ENStar. We are not expressing any Opinion as to
the prices at which shares of common stock of
III-1
<PAGE> 180
ENStar or NSU or Michael will trade subsequent to the date of the
Reorganization. Our Opinion is based upon the information available to us and
the facts and circumstances as they exist and are subject to evaluation on the
date hereof; events occurring after the date hereof could materially affect the
assumptions used in preparing this Opinion. We did not actively solicit
indications of interest or value from any third parties for NSU or any of its
assets, and we did not solicit indications of interest or value from any third
parties for Michael. We were not requested to opine, and do not opine, in any
way concerning other transactions or agreements entered into in conjunction with
the Reorganization.
Based upon and subject to the foregoing, and based upon such other facts as
we consider relevant, it is our opinion that, as of the date hereof, the
Reorganization is fair to NSU's Current Shareholders from a financial point of
view.
Sincerely,
/s/ Goldsmith, Agio, Helms Securities
Inc.
III-2
<PAGE> 181
APPENDIX IV
EXCERPT FROM
THE MINNESOTA BUSINESS CORPORATION ACT
REGARDING DISSENTERS' RIGHTS
<PAGE> 182
SECTIONS 302A.471 AND 302A.473 OF THE MINNESOTA BUSINESS CORPORATION ACT-
DISSENTERS' RIGHTS
302A.471. RIGHTS OF DISSENTING SHAREHOLDERS
SUBDIVISION 1. ACTIONS CREATING RIGHTS. A shareholder of a corporation may
dissent from, and obtain payment for the fair value of the shareholder's shares
in the event of, any of the following corporate actions:
(a) An amendment of the articles that materially and adversely affects the
rights or preferences of the shares of the dissenting shareholder in that it:
(1) alters or abolishes a preferential right of the shares;
(2) creates, alters, or abolishes a right in respect of the redemption
of the shares, including a provision respecting a sinking fund for the
redemption or repurchase of the shares;
(3) alters or abolishes a preemptive right of the holder of the shares
to acquire shares, securities other than shares, or rights to purchase
shares or securities other than shares;
(4) excludes or limits the right of a shareholder to vote on a matter,
or to cumulate votes, except as the right may be excluded or limited
through the authorization or issuance of securities of an existing or new
class or series with similar or different voting rights; except that an
amendment to the articles of an issuing public corporation that provides
that section 302A.671 does not apply to a control share acquisition does
not give rise to the right to obtain payment under this section;
(b) A sale, lease, transfer, or other disposition of all or substantially
all of the property and assets of the corporation, but not including a
transaction permitted without shareholder approval in section 302A.661,
subdivision 1, or a disposition in dissolution described in section 302A.725,
subdivision 2, or a disposition pursuant to an order of a court, or a
disposition for cash on terms requiring that all or substantially all of the net
proceeds of disposition be distributed to the shareholders in accordance with
their respective interests within one year after the date of disposition;
(c) A plan of merger, whether under this chapter or under chapter 322B, to
which the corporation is a party, except as provided in subdivision 3;
(d) A plan of exchange, whether under this chapter or under chapter 322B,
to which the corporation is a party as the corporation whose shares will be
acquired by the acquiring corporation, if the shares of the shareholder are
entitled to be voted on the plan; or
(e) Any other corporate action taken pursuant to a shareholder vote with
respect to which the articles, the bylaws, or a resolution approved by the board
directs that dissenting shareholders may obtain payment for their shares.
SUBD. 2. BENEFICIAL OWNERS. (a) A shareholder shall not assert dissenters'
rights as to less than all of the shares registered in the name of the
shareholder, unless the shareholder dissents with respect to all the shares that
are beneficially owned by another person but registered in the name of the
shareholder and discloses the name and address of each beneficial owner on whose
behalf the shareholder dissents. In that event, the rights of the dissenter
shall be determined as if the shares as to which the shareholder has dissented
and the other shares were registered in the names of different shareholders.
(b) The beneficial owner of shares who is not the shareholder may assert
dissenters' rights with respect to shares held on behalf of the beneficial
owner, and shall be treated as a dissenting shareholder under the terms of this
section and section 302A.473, if the beneficial owner submits to the corporation
at the time of or before the assertion of the rights a written consent of the
shareholder.
SUBD. 3. RIGHTS NOT TO APPLY. Unless the articles, the bylaws, or a
resolution approved by the board otherwise provide, the right to obtain payment
under this section does not apply to a shareholder of the surviving corporation
in a merger, if the shares of the shareholder are not entitled to be voted on
the merger.
IV-1
<PAGE> 183
SUBD. 4. OTHER RIGHTS. The shareholders of a corporation who have a right
under this section to obtain payment for their shares do not have a right at law
or in equity to have a corporate action described in subdivision 1 set aside or
rescinded, except when the corporate action is fraudulent with regard to the
complaining shareholder or the corporation.
302A.473. PROCEDURES FOR ASSERTING DISSENTERS' RIGHTS
SUBDIVISION 1. DEFINITIONS. (a) For purposes of this section, the terms
defined in this subdivision have the meanings given them.
(b) "Corporation" means the issuer of the shares held by a dissenter before
the corporate action referred to in section 302A.471, subdivision 1 or the
successor by merger of that issuer.
(c) "Fair value of the shares" means the value of the shares of a
corporation immediately before the effective date of the corporate action
referred to in section 302A.471, subdivision 1.
(d) "Interest" means interest commencing five days after the effective date
of the corporate action referred to in section 302A.471, subdivision 1, up to
and including the date of payment, calculated at the rate provided in section
549.09 for interest on verdicts and judgments.
SUBD. 2. NOTICE OF ACTION. If a corporation calls a shareholder meeting at
which any action described in section 302A.471, subdivision 1 is to be voted
upon, the notice of the meeting shall inform each shareholder of the right to
dissent and shall include a copy of section 302A.471 and this section and a
brief description of the procedure to be followed under these sections.
SUBD. 3. NOTICE OF DISSENT. If the proposed action must be approved by the
shareholders, a shareholder who wishes to exercise dissenters' rights must file
with the corporation before the vote on the proposed action a written notice of
intent to demand the fair value of the shares owned by the shareholder and must
not vote the shares in favor of the proposed action.
SUBD. 4. NOTICE OF PROCEDURE; DEPOSIT OF SHARES. (a) After the proposed
action has been approved by the board and, if necessary, the shareholders, the
corporation shall send to all shareholders who have complied with subdivision 3
and to all shareholders entitled to dissent if no shareholder vote was required,
a notice that contains:
(1) The address to which a demand for payment and certificates of
certificated shares must be sent in order to obtain payment and the date by
which they must be received;
(2) Any restrictions on transfer of uncertificated shares that will
apply after the demand for payment is received;
(3) A form to be used to certify the date on which the shareholder, or
the beneficial owner on whose behalf the shareholder dissents, acquired the
shares or an interest in them and to demand payment; and
(4) A copy of section 302A.471 and this section and a brief
description of the procedures to be followed under these sections.
(b) In order to receive the fair value of the shares, a dissenting
shareholder must demand payment and deposit certificated shares or comply with
any restrictions on transfer of uncertificated shares within 30 days after the
notice required by paragraph (a) was given, but the dissenter retains all other
rights of a shareholder until the proposed action takes effect.
SUBD. 5. PAYMENT; RETURN OF SHARES. (a) After the corporate action takes
effect, or after the corporation receives a valid demand for payment, whichever
is later, the corporation shall remit to each dissenting shareholder who has
complied with subdivisions 3 and 4 the amount the corporation estimates to be
the fair value of the shares, plus interest, accompanied by:
(1) The corporation's closing balance sheet and statement of income
for a fiscal year ending not more than 16 months before the effective date
of the corporate action, together With the latest available interim
financial statements;
IV-2
<PAGE> 184
(2) An estimate by the corporation of the fair value of the shares and
a brief description of the method used to reach the estimate; and
(3) A copy of section 302A.471 and this section, and a brief
description of the procedure to be followed in demanding supplemental
payment.
(b) The corporation may withhold the remittance described in paragraph (a)
from a person who was not a shareholder on the date the action dissented from
was first announced to the public or who is dissenting on behalf of a person who
was not a beneficial owner on that date. If the dissenter has complied with
subdivisions 3 and 4, the corporation shall forward to the dissenter the
materials described in paragraph (a) a statement of the reason for withholding
the remittance, and an offer to pay to the dissenter the amount listed in the
materials if the dissenter agrees to accept that amount in full satisfaction.
The dissenter may decline the offer and demand payment under subdivision 6.
Failure to do so entitles the dissenter only to the amount offered. If the
dissenter makes demand, subdivisions 7 and 8 apply.
(c) If the corporation fails to remit payment within 60 days of the deposit
of certificates or the imposition of transfer restrictions on uncertificated
shares, it shall return all deposited certificates and cancel all transfer
restrictions. However, the corporation may again give notice under subdivision 4
and require deposit or restrict transfer at a later time.
SUBD. 6. SUPPLEMENTAL PAYMENT; DEMAND. If a dissenter believes that the
amount remitted under subdivision 5 is less than the fair value of the shares
plus interest, the dissenter may give written notice to the corporation of the
dissenter's own estimate of the fair value of the shares, plus interest, within
30 days after the corporation mails the remittance under subdivision 5, and
demand payment of the difference. Otherwise, a dissenter is entitled only to the
amount remitted by the corporation.
SUBD. 7. PETITION; DETERMINATION. If the corporation receives a demand
under subdivision 6, it shall, within 60 days after receiving the demand, either
pay to the dissenter the amount demanded or agreed to by the dissenter after
discussion with the corporation or file in court a petition requesting that the
court determine the fair value of the shares, plus interest. The petition shall
be filed in the county in which the registered office of the corporation is
located, except that a surviving foreign corporation that receives a demand
relating to the shares of a constituent domestic corporation shall file the
petition in the county in this state in which the last registered office of the
constituent corporation was located. The petition shall name as parties all
dissenters who have demanded payment under subdivision 6 and who have not
reached agreement with the corporation. The corporation shall, after filing the
petition, serve all parties with a summons and copy of the petition under the
rules of 180 civil procedure. Nonresidents of this state may be served by
registered or certified mail or by publication as provided by law. Except as
otherwise provided, the rules of civil procedure apply to this proceeding. The
jurisdiction of the court is plenary and exclusive. The court may appoint
appraisers, with powers and authorities the court deems proper, to receive
evidence on and recommend the amount of the fair value of the shares. The court
shall determine whether the shareholder or shareholders in question have fully
complied with the requirements of this section, and shall determine the fair
value of the shares, taking into account any and all factors the court finds
relevant, computed by any method or combination of methods that the court, in
its discretion, sees fit to use, whether or not used by the corporation or by a
dissenter. The fair value of the shares as determined by the court is binding on
all shareholders, wherever located. A dissenter is entitled to judgment in cash
for the amount by which the fair value of the shares as determined by the court,
plus interest, exceeds the amount, if any, remitted under subdivision 5, but
shall not be liable to the corporation for the amount, if any, by which the
amount, if any, remitted to the dissenter under subdivision 5 exceeds the fair
value of the shares as determined by the court, plus interest.
SUBD. 8. COSTS; FEES; EXPENSES. (a) The court shall determine the costs and
expenses of a proceeding under subdivision 7, including the reasonable expenses
and compensation of any appraisers appointed by the court, and shall assess
those costs and expenses against the corporation, except that the court may
assess part or all of those costs and expenses against a dissenter whose action
in demanding payment under subdivision 6 is found to be arbitrary, vexatious, or
not in good faith.
IV-3
<PAGE> 185
(b) If the court finds that the corporation has failed to comply
substantially with this section, the court may assess all fees and expenses of
any experts or attorneys as the court deems equitable. These fees and expenses
may also be assessed against a person who has acted arbitrarily, vexatiously, or
not in good faith in bringing the proceeding, and may be awarded to a party
injured by those actions.
(c) The court may award, in its discretion, fees and expenses to an
attorney for the dissenters out of the amount awarded to the dissenters, if any.
IV-4
<PAGE> 186
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
INDEX TO COMBINED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
FINANCIAL STATEMENTS OF ENSTAR PAGE
- ------------------------------------------------------------------------------------- ----
<S> <C>
Combined Statements of Operating Unit Income for the nine months ended September 30,
1996 and 1995 and for the three years ended December 31, 1995, 1994 and 1993....... F-2
Combined Statements of Operating Unit Assets and Liabilities as of September 30, 1996
and December 31, 1995 and 1994..................................................... F-3
Combined Statements of Operating Unit Equity for the nine months ended September 30,
1996 and for the three years ended December 31, 1995, 1994 and 1993................ F-4
Combined Statements of Operating Unit Cash Flows for the nine months ended September
30, 1996 and 1995 and for the three years ended December 31, 1995, 1994 and 1993... F-5
Notes to Combined Financial Statements............................................... F-6
Report of Independent Certified Public Accountants................................... F-14
</TABLE>
F-1
<PAGE> 187
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
COMBINED STATEMENTS OF OPERATING UNIT INCOME
<TABLE>
<CAPTION>
(UNAUDITED)
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------ -----------------------------
1996 1995 1995 1994 1993
------- ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
Revenues....................................... $49,151 $40,593 $54,891 $47,193 $46,756
Operating and product costs.................... 36,147 29,075 39,525 34,328 32,599
------- ------- ------- ------- -------
Gross profit................................. 13,004 11,518 15,366 12,865 14,157
Selling, general and administrative expenses... 12,594 10,900 14,333 13,567 14,182
Restructuring charges.......................... -- -- -- -- 1,953
------- ------- ------- ------- -------
Operating income (loss)...................... 410 618 1,033 (702) (1,978)
Interest expense............................... (191) (210) (247) (348) (361)
------- ------- ------- ------- -------
Income (loss) before taxes and equity in
earnings of unconsolidated subsidiary..... 219 408 786 (1,050) (2,339)
Income tax provision (benefit)................. 122 230 405 (340) (70)
------- ------- ------- ------- -------
Income (loss) before equity in earnings of
unconsolidated subsidiary................. 97 178 381 (710) (2,269)
Equity in earnings of unconsolidated
subsidiary................................... 956 872 1,191 996 745
------- ------- ------- ------- -------
Net income (loss).............................. $ 1,053 $ 1,050 $ 1,572 $ 286 $(1,524)
======= ======= ======= ======= =======
Pro forma income (loss) per share.............. $ 0.32 $ 0.32 $ 0.49 $ 0.09 $ (0.48)
======= ======= ======= ======= =======
Weighted average shares outstanding............ 3,307 3,284 3,217 3,235 3,146
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-2
<PAGE> 188
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
COMBINED STATEMENTS OF OPERATING UNIT ASSETS AND LIABILITIES
<TABLE>
<CAPTION>
(UNAUDITED) DECEMBER 31,
SEPTEMBER 30, ------------------
1996 1995 1994
------------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents................................... $ 174 $ 246 $ 74
Accounts receivable, net of allowance for doubtful accounts
($527 in 1996, $400 in 1995 and $333 in 1994)............ 9,704 8,784 7,516
Inventories................................................. 6,629 6,631 6,083
Prepaid expenses and other.................................. 367 274 237
Net assets held for sale.................................... -- 1,032 714
------- ------- -------
Total current assets................................... 16,874 16,967 14,624
Property and equipment, net................................... 1,572 1,453 1,586
Goodwill...................................................... 4,841 4,960 5,121
Investment in unconsolidated subsidiary....................... 13,199 11,682 9,627
Other......................................................... 26 189 1,285
------- ------- -------
$36,512 $35,251 $32,243
======= ======= =======
LIABILITIES AND OPERATING UNIT EQUITY
Current liabilities
Notes payable to bank....................................... $ 1,115 $ 937 $ --
Current maturities of long-term debt........................ 17 1,088 428
Accounts payable............................................ 5,829 5,239 4,232
Accrued expenses............................................ 5,522 5,163 3,613
------- ------- -------
Total current liabilities.............................. 12,483 12,427 8,273
Long-term debt, less current maturities....................... 146 158 3,179
Deferred income taxes......................................... 3,490 2,972 2,615
Commitments and contingencies................................. -- -- --
Operating unit equity......................................... 20,393 19,694 18,176
------- ------- -------
$36,512 $35,251 $32,243
======= ======= =======
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-3
<PAGE> 189
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
COMBINED STATEMENTS OF OPERATING UNIT EQUITY
(IN THOUSANDS)
<TABLE>
<S> <C>
Balance at December 31, 1992....................................................... $17,263
Net loss......................................................................... (1,524)
Effect of equity transactions of unconsolidated subsidiary....................... 152
Effect of restructuring charges.................................................. 318
Translation adjustment........................................................... (198)
Additional capital invested...................................................... 1,024
-------
Balance at December 31, 1993....................................................... 17,035
Net income....................................................................... 286
Effect of equity transactions of unconsolidated subsidiary....................... 73
Additional capital invested...................................................... 782
-------
Balance at December 31, 1994....................................................... 18,176
Net income....................................................................... 1,572
Effect of equity transactions of unconsolidated subsidiary....................... 42
Constructive dividend............................................................ (96)
-------
Balance at December 31, 1995....................................................... 19,694
Net income (unaudited)........................................................... 1,053
Effect of equity transactions of unconsolidated subsidiary (unaudited)........... (45)
Constructive dividend (unaudited)................................................ (309)
-------
Balance of September 30, 1996 (unaudited).......................................... $20,393
=======
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-4
<PAGE> 190
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
COMBINED STATEMENTS OF OPERATING UNIT CASH FLOWS
<TABLE>
<CAPTION>
(UNAUDITED)
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
-------------------- --------------------------------
1996 1995 1995 1994 1993
-------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities
Net income (loss)....................... $ 1,053 $ 1,050 $ 1,572 $ 286 $ (1,524)
Adjustments to reconcile net income
(loss) to net cash provided by (used
in) operating activities:
Equity in earnings of unconsolidated
subsidiary......................... (956) (872) (1,191) (996) (745)
Non-cash restructuring charges....... -- -- -- -- 1,567
Depreciation and amortization........ 693 619 837 848 715
Deferred income taxes................ (88) (350) (465) (200) (460)
Translation adjustment............... -- -- -- -- (198)
Changes in operating assets and
liabilities, net of effects of
restructuring charges
Accounts receivable................ (920) (1,202) (1,268) (1,980) 819
Inventories........................ 2 (596) (548) 420 (406)
Accounts payable, accrued expenses
and other....................... 856 2,363 2,202 653 213
-------- -------- -------- -------- --------
Net cash provided by (used in)
operating activities............... 640 1,012 1,139 (969) (19)
-------- -------- -------- -------- --------
Cash flows from investing activities
Capital expenditures................. (693) (458) (543) (541) (1,089)
Collections on notes receivable...... 258 98 1,096 577 481
Other................................ (95) -- -- -- --
-------- -------- -------- -------- --------
Net cash provided by (used in)
investing activities............... (530) (360) 553 36 (608)
-------- -------- -------- -------- --------
Cash flows from financing activities
Proceeds from long-term debt......... 50,238 41,287 56,073 48,868 23,267
Payments on long-term debt........... (51,143) (42,732) (57,497) (48,704) (23,693)
Additional capital invested
(constructive dividends)........... 723 920 (96) 782 1,024
-------- -------- -------- -------- --------
Net cash provided by (used in)
financing activities............... (182) (525) (1,520) 946 598
-------- -------- -------- -------- --------
Net increase (decrease) in cash and
cash equivalents................... (72) 127 172 13 (29)
Cash and cash equivalents at beginning of
year.................................... 246 74 74 61 90
-------- -------- -------- -------- --------
Cash and cash equivalents at end of
year.................................... $ 174 $ 201 $ 246 $ 74 $ 61
======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these combined statements.
F-5
<PAGE> 191
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS
NOTE 1 -- ORGANIZATION AND BUSINESS
ENStar (the "Operating Unit" or the "Unit") is a subsidiary of North Star
Universal, Inc. ("North Star") comprised of Americable, Inc. ("Americable"),
Transition Networks, Inc., ("Transition") and Eagle Engineering and
Manufacturing, Inc. ("Eagle," which is included in net assets held for sale --
see Note 12), along with an equity investment in CorVel Corporation ("CorVel")
and certain other assets. At December 31, 1995, North Star owned a 35% ownership
interest in CorVel and following the sale of 350,000 shares in January 1996 and
other equity transactions of CorVel, its ownership was reduced to 26% (see Note
8). The accompanying financial statements reflect a 27% ownership interest for
all periods prior to 1996. The Operating Unit's investment in CorVel is
accounted for as an unconsolidated subsidiary using the equity method of
accounting.
Americable is a provider of connectivity and networking products and
services. Transition designs, manufactures and markets connectivity devices used
in network applications.
Pursuant to the terms of an agreement between North Star and Michael Foods,
Inc. ("Michael Foods"), an unconsolidated subsidiary of North Star will be
merged with and into Michael Foods and the net assets owned by the Unit will be
transferred to a newly formed corporation, ENStar Inc. Under the terms of the
agreement, the shares of ENStar Inc. will be declared payable in a tax free
dividend to the North Star shareholders of record prior to the effective date of
such merger and distributed immediately following the merger. The transaction is
subject to the receipt of a favorable ruling from the Internal Revenue Service
that the transactions are tax free to the shareholders of Michael Foods and
North Star, the approval of both companies shareholders and other closing
conditions. In connection with the transaction, the Unit intends to transfer all
of its CorVel Common Stock to Americable to satisfy certain federal income tax
requirements relating to the merger and distribution. As of September 30, 1996,
the companies and the investments referred to in the first paragraph above,
which will be contributed to ENStar Inc., have not yet been transferred.
Separate financial statements of ENStar Inc. have been omitted since ENStar Inc.
has insignificant assets and no operations as of, and for the period ended
September 30, 1996.
NOTE 2 -- SUMMARY OF ACCOUNTING POLICIES
BASIS OF PRESENTATION The accompanying combined financial statements have
been prepared from the books and records of the entities and investments
described in Note 1. The combined financial statements include an allocation of
general and administrative costs incurred by North Star in the management of the
operating companies, investment holding and other assets of the Operating Unit.
Management believes these allocations are reasonable and present the operations
of the Operating Unit as though it was operated on a stand alone basis.
Additionally, Operating Unit equity includes the historical equity of each
entity, other net assets contributed to the Operating Unit and intercompany
payables owed to North Star. The annual net advances between the Operating Unit
and North Star are considered additional capital invested from, or constructive
dividends to, North Star. Accordingly, the accompanying combined financial
statements may not necessarily be indicative of the results that would have been
obtained if the Operating Unit had been operated as a stand alone entity.
Combined financial statements and related footnote data as of and for the
nine months ended September 30, 1996 and 1995 are unaudited, but in the opinion
of management of the Unit, include all adjustments (consisting only of normal
recurring adjustments) necessary for fair presentation thereof. The results of
operations for the nine months ended September 30, 1996 and 1995 are not
necessarily indicative of the results of a full year.
PRINCIPLES OF COMBINATION Significant inter-unit balances and transactions
have been eliminated.
F-6
<PAGE> 192
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
CASH AND CASH EQUIVALENTS The Unit considers its highly liquid temporary
investments with original maturities of three months or less to be cash
equivalents. The carrying value of cash and cash equivalents approximate fair
value because of the short-term maturity of these investments.
INVENTORIES Inventories are stated at the lower of average cost (determined
on a first-in, first-out basis) or market. Inventories consist of the following
(in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ----------------
1996 1995 1994
------------- ------ ------
<S> <C> <C> <C>
Finished goods................................... $ 4,813 $4,092 $2,864
Purchased parts.................................. 1,816 2,539 3,219
------- ------ ------
$ 6,629 $6,631 $6,083
======= ====== ======
</TABLE>
PROPERTY AND EQUIPMENT Property and equipment are recorded at cost.
Depreciation and amortization for financial reporting purposes are provided on
the straight-line method over the estimated useful lives of the respective
assets which are generally three to five years. Property and equipment consist
of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ----------------
1996 1995 1994
------------- ------ ------
<S> <C> <C> <C>
Leasehold improvements........................... $ 341 $ 304 $ 276
Office and computer equipment.................... 4,318 3,720 3,262
------- ------ ------
4,659 4,024 3,538
Less -- accumulated depreciation and
amortization................................... 3,087 2,571 1,952
------- ------ ------
$ 1,572 $1,453 $1,586
======= ====== ======
</TABLE>
GOODWILL Goodwill is amortized on a straight-line basis over a period of 40
years. Accumulated amortization was $1,704,000 at September 30, 1996 and
$1,584,000 and $1,423,000 at December 31, 1995 and 1994. The Unit maintains
separate financial records for each of its acquired entities and evaluates its
goodwill annually to determine potential impairment by comparing the carrying
value to the undiscounted future cash flows of the related assets. The Unit
modifies the life or adjusts the value of a subsidiary's goodwill if an
impairment is identified. See Note 3 for an impairment identified during 1993.
ACCRUED EXPENSES. Accrued expenses consist of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ----------------
1996 1995 1994
------------- ------ ------
(IN THOUSANDS)
<S> <C> <C> <C>
Payroll and related benefits..................... $ 895 $ 749 $ 439
Insurance reserves............................... 1,095 905 794
Discontinued operations.......................... 2,069 1,614 545
Other............................................ 1,463 1,895 1,835
------- ------ ------
$ 5,522 $5,163 $3,613
======= ====== ======
</TABLE>
REVENUE RECOGNITION The Unit recognizes revenue from product sales at the
time product is shipped to a customer. Service revenue is recognized at the time
service is provided or ratably over the contractual service period.
F-7
<PAGE> 193
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
RESEARCH AND DEVELOPMENT. All research and development costs are charged to
expense as incurred. Research and development expenses were approximately $1
million in 1995, $1.2 million in 1994, $822,000 in 1993 and $1.1 million and
$710,000 for the nine months ended September 30, 1996 and 1995.
PRO FORMA INCOME (LOSS) PER SHARE Pro forma income (loss) per share was
computed based on the weighted average number of shares of North Star common
stock outstanding (9,922,000 and 9,852,000 for the periods ended September 30,
1996 and 1995 and 9,650,000, 9,704,000 and 9,438,000 for the years ended
December 31, 1995, 1994 and 1993) after giving effect to the assumed exercise of
North Star's outstanding stock options for North Star common stock, except when
the effects are antidilutive. This weighted average number of shares was
adjusted to reflect the distribution of ENStar Inc. common stock to North Star
shareholders whereby one share of ENStar Inc. common stock will be issued to
each holder of three shares of North Star common stock.
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION The Unit increased its
investment in its unconsolidated subsidiary by $70,000, $122,000 and $254,000
and Operating Unit equity by $42,000, $73,000 and $152,000 during the years
ended December 31, 1995, 1994 and 1993, respectively, as a result of equity
transactions of CorVel. In addition, during those years the Unit had cash
payments for interest of $247,000 in 1995, $348,000 in 1994, and $361,000 in
1993.
For the nine months ended September 30, 1996 and 1995, the Unit's
investment in its unconsolidated subsidiary decreased by $76,000 in 1996 and
increased by $76,000 in 1995 while Operating Unit equity decreased by $45,000
and $18,000, net of deferred taxes, during 1996 and 1995. In addition, the
constructive dividend for the nine months ended September 30, 1996, includes
$1,032,000 of net assets held for sale which were transferred by the Operating
Unit to North Star as discussed in Note 12.
RECENTLY ISSUED ACCOUNTING STANDARDS The Financial Accounting Standards
Board has issued two accounting standards which the Unit is required to adopt
January 1, 1996. The first statement establishes guidance on when and how to
measure impairment of long-lived assets and certain identifiable intangibles and
how to value long-lived assets to be disposed of. The second standard
establishes accounting and reporting for the impact of the fair value of
stock-based compensation plans and permits the Unit to select the fair value
based method of accounting for employee stock options or the intrinsic value
method. Upon completion of the distribution described in Note 1, management
intends to adopt the intrinsic value method of accounting and reporting for
stock-based compensation plans. Management believes the adoption of these new
accounting standards will not have a material effect on the Unit's combined
financial statements. During the quarter ended March 31, 1996, the company
adopted these standards, the adoption of which did not have a material effect on
the Unit's combined financial statements.
USE OF ESTIMATES In the preparation of the Unit's combined financial
statements, management is required to make estimates and assumptions that affect
the reported amounts of assets and liabilities and related revenues and
expenses. Actual results could differ from the estimates used by management.
NOTE 3 -- RESTRUCTURING CHARGES
In December 1993, Americable implemented a restructuring plan involving the
closure of its Canadian facilities, operated by Adanac Cable, Ltd., and
consolidation of its Canadian sales and customer support activities within its
U.S. operations. This plan was completed in 1994. In connection with this
consolidation, Americable recorded a restructuring charge of approximately $1.9
million in 1993. This charge includes approximately $600,000 for the write-off
of goodwill and other noncurrent assets, $700,000 for the reassessment of the
carrying value of inventory and receivables, and $600,000 for lease and
severance obligations and other related expenses.
F-8
<PAGE> 194
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 4 -- INVESTMENT IN UNCONSOLIDATED SUBSIDIARY
The Unit's unconsolidated subsidiary consists of its investment in CorVel,
a health care services company. CorVel has a fiscal year end of March 31. The
following is summarized unaudited balance sheet and income statement information
of CorVel as of, and for the twelve month period ended December 31, 1995 and as
of, and for the nine month period ended September 30, 1996 (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1996 1995
------------- ------------
<S> <C> <C>
Current assets....................................... $44,298 $ 36,739
Noncurrent assets.................................... 17,711 15,514
Current liabilities.................................. 8,495 8,696
Noncurrent liabilities............................... 2,880 765
Revenues............................................. 84,826 106,814
Gross profit......................................... 15,847 19,640
Net income........................................... 5,712 7,038
</TABLE>
At December 31, 1995 and September 30, 1996, the combined Unit equity
includes approximately $3.7 million and $4.4 million of unremitted earnings
related to the Unit's investment in CorVel. At December 31, 1995 and September
30, 1996, the fair value of the Operating Unit's investment in CorVel, based on
the closing market price, was approximately $46.7 million and $37.2 million (see
Note 8).
NOTE 5 -- NET ASSETS HELD FOR SALE
In March 1991, the Unit announced its intention to sell its remaining
non-computer related manufacturing company, Eagle. The Unit has recorded the net
assets related to this subsidiary in the balance sheet under the caption "Net
Assets Held For Sale." Operating results of this subsidiary are not material.
The assets of Eagle were sold on April 26, 1996. (see Note 12)
NOTE 6 -- NOTES PAYABLE AND LONG-TERM DEBT
Americable and Transition maintain a revolving line of credit and term loan
facility which provides borrowings up to $5.5 million due in May 1996.
Borrowings under this facility are based on eligible accounts receivable and
inventory with interest at prime plus 1.5% (10% at December 31, 1995). Amounts
outstanding under the revolving line of credit at December 31, 1995 are
classified within notes payable to the bank. The term loan bears interest at
10.665% and is payable in monthly principal installments of $36,000 with a final
installment of $893,000 due in May 1996. The credit agreement includes certain
restrictive covenants including minimum net worth requirements, limitations on
additional indebtedness and minimum interest coverage. At December 31, 1995,
Americable and Transition were in compliance with the covenants of this
agreement. The carrying value of long-term debt, which approximates fair value,
consists of (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, ----------------
1996 1995 1994
------------- ------ ------
(IN THOUSANDS)
<S> <C> <C> <C>
Revolving line of credit......................... $ -- $ -- $2,107
Term note payable................................ -- 1,071 1,500
Other............................................ 163 175 --
------- ------ ------
163 1,246 3,607
Less current maturities.......................... 17 1,088 428
------- ------ ------
$ 146 $ 158 $3,179
======= ====== ======
</TABLE>
F-9
<PAGE> 195
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
Aggregate minimum annual principal payments of long-term debt at September
30, 1996, are as follows (in thousands):
<TABLE>
<CAPTION>
YEARS ENDING DECEMBER 31,
-------------------------------------------------------------
<S> <C>
1996......................................................... $ 5
1997......................................................... 18
1998......................................................... 20
1999......................................................... 22
2000......................................................... 25
2001 and thereafter.......................................... 73
-----
-
$163
======
</TABLE>
(The following information is unaudited.) On August 9, 1996, Americable and
Transition amended the terms of their revolving line of credit facility with
their principal bank to provide borrowings up to $4 million and $2 million,
respectively, due in June 1998. Borrowings under the amended facility are based
on eligible accounts receivable and inventory with interest at prime with
optional fixed rate advances at the London Interbank Offered Rate ("LIBOR") plus
2.5%. At September 30, 1996, there were outstanding borrowings of $1,115,000
under the revolving line of credit, including $857,000 of amounts transferred
from the previous term loan facility which matures in May 1996. In addition,
there was approximately $4.9 million of available borrowings under this credit
facility at September 30, 1996. The amended credit agreement includes certain
restrictive covenants including minimum net worth requirements, limitations on
additional indebtedness and minimum interest coverage, with which the Unit is in
compliance.
NOTE 7 -- INCOME TAXES
The activity of the Unit has been included in the income tax return of
North Star. For financial reporting purposes, the Unit has been allocated a
provision for income taxes in an amount generally equivalent to the provision
that would have resulted had the Unit filed separate income tax returns. The
provision for combined income taxes consists of the following (in thousands):
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------ --------------------------
1996 1995 1995 1994 1993
---- ----- ---- ----- -----
<S> <C> <C> <C> <C> <C>
Current
Federal..................... $180 $ 490 $740 $(120) $ 330
State....................... 30 90 130 (20) 60
---- ----- ---- ----- -----
210.. 580 870 (140) 390
---- ----- ---- ----- -----
Deferred:
Federal..................... (77) (305) (405) (175) (400)
State....................... (11) (45) (60) (25) (60)
---- ----- ---- ----- -----
(88) (350) (465) (200) (460)
---- ----- ---- ----- -----
$122 $ 230 $405 $(340) $ (70)
==== ===== ==== ===== =====
</TABLE>
F-10
<PAGE> 196
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The following is a reconciliation of income taxes at the federal statutory
rate to the effective rate:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
----------------- --------------------------
1996 1995 1995 1994 1993
---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C>
Federal statutory rate............ 34.0% 34.0% 34.0% (34.0)% (34.0)%
State income taxes................ 8.5 11.1 8.9 (4.3) --
Losses producing no current
benefit......................... -- -- -- -- 28.4
Goodwill amortization............. 12.4 10.1 7.0 5.1 2.3
Other............................. .8 1.2 1.6 0.8 0.3
---- ---- ---- ----- -----
55.7% 56.4% 51.5% (32.4)% (3.0)%
==== ==== ==== ===== =====
</TABLE>
To the extent the Unit's financial reporting basis in its investment in
unconsolidated subsidiaries exceeds its tax basis, and is not expected to be
realized in a tax-free manner, the Unit records a deferred income tax liability.
At December 31, 1995, the deferred tax liability includes the initial tax effect
of $1.8 million for the difference in the financial reporting and tax basis of
the Unit's investment in CorVel following its initial public offering along with
income taxes recorded on the equity in earnings of CorVel of $794,000 in 1995,
$664,000 in 1994, and $497,000 in 1993.
The tax effects of the cumulative temporary differences resulting in the
net deferred tax liability are as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
SEPTEMBER 30, --------------------
1996 1995 1994
------------- ------- -------
<S> <C> <C> <C>
Investment in CorVel....................... $(4,944) $(4,339) $(3,517)
Accrued expenses not deductible until
paid..................................... 1,780 1,729 1,338
Other...................................... (326) (362) (436)
------- ------- -------
$(3,490) $(2,972) $(2,615)
======= ======= =======
</TABLE>
NOTE 8 -- COMMITMENTS AND CONTINGENCIES
LEASING COMMITMENTS The Unit leases certain equipment and facilities under
operating leases. At September 30, 1996, the future aggregate minimum rental
payments under such leases which expire at various dates through 2008 are as
follows (in thousands):
<TABLE>
<CAPTION>
YEARS ENDING DECEMBER 31,
------------------------------------------
<S> <C>
1996................................. $179
1997................................. 561
1998................................. 462
1999................................. 469
2000................................. 368
2001 and thereafter.................. 329
</TABLE>
Certain of the leases provide for payment of taxes and other expenses.
Total rent expense on all leases including month-to-month leases for the years
ended December 31 was: $849,000 in 1995, $823,000 in 1994, and $830,000 in 1993.
For the nine months ended September 30, 1996 and 1995, total rent expense was
$691,000 and $624,000.
CONTINGENCIES North Star has indicated that prior to its merger with
Michael and distribution of ENStar, it may cause its subsidiary ENStar to sell
up to 200,000 shares of CorVel common stock and to
F-11
<PAGE> 197
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
distribute the after tax proceeds from such sale to North Star in the form of a
dividend. If this sale were to occur, it would reduce the number of shares of
CorVel common stock owned by ENStar to 1,025,000, which would represent
approximately 22% of the outstanding shares of CorVel common stock as of
September 30, 1996 (see Notes 1 and 4).
As a result of the expected transfer of a substantial portion of the assets
of North Star to ENStar, ENStar will enter into a supplemental indenture with
North Star pursuant to which ENStar will assume the obligations of North Star
with respect to certain debenture indebtedness of North Star. North Star will,
however, separately agree to satisfy, and hold ENStar harmless from, all payment
and other obligations with respect to such debenture indebtedness. The amount of
such indebtedness was $33,770,000 at September 30, 1996. Following the transfer
to ENStar of the assets described in Note 1, North Star will continue to own
7,354,950 shares of Michael which had a fair market value of approximately $75
million at September 30, 1996. Assuming completion of the merger agreement
between North Star and Michael and the distribution of ENStar to shareholders of
North Star, (see Note 1), Michael, with stockholder equity of approximately $185
million at September 30, 1996, will become obligated to repay such indebtedness
within six months following the merger. ENStar will remain contingently liable
for the debenture indebtedness of North Star until repaid.
NOTE 9 -- EMPLOYEE RETIREMENT PLAN
North Star maintains an incentive savings plan for its employees and
employees including those of the Unit. Full-time employees that meet certain
requirements are eligible to participate in the plan. Contributions are made
annually, primarily at the discretion of North Star's Board of Directors.
Contributions of $144,000, $138,000, $126,000, were charged to operations in the
years ended December 31, 1995, 1994 and 1993.
NOTE 10 -- RELATED PARTY TRANSACTION
The Unit has an unsecured note receivable from North Star's majority
shareholder and former chairman of the board of $257,872 at December 31, 1995.
The note bears interest at the Unit's principal bank's reference rate plus 1%
(9.5% at December 31, 1995). A principal payment of $150,000 was made in
December 1995. During the nine months ended September 30, 1996, this note was
paid in full.
NOTE 11 -- GEOGRAPHIC AREA AND BUSINESS SEGMENT INFORMATION
Prior to 1994, the Unit's foreign operations included Americable's Canadian
subsidiary, Adanac Cable, Ltd. which was closed in December 1993 as discussed in
Note 3. In 1993, foreign operations consisted of revenues of $4.6 million and
operating loss of $195,000.
The Unit, through Transition, has international export sales throughout the
world. Substantially all of the export sales are denominated in U.S. dollars.
Revenues classified by major geographic area are as follows:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------ -----------------------------
1996 1995 1995 1994 1993
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Revenues from unaffiliated customers in the
United States................................. $44,867 $36,710 $49,668 $43,020 $43,616
Europe........................................ 2,889 2,470 3,363 2,737 2,230
Other......................................... 1,395 1,413 1,860 1,436 910
------- ------- ------- ------- -------
$49,151 $40,593 $54,891 $47,193 $46,756
======= ======= ======= ======= =======
</TABLE>
F-12
<PAGE> 198
ENSTAR
(AN OPERATING UNIT OF NORTH STAR UNIVERSAL, INC.)
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
NOTE 12 -- SUBSEQUENT EVENT (UNAUDITED)
On April 26, 1996, the Operating Unit transferred its interest in Eagle to
North Star and North Star completed a sale of Eagle. The proceeds from the sale
have been retained by North Star. This transfer of Eagle to North Star has been
included within the constructive dividend to North Star during the period ended
September 30, 1996.
F-13
<PAGE> 199
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Shareholders of North Star Universal, Inc.
We have audited the accompanying combined statements of operating unit
assets and liabilities of ENStar ("the Unit"), (an operating unit of North Star
Universal, Inc.), as of December 31, 1995 and 1994, and the related combined
statements of operating unit net income, operating unit equity, and cash flows
for each of the three years in the period ended December 31, 1995. These
financial statements are the responsibility of the Unit's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe our audits provide a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the combined operating unit assets and
liabilities of ENStar as of December 31, 1995 and 1994, and the combined results
of their operations and their combined cash flows for each of the three years in
the period ended December 31, 1995, in conformity with generally accepted
accounting principles.
/s/ GRANT THORNTON LLP
Minneapolis, Minnesota
February 15, 1996
F-14
