Registration No. 333-28837
As Filed with the Securities and Exchange Commission on July 18, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
IMATION CORP.
(Exact Name of Registrant as specified in its charter)
Delaware 7374 41-1838504
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
Carolyn A. Bates
General Counsel and Assistant Secretary
1 Imation Place 1 Imation Place
Oakdale, Minnesota 55128 Oakdale, Minnesota 55128
(612) 704-4000 (612) 704-4000
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area and telephone number, including
code, of Registrant's principal area code, of agent for service)
executive offices)
-----------------------
COPIES TO:
Gary L. Tygesson, Esq. Michael O'Donnell, Esq.
Dorsey & Whitney LLP Wilson Sonsini Goodrich & Rosati, P.C.
Pillsbury Center South 650 Page Mill Road
220 South Sixth Street Palo Alto, California 94304-1050
Minneapolis, Minnesota 55402
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO
THE PUBLIC: As promptly as practicable after this Registration Statement becomes
effective and the effective time of the proposed merger (the "Merger") of
Cemax-Icon, Inc. with and into a subsidiary of the Registrant, as described in
the Agreement and Plan of Merger, dated as of May 13 1997, attached as Exhibit A
to the Proxy Statement/Prospectus forming a part of this Registration Statement.
-----------------------
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. I
-----------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<TABLE>
<CAPTION>
CROSS-REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
Showing the Location in the Prospectus of the
Information Required by Part I of Form S-4
FORM S-4 ITEM LOCATION IN PROSPECTUS
- ------------- ----------------------
A. INFORMATION ABOUT THE TRANSACTION
<S> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus................. Forepart of the Registration Statement;
Outside Front Cover Page of the Prospectus
2. Inside Front and Outside Back Cover
Pages of Prospectus.................................... Available Information; Table of Contents
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information.......................... Summary; Risk Factors; The Merger; The
Merger Agreement; Selected Financial
Data of Imation; Selected Financial Data
of Cemax-Icon; Proforma Unaudited
Combined Summary Financial Data;
Comparative Unaudited Per Common
Share Data
4. Terms of the Transaction.................................. Summary; The Merger; The Merger
Agreement; Description of Imation Capital
Stock; Description of Contingent Payment
Rights
5. Pro Forma Financial Information........................... Summary; Pro Forma Unaudited Combined
Summary Financial Data; Comparative
Unaudited Per Common Share Data
6. Material Contacts with the Company
Being Acquired......................................... Summary; The Merger; The Merger
Agreement
7. Additional Information Required for Reoffering by
Persons and Parties Deemed to be
Underwriters........................................... Not Applicable
8. Interests of Named Experts and Counsel.................... Not Applicable
9. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities............ Not Applicable
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to S-3
Registrants............................................ Not Applicable
11. Incorporation of Certain Information
by Reference........................................... Not Applicable
12. Information with Respect to S-2 or
S-3 Registrants........................................ Not Applicable
13. Incorporation of Certain Information by
Reference.............................................. Not Applicable
14. Information with Respect to Registrants
Other Than S-2 or S-3 Registrants...................... Summary; Certain Information Concerning
Imation; Selected Financial Data of
Imation; Management's Discussion and
Analysis of Imation; Audited Consolidated
Financial Statements of Imation;
Unaudited Consolidated Financial
Statements of Imation; Comparative
Unaudited Per Common Share Data;
Proforma Unaudited Combined Summary
Financial Data
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to S-3
Companies.............................................. Not Applicable
16. Information with Respect to S-2 or
S-3 Companies.......................................... Not Applicable
17. Information with Respect to Companies
Other Than S-2 or S-3 Companies........................ Summary; Certain Information Concerning
Cemax-Icon; Selected Financial Data of
Cemax-Icon; Management's Discussion and
Analysis of Cemax-Icon; Audited Financial
Statements of Cemax-Icon; Unaudited
Financial Statements of Cemax-Icon;
Comparative Unaudited Per Common
Share Data; Proforma Unaudited
Combined Summary Financial Data
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations are to be Solicited..................... Available Information; Summary; The
Special Meeting; The Merger; Certain
Information Concerning Imation; Certain
Information Concerning Cemax-Icon
19. Information if Proxies, Consents or
Authorizations are not to be
Solicited or in an Exchange Offer...................... Not Applicable
</TABLE>
[LOGO] CEMAX-ICON
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders of
Cemax-Icon, Inc. ("Cemax-Icon"), to be held at _____________, _____________,
_____________, on ________, 1997, at ____ local time (the "Special Meeting"). A
notice of the Special Meeting, Proxy Statement/Prospectus and proxy card
containing information about the matters to be acted upon are enclosed. All
holders of Cemax-Icon's outstanding shares of common stock, $0.001 par value
("Cemax-Icon Common Stock"), and Series A Preferred Stock, $0.001 par value
("Cemax-Icon Preferred Stock"), as of July 15, 1997 (the "Record Date"), will be
entitled to notice of and to vote at the Special Meeting and any postponement or
adjournment thereof.
At the Special Meeting, you will be asked to consider and to vote upon a
proposal to approve and adopt an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of May 13, 1997, among Cemax-Icon, Imation Corp.
("Imation") and CI Acquisition Corp., a direct, wholly owned subsidiary of
Imation ("Merger Subsidiary"), pursuant to which, among other things, Merger
Subsidiary will be merged with and into Cemax-Icon (the "Merger") and Cemax-Icon
shall be the surviving corporation (the "Surviving Corporation"). If the Merger
Agreement is approved and adopted and the Merger becomes effective, (a) each
outstanding share of Cemax-Icon Common Stock will be converted into and become a
right to receive (i) a cash payment of $5.25, without interest thereon, and (ii)
one right (a "Contingent Payment Right") to receive contingent payments of up to
$8.50 over a two-year period in cash or shares of Imation Common Stock, based on
the gross revenues of Cemax-Icon for the 24 months commencing July 1, 1997, net
of any amount to which Imation is entitled pursuant to the offset provisions of
the Merger Agreement, and (b) each share of Cemax-Icon Preferred Stock will be
canceled and extinguished, and no payment will be made therefor (all such shares
are owned beneficially and of record by Imation). The terms of the Contingent
Payment Rights are described in more detail on the accompanying Proxy
Statement/Prospectus.
Details of the proposed Merger and other important information are set
forth in the accompanying Proxy Statement/Prospectus, which you are urged to
read carefully. The Merger is subject to the satisfaction of a number of
conditions, including, among others, approval of the Merger Agreement and the
Merger by the holders of a majority of the voting power of the outstanding
shares of Cemax-Icon Common Stock and Cemax-Icon Preferred Stock, voting as one
class.
Pursuant to agreements with Imation dated May 13, 1997, certain
stockholders of Cemax-Icon, in their individual capacities as stockholders, each
have agreed to vote all of their outstanding shares of Cemax-Icon Common Stock
(approximately 66% of the voting power of outstanding shares of record as July
15, 1997, the Record Date for the Special Meeting) in favor of approval of the
Merger Agreement and the Merger and have granted an irrevocable proxy to Imation
so to vote their respective shares. Such shares, when combined with the shares
of Cemax-Icon Preferred Stock owned by Imation, constitute approximately 71% of
the voting power of the outstanding shares entitled to vote at the Special
Meeting.
Your Board of Directors has carefully reviewed and considered the terms and
conditions of the proposed Merger. YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY
APPROVED THE MERGER AND RECOMMENDS THAT YOU VOTE FOR APPROVAL AND ADOPTION OF
THE MERGER AGREEMENT.
Whether or not you plan to attend the Special Meeting, please complete,
sign and date the accompanying proxy card and return it in the enclosed prepaid
envelope. If you attend the Special Meeting, you may revoke such proxy and vote
in person if you wish, even if you have previously returned your proxy card. If
you do not attend the Special Meeting, you may still revoke such proxy at any
time prior to the Special Meeting by providing written notice of such revocation
to Michael O'Donnell, Secretary of Cemax-Icon. Your prompt cooperation will be
greatly appreciated.
_____________, 1997
Very truly yours,
Terry Ross
President and Chief Executive Officer
CEMAX-ICON, INC.
47281 MISSION FALLS COURT
FREMONT, CALIFORNIA 94539
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To be held on _______, 1997
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To the Stockholders of Cemax-Icon, Inc.:
Notice is hereby given that a Special Meeting of Stockholders of
Cemax-Icon, Inc., a Delaware corporation ("Cemax-Icon"), will be held at
_____________, _____________, _____________, on ________, 1997, at _____ local
time (the "Special Meeting"), for the following purposes:
1. To consider and to vote upon a proposal to approve and adopt an
Agreement and Plan of Merger (as it may be amended, supplemented or modified
from time to time, the "Merger Agreement"), dated as of May 13, 1997, among
Cemax-Icon, Imation Corp. ("Imation") and CI Acquisition Corp., a direct, wholly
owned subsidiary of Imation ("Merger Subsidiary"), pursuant to which, among
other things, Merger Subsidiary will be merged with and into Cemax-Icon (the
"Merger") and Cemax-Icon shall be the surviving corporation in the Merger (the
"Surviving Corporation"), and to approve the appointment of Michael O'Donnell
and David Titus to act as the representatives of the stockholders of Cemax-Icon
("Stockholders' Representatives") in connection with the Merger and to withhold
up to $200,000 from the initial payments to stockholders in a separate fund for
reimbursement of the Stockholders' Representatives' out-of-pocket expenses in
acting on behalf of the stockholders of Cemax-Icon in connection with the
Merger. If the Merger Agreement is approved and adopted and the Merger becomes
effective, (a) each outstanding share of common stock, $0.001 par value, of
Cemax-Icon ("Cemax-Icon Common Stock") (other than shares of Cemax-Icon Common
Stock with respect to which dissenters' rights have been properly exercised)
will be converted into and become a right to receive (i) a cash payment of
$5.25, without interest thereon, and (ii) one right (a "Contingent Payment
Right") to receive contingent payments of up to $8.50 over a two-year period in
cash or shares of Imation Common Stock, based on the gross revenues of
Cemax-Icon for the 24 months commencing July 1, 1997, net of any amount to which
Imation is entitled pursuant to the offset provisions of the Merger
Agreement, and (b) each share of Series A Preferred Stock, $0.001 par value, of
Cemax-Icon ("Cemax-Icon Preferred Stock") will be canceled and extinguished, and
no payment will be made therefor. The terms of the Contingent Payment Rights are
described in more detail on the accompanying Proxy Statement/Prospectus.
2. To transact such other business as may properly come before the Special
Meeting or any adjournment or postponement thereof.
The close of business on July 15, 1997 (the "Record Date"), has been fixed
as the record date for the determination of the stockholders of Cemax-Icon
entitled to notice of and to vote at the Special Meeting and any adjournment or
postponement thereof. Accordingly, only holders of record of outstanding shares
of Cemax-Icon Common Stock and Cemax-Icon Preferred Stock at the close of
business on the Record Date shall be entitled to notice of and to vote at the
Special Meeting and any adjournment or postponement thereof. The Merger
Agreement is required to be approved and adopted by the affirmative vote of the
holders of a majority of the voting power of the outstanding shares of
Cemax-Icon Common Stock and Cemax-Icon Preferred Stock, voting as one class. The
meeting may be postponed or adjourned from time to time without notice other
than such notice as may be given at the meeting or any postponement or
adjournment thereof, and any business for which notice is hereby given may be
transacted at any such postponed or adjourned meeting.
Pursuant to agreements with Imation dated May 13, 1997, certain
stockholders, in their individual capacities as stockholders, each have agreed
to vote all of their outstanding shares of Cemax-Icon Common Stock
(approximately 66% of the voting power of the outstanding shares of record as of
June 1, 1997, the Record Date for the Special Meeting) in favor of approval of
the Merger Agreement and the Merger and have granted an irrevocable proxy to
Imation so to vote their respective shares. Such shares, when combined with the
shares of Cemax-Icon Preferred Stock owned by Imation, constitute approximately
71% of the voting power of the outstanding shares entitled to vote at the
Special Meeting.
A summary of certain provisions of Section 262 of the General Corporation
Law of the State of Delaware (the "DGCL") pertaining to the rights of dissenting
stockholders if the Merger is consummated is included in the accompanying Proxy
Statement under the heading "THE MERGER--Dissenters' Rights of Appraisal," and a
copy of Section 262 of the DGCL is set forth in Exhibit B to the attached proxy
statement.
Whether or not you plan to attend the Special Meeting, please complete,
sign and date the accompanying proxy card and return it promptly in the enclosed
prepaid envelope. If you attend the Special Meeting, you may revoke such proxy
and vote in person if you wish, even if you have previously returned your proxy
card. If you do not attend the Special Meeting, you may still revoke such proxy
at any time prior to the Special Meeting by providing written notice of such
revocation to Michael O'Donnell, Secretary of Cemax-Icon.
____________, 1997
By Order of the Board of Directors,
Michael O'Donnell
Secretary
TO ASSURE YOUR REPRESENTATION AT THE SPECIAL MEETING, PLEASE COMPLETE, SIGN AND
DATE YOUR PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED ENVELOPE,
WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES.
DO NOT SEND ANY STOCK CERTIFICATES WITH THE ENCLOSED PROXY
CARD. THE PROCEDURE FOR THE EXCHANGE OF YOUR SHARES
AFTER THE MERGER IS CONSUMMATED IS SET FORTH IN THE
ATTACHED PROXY STATEMENT/PROSPECTUS.
THE BOARD OF DIRECTORS OF CEMAX-ICON, INC. UNANIMOUSLY
RECOMMENDS THAT STOCKHOLDERS VOTE TO APPROVE
AND ADOPT THE MERGER AGREEMENT.
CEMAX-ICON, INC.
PROXY STATEMENT
----------------
IMATION CORP.
PROSPECTUS
-----------------
This Proxy Statement/Prospectus is being furnished by Cemax-Icon,
Inc., a Delaware corporation ("Cemax-Icon"), to holders of common stock, $0.001
par value, of Cemax-Icon (the "Cemax-Icon Common Stock") and Series A Preferred
Stock, $0.001 par value, of Cemax-Icon (the "Cemax-Icon Preferred Stock"), in
connection with the solicitation of proxies by the Board of Directors of
Cemax-Icon for use at a Special Meeting of Stockholders of Cemax-Icon to be held
at _____________, _____________, on ________, 1997, commencing at ______ local
time, and at any adjournment or postponement thereof (the "Special Meeting").
The Special Meeting has been called to consider and to vote upon a
proposal to approve and adopt an Agreement and Plan of Merger (as it may be
amended, supplemented or otherwise modified from time to time, the "Merger
Agreement"), dated as of May 13, 1997, among Cemax-Icon, Imation Corp.
("Imation") and CI Acquisition Corp., a direct, wholly owned subsidiary of
Imation ("Merger Subsidiary"), pursuant to which, among other things, Merger
Subsidiary will be merged with and into Cemax-Icon (the "Merger") and Cemax-Icon
shall be the surviving corporation in the Merger (the "Surviving Corporation").
If the Merger Agreement is approved and adopted and the Merger becomes
effective, (a) each outstanding share of Cemax-Icon Common Stock (other than
shares of Cemax-Icon Common Stock with respect to which dissenters' rights have
been properly exercised (the "Dissenting Shares")) will be converted into and
become a right to receive (i) a cash payment of $5.25, without interest thereon,
and (ii) one right (a "Contingent Payment Right") to receive contingent payments
of up to $8.50 over a two-year period in cash or shares of common stock, $.01
par value, of Imation (the "Imation Common Stock"), based on the gross revenues
of Cemax-Icon for the 24 months commencing July 1, 1997, net of any amount to
which Imation is entitled pursuant to the offset provisions of the Merger
Agreement, and (b) each share of Cemax-Icon Preferred Stock will be canceled and
extinguished, and no payment will be made therefor. See "DESCRIPTION OF
CONTINGENT PAYMENT RIGHTS." An aggregate of up to $200,000 may be withheld from
the initial payments to stockholders in a separate fund for reimbursement of the
out-of pocket-expenses of the representatives designated to act on behalf of
stockholders of Cemax-Icon in connection with the Merger. See "THE
MERGER--Stockholders' Representatives' Fund."
The Merger is subject to the satisfaction of a number of conditions,
including, among others, approval of the Merger Agreement and the Merger by the
holders of a majority of the voting power of the outstanding shares of
Cemax-Icon Common Stock and Cemax-Icon Preferred Stock, voting as one class. See
"THE MERGER" and "THE MERGER AGREEMENT--General." Pursuant to agreements with
Imation dated May 13, 1997 (the "Stockholder Agreements"), certain stockholders,
in their individual capacities as stockholders, each have agreed to vote all of
their shares of Cemax-Icon Common Stock (approximately 66% of the voting power
of the outstanding shares of record as of July 15, 1997, the Record Date for the
Special Meeting) in favor of approval of the Merger Agreement and the Merger.
Such shares, when combined with the shares of Cemax-Icon Preferred Stock owned
by Imation, constitute approximately 71% of the voting power of the outstanding
shares entitled to vote at the Special Meeting.
This Proxy Statement/Prospectus also constitutes a prospectus of
Imation with respect to up to ____ Contingent Payment Rights issuable to the
stockholders of Cemax-Icon upon consummation of the Merger and shares of Imation
Common Stock issuable at the option of a holder of a Contingent Payment Right at
the time of payment of a Contingent Payment Right. Imation has supplied all
information contained in this Proxy Statement/Prospectus relating to Imation and
Cemax-Icon has supplied all information contained in this Proxy
Statement/Prospectus relating to Cemax-Icon.
This Proxy Statement/Prospectus and the accompanying form of proxy
are first being mailed to stockholders of Cemax-Icon on or about ________, 1997.
SEE "RISK FACTORS" ON PAGE 1 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY HOLDERS OF SHARES OF CEMAX-ICON COMMON STOCK.
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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 ________, 1997
TABLE OF CONTENTS
AVAILABLE INFORMATION 2
SUMMARY S-1
General S-1
The Parties to the Merger S-1
Imation Corp. S-1
Cemax-Icon, Inc. S-2
CI Acquisition Corp. S-2
The Special Meeting S-3
Time, Date and Place S-3
Purposes of the Special Meeting S-3
Record Date; Shares Entitled to Vote S-3
Votes Required; Quorum S-3
The Merger S-3
Effective Time S-3
Effects of the Merger S-4
Conversion of Cemax-Icon Common Stock S-4
Contingent Payment Rights S-4
Effect of the Merger on Cemax-Icon Stock Options and Cemax-Icon
Warrants S-4
Recommendation of the Board of Directors of Cemax-Icon S-5
Interests of Certain Persons in the Merger; Management of
Cemax-Icon After the Merger S-5
Stockholder Agreements S-6
Option Agreement S-6
Accounting Treatment S-6
Certain Federal Income Tax Consequences S-7
Dissenters' Rights of Appraisal S-7
Regulatory Approvals S-7
The Merger Agreement S-7
Limitations on Negotiations by Cemax-Icon S-7
Conditions to the Merger S-7
Termination of the Merger Agreement S-8
Termination Fees S-8
Market Price Data S-9
Comparative Unaudited Per Common Share Data S-10
Summary Financial Data of Imation S-11
Summary Financial Data of Cemax-Icon S-12
Pro Forma Unaudited Combined Summary Financial Data S-13
RISK FACTORS 1
Risk Factors with Respect to Imation 1
Imation's Ability to Establish a New Brand and Identity 1
Competitive Industry Conditions 1
Changing Industry Environment 1
Imation's Ability to Establish Independent Business Processes 2
International Operations and Foreign Currency 2
Fluctuations in Operating Results 2
Future Capital Requirements 2
Risk Factors with Respect to Cemax-Icon 3
Lack of Profitable Operations; Significant Losses from
Operations; Variability in Operating Results 3
Dependence upon Ability to Enhance and Integrate Existing Product
Line and Develop New Products 3
Risk Related to Products Under Development 3
Risks Related to Company Reliance upon OEMs and Principal
Customers 4
Dependence on Emerging PACS and Teleradiology Markets;
Uncertainty of Market Acceptance 4
Rapid Technological Change 5
Long Sales and Delivery Cycle; Dependence on Future System Sales 5
Competition 5
Risks Associated with Ability to Manage Projected Growth; Need
for Additional Qualified Personnel 6
Dependence on Key Employees 6
Dependence on Single-Source Suppliers 6
Risks Associated with International Operations 6
FDA and Other Government Regulation 6
Uncertain Protection for Intellectual Property; Possible Claims
of Others 8
Uncertainty in Healthcare Industry; Government Healthcare Reform
Proposals 8
Product Liability Risk; Limited Insurance Coverage 8
Risk Factors with Respect to Contingent Payment Rights 9
Any Payment Contingent on Future Revenues 9
Any Payment Subject to Offset Rights 9
Restrictions on Transferability 9
Any Payments in Imation Common Stock Subject to Stock Price Risks 9
THE SPECIAL MEETING 10
General 10
Purposes of the Special Meeting 10
Record Date; Shares Entitled to Vote; Required Vote; Quorum 10
Proxies 11
THE MERGER 12
Effective Time 12
Effects of the Merger 12
Conversion of Cemax-Icon Common Stock 13
Stockholders' Representatives' Fund 13
Effect of the Merger on Cemax-Icon Stock Options and Cemax-Icon Warrants 14
Background of the Merger; Relationship Between Cemax-Icon and Imation 14
Cemax-Icon's Reasons for the Merger; Recommendation of Cemax-Icon's
Board of Directors 15
Similar Customer Base/Complementary Products 15
Financial Resources 15
Service Capability 16
Market Position 16
Working Relationship 16
Imation's Reasons for the Merger 16
Interests of Certain Persons in the Merger 18
Stock Options and Warrants 18
Key Management Agreements 18
Consulting Agreement 19
Noncompetition Agreements 19
Management of Cemax-Icon After the Merger 19
Option Agreement 20
Stockholder Agreements 20
Employee Agreements 20
Affiliate Agreements 21
Accounting Treatment 22
Certain Federal Income Tax Consequences 22
Dissenters' Rights of Appraisal 24
General 24
Procedure 24
Regulatory Approvals 26
THE MERGER AGREEMENT 27
General 27
Certain Representations and Warranties 27
Covenants 28
Limitations on Negotiations 30
Conditions 30
Termination 32
Termination Fees 32
Survival and Offset 33
PRO FORMA UNAUDITED COMBINED FINANCIAL STATEMENTS 35
COMPARATIVE UNAUDITED PER SHARE DATA 39
CERTAIN INFORMATION CONCERNING IMATION 39
General 39
Business 39
Revenue by Classes of Similar Products or Services 40
Data Storage Products 40
Printing and Publishing Systems 41
Medical Imaging Systems and Photo Color Products 42
Customer Service Technology 43
Document Imaging 43
Industry Background 43
Competition 44
Sales, Markets and Distribution Methods 44
Raw Materials 44
Research and Patents 44
Manufacturing 45
Employees 45
Environmental Matters 45
Relationship Between 3M and Imation 46
Properties 49
Legal Proceedings 50
Market for Imation Common Stock and Related Stockholder Matters 50
Security Ownership 51
Security Ownership of Certain Beneficial Owners 51
Security Ownership of Management 52
Management 53
SELECTED FINANCIAL DATA OF IMATION 64
MANAGEMENT'S DISCUSSION AND ANALYSIS OF IMATION 65
General Overview 65
Results of Operations 66
Comparison of Three Months Ended March 31, 1997 and 1996 66
Comparison of the Years Ended December 31, 1996, 1995 and 1994 68
Performance by Geographic Area 71
United States 71
Europe, Middle East and Africa 71
Latin America, Asia and Canada 71
Financial Position 71
Liquidity 72
Comparison of the Three Months Ended March 31, 1997 and 1996 72
Comparison of the Years Ended December 31, 1996, 1995 and 1994 72
CERTAIN INFORMATION CONCERNING CEMAX-ICON 73
Business 73
Products 74
Technology 77
Marketing and Sales 77
Customers 79
Customer Support 79
Manufacturing 79
Competition 80
Patents and Intellectual Property 80
Government Regulation 81
Third-Party Reimbursement 82
Product Liability and Insurance 82
Employees 82
Properties 83
Security Ownership of Certain Beneficial Owners and Management 84
Management 87
Directors, Executive Officers and Key Employees 87
Board Committees 88
Board Composition 88
Director Compensation 89
Executive Compensation 89
401(k) Plan 91
Option Grants in Last Fiscal Year 92
Aggregate Option Exercises in Last Fiscal Year and Fiscal
Year-End Option Values 92
Limitation of Liability and Indemnification Matters 93
Certain Relationship And Related Transactions 93
SELECTED FINANCIAL DATA OF CEMAX-ICON 95
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CEMAX-ICON 96
Results of Operations 96
Comparison of Three Months Ended March 31, 1997 and 1996 96
Comparison of the Years Ended December 31, 1996, 1995 and 1994 97
Liquidity and Capital Resources 98
Comparison of the Three Months Ended March 31, 1997 and 1996 98
Comparison of the Years Ended December 31, 1996, 1995 and 1994 98
DESCRIPTION OF IMATION CAPITAL STOCK 99
Authorized Capital Stock 99
Imation Common Stock 99
Imation Preferred Stock 99
No Preemptive Rights 99
Transfer Agent and Registrar 99
DESCRIPTION OF CONTINGENT PAYMENT RIGHTS 99
Determination of Earn-Out 100
Payment Election Procedure 101
Determination of Gross Revenues by Imation 102
Nontransferability 103
Payment of the Earn-Out 103
Right of Offset 103
LEGAL MATTERS 104
EXPERTS 104
OTHER MATTERS 104
FINANCIAL STATEMENTS F-1
Exhibit A Agreement and Plan of Merger, dated as of May 13, 1997,
among Imation Corp., Cemax-Icon Acquisition Corp. and
Cemax-Icon, Inc A-1
Exhibit B Section 262 of the General Corporation Law of the State of
Delaware -- Appraisal Rights of Dissenting Stockholders B-1
Exhibit C Terms of Contingent Payment Rights C-1
AVAILABLE INFORMATION
Imation is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC" or "Commission"). The reports,
proxy statements and other information filed by Imation with the Commission may
be inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Regional Offices of the Commission at Seven World Trade
Center, 13th Floor, New York, New York 10048 and CitiCorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material also may be obtained from the Public Reference Section of the
Commission, Washington, D.C. 20549 at prescribed rates. The Commission maintains
a Website that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
at http://www.sec.gov.com. In addition, material filed by Imation may be
inspected at the offices of the New York Stock Exchange, Inc. (the "NYSE"), 20
Broad Street, New York, New York 10005.
Imation has filed with the Commission a Registration Statement on Form
S-4 (together with any amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Contingent Payment Rights to be issued pursuant to the Merger and shares of
Imation Common Stock that may be issued upon payment of the Contingent Payment
Rights. This Proxy Statement/Prospectus does not contain all the information set
forth in the Registration Statement, certain portions of which have been omitted
as permitted by the rules and regulations of the Commission. Such additional
information may be obtained from the Commission's principal office in
Washington, D.C. Statements contained in this Proxy Statement/Prospectus as to
the contents of any contract or other document referred to herein are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
-----------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS IN
CONNECTION WITH THE SOLICITATION OF PROXIES OR THE OFFERING OF SECURITIES MADE
HEREBY AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY IMATION, CEMAX-ICON OR ANY OTHER
PERSON. THIS PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR
A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES, OR THE SOLICITATION OF A
PROXY, IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM IT IS NOT LAWFUL TO
MAKE ANY SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. THIS PROXY
STATEMENT/PROSPECTUS DOES NOT COVER ANY RESALES OF THE IMATION COMMON STOCK
OFFERED HEREBY TO BE RECEIVED BY STOCKHOLDERS OF CEMAX-ICON DEEMED TO BE
"AFFILIATES" OF CEMAX-ICON OR IMATION UPON THE CONSUMMATION OF THE MERGER. NO
PERSON IS AUTHORIZED TO MAKE USE OF THIS PROXY STATEMENT/PROSPECTUS IN
CONNECTION WITH SUCH RESALES. NEITHER THE DELIVERY OF THIS PROXY
STATEMENT/PROSPECTUS NOR ANY DISTRIBUTION OF SECURITIES MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF IMATION OR CEMAX-ICON SINCE THE DATE HEREOF OR THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
-----------------------------
CERTAIN INFORMATION CONTAINED IN THIS PROXY STATEMENT/PROSPECTUS WHICH
DOES NOT RELATE TO HISTORICAL FINANCIAL INFORMATION MAY BE DEEMED TO CONSTITUTE
FORWARD LOOKING STATEMENTS. THE WORDS OR PHRASES "WILL LIKELY RESULT", "ARE
EXPECTED TO", "WILL CONTINUE", "IS ANTICIPATED", "ESTIMATE", "PROJECT",
"BELIEVE" OR SIMILAR EXPRESSIONS IDENTIFY "FORWARD LOOKING STATEMENTS" WITHIN
THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. SUCH
STATEMENTS ARE SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES THAT COULD CAUSE
ACTUAL RESULTS TO DIFFER MATERIALLY FROM HISTORICAL RESULTS AND THOSE PRESENTLY
ANTICIPATED OR PROJECTED. READERS SHOULD NOT PLACE UNDUE RELIANCE ON ANY SUCH
FORWARD LOOKING STATEMENTS, WHICH SPEAK ONLY AS OF THE DATE MADE. AMONG THE
FACTORS THAT COULD CAUSE ACTUAL RESULTS IN THE FUTURE TO DIFFER MATERIALLY FROM
ANY OPINIONS OR STATEMENTS EXPRESSED WITH RESPECT TO FUTURE PERIODS ARE THOSE
DESCRIBED UNDER RISK FACTORS ON PAGE 1.
SUMMARY
The following is a summary of certain information contained elsewhere
in this Proxy Statement/Prospectus. This summary is not intended to be complete
and is qualified in all respects by the more detailed information included in
this Proxy Statement/Prospectus and its Exhibits. Stockholders are urged to read
carefully the entire Proxy Statement/Prospectus, including the Exhibits. Imation
has supplied all information concerning Imation included herein, and Cemax-Icon
has supplied all information concerning Cemax-Icon included herein.
GENERAL
This Proxy Statement/Prospectus relates to the proposed merger (the
"Merger") of Cemax-Icon, Inc., a Delaware corporation ("Cemax-Icon"), and CI
Acquisition Corp., a Delaware corporation ("Merger Subsidiary") and a direct,
wholly owned subsidiary of Imation Corp., a Delaware corporation ("Imation"),
pursuant to an Agreement and Plan of Merger, dated as of May 13, 1997 (the
"Merger Agreement"), among Cemax-Icon, Imation and Merger Subsidiary, a copy of
which is attached to this Proxy Statement/Prospectus as Exhibit A. As a result
of the Merger, Merger Subsidiary will merge with and into Cemax-Icon and (a)
each outstanding share of common stock, $0.001 par value, of Cemax-Icon (the
"Cemax-Icon Common Stock") (other than shares of Cemax-Icon Common Stock with
respect to which dissenters' rights have been properly exercised (the
"Dissenting Shares")) will be converted into and become a right to receive (i) a
cash payment of $5.25, without interest thereon, and (ii) one right (a
"Contingent Payment Right") to receive contingent payments of up to $8.50 over a
two-year period in cash or shares of common stock, $.01 par value, of Imation
(the "Imation Common Stock"), based on the gross revenues of Cemax-Icon for the
24 months commencing July 1, 1997, net of any amount to which Imation is
entitled pursuant to the offset provisions of the Merger Agreement, and (b) each
share of Series A Preferred Stock, $0.001 par value, of Cemax-Icon (the
"Cemax-Icon Preferred Stock") will be canceled and extinguished, and no payment
will be made therefor (all such shares are owned beneficially and of record by
Imation). See "DESCRIPTION OF CONTINGENT PAYMENT RIGHTS." An aggregate of up to
$200,000 may be withheld from the initial payments to stockholders in a separate
fund for reimbursement of the Stockholders' Representatives' out-of
pocket-expenses in acting on behalf of stockholders of Cemax-Icon in connection
with the Merger. See "THE MERGER--Stockholders' Representatives' Fund."
The Merger is subject to the satisfaction of a number of conditions,
including, among others, approval of the Merger Agreement and the Merger by the
holders of a majority of the voting power of the outstanding shares of
Cemax-Icon Common Stock and Cemax-Icon Preferred Stock, voting as one class. See
"THE MERGER" and "THE SPECIAL MEETING." Pursuant to agreements with Imation
dated May 13, 1997 (the "Stockholder Agreements"), certain stockholders, in
their individual capacities as stockholders, have agreed to vote all of their
outstanding shares of Cemax-Icon Common Stock (approximately 66% of the voting
power of the outstanding shares of record as of July 15, 1997, the Record Date
for the Special Meeting) in favor of approval of the Merger Agreement and the
Merger and have granted an irrevocable proxy to Imation so to vote their
respective shares. Such shares, when combined with the shares of Cemax-Icon
Preferred Stock owned by Imation, constitute approximately 71% of the voting
power of the outstanding shares entitled to vote at the Special Meeting.
THE PARTIES TO THE MERGER
Imation Corp.
Imation is a leader in developing, manufacturing and marketing a wide
variety of products and services worldwide for data storage and imaging
applications within the information processing industry. Imation's products,
which number in excess of 10,000, are used to capture, process, store, reproduce
and distribute information and images in a wide range of information-intensive
markets, including enterprise computing, network servers, personal computing
graphic arts, photographic imaging, medical imaging, and commercial and consumer
markets.
Prior to July 1, 1996, Minnesota Mining and Manufacturing Company
("3M") operated Imation's business through various divisions and subsidiaries.
Imation was formed as a result of the decision by 3M to spin-off a separate
company comprised of substantially all of the businesses previously operated
within 3M's data storage and imaging systems groups (the "Transferred
Businesses"). To effectuate the transaction, on June 18, 1996, the Board of
Directors of 3M declared a dividend payable to the holders of record of 3M
common stock as of June 28, 1996, based upon a ratio of one share of Imation
Common Stock for every ten shares of 3M common stock owned on the record date.
Effective July 1, 1996 (the "Distribution Date"), the shares of Imation Common
Stock were distributed to 3M stockholders (the "Distribution"). In connection
with the Distribution, 3M and Imation entered into various agreements to
facilitate the transition of Imation to an independent business enterprise. See
"CERTAIN INFORMATION CONCERNING IMATION--Relationship Between 3M and Imation."
As used herein, references to "Imation" include the historical operating results
and activities of the business and operations which comprise Imation today.
Imation was incorporated as a Delaware corporation in March 1996.
Imation's principal executive offices are located at 1 Imation Place, Oakdale,
Minnesota 55128 and the telephone number is (612) 704-4000. For further
information concerning Imation, see "CERTAIN INFORMATION CONCERNING IMATION."
Cemax-Icon, Inc.
Cemax-Icon designs, manufactures and markets medical image information
systems which electronically acquire, archive, distribute and display medical
images throughout hospitals, outpatient facilities and integrated delivery
networks ("IDNs"). Cemax-Icon's systems interface with virtually all
commercially available imaging modalities, including x-ray, computed tomography,
magnetic resonance imaging, computed radiography, ultrasound and nuclear
medicine. By automating and increasing the availability of medical images within
a healthcare facility or throughout an IDN, Cemax-Icon's management believes
that its systems reduce the cost and improve the management of medical care.
Cemax-Icon's systems and modules are based on an open architecture and utilize
standard hardware and standard network protocols in order to facilitate
integration with existing image acquisition devices and healthcare information
systems. Cemax-Icon provides complete turn-key systems as well as scalable
software modules that integrate with commercially available third party
hardware.
Cemax-Icon was incorporated in California in 1982 and was
reincorporated in Delaware in August 1996. The principal executive offices of
Cemax-Icon are located at 47281 Mission Falls Court, Fremont, California 94539
and the telephone number is (510) 770-8612. For further information concerning
Cemax-Icon, see "CERTAIN INFORMATION CONCERNING CEMAX-ICON."
CI Acquisition Corp.
CI Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of Imation ("Merger Subsidiary"), was incorporated on May 13, 1997
for purposes of the transactions contemplated by the Merger Agreement. Merger
Subsidiary engages in no other business. The principal executive offices of
Merger Subsidiary are located at 1 Imation Place, Oakdale, Minnesota 55128, and
the telephone number is (612) 704-4000.
THE SPECIAL MEETING
Time, Date and Place
The Special Meeting will be held at ____ a.m., local time,
on______,_______, 1997, at ______________, ______________, ______________, (the
"Special Meeting").
Purposes of the Special Meeting
The purposes of the Special Meeting are to (i) consider and vote on a
proposal to approve and adopt the Merger Agreement, and (ii) transact such other
business as may properly come before the Special Meeting.
Record Date; Shares Entitled to Vote
Only holders of record of shares of Cemax-Icon Common Stock and
Cemax-Icon Preferred Stock at the close of business on July 15, 1997 (the
"Record Date") are entitled to notice of and to vote at the Special Meeting. At
that date there were (a) 5,379,227 shares of Cemax-Icon Common Stock
outstanding, each of which will be entitled to one vote on each matter which may
properly come before the Special Meeting, and (b) 2,521,733 shares of Cemax-Icon
Preferred Stock outstanding and owned by Imation, each of which will be entitled
to 1/2.35 vote, for an aggregate of 1,073,077 votes, on each matter which may
properly come before the Special Meeting.
Votes Required; Quorum
The approval and adoption of the Merger Agreement by the stockholders
of Cemax-Icon will require the affirmative vote of the holders of a majority of
the voting power of the outstanding shares of Cemax-Icon Common Stock and
Cemax-Icon Preferred Stock, voting as one class. The presence, in person or by
properly executed proxy, of the holders of a majority of the voting power of the
outstanding shares of Cemax-Icon Common Stock and Cemax-Icon Preferred Stock,
considered as one class, entitled to vote at the Special Meeting is necessary to
constitute a quorum at the Special Meeting. At the Record Date, approximately
3,631,000 shares of Cemax-Icon Common Stock (approximately 56% of the voting
power of the outstanding shares of record as of the Record Date) were held by
directors, executive officers and their affiliates. Pursuant to the Stockholder
Agreements, certain stockholders, in their individual capacities as
stockholders, have agreed to vote all of their shares of Cemax-Icon Common Stock
(approximately 66% of the voting power of the outstanding shares of record as of
the Record Date) in favor of approval of the Merger Agreement and the Merger,
and have granted to Imation an irrevocable proxy so to vote their respective
shares. Such shares, when combined with the shares of Cemax-Icon Preferred Stock
owned by Imation, constitute approximately 71% of the voting power of the
outstanding shares entitled to vote at the Special Meeting. See "THE SPECIAL
MEETING--Record Date; Shares Entitled to Vote; Required Vote; Quorum."
THE MERGER
Effective Time
The Merger will become effective upon the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware (the "Effective
Time"). Such filing is required by the Delaware General Corporation Law (the
"DGCL") in connection with the Merger and will be made as soon as practicable
after the adoption by the stockholders of Cemax-Icon of the Merger Agreement and
the satisfaction or waiver of all other conditions to the Merger. See "THE
MERGER--Effective Time" and "--Effects of the Merger."
Effects of the Merger
At the Effective Time, pursuant to the Merger Agreement, (a) Merger
Subsidiary will be merged with and into Cemax-Icon, which will be the surviving
corporation (the "Surviving Corporation"), (b) Cemax-Icon will become a wholly
owned subsidiary of Imation, (c) each outstanding share of Cemax-Icon Common
Stock (other than Dissenting Shares) will be converted into and become a right
to receive (i) a cash payment of $5.25, without interest thereon, and (ii) one
Contingent Payment Right and (d) each share of Cemax-Icon Preferred Stock will
be canceled and extinguished, and no payment will be made therefor. See "THE
MERGER--Contingent Payment Rights" and "DESCRIPTION OF CONTINGENT PAYMENT
RIGHTS." An aggregate of up to $200,000 may be withheld from the initial
payments to stockholders in a separate fund for reimbursement of the
Stockholders' Representatives' out-of pocket-expenses in acting on behalf of
stockholders of Cemax-Icon in connection with the Merger. See "THE
MERGER--Stockholders' Representatives' Fund." The Merger is subject to the
satisfaction of a number of conditions, including, among others, approval of the
Merger Agreement and the Merger by the requisite vote of Cemax-Icon's
stockholders.
Conversion of Cemax-Icon Common Stock
Within three business days after the Effective Time, the Paying Agent
will mail to each holder of Cemax-Icon Common Stock a letter of transmittal and
instructions for surrendering stock certificates evidencing shares of Cemax-Icon
Common Stock in exchange for cash and Contingent Payment Rights to which such
holder is entitled as a result of the Merger. STOCKHOLDERS SHOULD NOT SEND ANY
STOCK CERTIFICATES WITH THEIR PROXY CARDS. See "THE MERGER--Conversion of
Cemax-Icon Common Stock."
Contingent Payment Rights
As a result of the Merger, and in addition to the cash payment of
$5.25, without interest, thereon, holders of shares of Cemax-Icon Common Stock
will be entitled to receive one Contingent Payment Right for each share of
Cemax-Icon Common Stock. Each Contingent Payment Right will entitle the holder
to receive payments, if any, of up to $8.50 over a two year period, based on the
gross revenues of Cemax-Icon for the 24 months commencing July 1, 1997, net of
any amount to which Imation is entitled pursuant to the offset provisions of the
Merger Agreement. Holders of Contingent Payment Rights will have the right to
receive any payments thereunder either in cash or shares of Imation Common
Stock. Prior to making such election, Imation will provide written notice to
holders of Contingent Payment Rights together with a current Prospectus
containing updated disclosure of the information contained in this Proxy
Statement/Prospectus. For purposes of any payments made under the Contingent
Payment Rights with respect to the twelve months ending June 30, 1998, the value
of the stock election is intended to be the same as the value of the cash
election since the value of the stock election will be based on the average
market price of Imation Common Stock during a ten day trading period ending just
prior to June 30, 1998. For purposes of any payments made under the Contingent
Payment Rights with respect to the twelve months ending June 30, 1999, the value
of the stock election will be based on a formula set forth in the Contingent
Payment Rights, such that the market price of Imation Common Stock at the time
of such payment must exceed $35.29 per share in order for the value of the stock
election to exceed the value of the cash election at such time.
A copy of the terms of the Contingent Payment Rights is attached to
this Proxy Statement/Prospectus as Exhibit C. See "DESCRIPTION OF CONTINGENT
PAYMENTS" and "THE MERGER AGREEMENT--Survival and Offset."
Effect of the Merger on Cemax-Icon Stock Options and Cemax-Icon
Warrants
At the Effective Time, Imation will assume the obligations of
Cemax-Icon under the Cemax-Icon, Inc. 1996 Stock Plan, the Icon Medical Systems,
Inc. 1992 Stock Option Plan and the Cemax/Icon, Inc. 1986 Amended Incentive
Stock Plan (collectively, the "Cemax-Icon Option Plans") and each option to
purchase Cemax-Icon Common Stock (a "Cemax-Icon Stock Option") granted under the
Cemax-Icon Option Plans and outstanding immediately prior to the Effective Time
(an "Outstanding Stock Option") will become an option to acquire Imation Common
Stock on the same terms and conditions as were applicable under the Cemax-Icon
Option Plans (a "Substitute Option"), except that (i) the number of shares
subject to each option and the exercise price will be appropriately adjusted to
give effect to the Common Exchange Ratio (as defined below) and (ii) each
Substitute Option that replaces an Outstanding Stock Option that vests at the
rate of either (x) 25% per year during the first year and 2% per month
thereafter or (y) 2% per month, will vest at the rate of 4% per month during the
first 12 months after the Effective Time. See "THE MERGER--Effect of the Merger
on Cemax-Icon Stock Options and Warrants."
Each outstanding warrant to purchase shares of Cemax-Icon Common Stock
(the "Cemax-Icon Warrants") will be converted into a substitute warrant to
acquire Imation Common Stock on the same terms and conditions as were applicable
under the Cemax-Icon Warrants, except that the number of shares subject to each
warrant and the exercise price will be appropriately adjusted to give effect to
the Common Exchange Ratio.
The Merger Agreement defines Common Exchange Ratio as the quotient of
(i) $11.96 and (ii) the average closing price per share of Imation Common Stock
on the New York Stock Exchange-Composite Transactions, as reported in The Wall
Street Journal, for each of the 10 consecutive trading days ending on the third
business day prior to the Effective Time.
Recommendation of the Board of Directors of Cemax-Icon
The Board of Directors of Cemax-Icon believes that the Merger is in the
best interests of Cemax-Icon and its stockholders and has unanimously approved
the Merger and the Merger Agreement. THE BOARD OF DIRECTORS OF CEMAX-ICON
UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE TO APPROVE AND ADOPT THE MERGER
AGREEMENT. This recommendation is based on a number of factors discussed in this
Proxy Statement/Prospectus. See "THE MERGER--Cemax-Icon's Reasons for the
Merger; Recommendation of the Board of Directors of Cemax-Icon."
Interests of Certain Persons in the Merger; Management of Cemax-Icon
After the Merger
Cemax-Icon, as the Surviving Corporation, will become a direct, wholly
owned subsidiary of Imation upon consummation of the Merger. The directors and
officers of Merger Subsidiary immediately prior to the Effective Time will be
the initial directors and officers of the Surviving Corporation. Imation
currently expects that, after the Effective Time, it will retain most of the
executive officers of Cemax-Icon immediately prior to the Effective Time with
duties substantially similar to those of such executive officers prior to the
Effective Time, and that Terry Ross and Jeremy B. Rubin, M.D., who are currently
directors and executive officers of Cemax-Icon, will be elected to the Board of
Directors of Cemax-Icon following the Effective Time. See "CERTAIN INFORMATION
CONCERNING IMATION--Management" and "CERTAIN INFORMATION CONCERNING
CEMAX-ICON--Management."
Pursuant to the Merger Agreement, Imation has agreed to assume all
Cemax-Icon Stock Options and Cemax-Icon Warrants, including those held by
officers and directors of Cemax-Icon. See "THE MERGER--Effect of the Merger on
Cemax-Icon Stock Options and Warrants." Pursuant to the Stockholder Agreements,
certain stockholders, in their individual capacities as stockholders, have
agreed to vote all shares of Cemax-Icon Common Stock owned by them for adoption
of the Merger Agreement and have granted to Imation an irrevocable proxy so to
vote their respective shares. See "THE MERGER--Stockholder Agreements." In
connection with the Merger Agreement, Cemax-Icon has entered into Key Management
Agreements with certain key management employees of Cemax-Icon and
Noncompetition Agreements with certain stockholders of Cemax-Icon, and Imation
has agreed to issue certain additional Imation options to certain key management
employees of Cemax-Icon in lieu of certain restricted shares of Cemax-Icon
Common Stock held by them. See "THE MERGER--Interests of Certain Persons in the
Merger." The Board of Directors of Cemax-Icon was aware of the interests of
certain persons in the Merger described above and considered them, among other
matters, in approving the Merger Agreement and the transactions contemplated
thereby.
Stockholder Agreements
As a condition to the willingness of Imation to execute the Merger
Agreement, concurrently with the execution of the Merger Agreement, certain
stockholders of Cemax-Icon, who collectively had record ownership of
approximately 3,530,000 shares of Cemax-Icon Common Stock as of the Record Date
(representing approximately 66% of the total voting power of the outstanding
shares of Cemax-Icon Common Stock and Cemax-Icon Preferred Stock on such date),
entered into separate Stockholder Agreements with Imation, pursuant to which
such stockholders, in such capacity, have agreed to vote, and have granted to
Imation an irrevocable proxy to vote, such shares (and any other shares of
Cemax-Icon Common Stock acquired after the date of the Merger Agreement,
including shares acquired pursuant to the exercise of any rights to purchase or
otherwise acquire shares) in favor of approval of the Merger Agreement and
Merger. In addition, under the Stockholder Agreements, such stockholders have
agreed that, if Cemax-Icon seeks a vote of its stockholders with respect to (i)
any proposal made in opposition to or in competition with consummation of the
Merger, (ii) any merger consolidation, sale of assets, reorganization or
recapitalization, with any party other than Imation, Merger Subsidiary and their
affiliates or (iii) any liquidation or winding up of Cemax-Icon (each of (i),
(ii) and (iii), an "Opposing Proposal"), such stockholders will vote against
such Opposing Proposal. Also, under the Stockholder Agreements, such
stockholders have also agreed (i) not to solicit, initiate or encourage
submission of any proposal or offer from any person, group or entity relating to
any acquisition of the assets, business or capital stock of Cemax-Icon, or other
similar transaction or business combination involving the business of
Cemax-Icon, (ii) not to participate in any negotiations or discussions regarding
or furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or assist or participate in, facilitate or encourage
any effort or attempt by any other person or entity to do or seek such
acquisition or transaction and (iii) to inform Imation of any inquiry regarding
the foregoing (i) and (ii). The Stockholder Agreements, other than the
provisions relating to the grant of an irrevocable proxy, terminate on the
earlier to occur of (i) the Effective Time or (ii) such date and time as the
Merger Agreement shall be terminated pursuant to Article VIII of the Merger
Agreement. See "THE MERGER--Stockholder Agreements."
Option Agreement
Concurrently with the execution of the Merger Agreement, Cemax-Icon and
Imation entered into an option agreement (the "Option Agreement") pursuant to
which Cemax-Icon granted to Imation an option (the "Option") to purchase up to
1,075,917 shares of Cemax-Icon Common Stock at a price equal to $11.96 per
share. Imation will be able to exercise the Option, in whole or in part, at any
time and from time to time, on or before December 31, 1997, unless the Merger
Agreement is terminated because of a material misrepresentation, material breach
of a warranty or material breach of a covenant by Imation or Merger Subsidiary
under the Merger Agreement. In addition, Imation will be entitled to
registration rights with respect to any shares of Cemax-Icon Common Stock
acquired by Imation pursuant to the Option Agreement. See "THE MERGER--Option
Agreement."
Accounting Treatment
The Merger will be accounted for under the purchase method of
accounting. See "THE MERGER--Accounting Treatment."
Certain Federal Income Tax Consequences
For federal income tax purposes, the Merger will be treated by each
holder of Cemax-Icon Common Stock (including any holder of shares who properly
exercises dissenter's rights) as a taxable sale or exchange of such stock for
cash and any cash or Imation Common Stock received pursuant to the Contingent
Payment Rights. It is expected that a stockholder who expects to recognize a
gain will be able to treat the transaction as giving rise to an installment
sale. Assuming that the shares of Common Stock exchanged by a Cemax-Icon
stockholder in connection with the Merger are capital assets in the hands of the
stockholder at the Effective Time, such stockholder may recognize a capital gain
or loss by reason of the consummation of the Merger; provided, however, that a
portion of any cash or stock received pursuant to the Contingent Payment Right
will be taxable as ordinary interest income. See "THE MERGER--Certain Federal
Income Tax Consequences."
Dissenters' Rights of Appraisal
Section 262 of the Delaware General Corporation Law (the "DGCL"), a
summary of which is provided in "THE MERGER--Dissenters' Rights of Appraisal"
and the full text of which is attached to this Prospectus/Proxy Statement as
Exhibit B, provides that a stockholder of a Delaware corporation is generally
entitled to receive payment of the appraised value of such stockholder's stock
if such stockholder dissents from a merger or consolidation. Accordingly,
holders of Cemax-Icon Common Stock will be entitled to receive the appraised
value for shares of such stock based on an appraisal conducted by the Delaware
Court of Chancery, provided that the stockholder does not vote in favor of the
Merger and complies with certain statutory procedures within the time periods
specified in the appraisal provisions of Delaware law. The value determined in
such appraisal could be more than, the same as, or less than the value of the
consideration to be received under the Merger Agreement by Cemax-Icon
stockholders who do not dissent from the Merger.
Regulatory Approvals
Consummation of the Merger is conditioned upon, among other things, the
expiration or termination of all applicable waiting periods pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). The HSR Act requires that parties to certain acquisitions file
notifications with the federal antitrust authorities and observe a waiting
period prior to consummation. Imation and Cemax-Icon each initially filed
Notification and Report Forms with respect to the Merger under the HSR Act on
June 13, 1997. The waiting period under the HSR Act was terminated effective
June 27, 1997. See "THE MERGER--Regulatory Approvals."
THE MERGER AGREEMENT
Limitations on Negotiations by Cemax-Icon
Cemax-Icon is prohibited from soliciting, initiating or encouraging
submission of any proposal or offer from any person or entity relating to any
liquidation, dissolution, recapitalization, merger, consolidation or acquisition
or purchase of all or a material portion of the assets of, or any equity
interest in, Cemax-Icon or other similar transaction or business combination
involving Cemax-Icon, or participating in any negotiations regarding, or
furnishing to any other person any information with respect to, or otherwise
cooperating in anyway with, or assisting or participating in, facilitating or
encouraging, any effort or attempt by any other person or entity to do or seek
any of the foregoing. See "THE MERGER AGREEMENT--Limitations on Negotiations by
Cemax-Icon."
Conditions to the Merger
The obligations of Imation and Cemax-Icon to effect the Merger are
subject to the satisfaction of certain conditions including, among others:
effectiveness of the Registration Statement, stockholder approval of the Merger
Agreement, the absence of any action, proceeding or injunction prohibiting
consummation of the Merger, the receipt of necessary regulatory and other
approvals and consents, continuing accuracy of representations and warranties in
the Merger Agreement, performance or compliance with the agreements and
covenants in the Merger Agreement and receipt by Imation and Cemax-Icon of
various agreements. See "THE MERGER AGREEMENT--Conditions."
Termination of the Merger Agreement
The Merger Agreement may be terminated at any time prior to the
Effective Time: (i) by mutual consent of Imation, Merger Subsidiary and
Cemax-Icon; (ii) by either Imation or Merger Subsidiary, on the one hand, or
Cemax-Icon, on the other, in the event (a) there has been a material
misrepresentation, breach of warranty or breach of covenant on the part of the
other in the representations, warranties and covenants set forth in the Merger
Agreement; (b) there shall be a final nonappealable order of a federal or state
court in effect preventing the consummation of the Merger, or there shall be any
action taken, or any statute, rule, regulation or order enacted, promulgated or
issued or deemed applicable to the Merger by any governmental authority or
agency which would make the consummation of the Merger illegal; (c) there shall
be any action taken, or any statute, rule, regulation or order enacted,
promulgated or issued or deemed applicable to the Merger by any governmental
authority or agency which would (x) prohibit Cemax-Icon's or Imation's ownership
or operation of all or a portion of Cemax-Icon's business or (y) compel Imation
or Cemax-Icon to dispose of or hold separate all or a portion of the business or
assets of Cemax-Icon or Imation as a result of the Merger; or (d) by either
Imation, on the one hand, or Cemax-Icon, on the other, in the event the
transactions contemplated by the Merger Agreement or the Certificate of Merger
have not been consummated on or before August 31, 1997; provided that neither
will be entitled to terminate the Merger Agreement if such party's willful
breach of the Merger Agreement has prevented the consummation of the
transactions contemplated by the Merger Agreement; or (iii) by Imation, if (a)
more than seven percent of the outstanding shares of Cemax-Icon Common Stock
shall be qualified to be Dissenting Shares after the first meeting of
Cemax-Icon's stockholders to approve the Merger Agreement and the Merger; or (b)
after the date of the Merger Agreement, there shall have been a material adverse
change in the assets, properties, financial condition, operating results or
business condition of Cemax-Icon which shall continue to constitute such a
material adverse change on or after July 31, 1997.
In the event of termination of the Merger Agreement by either Imation
or Cemax-Icon, under certain circumstances, either Imation or Cemax-Icon could
be required to pay to the other a termination fee, as described in the next
section and under "THE MERGER AGREEMENT--Termination Fees." See "THE MERGER
AGREEMENT--Termination."
Termination Fees
Imation and Cemax-Icon have agreed that in the event the Merger
Agreement terminates as a result of (i) the failure of a party to proceed with
the Merger even though all of the conditions of such party's obligations to
consummate the transactions contemplated by the Merger Agreement have been
satisfied or (ii) a material misrepresentation, breach of warranty or breach of
covenant on the part of a party in the representations, warranties and covenants
set forth in the Merger Agreement, where such misrepresentation or breach
results or arises from the intentional, willful or grossly negligent acts or
omissions of such party, from information or circumstances known by such party
as of the date of the Merger Agreement or from information or circumstances not
known by such party as of the date of the Merger Agreement as a result of the
intentional or willful disregard or the gross negligence of such party, the
breaching party will promptly reimburse the non-breaching party for
out-of-pocket fees and expenses up to $1,000,000. Under certain circumstances,
in the event Cemax-Icon is the breaching party, it may make such payment by
delivering to Imation shares of Cemax-Icon Common Stock valued at a price of $10
per share.
In addition, in the event (i) Imation terminates the Merger Agreement
as a result of a material misrepresentation, material breach of warranty or
material breach of covenant on the part of Cemax-Icon of the representations,
warranties and covenants set forth in the Merger Agreement and (ii) Cemax-Icon
engages in, becomes subject to, or enters into an agreement or understanding
with respect to, a Control Transaction (as defined below) with a party other
than Imation prior to December 31, 1997, Cemax-Icon shall promptly pay to
Imation $3,000,000 in addition to any amounts previously paid or required to be
paid pursuant to the termination provisions of the Merger Agreement. See "THE
MERGER AGREEMENT--Termination Fees.
A "Control Transaction" means (i) any acquisition of effective control
of Cemax-Icon, whether by merger, purchase of all or substantially all of the
assets of Cemax-Icon, purchase of a majority of the equity of Cemax-Icon or
otherwise, or (ii) any issuance by Cemax-Icon, in a single or series of
transactions, of shares of capital stock, or rights to purchase shares of
capital stock, representing equal to or greater than twenty percent (20%) of the
outstanding capital stock of Cemax-Icon. Notwithstanding the foregoing, a
Control Transaction does not include the issuance by Cemax-Icon of more than
twenty percent (20%) of the outstanding capital stock of Cemax-Icon (A) pursuant
to an initial public offering of Cemax-Icon's equity securities under Section 5
of the Securities Act, or (B) pursuant to a pro rata or substantially pro rata
offering of Cemax-Icon's securities to Cemax-Icon's current stockholders
entitled to participate in such offering pursuant to applicable securities laws,
provided, that, in either case, after such offering, (1) none of Cemax-Icon's
current stockholders is the beneficial owner of more than forty percent (40%) of
the outstanding capital stock of Cemax-Icon (computed as if all securities
beneficially owned by such stockholder which are convertible into capital stock
of Cemax-Icon had been converted), and (2) none of Imation's competitors
previously disclosed to Cemax-Icon is the beneficial owner of more than forty
percent (40%) of the outstanding capital stock of Cemax-Icon (computed as if all
securities beneficially owned by such competitor which are convertible into
capital stock of Cemax-Icon had been converted).
MARKET PRICE DATA
The Imation Common Stock is listed on the NYSE under the symbol "IMN."
On May 13, 1997, the last full trading day before Imation and Cemax-Icon
announced the execution of the Merger Agreement, the closing price per share of
Imation Common Stock was $24.50, and on_________, 1997, the closing price per
share of Imation Common Stock was $__________. There is no established trading
market for Cemax-Icon Common Stock, excluding limited trading as a result of
private negotiations not involving any broker or dealer.
COMPARATIVE UNAUDITED PER COMMON SHARE DATA
The following table presents selected comparative unaudited per common
share data with respect to Imation Common Stock and Cemax-Icon Common Stock on a
historical basis and a pro forma combined basis, giving effect to the Merger
using the purchase method of accounting. This information is derived from the
historical financial statements and the related notes thereto and the pro forma
unaudited combined financials and the related note thereto included elsewhere
herein. The per share data set forth below are presented for informational
purposes only and are not necessarily indicative of the results of the future
operations of the combined entity or the actual results that would have been
achieved had the Merger been consummated prior to the dates as assumed in
preparing such data.
<TABLE>
<CAPTION>
Imation Cemax-Icon
Common Stock Common Stock Pro Forma
Historical Historical Combined
---------- ---------- --------
<S> <C> <C> <C>
BOOK VALUE PER SHARE:
March 31, 1997 ................................... $ 21.53 $ (0.25) $ 21.00
CASH DIVIDENDS PER SHARE:
Three months ended March 31, 1997 ................ 0 0 0
Year ended December 31, 1996 .................... 0 0 0
EARNINGS (LOSS) PER SHARE FROM CONTINUING OPERATIONS:
Three months ended March 31, 1997 ................ 0.30 (0.18) 0.26
Year ended December 31, 1996 ..................... (0.49) (0.59) (0.63)
</TABLE>
SUMMARY FINANCIAL DATA OF IMATION
Set forth below is selected consolidated historical financial
information of Imation derived from the unaudited consolidated financial
statements of Imation for the three months ended March 31, 1997 and 1996 and for
the fiscal year ended December 31, 1992, and the audited consolidated financial
statements of Imation for the fiscal years ended December 31, 1996, 1995, 1994
and 1993. The information should be read in conjunction with the Management's
Discussion and Analysis of Imation, the consolidated financial statements of
Imation and related notes thereto and the pro forma unaudited combined financial
statements and the related note thereto included elsewhere herein. In the
opinion of Imation's management, the operating results for the fiscal quarters
ended March 31, 1997 and 1996 and for the fiscal year ended December 31, 1992
reflect all adjustments (consisting of normal recurring accruals except for the
restructuring charges recorded in the first quarter of 1996) necessary to
present fairly the information contained therein. Results for the three months
ended March 31, 1997 are not necessarily indicative of the results for the full
year.
<TABLE>
<CAPTION>
Three Months Ended
March 31, Years Ended December 31,
------------------ -----------------------------------------------------
1997 1996(a) 1996(b) 1995(c) 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
(In millions, except (In millions, except per share data) (Unaudited)
per share data)
(Unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net revenues ........ $ 548 $ 576 $ 2,278 $ 2,246 $ 2,281 $ 2,308 $ 2,350
Gross profit ........ 199 202 795 725 839 886 885
Selling, general and
administrative .... 133 131 563 539 532 529 542
Research and
development ....... 38 48 183 222 211 217 181
Operating income
(loss) ............ 28 13 (5) (149) 96 141 162
Net income (loss) ... 12 6 (21) (85) 54 75 94
Earnings (loss) per
common share ...... .30 .14 (0.49) (2.02) 1.28 n/a n/a
BALANCE SHEET DATA:
Total working capital $ 622 $ 607 $ 658 $ 714 $ 618 $ 608
Total assets ........ 1,549 1,561 1,542 1,672 1,546 1,534
Long-term obligations 245 222 97 88 85 96
Total shareholders'
equity ............ 912 930 1,149 1,300 1,200 1,172
- ----------------------
(a) Restructuring charges reduced results for the three months ended March
31, 1996 by $10.4 million before taxes and minority interest and $6.1
million after taxes and minority interest. Net income for the three
months ended March 31, 1996 excluding these charges would have been $12.2
million. These charges relate to costs for certain employee separation
programs.
(b) Restructuring charges and one-time charges reduced 1996 results by $88.4
million before taxes and minority interest and $60.6 million after taxes
and minority interest. 1996 net income excluding these charges would have
been $40.1 million. These charges related to one-time costs associated
with start-up activities, restructuring charges primarily for employee
severance programs and the write-off of in-process research and
development related to the acquisition of Luminous Corporation.
(c) Restructuring charges and asset write-offs reduced 1995 results by $166.3
million before taxes and minority interest and $88.3 million after taxes
and minority interest. 1995 net income excluding these charges would have
been $3.3 million. The majority of these charges related to the
write-down of property, plant and equipment.
</TABLE>
SUMMARY FINANCIAL DATA OF CEMAX-ICON
Set forth below is selected historical financial information of
Cemax-Icon derived from the unaudited financial statements of Cemax-Icon for the
three months ended March 31, 1997 and 1996 and for the fiscal years ended
December 31, 1993 and 1992, and the audited financial statements of Cemax-Icon
for the fiscal years ended December 31, 1996, 1995 and 1994. The information
should be read in conjunction with the Management's Discussion and Analysis of
Cemax-Icon, the financial statements of Cemax-Icon and related notes thereto and
the pro forma combined financial statements and the related note thereto
included elsewhere herein. In the opinion of Cemax-Icon's management, the
operating results for the fiscal quarters ended March 31, 1997 and 1996 and for
the fiscal years ended December 31, 1993 and 1992 reflect all adjustments
(consisting of normal recurring accruals) necessary to present fairly the
information contained therein. Results for the three months ended March 31, 1997
are not necessarily indicative of the results for the full year.
<TABLE>
<CAPTION>
Three Months Ended
March 31, Years Ended December 31,
-------------------- ------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
------- ------- -------- -------- -------- -------- --------
(In thousands, except (In thousands, except per share data)
per share data)
(Unaudited) (Unaudited) (Unaudited)
STATEMENT OF OPERATIONS DATA:
<S> <C> <C> <C> <C> <C> <C> <C>
Net revenues ........... $ 7,283 $ 4,818 $ 25,148 $ 17,030 $ 16,457 $ 12,114 $ 8,314
Gross profit ........... 2,443 2,313 10,728 6,518 7,654 6,055 5,213
Selling, general and
administrative ....... 1,693 1,507 7,178 6,235 6,010 3,947 3,851
Research and
development .......... 1,642 1,622 6,481 6,501 4,134 3,249 2,171
Operating income (loss) (892) (816) (2,931) (6,842) (2,490) (1,141) (809)
Net income (loss) ...... (969) (819) (3,056) (6,815) (2,578) (1,198) (843)
Earnings (loss)
per common share ..... (0.18) (0.17) (0.59) (1.75) (1.10) (0.59) (0.46)
BALANCE SHEET DATA:
Total working capital .. $ 2,275 $ 3,454 $ (538) $ (50) $ 584 $ 1,114
Total assets ........... 16,776 16,708 9,279 7,019 5,465 3,733
Long-term obligations .. 5,562 5,619 604 891 570 414
Accumulated deficit .... (35,606) (34,637) (31,581) (24,766) (22,188) (20,880)
Total shareholders'
equity (net capital)
deficiency) .......... (1,366) (400) 370 235 1,098 1,594
</TABLE>
PRO FORMA UNAUDITED COMBINED SUMMARY FINANCIAL DATA
The following table summarizes certain selected pro forma unaudited
financial data for Imation and Cemax-Icon combined, giving effect to the Merger
using the purchase method of accounting. Such pro forma data assumes that the
Merger had been effective on March 31, 1997 for the balance sheet data and
January 1, 1996 for the statement of operations data. The pro forma unaudited
data set forth in the following table is derived from, and should be read in
conjunction with, the historical financial statements of Imation and Cemax-Icon,
including the respective notes thereto and the pro forma unaudited combined
financial statements and the related note thereto included elsewhere herein. The
following pro forma unaudited financial data is presented for informational
purposes only, and is not necessarily indicative of the results of the future
operations of the combined entity or the actual results that would have been
achieved had the Merger been consummated on the dates or prior to the periods
presented.
The pro forma unaudited financial data does not reflect additional
amounts of goodwill, if any, that may result should additional consideration be
issuable pursuant to the Contingent Payment Rights. Under generally accepted
accounting principles, contingent consideration is recorded when the results of
the contingency become known.
Imation and Cemax-Icon Combined
-------------------------------------
Three Months Ended Year Ended
March 31, 1997 December 31, 1996
------------------ -----------------
(In millions, except per share data)
STATEMENT OF OPERATIONS DATA:
Net revenues ......................... $ 555 $ 2,299
Gross profit ......................... 201 806
Selling, general and administrative .. 135 573
Research and development ............. 39 190
Operating income (loss) .............. 27 (10)
Net income (loss) .................... 11 (26)
Earnings (loss) per common share ..... 0.26 (0.63)
BALANCE SHEET DATA (AS OF END OF PERIOD):
Total working capital ................ $ 625
Total assets ......................... 1,575
Long-term obligations ................ 281
Total shareholders' equity ........... 890
RISK FACTORS
THIS PROXY STATEMENT/PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS
THAT INVOLVE RISKS AND UNCERTAINTIES. ACTUAL RESULTS COULD DIFFER MATERIALLY
FROM THOSE ANTICIPATED IN THESE FORWARD-LOOKING STATEMENTS AS A RESULT OF
CERTAIN FACTORS INCLUDING, BUT NOT LIMITED TO, THOSE SET FORTH IN THE FOLLOWING
RISK FACTORS. CERTAIN FACTORS RELATING TO (i) IMATION'S BUSINESS AND THE
INDUSTRY IN WHICH IMATION OPERATES, (ii) CEMAX-ICON'S BUSINESS AND THE INDUSTRY
IN WHICH IT OPERATES AND (iii) THE CONTINGENT PAYMENT RIGHTS SHOULD BE CAREFULLY
CONSIDERED BY HOLDERS OF CEMAX-ICON COMMON STOCK, SINCE SUCH FACTORS MAY AFFECT
THE VALUE OF THE CONTINGENT PAYMENT RIGHTS AND ANY PAYMENTS MADE THEREUNDER.
RISK FACTORS WITH RESPECT TO IMATION
Imation's Ability to Establish a New Brand and Identity
Prior to the Distribution, the Transferred Businesses had the benefit
of certain 3M trademarks and 3M's reputation in marketing their products.
Pursuant to agreements entered into with 3M, Imation continues to have the use
of certain 3M trademarks under a royalty-bearing license for an agreed upon
period of time following the Distribution. The royalty payable by Imation for
use of the 3M licensed trademarks is in the form of cash payments, commitments
to purchase product from 3M and/or commitments to engage in certain other
activities benefiting 3M. The amount of cash royalties paid by Imation to 3M for
the use of licensed trademarks totaled approximately $1.8 million for the last
six months of 1996 and approximately $490,000 for the first quarter of 1997.
"See "CERTAIN INFORMATION CONCERNING IMATION--Relationship Between 3M and
Imation--Intellectual Property Agreement." Imation has made and continues to
make significant investments in the development of Imation's identity and brand.
However, there can be no assurance that Imation will be successful in this
regard or that the loss of use of 3M trademarks might not have an adverse effect
on the business of Imation.
Competitive Industry Conditions
Imation operates in a highly competitive environment. Imation's
competitors are both larger and smaller than Imation in terms of resources and
market shares. The marketplaces in which Imation operates are generally
characterized by rapid technological change, frequent new product introductions,
evolution to digital business solutions and declining prices. In these highly
competitive markets, Imation's success will depend to a significant extent on
its ability to continue to develop and introduce differentiated and innovative
products and customer solutions successfully on a timely basis. The success of
Imation's offerings is dependent on several factors including understanding
customer needs, strong digital technology, differentiation from competitive
offerings, market acceptance and lower costs. Although Imation believes that it
can take the necessary steps to meet the competitive challenges of these
marketplaces, no assurance can be given with regard to Imation's ability to take
these steps, the actions of competitors, some of which will have greater
resources than Imation, or the pace of technological changes.
Changing Industry Environment
The information processing industry is undergoing rapid technological
change. As there is a greatly expanding need to manage and store more complex
information in less time, with less resources and with greater accuracy, there
is an increasing emphasis in the marketplace on solutions using digital
technologies. While Imation has a number of successful digital products and
significant proprietary technologies, Imation's success will depend, in part, on
Imation's ability to anticipate the growing uses of digital technologies. In
addition, new technological innovations generally require a substantial
investment before any assurance is available as to their commercial viability.
Imation's Ability to Establish Independent Business Processes
Imation is making significant investments in establishing Imation's
information technology ("IT") infrastructure and in re-engineering Imation's
business processes. Imation incurred approximately $40 million during the last
six months of 1996 and approximately $15 million during the first quarter of
1997 in costs related to establishing independent IT systems and re-engineering
Imation's business processes. A portion of these costs are being capitalized on
Imation's financial statements and will begin to be amortized once the IT
systems have been implemented. Prior to the Distribution, these and other
corporate services were provided to the Transferred Businesses by 3M. For a
transition period of up to two years following the Distribution, 3M is
continuing to provide such services to Imation. The cost of all corporate
services supplied by 3M to Imation totaled approximately $51 million for the
last six months of 1996 and approximately $21 million for the first three months
of 1997. See "CERTAIN INFORMATION CONCERNING IMATION--Relationship Between 3M
and Imation--Corporate Services Transition Agreement." During this transitional
period, Imation must establish its own services and support systems independent
of 3M.
International Operations and Foreign Currency
Imation does business in more than 60 countries outside the United
States. International operations, which comprised approximately 49% of Imation's
revenues in 1996, may be subject to various risks which are not present in
domestic operations, including political instability, the possibility of
expropriation, restrictions on royalties, dividends and currency remittances,
local government involvement required for operational changes within Imation,
requirements for governmental approvals for new ventures and local participation
in operations such as local equity ownership and workers' councils. In addition,
Imation's business and financial results are affected by fluctuations in world
financial markets, including foreign currency exchange rates. Imation's foreign
currency hedging policy attempts to mitigate some of these risks; however, these
risk management activities are not comprehensive and there can be no assurance
that these programs will offset more than a portion of the adverse financial
impact resulting from unfavorable movements in foreign exchange rates.
Fluctuations in Operating Results
Imation began operations as an independent public company on July 1,
1996 and therefore does not have a lengthy operating history as an independent
company. Imation's businesses, as operated by 3M prior to the Distribution,
experienced slight declines in total annual revenues during the three year
period ending December 31, 1995. Imation's goal is to reverse this historical
trend and achieve sustainable revenue growth. Imation's strategy to achieve
revenue growth is to expand international penetration of current products and
services in higher growth regions of the world, to expand sales of Imation's
products to its existing customer base and to develop new products and services
for the information processing industry based on proprietary technologies. While
Imation's revenues increased slightly in 1996 primarily as a result of sales of
newly introduced product platforms, there can be no assurance that Imation will
be successful in achieving sustainable revenue growth in the future. Imation's
stock price may be subject to significant volatility. If revenue or earnings in
any quarter fail to meet the investment community's expectations, there could be
an immediate impact on Imation's stock price. The stock price may also be
affected by broader market trends unrelated to Imation's performance.
Future Capital Requirements
Prior to the Distribution, the Transferred Businesses participated in
3M's centralized funding and cash and foreign currency management. The capital
requirements of the Transferred Businesses in excess of their internally
generated funds were provided by 3M. This financial support is no longer
available to Imation and Imation is now responsible for obtaining its own
financing. Imation believes that its credit facilities, cash flow from
operations and future long- and short-term debt financings will be sufficient to
satisfy its foreseeable future working capital, capital expenditures, research
and development and debt service requirements.
RISK FACTORS WITH RESPECT TO CEMAX-ICON
Lack of Profitable Operations; Significant Losses from Operations;
Variability in Operating Results
Cemax-Icon has not been profitable since inception, has experienced
significant losses from operations and had an accumulated deficit of
approximately $35.6 million as of March 31, 1997. Cemax-Icon has incurred losses
from operations of approximately $6.8 million for the year ended December 31,
1995, $2.9 million for the year ended December 31, 1996 and $892,000 for the
three month period ended March 31, 1997. Such operating losses are due in part
to the fact that Cemax-Icon's sales revenues have not increased in the manner
originally anticipated by Cemax-Icon. Cemax-Icon believes that the reason such
sales revenues did not increase as anticipated was initially due to the fact
that market demand for Cemax-Icon's existing products did not develop as rapidly
as Cemax-Icon anticipated and subsequently was due to delays in developing and
releasing for customer shipment new products and upgraded versions of
Cemax-Icon's existing products. There can be no assurance that Cemax-Icon will
be profitable on a quarterly or annual basis in the future.
Cemax-Icon's results of operations may fluctuate significantly from
quarter to quarter as a result of a number of factors, including: (i) the volume
and timing of system sales and customer acceptances; (ii) customer purchasing
patterns, long sales cycles, order cancellations and rescheduling of system
installations; (iii) the mix of direct and indirect sales and (iv) the mix of
higher-margin OEM software revenues and lower-margin system revenues. Cemax-Icon
typically does not obtain long-term volume purchase contracts from its
customers, and a substantial portion of Cemax-Icon's backlog is scheduled for
delivery within 90 days or less. Customers may cancel or change the volume or
timing of outstanding purchase orders at any time without recourse. In addition,
Cemax-Icon believes that sales generated by its OEM strategic partners are
likely to vary significantly from quarter to quarter. Accordingly, Cemax-Icon's
future operating results are likely to be subject to significant variability
from quarter to quarter and could be adversely affected in any particular
quarter.
Dependence upon Ability to Enhance and Integrate Existing Product Line
and Develop New Products
The market for Cemax-Icon's systems is characterized by changes in
customer requirements and frequent new product introductions and enhancements.
Cemax-Icon's future success will depend upon its ability to enhance and
integrate its current product line, to complete products currently under
development, to develop and introduce new products and to respond to evolving
customer requirements. Any failure by Cemax-Icon to anticipate or respond
adequately to technological developments by its competitors or to changes in
customer requirements, or any significant delays in product integration,
development or introduction could result in a loss of competitiveness or
revenues. There can be no assurance that Cemax-Icon will be successful in
completing its product integration efforts or in developing and marketing new
products or product enhancements on a timely or cost-effective basis and such
failure could have a material adverse effect on Cemax-Icon's business, financial
condition and results of operations. See "CERTAIN INFORMATION CONCERNING
CEMAX-ICON--Business--Products."
Risk Related to Products Under Development
There can be no assurance that Cemax-Icon will be able to complete
development and commence shipment of modules and other products under
development in a reasonable time frame which will be acceptable to customers. In
the past, Cemax-Icon has occasionally experienced delays in development
and introduction of new products and product enhancements, and there can be no
assurance that Cemax-Icon will not experience such delays in the future.
Timeliness of delivery is of critical importance to certain customers, and
Cemax-Icon's failure to successfully develop and ship such products in a timely
manner could result in cancellation of customer orders which would have a
material adverse effect on Cemax-Icon's business, financial condition and
results of operations.
Risks Related to Company Reliance upon OEMs and Principal Customers
Cemax-Icon's success is dependent on the success of its marketing and
distribution strategy which involves, to a significant degree, reliance on
Cemax-Icon's OEMs to sell Cemax-Icon's software modules as a component of the
systems being marketed by such OEMs. Sales through OEMs accounted for 35%, 35%,
36% and 20% of Cemax-Icon's total revenues in 1994, 1995, 1996 and the three
months ended March 31, 1997, respectively. Cemax-Icon's OEM agreements are
subject to cancellation by the OEMs under certain circumstances. Certain OEMs
who are competitors of Imation may seek to terminate their agreements with
Cemax-Icon as a result of the Merger. If Cemax-Icon's current or future OEMs
elect to terminate their agreements with Cemax-Icon or elect not to include
Cemax-Icon's software modules as components in their systems or are unsuccessful
in achieving significant sales of those systems, Cemax-Icon's business,
financial condition and results of operations would be materially and adversely
affected.
Cemax-Icon expects to continue to depend upon its principal customers
for a significant portion of its sales. There can be no assurance that
Cemax-Icon's principal customers will continue to purchase systems and services
from Cemax-Icon at current levels, if at all. The loss of one or more major
customers or a change in their buying patterns could have a material adverse
effect on Cemax-Icon's business, financial condition and results of operations.
See "CERTAIN INFORMATION CONCERNING CEMAX-ICON--Business--Marketing and Sales"
and "--Customers."
Dependence on Emerging PACS and Teleradiology Markets; Uncertainty of
Market Acceptance
Cemax-Icon's success is dependent on the development of the picture
archiving and communication systems ("PACS") and teleradiology markets and on
market acceptance of its existing systems and products under development.
Substantially all of Cemax-Icon's revenues are derived from the sale of medical
image information systems for the PACS and teleradiology markets. The market for
Cemax-Icon's systems is still relatively undeveloped and may not experience
material expansion in the near future, if at all. In the event that the PACS and
teleradiology markets do not develop as anticipated by Cemax-Icon, Cemax-Icon's
business, financial condition and results of operations would be materially
adversely affected.
The commercial success of Cemax-Icon's systems will depend upon their
acceptance by the medical community as useful, cost-effective components of
radiological procedures. There can be no assurance that sales of Cemax-Icon's
systems will continue at historical rates or that Cemax-Icon will introduce new
products that achieve significant market acceptance in the future. Furthermore,
new product introductions or enhancements by Cemax-Icon's competitors or the use
of other technologies could cause a decline in sales or loss of market
acceptance of Cemax-Icon's systems. In addition, third-party payors, such as
governmental programs and private insurance plans, can indirectly affect the
pricing or the relative attractiveness of Cemax-Icon's systems by regulating the
maximum amount of reimbursement that they will provide for the taking, storing
and interpretation of medical images. A decrease in the reimbursement amounts
for radiological procedures may decrease the amount which physicians, clinics
and hospitals are able to charge patients for such services. As a result,
adoption of teleradiology and/or PACS systems may slow as capital investment
budgets are reduced, thereby significantly reducing the demand for Cemax-Icon's
systems. In the event that Cemax-Icon's existing systems and products under
development do not achieve market acceptance, Cemax-Icon's business, financial
condition and results of operations would be materially adversely affected. See
"CERTAIN INFORMATION CONCERNING CEMAX-ICON--Business--Third-Party
Reimbursement."
Rapid Technological Change
The market for Cemax-Icon's systems is subject to rapid technological
advances. Cemax-Icon's future success will depend upon its ability to develop,
introduce and successfully market new products that keep pace with technological
developments. There can be no assurance that Cemax-Icon will be successful in
developing and introducing new products that keep pace with technological
advances, and the failure to do so could have a material adverse effect on
Cemax-Icon's business, financial condition and results of operations.
Long Sales and Delivery Cycle; Dependence on Future System Sales
The decision by a healthcare provider to replace or substantially
upgrade its image information systems typically involves a major commitment of
capital and an extended review and approval process. Accordingly, the sales and
delivery cycle for Cemax-Icon's systems is typically two to 12 months from
initial contact to delivery and acceptance. The time required from initial
contact to contract execution is typically one to six months. During these
periods, Cemax-Icon may expend substantial time, effort and funds preparing a
contract proposal and negotiating the contract. Cemax-Icon does not record
revenues on systems until they have been delivered to the customer. The length
of time between contract execution and delivery typically ranges from three to
12 months depending on the size of the systems ordered, the products ordered and
the delivery terms. At March 31, 1997, Cemax-Icon had approximately $9.8 million
of signed sales contracts from systems and services which had not yet been
delivered. This amount includes contracts for system sales and services that may
include cancellation provisions, and contracts that are expected to result in
revenues over periods of as much as one year. Any significant or ongoing failure
to identify appropriate potential customers, to achieve signed contracts, to
successfully complete software modules under development or to obtain customer
acceptance after expending time, effort and funds could have a material adverse
effect on Cemax-Icon's business, financial condition and results of operations.
See "CERTAIN INFORMATION CONCERNING CEMAX-ICON--Business--Marketing and Sales"
and "--Customers."
Competition
Competition in the market for Cemax-Icon's systems is intense. A large
number of companies offer teleradiology systems which are competitive with those
of Cemax-Icon. Many of Cemax-Icon's competitors are larger and more established
and have substantially more financial, technical, research and development and
marketing resources than Cemax-Icon. Several large multi-national corporations,
including Philips Electronics N.V., Agfa-Gevaert N.V. and Siemens Medical
Systems, Inc. offer competitive products in the PACS market. Other large
corporations have the technical and financial ability to design and market
competitive products, and some of them have produced and marketed such products
in the past. There can be no assurance that such large potential competitors
will not elect to reenter the market for Cemax-Icon's systems, which could have
a material adverse effect on Cemax-Icon's ability to sell its systems. In the
past, certain competitors have from time to time offered PACS systems for sale
at substantial discounts to prevailing prices, or offered PACS systems to
customers at no additional charge in connection with the sale of complementary
products, which has had and could have a material adverse effect on Cemax-Icon's
ability to sell its systems.
Cemax-Icon's ability to compete successfully in the sale of its systems
will depend in large part upon its ability to implement successfully its
strategy of selling systems as a total solution as well as its ability to
attract new customers, sell new products, deliver and support product
enhancements to its existing customers, and respond effectively to continuing
technological change by developing new products. There can be no assurance that
Cemax-Icon will be able to compete successfully in the future, or that future
competition for product sales will not have a material adverse effect on the
business, financial condition and results of operations of Cemax-Icon. See
"CERTAIN INFORMATION CONCERNING CEMAX-ICON--Business--Competition."
Risks Associated with Ability to Manage Projected Growth; Need for
Additional Qualified Personnel
As a result of both internal development and planned expansion into
additional applications and markets, Cemax-Icon expects a period of rapid
growth. Such growth would place a significant strain on Cemax-Icon customer
service and support operations, sales, administrative personnel and other
resources. Cemax-Icon's ability to manage future growth, if any, effectively
will require Cemax-Icon to continue to improve its operational, management and
financial systems and controls and to train, motivate and manage its employees.
As a result, Cemax-Icon is subject to certain growth-related risks, including
the risk that it will be unable to retain the necessary personnel to acquire
other resources necessary to service such growth adequately. Further revenue
growth, if any, depends on Cemax-Icon's ability to rapidly grow its direct sales
force and distribution channels. There can be no assurance that Cemax-Icon can
expand those resources as rapidly as necessary. If Cemax-Icon's management is
unable to manage future growth, if any, effectively, Cemax-Icon's business,
financial condition and results of operations could be materially adversely
affected.
Dependence on Key Employees
Cemax-Icon is highly dependent on certain members of its sales and
engineering staff, the loss of services of one or more of whom could have a
material adverse effect on Cemax-Icon's business and results of operations.
Furthermore, recruiting and retaining qualified sales and technical personnel
will also be critical to Cemax-Icon's success. There can be no assurance that
Cemax-Icon will be successful in attracting and retaining skilled technical
personnel who generally are in high demand in Cemax-Icon's geographic area. The
loss of certain key employees, including Cemax-Icon's Chief Executive Officer
and Chief Technical Officer, or Cemax-Icon's inability to attract and retain
other qualified employees could have a material adverse effect on Cemax-Icon's
business, financial condition and results of operations. In connection with the
Merger, Cemax-Icon has entered into Key Management Agreements with its Chief
Executive Officer, Chief Technical Officer and certain other key management
personnel. See "THE MERGER--Interests of Certain Persons in the Merger--Key
Management Agreements."
Dependence on Single-Source Suppliers
Certain components used with Cemax-Icon's systems, including the film
digitizer, are currently obtained from single sources. Cemax-Icon is not aware
of a short-term alternative source of supply of this film digitizer. The loss of
the supply of such film digitizer for an extended period of time would have a
material adverse effect on Cemax-Icon's business, financial condition and
results of operations.
Risks Associated with International Operations
Foreign markets may be influenced by factors that are different from
those prevailing in the United States. Cemax-Icon has limited experience in
business operation outside the United States, and there can be no assurance that
Cemax-Icon's systems products will be accepted in international markets or that
Cemax-Icon can compete successfully in such markets. International operations
and sales are also subject to certain political and economic risks, including
political instability, currency controls, trade restrictions, regulatory
requirements, exchange rate fluctuations and changes in import and export
regulations, any of which could have a material adverse effect on Cemax-Icon's
business, financial condition and results of operations.
FDA and Other Government Regulation
The manufacturing and marketing of Cemax-Icon's systems are subject to
extensive government regulation as medical devices in the United States by the
Food and Drug Administration ("FDA") and in other countries by corresponding
foreign regulatory authorities. The process of obtaining and maintaining
required regulatory clearances and approvals is lengthy, expensive, and
uncertain. Cemax-Icon believes that its success depends upon commercial sales of
improved versions of its systems, certain of which cannot be marketed in the
United States and other regulated markets unless and until Cemax-Icon obtains
clearance or approval from the FDA and its foreign counterparts.
The FDA requires that a manufacturer seeking to market a new medical
device or an existing medical device for a new indication obtain either a
premarket notification clearance under Section 510(k) of the Federal Food, Drug
and Cosmetic Act or the approval of a premarket approval application under this
Act ("PMA") prior to the introduction of such product into the market. Material
changes to existing medical devices are also subject to FDA review and clearance
or approval prior to commercialization in the United States. Cemax-Icon is
currently relying on the Section 510(k) premarket notification method to obtain
governmental clearance ("510(k) clearance") to market its medical devices in the
United States. Although it is believed to be a shorter, less costly regulatory
plan than the process to obtain a PMA, the process of obtaining a 510(k)
clearance generally requires supporting data, which can be extensive and extend
regulatory review process for a considerable length of time. All models of
Cemax-Icon systems that are commercially available have received 510(k)
clearance by the FDA. In addition, Cemax-Icon recently received 510(k) clearance
for Archive Manager 2.0 and for its DICOM and AutoRad modules. There can be no
assurance that 510(k) clearance for any future product or modifications of
existing products will be granted by the FDA within a reasonable time frame, if
at all. Furthermore, the FDA may require that a request for 510(k) clearance be
supported by data from clinical trials demonstrating substantial equivalence and
the safety and effectiveness of the device, which may prolong the Section 510(k)
notification review period for a particular device or may result in a finding
that the product is not substantially equivalent, so that a full PMA could be
required.
Failure to comply with applicable regulatory requirements could result,
among other things, in warning letters, seizures of property, total or partial
suspension of production, refusal of the government to grant market clearance or
pre-market approval, withdrawal of approvals or criminal prosecution.
Cemax-Icon is also required to register as a medical device
manufacturer with the FDA and the Food and Drug Branch of the California
Department of Health Services ("CDHS"). Cemax-Icon will be inspected on a
routine basis by both the FDA and CDHS for compliance with the FDA's Good
Manufacturing Practices ("GMP") and other applicable regulations.
Cemax-Icon is also subject to other federal, state and local laws and
regulations relating to safe working conditions and manufacturing practices. The
extent of government regulation that might result from any future legislation or
administrative action cannot be predicted. Failure to comply with regulatory
requirements could have a material adverse effect on the Company's business,
financial condition and results of operations.
Sales of Cemax-Icon's systems outside the United States are subject to
foreign regulatory requirements that vary from country to country. Additional
approvals from foreign regulatory authorities may be required, and there can be
no assurance that Cemax-Icon will be able to obtain foreign marketing approvals
on a timely basis or at all, or that it will not be required to incur
significant costs in obtaining or maintaining its foreign regulatory approvals.
In Europe, Cemax-Icon will be required to obtain the certificates necessary to
enable the CE Mark, an international symbol of adherence to quality assurance
standards and compliance with applicable European Union Medical Device
Directives, to be affixed to Cemax-Icon's systems for sales in member countries.
Failure to obtain such certifications, any necessary foreign regulatory
approvals or any other failure to comply with regulatory requirements outside
the United States could have a material adverse effect on Cemax-Icon's business,
financial condition and results of operations. See "CERTAIN INFORMATION
CONCERNING CEMAX-ICON--Business--Products" and "--Government Regulation."
Uncertain Protection for Intellectual Property; Possible Claims of
Others
Cemax-Icon generally does not rely on patent protection with respect to
its products. Instead, Cemax-Icon relies on a combination of copyright and trade
secret law, employee and third-party nondisclosure agreements and other
protective measures to protect intellectual property rights pertaining to its
products and technology. There can be no assurance that applicable copyright or
trade secret law or these agreements will provide meaningful protection of
Cemax-Icon's copyrights, trade secrets, know-how or other proprietary
information in the event of any unauthorized use, misappropriation or disclosure
of such copyrights, trade secrets, know-how or other proprietary information. In
addition, the laws of certain foreign countries do not protect Cemax-Icon's
intellectual property rights to the same extent as do the laws of the United
States. There can be no assurance that Cemax-Icon will be able to protect its
intellectual property successfully.
There can be no assurance that third parties will not assert patent,
copyright or other intellectual property infringement claims against Cemax-Icon
with respect to its systems or technology or other matters. There may be
third-party patents, copyrights and other intellectual property relevant to
Cemax-Icon's systems and technology which are not known to Cemax-Icon. There can
be no assurance that litigation by a third party asserting that Cemax-Icon is
infringing such third party's patent rights, copyrights or other intellectual
property will not be initiated, that Cemax-Icon would prevail in any such
litigation or that Cemax-Icon would be able to obtain any necessary licenses on
reasonable terms if at all. Any such claims against Cemax-Icon, with or without
merit, as well as claims initiated by Cemax-Icon against third parties, can be
time-consuming and expensive to defend or prosecute and resolve. See "CERTAIN
INFORMATION CONCERNING CEMAX-ICON--Business--Patents and Intellectual Property."
Uncertainty in Healthcare Industry; Government Healthcare Reform
Proposals
The healthcare industry is subject to changing political, economic, and
regulatory influences that may affect the procurement practices and operations
of healthcare providers. Many lawmakers have announced that they intend to
propose programs to reform the United States healthcare systems. These programs
may contain proposals to increase governmental involvement in healthcare, lower
reimbursement rates and otherwise change the operating environment. Healthcare
providers may react to these proposals and uncertainty surrounding such
proposals by curtailing or deferring investments, including those for
Cemax-Icon's systems and services. Cost containment measures instituted by
healthcare providers as a result of regulatory reform or otherwise could result
in greater selectivity in the allocation of capital funds. Such selectivity
could have a material adverse effect on Cemax-Icon's ability to sell its systems
and services. See "CERTAIN INFORMATION CONCERNING CEMAX-ICON--Business--Third
Party Reimbursement."
Product Liability Risk; Limited Insurance Coverage
The manufacture and sale of medical image information systems entail
significant risk of product liability claims. There can be no assurance that
Cemax-Icon's existing insurance coverage limits are adequate to protect
Cemax-Icon from any liabilities it might incur in connection with the sale of
Cemax-Icon's systems. In addition, Cemax-Icon may require increased product
liability coverage as additional products are commercialized. Such insurance is
expensive and in the future may not be available on acceptable terms, if at all.
A successful product liability claim or series of claims brought against
Cemax-Icon in excess of its insurance coverage could have a material adverse
effect on Cemax-Icon's business, financial condition and results of operations.
RISK FACTORS WITH RESPECT TO CONTINGENT PAYMENT RIGHTS
Any Payment Contingent on Future Revenues
The right to receive any future payments under the terms of the
Contingent Payment Rights are contingent upon the ability of the image
management systems business of Cemax-Icon to achieve certain revenue targets
specified therein. In particular, in the event that the Gross Revenues (as
defined in the Contingent Payment Rights) of Cemax-Icon are (i) less than $35
million for the period from July 1, 1997 through June 30, 1998 and (ii) less
than $50 million for the period from July 1, 1998 through June 30, 1999, the
stockholders of Cemax-Icon shall not be entitled to receive any amount of
payment under the Contingent Payment Rights. The total annual revenues for
Cemax-Icon for the preceding three fiscal years ended December 31, 1996, 1995
and 1994 were $25.1 million, $17.0 million and $16.5 million, respectively. It
is possible that such revenue targets will not be achieved for any number of
reasons including, but not limited to, the risk factors with respect to Imation
and Cemax-Icon set forth above and the risk that the integration of the business
operations of Cemax-Icon with Imation (including changes in the current Board of
Directors and management) as a result of the Merger will adversely affect
Cemax-Icon's operations and financial results. Although Imation has agreed
pursuant to the Merger Agreement to make certain expenditures to support the
business of Cemax-Icon following the Effective Time, there can be no assurance
that such expenditures (or any other support) will be adequate for Cemax-Icon to
achieve the revenue targets specified in the Contingent Payment Rights. If such
revenue targets are not achieved, the amount of any payments under the
Contingent Payment Rights will be reduced or eliminated. See "DESCRIPTION OF
CONTINGENT PAYMENT RIGHTS."
Any Payment Subject to Offset Rights
Pursuant to the terms of the Merger Agreement, amounts payable under
the terms of the Contingent Payment Rights, if any, are subject to Imation's
right to offset such payments to the extent Imation has certain claims under the
terms of the Merger Agreement, subject to certain other terms, conditions and
limitations set forth in the Merger Agreement and the Contingent Payment Rights.
Under the terms of the Merger Agreement, Imation is required to promptly notify
the Stockholders' Representatives in writing of the nature of any Claim (as
defined in the Merger Agreement) and Imation's estimate of the Losses (as
defined in the Merger Agreement) arising therefrom. To exercise its offset
rights, Imation is required to deliver to the Stockholders' Representatives a
schedule signed by an officer of Imation reflecting the revised payments due or
to become due under the Contingent Payment Rights. Imation's right to exercise
its offset rights is subject to certain exceptions as provided in the Merger
Agreement, including, but not limited to, the right by Imation to exercise its
offset rights only after the aggregate of all Losses exceeds $250,000 and then
only up to an aggregate amount not exceeding $9,650,979, subject in each case to
certain exceptions. In the event that Imation has a claim giving rise to an
offset right which does not involve a third party claim or proceeding, Imation
is required to deliver notice of such claim to the Stockholders'
Representatives. The Stockholders' Representatives may arbitrate resolution of
any such claim which they timely dispute as described in the Merger Agreement.
All offsets made pursuant to Imation's offset rights will be applied against the
Contingent Payment Rights on a pro rata basis. If Imation has the right of
offset, the amount of any payments under the Contingent Payment Rights may be
reduced or eliminated. See "THE MERGER AGREEMENT--Survival and Offset."
Restrictions on Transferability
The Contingent Payment Rights are, by their terms, non-transferable and
therefore represent an illiquid investment until such time as any payments due
thereunder are made.
Any Payments in Imation Common Stock Subject to Stock Price Risks
Prior to the time of any payments thereunder, holders of Contingent
Payment Rights will have the option to elect to receive any payments thereunder
in cash or shares of Imation Common Stock pursuant to the terms set forth
therein. For purposes of any payments made under the Contingent Payment Rights
with respect to the twelve months ending June 30, 1999, the market price of
Imation Common Stock at the time of such payment must exceed $35.29 per share in
order for the value of the stock election to exceed the value of the cash
election at such time. See "DESCRIPTION OF THE CONTINGENT PAYMENT RIGHTS."
Holders of Contingent Payment Rights who elect to receive Imation Common Stock
should consider that an investment in Imation Common Stock involves risks and
uncertainties including, but not limited to, those set forth above. Such risks
and uncertainties may affect the market price of any Imation Common Stock
received upon payment of the Contingent Payment Rights.
THE SPECIAL MEETING
GENERAL
This Proxy Statement/Prospectus is being furnished to holders of
Cemax-Icon Common Stock and Cemax-Icon Preferred Stock in connection with the
solicitation of proxies by the Board of Directors of Cemax-Icon for use at a
Special Meeting to be held on _________, 1997 at ______________, ______________
commencing at _____ local time, and at any adjournment or postponement thereof.
This Proxy Statement/Prospectus and accompanying forms of proxy are
first being mailed to stockholders of Cemax-Icon on or about _______.
PURPOSES OF THE SPECIAL MEETING
At the Special Meeting, holders of Cemax-Icon Common Stock and
Cemax-Icon Preferred Stock will (i) consider and vote upon a proposal to adopt
the Merger Agreement and (ii) transact such other business as may properly come
before the Special Meeting or any postponement or adjournment thereof.
RECORD DATE; SHARES ENTITLED TO VOTE; REQUIRED VOTE; QUORUM
Cemax-Icon has fixed July 15, 1997 as the Record Date for the
determination of the holders of Cemax-Icon Common Stock and Cemax-Icon Preferred
Stock entitled to notice of and to vote at the Special Meeting. Only holders of
record of Cemax-Icon Common Stock and Cemax-Icon Preferred Stock on the Record
Date will be entitled to notice of and to vote at the Special Meeting. As of the
Record Date, there were 5,379,227 shares of Cemax-Icon Common Stock outstanding
and entitled to vote, which shares were held in the aggregate by approximately
306 holders of record. Each holder of record of Cemax-Icon Common Stock on the
Record Date is entitled to cast one vote per share of Cemax-Icon Common Stock on
all matters properly submitted for the vote of Cemax-Icon stockholders,
exercisable in person or by properly executed proxy, at the Special Meeting. As
of the Record Date, there were 2,521,733 shares of Cemax-Icon Preferred Stock
outstanding and entitled to vote, all of which shares were held of record by
Imation. Each share of Cemax-Icon Preferred Stock is entitled to cast 1/2.35
vote per share, or an aggregate of 1,073,077 votes, on all matters properly
submitted for the vote of the Cemax-Icon stockholders, exercisable in person or
by properly executed proxy, at the Special Meeting. The presence, in person or
by properly executed proxy, of the holders of a majority of the voting power of
the outstanding shares of Cemax-Icon Common Stock and Cemax-Icon Preferred
Stock, considered as one class, entitled to vote at the Special Meeting is
necessary to constitute a quorum at the Special Meeting.
The approval and adoption of the Merger Agreement by the stockholders
of Cemax-Icon will require the affirmative vote of the holders of a majority of
the voting power of the outstanding shares of Cemax-Icon Common Stock and
Cemax-Icon Preferred Stock, voting as one class. If an executed proxy card is
returned and the stockholder has abstained from voting on any matter, the shares
represented by such proxy will be considered present at the meeting for purposes
of determining a quorum and for purposes of calculating the vote, but will not
be considered to have been voted in favor of such matter. Accordingly,
abstentions will have the same effect as a vote against adoption of the Merger
Agreement. If an executed proxy card is returned by a broker holding shares of
Cemax-Icon Common Stock in street name which indicates that the broker does not
have discretionary authority as to certain shares to vote on the Merger
Agreement, such shares will be considered present at the meeting for purposes of
determining a quorum, but will not be considered to be represented at the
meeting for purposes of calculating the vote with respect to such matter.
As of the Record Date, the executive officers and directors of
Cemax-Icon collectively owned, directly or indirectly, approximately 3,631,000
shares of Cemax-Icon Common Stock (approximately 56% of the total voting power
of the outstanding Cemax-Icon Common Stock and Cemax-Icon Preferred Stock). In
addition, as of the Record Date the executive officers and directors hold
Cemax-Icon Stock Options covering an aggregate of approximately 393,000 shares
of Cemax-Icon Common Stock. Pursuant to the Stockholder Agreements, certain
stockholders, including certain executive officers and directors,
each have agreed to vote, and have granted Imation an irrevocable proxy to vote,
all shares of Cemax-Icon Common Stock collectively owned by them (approximately
3,530,000 shares of record of Cemax-Icon Common Stock, representing
approximately 66% of the total voting power of the outstanding Cemax-Icon Common
Stock and Cemax-Icon Preferred Stock as of the Record Date) for adoption of the
Merger Agreement. Such shares, when combined with the shares of Cemax-Icon
Preferred Stock owned by Imation, constitute approximately 71% of the voting
power of the outstanding shares entitled to vote at the Special Meeting. See
"THE MERGER--Stockholder Agreements."
As of the Record Date, neither Imation nor any of its directors and
executive officers nor their affiliates beneficially owned any shares of
Cemax-Icon Common Stock. As of the Record Date, Imation owned all 2,521,733
outstanding shares of Cemax-Icon Preferred Stock, representing approximately 17%
of the total voting power of the outstanding shares of Cemax-Icon Common Stock
and Cemax-Icon Preferred Stock as of such date.
PROXIES
All shares of Cemax-Icon Common Stock and Cemax-Icon Preferred Stock
represented at the Special Meeting by properly executed proxies received prior
to or at the Special Meeting, and not revoked, will be voted at the Special
Meeting in accordance with the instructions indicated on such proxies. If no
instructions are indicated, such proxies will be voted for adoption of the
Merger Agreement. If any other matters are properly presented at the Special
Meeting for consideration, including, among other things, consideration of a
motion to adjourn the Special Meeting to another time or place, the persons
named in the enclosed form of proxy and acting thereunder will have discretion
to vote on such matters in accordance with their best judgment.
Any proxy given pursuant to this solicitation may be revoked by the
person giving it at any time before it is voted. Proxies may be revoked by (1)
filing with the Secretary of Cemax-Icon, at or before the taking of the vote at
the Special Meeting, a written notice of revocation bearing a later date than
the proxy, (2) duly executing a later-dated proxy relating to the same shares
and delivering it to the Secretary of Cemax-Icon before the taking of the vote
at the Special Meeting, or (3) attending the Special Meeting and voting in
person (although attendance at the Special Meeting will not in and of itself
constitute a revocation of a proxy). Any written notice of revocation or
subsequent proxy should be sent so as to be delivered to Cemax-Icon, Inc., 47281
Mission Falls Court, Fremont, California 94539, Attention: Secretary, or
hand-delivered to the Secretary of Cemax-Icon at or before the taking of the
vote at the Special Meeting.
If a quorum is not obtained, or if fewer shares of Cemax-Icon Common
Stock and Cemax-Icon Preferred Stock are likely to be voted for adoption of the
Merger Agreement than the number required for adoption, the Special Meeting may
be adjourned for the purpose of obtaining additional proxies or votes or for any
other purpose, and, at any subsequent reconvening of the Special Meeting, all
proxies will be voted in the same manner as such proxies would have been voted
at the original convening of the meeting (except for any proxies which have
theretofore effectively been revoked or withdrawn), notwithstanding that they
may have been effectively voted on the same or any other matter at a previous
meeting.
Pursuant to the Merger Agreement, all expenses of this solicitation,
including the cost of preparing and mailing this Proxy Statement/Prospectus,
will be borne equally by Imation and Cemax-Icon except that each party shall pay
its own attorneys' and accountants' fees. In addition to use of the mails,
proxies may be solicited personally or by telephone or telegraph by directors,
officers and employees of Cemax-Icon, who will not be specially compensated for
such activities. Arrangements will be made with custodians, nominees and
fiduciaries for forwarding of proxy solicitation materials to beneficial owners
of shares of Cemax-Icon Common Stock held of record by such custodians, nominees
and fiduciaries, and Cemax-Icon will reimburse such custodians, nominees and
fiduciaries for reasonable expenses incurred in connection therewith.
STOCKHOLDERS SHOULD NOT SEND ANY STOCK CERTIFICATES WITH THEIR PROXY
CARDS.
THE MERGER
THE FOLLOWING INFORMATION DESCRIBES THE MATERIAL ASPECTS OF THE MERGER.
THIS DESCRIPTION DOES NOT PURPORT TO BE COMPLETE AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE EXHIBITS HERETO, INCLUDING THE MERGER AGREEMENT,
WHICH IS ATTACHED TO THIS PROXY STATEMENT/PROSPECTUS AS EXHIBIT A AND IS
INCORPORATED HEREIN BY REFERENCE. ALL STOCKHOLDERS ARE URGED TO READ EXHIBIT A
IN ITS ENTIRETY. SEE ALSO "THE MERGER AGREEMENT."
EFFECTIVE TIME
If the Merger Agreement is adopted by the requisite vote of the
stockholders of Cemax-Icon and the other conditions to the Merger are satisfied
(or waived to the extent permitted), the Merger will be effected at the time and
date the Certificate of Merger is filed with the Secretary of State of the State
of Delaware. The Merger Agreement may be terminated prior to the Effective Time
by either Imation or Cemax-Icon in certain circumstances. See "THE MERGER
AGREEMENT--Termination."
EFFECTS OF THE MERGER
Upon consummation of the Merger, (a) Merger Subsidiary will merge with
and into Cemax-Icon, which will be the Surviving Corporation, (b) Cemax-Icon
will become a wholly owned subsidiary of Imation, (c) each share of Cemax-Icon
Common Stock outstanding immediately prior to the Effective Time (other than
Dissenting Shares or shares owned by Imation, Merger Subsidiary or Cemax-Icon)
will be converted into and become (i) a cash payment of $5.25, without interest
thereon, (the "1997 Cash Consideration") and (ii) one Contingent Payment Right
(collectively with the 1997 Cash Consideration, the "Merger Consideration") and
(d) each share of Cemax-Icon Preferred Stock will be canceled and extinguished,
and no payment will be made therefor. See "DESCRIPTION OF CONTINGENT PAYMENT
RIGHTS." An aggregate of up to $200,000 may be withheld from the initial
payments to stockholders in a separate fund for reimbursement of the
Stockholders' Representatives' out-of pocket-expenses in acting on behalf of
stockholders of Cemax-Icon in connection with the Merger.
See "--Stockholders' Representatives' Fund."
As of the Record Date, there were 5,379,227 shares of Cemax-Icon Common
Stock outstanding. The cash cost to Imation of acquiring all of such shares of
Cemax-Icon Common Stock in the Merger will be approximately $28,243,000 with
regard to the 1997 Cash Consideration and, in addition, approximately
$45,726,000 if the Contingent Payment Rights are paid in full and in cash.
CONVERSION OF CEMAX-ICON COMMON STOCK
As of the Effective Time, Imation will deposit, or will cause to be
deposited, with First Trust Company (the "Paying Agent"), for the benefit of the
holders of shares of Cemax-Icon Common Stock, for exchange in accordance with
the terms of the Merger Agreement, cash in the amount of the 1997 Cash
Consideration (the "Payment Fund") payable pursuant to the Merger Agreement in
exchange for outstanding shares of Cemax-Icon Common Stock. The Payment Fund
will not be used for any other purpose.
Within three business days after the Effective Time, Imation will
instruct the Paying Agent to mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of Cemax-Icon Common Stock (the "Certificates") (i) a letter
of transmittal in customary form (which will specify that delivery will be
effected, and risk of loss and title to the Certificates will pass, only upon
proper delivery of the Certificates to the Paying Agent), and (ii) instructions
for use in effecting the surrender of the Certificates in exchange for the
Merger Consideration. Upon surrender of a Certificate for cancellation to the
Paying Agent, together with a letter of transmittal, duly executed, and any
other documents as may be reasonably required pursuant to such instructions, the
holder of the Certificate will be entitled to receive in exchange the 1997 Cash
Consideration and Contingent Payment Rights, in each case which such holder is
entitled to receive in the Merger with respect to the shares of Cemax-Icon
Common Stock formerly represented by such Certificate, and the Certificate so
surrendered will forthwith be canceled. Until surrendered, each Certificate
shall be deemed at any time after the Effective Time to represent only the right
to receive the Merger Consideration with respect to the shares of Cemax-Icon
Common Stock formerly represented by such Certificate.
Any portion of the Payment Fund remaining undistributed one year after
the Effective Time will be returned to Imation, upon demand, and any holders of
theretofore unsurrendered Cemax-Icon Common Stock will thereafter be able to
look only to Imation for any portion of the Payment Fund to which they are
entitled.
STOCKHOLDERS OF CEMAX-ICON SHOULD NOT FORWARD THEIR STOCK
CERTIFICATES TO THE EXCHANGE AGENT WITHOUT A LETTER OF TRANSMITTAL
AND SHOULD NOT RETURN THEIR STOCK CERTIFICATES WITH THE ENCLOSED
PROXY.
STOCKHOLDERS' REPRESENTATIVES' FUND
Pursuant to a separate agreement between the Paying Agent and such
persons identified as stockholders' representatives in the Merger Agreement (the
"Stockholders' Representatives"), the Paying Agent will withhold up to $200,000
from the initial payments of 1997 Cash Consideration in a separate fund (the
"Representatives' Fund") for reimbursement of the Stockholders' Representatives'
out-of-pocket expenses in acting on behalf of Cemax-Icon's stockholders in
connection with the Merger before and after the Effective Time. The Paying Agent
will distribute any remaining amounts in the Representatives' Fund to
Cemax-Icon's stockholders after the Stockholders' Representatives have completed
their representation of Cemax-Icon's stockholders in connection with the Merger
before and after the Effective Time.
The initial Stockholders' Representatives designated in the Merger
Agreement are Michael O'Donnell, Secretary of Cemax-Icon, and David Titus, a
director of Cemax-Icon. By voting to approve the Merger Agreement and the
Merger, stockholders of Cemax-Icon are also approving the initial appointment of
Messrs. O'Donnell and Titus as the Stockholders' Representatives.
EFFECT OF THE MERGER ON CEMAX-ICON STOCK OPTIONS AND CEMAX-ICON WARRANTS
At the Effective Time, Imation will assume the obligations of
Cemax-Icon under the Cemax-Icon, Inc. 1996 Stock Plan, the Icon Medical Systems,
Inc. 1992 Stock Option Plan and the Cemax/Icon, Inc. 1986 Amended Incentive
Stock Plan (collectively, the "Cemax-Icon Option Plans"), and each option to
purchase Cemax-Icon Common Stock (a "Cemax-Icon Stock Option") granted under the
Cemax-Icon Option Plans and outstanding immediately prior to the Effective Time
(an "Outstanding Stock Option") will become an option to acquire Imation Common
Stock on the same terms and conditions as were applicable under the relevant
Cemax-Icon Option Plans (a "Substitute Option"), except that (i) the number of
shares subject to each option and the exercise price will be appropriately
adjusted to give effect to Common Exchange Ratio, as defined below, (ii) each
Substitute Option that replaces an Outstanding Stock Option that vests at the
rate of either (x) 25% per year during the first year and 2% per month
thereafter or (y) 2% per month, will vest at the rate of 4% per month during the
first 12 months after the Effective Time and (iii) each Substitute Option that
replaces an Outstanding Stock Option held by a consultant, contractor or
non-employee director will not be subject to early termination as a result of
termination of status as a consultant, contractor or non-employee director of
Cemax-Icon or the Surviving Corporation and in the event of such termination
will vest and become exercisable in full (including as to shares not otherwise
exercisable as of the date of such termination).
Each outstanding warrant to purchase shares of Cemax-Icon Common Stock
outstanding immediately prior to the Effective Time (a "Cemax-Icon Warrant")
will be converted into a warrant to acquire Imation Common Stock on the same
terms and conditions as were applicable under the Cemax-Icon Warrant (a
"Substitute Warrant"), except that the number of shares subject to each warrant
and the exercise price will be appropriately adjusted to give effect to the
Common Exchange Ratio.
The Merger Agreement defines the Common Exchange Ratio as the quotient
of (i) $11.96 and (ii) the average closing price per share of Imation Common
Stock on the New York Stock Exchange--Composite Transactions, as reported in The
Wall Street Journal, for each of the 10 consecutive trading days ending on the
third business day prior to the Effective Time. On __________, 1997, the closing
price per share of Imation Common Stock was $__________.
BACKGROUND OF THE MERGER; RELATIONSHIP BETWEEN CEMAX-ICON AND IMATION
In early 1994, 3M's Medical Imaging Systems Division (now Imation's
medical imaging systems business unit) initiated an investigation of outside
partnering options which would allow 3M to add medical image management systems
products and expertise to its conventional and electronic hardcopy imaging
business. After examining various alternatives, 3M and Cemax-Icon entered into a
joint development and OEM sales relationship to integrate the component
technology and development programs of 3M's laser imaging interface systems and
Cemax-Icon's visualization and image management infrastructure systems.
In early 1995, as a result of 3M's strategic review of its medical
imaging portfolio, 3M redirected its internal development resources away from
image management products, relying more heavily on the broad range of
development and products available from Cemax-Icon. A distribution agreement was
formalized under which 3M became the exclusive private label distributor for
Cemax-Icon products in Europe. In addition, 3M and Cemax-Icon entered into a
three-year sales agreement providing for the assumption by Cemax-Icon of the
service and warranty obligations of 3M with regard to 17 PACS customer sites in
exchange for the payment by 3M to Cemax-Icon of approximately $1.0 million and
for the referral by 3M of customer leads to Cemax-Icon from sales to such
customers. The sales agreement was subsequently assigned by 3M to Imation in
connection with the spin-off of Imation, and remains in full force and effect.
The sales agreement will be terminated upon the Effective Time since the Merger
will achieve the same sales, marketing and servicing relationship contemplated
by the agreement.
In June 1995, 3M made an equity investment of $6.9 million in
Cemax-Icon under which 3M acquired 1,985,878 shares of Cemax-Icon Preferred
Stock (representing approximately 15% of the outstanding capital stock of
Cemax-Icon at that time) and a warrant to purchase 467,267 shares of Cemax-Icon
Common Stock at an exercise price of $5.50 per share. In May 1996, Cemax-Icon
and Imation agreed to amend the warrant to reduce the exercise price to $4.25
per share and to provide that the warrant would be exercisable for 535,855
shares of Cemax-Icon Preferred Stock. Imation exercised the warrant in full in
September 1996.
In May 1996, Cemax-Icon began preparing for an initial public offering
of Cemax-Icon Common Stock based on its June 1996 financial results. The primary
purpose of the proposed initial public offering was to provide funds to
Cemax-Icon for the further growth of its business.
Beginning in August 1996, following the spin-off of Imation by 3M,
Imation and Cemax-Icon began preliminary discussion of the possible acquisition
of Cemax-Icon by Imation.
In September 1996, management of Cemax-Icon decided to postpone the
proposed initial public offering due to market conditions. As discussed above,
Imation exercised its warrant for $2.3 million of Cemax-Icon Preferred Stock in
September 1996.
Discussions between Imation and Cemax-Icon regarding a possible
acquisition continued on an ongoing basis during late 1996 and early 1997. On
March 14, 1997, Imation and Cemax-Icon signed a Letter of Intent setting forth
the basic terms for the proposed acquisition. Following the execution of the
Letter of Intent, Imation conducted its due diligence review of Cemax-Icon's
business, and Imation and Cemax-Icon negotiated the terms of the Merger
Agreement and the ancillary agreements.
On May 12, 1997, the Board of Directors of Cemax-Icon unanimously
approved the Merger Agreement and the ancillary agreements. On May 13, 1997, the
Board of Directors of Imation unanimously approved the Merger Agreement and the
ancillary agreements. The Merger Agreement and the ancillary agreements were
executed by Imation and Cemax-Icon on May 13, 1997.
CEMAX-ICON'S REASONS FOR THE MERGER; RECOMMENDATION OF CEMAX-ICON'S BOARD OF
DIRECTORS
By the unanimous vote of the entire Board of Directors of Cemax-Icon,
at a special meeting held on May 12, 1997, the Cemax-Icon Board of Directors
determined that the proposed Merger, and the terms and conditions of the Merger
Agreement, were in the best interests of Cemax-Icon and its stockholders. The
Merger Agreement and the Merger were approved unanimously by the entire Board of
Directors of Cemax-Icon, who also unanimously resolved to recommend that the
stockholders of Cemax-Icon vote FOR approval and adoption of the Merger
Agreement. See "--Background of the Merger; Relationship Between Cemax-Icon and
Imation." In reaching its conclusion to enter into the Merger Agreement and to
recommend that the stockholders of Cemax-Icon vote for the approval and adoption
of the Merger Agreement, the Board of Directors of Cemax-Icon considered a
number of factors, including, without limitation and without assigning relative
weights thereto, the following:
Similar Customer Base/Complementary Products
Both Cemax-Icon and Imation market their products to the same customer
base--users of medical images. Customers have requirements for both conventional
images and digital images. In either case, these images need to be managed and
customers look to film companies such as Imation to help provide them with image
management products and solutions. Consequently, Cemax-Icon expects that certain
sales synergies will result from the Merger.
Financial Resources
Customers primarily want to purchase an image management system (i.e.,
network infrastructure) from a larger, stable organization with a reputation for
performing on large "mission critical" projects such as an image management
system. As a stand-alone company, Cemax-Icon would continue to need to overcome
the "small company, limited resources" customer objection.
In addition, financial resources to fund growth was increasingly
becoming an issue for Cemax-Icon, particularly in light of the decision by
management, based on market conditions, to postpone the proposed initial public
offering in September 1996. The Board of Directors of Cemax-Icon believes that
Imation's current resources and access to public markets will allow Cemax-Icon
increased operating flexibility and the opportunity to pursue development
activities.
Service Capability
An image management system is "mission critical" to the operation of a
radiological department. Service availability and capability is perhaps more
important than product features in many instances. Cemax-Icon, while having
specific technical capability, was understaffed in many geographic areas.
Cemax-Icon viewed Imation as having a strong service presence throughout the
U.S. and Europe.
Market Position
Cemax-Icon has a leadership position in market share of the image
management marketplace. Imation has an established loyal customer base and
market share of the medical film marketplace. Certain synergies are expected by
Cemax-Icon's management due to cross-selling into these markets.
Working Relationship
There is a three-year history of cooperative working relationships
between Cemax-Icon and Imation in terms of personnel, technical development,
operational plans and strategies and coordination of these strategies.
Cemax-Icon expects that the combination of the two companies will be more
efficient and profitable than operating Cemax-Icon as a stand-alone unit.
FOR THE FOREGOING REASONS, THE BOARD OF DIRECTORS OF CEMAX-ICON
BELIEVES THAT THE TERMS OF THE MERGER ARE FAIR TO THE STOCKHOLDERS OF CEMAX-ICON
AND RECOMMENDS THAT THE STOCKHOLDERS OF CEMAX-ICON VOTE FOR APPROVAL AND
ADOPTION OF THE MERGER AGREEMENT.
IMATION'S REASONS FOR THE MERGER
Imation's medical imaging systems business competes in the conventional
x-ray film/screen supply business with market presence in the United States and
strong presence in certain selected European regional markets. Imation is also a
world leader in the electronic hardcopy recording segment of the medical imaging
market, based on the continued strength of its traditional wet chemistry based
laser imaging systems and the broad market acceptance of its new Dry View(TM),
dry processed diagnostic laser imaging systems. These markets continue to be the
core of the medical imaging industry and Imation expects to continue to invest
and compete in these markets.
Imation believes that two significant developments will affect the
markets for the medical imaging industry: (i) the use of electronic acquisition
technologies to capture imaging information in digital form and (ii) the
development of image management systems for the processing, display and storage
of diagnostic digital image and information data.
The first of these developments is expected, in the long-term, to lead
to the replacement of conventional film/screen materials as the method for
acquiring images. Already, a significant percentage of exams are conducted using
electronic modalities such as CT, MRI, nuclear medicine and ultrasound. The
second development, transition to electronic viewing and diagnosis, will benefit
from the development of these electronic modalities as sources of digital image
data and are expected to provide significant efficiency and cost improvements
through the ability to provide complete data where and when it is needed
throughout an integrated health care delivery system.
The core business of conventional and electronic hardcopy will continue
to be a major part of Imation's medical imaging business. The image management
systems segment adds a dynamic, potentially high-growth component to Imation's
portfolio. Imation's management believes this segment is attractive both for its
stand-alone value and for its leveraged value when combined with the current
core businesses in which Imation participates.
After examining a number of internal developments and outside
partnering opportunities, Imation's management believes that the best
opportunity to participate in the image management systems market is through the
acquisition of Cemax-Icon. The leadership, products, market position and
established business of Cemax-Icon provide an immediate path to the market in
this segment. Imation brings potentially significant synergies to the combined
operation, including a well-established sales and service organization and the
Imation portfolio of products in conventional film/screen imaging, electronic
hardcopy recording and magnetic and optical removable data storage. Imation's
management believes this combination will provide significant benefits in the
delivery of integrated workflow solutions to the health care industry.
POSSIBLE DISADVANTAGES TO THE MERGER
Possible Financial Disadvantages to Cemax-Icon Stockholders
From the viewpoint of the Cemax-Icon stockholders, possible
disadvantages arising from the Merger include the loss of independent financial
and managerial control of Cemax-Icon. Following the consummation of the Merger,
Cemax-Icon will be a wholly owned subsidiary of Imation whose Board of Directors
is entirely elected by Imation. Executive officers and other management of
Cemax-Icon will be subject to the control of and serve at the will of the
Imation-elected Board of Directors. Accordingly, it is likely that Cemax-Icon
will be managed in such a way as to maximize the financial benefit to Imation as
a whole rather than to maximize the financial performance of Cemax-Icon as a
stand-alone entity. Subject to certain contractual obligations set forth in the
Merger Agreement, Imation is free to determine the amount of financial resources
as well as the appropriate technical, engineering, quality assurance and sales
and marketing resources to devote to the business of Cemax-Icon.
The amount of the future payments to be received by the Cemax-Icon
stockholders under the Contingent Payment Rights, if any, is based upon the
future financial performance of Cemax-Icon while under Imation control as set
forth above. Notwithstanding the fact that the financial performance of
Cemax-Icon may be substantially better than anticipated, the maximum amount
which the Cemax-Icon stockholders are entitled to receive is capped at a maximum
level pursuant to the terms of the Contingent Payment Rights. See "DESCRIPTION
OF CONTINGENT PAYMENT RIGHTS."
Possible Operational Disadvantages to the Merger
The Merger is subject to the possible operational disadvantages
inherent in all combinations of different business enterprises located in
different geographic locations, including possible difficulties in efficiently
integrating business operations; potential time lost in familiarizing, training
and incentivizing sales and support personnel with regard to new products;
potential technical issues with regard to integrating product lines; personnel
management issues with regard to disparate geographic locations; and possible
differences in corporate management philosophies and corporate cultures. Other
disadvantages include the possibility that OEMs, distributors and other current
and potential customers of Cemax-Icon may be less willing to continue existing
relationships or enter into new business transactions with Cemax-Icon under the
ownership of Imation due to the competitive nature of their relationship with
Imation or otherwise.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
The Board of Directors of Cemax-Icon was aware of the interests of
certain persons in the Merger described below, which are in addition to the
interests of Cemax-Icon stockholders generally, and considered those interests,
among other matters, in approving the Merger Agreement and the transactions
contemplated thereby.
Stock Options and Warrants
The Merger Agreement provides that, after the Effective Time, each
Cemax-Icon Stock Option (including Cemax-Icon Stock Options held by Cemax-Icon's
executive officers and directors) will be converted into a Substitute Option.
Likewise, each Cemax-Icon Warrant (including Cemax-Icon Warrants held by
Cemax-Icon's executive officers and directors) will be converted into a
Substitute Warrant. See "--Effect of the Merger on Cemax-Icon Stock Options and
Cemax-Icon Warrants." Of the approximately 1,181,000 Cemax-Icon Stock Options
outstanding on the Record Date, approximately 393,000 were held by directors and
executive officers of Cemax-Icon. Of the 150,000 Cemax-Icon Warrants outstanding
on the Record Date, 7,500 were held by a director of Cemax-Icon. Cemax-Icon
Stock Options are held by the following directors and executive officers of
Cemax-Icon: Terry Ross, Jeremy B. Rubin, M.D., David Titus, David White, Gregory
C. Patti, Oran E. Mudrugolu, Jean Luc-Chatelain and Grady Floyd. David Titus is
the sole director of Cemax-Icon who holds a Cemax-Icon Warrant.
Key Management Agreements
In connection with the execution of the Merger Agreement, Cemax-Icon
entered into agreements ("Key Management Agreements") with eight of its key
management employees (seven of whom serve as officers of Cemax-Icon and two of
whom are also directors of Cemax-Icon). Each of such agreements will become
effective at the Effective Time.
The form of Key Management Agreement provides, in general, for the
employment of the key management employee by the Surviving Corporation for a
term ranging from 18 months to 3 years following the Effective Time, in a
position with duties and responsibilities substantially consistent with the
duties and responsibilities of such employee immediately prior to the Effective
Time. The form of Key Management Agreement provides in general for (i) base
compensation consistent with base compensation prior to the Effective Time, (ii)
continued participation in the Cemax-Icon incentive pay plan under the modified
terms and conditions set forth in each Key Management Agreement and (iii) other
benefits provided to executive-level employees of the Surviving Corporation from
time to time. Following termination of employment and subject to the nature of
such termination, the Key Management Agreements provide for (i) continuation of
base compensation, incentive compensation and certain benefits for a period of
up to six months following the term of such Agreement and (ii) modified vesting
and termination provisions relating to the Substitute Options held by such
employee.
Cemax-Icon entered into Key Management Agreements substantially in the
form described above with Terry Ross, Jeremy B. Rubin, M.D., Gregory C. Patti,
Oran E. Mudrugolu, Jean-Luc Chatelain, Grady Floyd, Mark Falkowski and Keith
McKinnon. The Key Management Agreements with Messrs. Ross, Patti, Chatelain and
Floyd also provide for the grant, at the Effective Time, of an option to acquire
shares of Imation Common Stock under the Imation 1996 Employee Stock Incentive
Program in lieu of certain restricted shares of Cemax-Icon Common Stock held by
such employees which will be returned to Cemax-Icon for cancellation. See
"CERTAIN INFORMATION CONCERNING CEMAX-ICON--Management--Certain Relationships
and Related Transactions."
Each person who entered into a Key Management Agreement also entered
into, as a condition thereof, an Employee Agreement with Imation that restricts
such person's activities with respect to confidential information and future
employment. See "--Employment Agreements."
Consulting Agreement
In connection with the execution of the Merger Agreement, Cemax-Icon
also entered into an agreement (the "Consulting Agreement") with one of its
directors, Dr. David White, providing for a term expiring on June 30, 1999. The
Consulting Agreement will become effective at the Effective Time and provides
for (i) a consulting fee of $2,000 per month, (ii) the grant of an option to
purchase shares of Imation Common Stock under the Imation 1996 Employee Stock
Incentive Program and (iii) restrictions with respect to the use of confidential
information.
Noncompetition Agreements
In connection with the execution of the Merger Agreement, Cemax-Icon
entered into agreements ("Noncompetition Agreements") with eight of its
stockholders (seven of whom are officers of Cemax-Icon and two of whom are also
directors of Cemax-Icon), pursuant to which each such stockholder agreed, among
other things, that: (i) for a specified period he will not, directly or
indirectly, engage or invest in, own, manage, operate, finance, control, or
participate in the ownership, management, operation, financing, or control of,
be employed by, lend his name or any similar name to, lend his credit to, or
render services or advice to, any business whose products or activities compete
in whole or in part with the products or activities of Cemax-Icon as in
existence or proposed to be developed or acquired by Cemax-Icon on the date of
the Noncompetition Agreement and conducted by any of Imation or its subsidiaries
after the Effective Time; provided, however, that he may purchase or otherwise
acquire up to (but not more than) one percent of any class of securities of any
enterprise (but without otherwise participating in the activities of such
enterprise) if such securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the Exchange Act; (ii)
he will not, directly or indirectly, either for himself or any other person, (a)
induce or attempt to induce any employee of any of Imation or its subsidiaries
to leave the employ of such Imation or its subsidiaries, (b) in any way
interfere with the relationship between Imation or its subsidiaries and any
employee of such Imation or its subsidiaries, (c) without the prior written
consent of Imation employ, or otherwise engage as an employee, independent
contractor or otherwise, any person who has been an employee of Cemax-Icon or
Imation or its subsidiaries during the six months preceding such employment or
(d) induce or attempt to induce any customer, supplier, licensee or business
relation of Imation or its subsidiaries to cease doing business with such
Imation or its subsidiaries, or in any way interfere with the relationship
between any customer, supplier, licensee or business relation of Imation or its
subsidiaries and (iii) he will not, directly or indirectly, either for himself
or any other person, solicit the business of any person known to him to be a
customer of Imation or its subsidiaries, whether or not he had personal contact
with such person, with respect to products or activities which compete in whole
or in part with the products or activities of Cemax-Icon as in existence or
proposed to be developed or acquired by Cemax-Icon on the date of the
Noncompetition Agreement and conducted by any of Imation or its subsidiaries
after the Effective Time.
Cemax-Icon entered into Noncompetition Agreements substantially in the
form described above with Terry Ross, Jeremy B. Rubin, M.D., Gregory C. Patti,
Oran E. Mudrugolu, Jean-Luc Chatelain, Grady Floyd, Mark Falkowski and Keith
McKinnon.
MANAGEMENT OF CEMAX-ICON AFTER THE MERGER
Cemax-Icon will be the Surviving Corporation in the Merger and will
become a wholly owned subsidiary of Imation upon consummation of the Merger. The
directors of Merger Subsidiary immediately prior to the Effective Time will be
the initial directors of the Surviving Corporation, and the officers of Merger
Subsidiary immediately prior to the Effective Time will be the initial officers
of the Surviving Corporation. Imation currently expects that, after the
Effective Time, it will retain most of the executive officers of Cemax-Icon
immediately prior to the Effective Time with duties substantially similar to
those of such executive officers prior to the Effective Time, and that Terry
Ross and Jeremy B. Rubin, M.D., who are currently directors and executive
officers of Cemax-Icon, will be elected to the Board of Directors of Cemax-Icon
following the Effective Time. See "CERTAIN INFORMATION CONCERNING
IMATION--Management" and "CERTAIN INFORMATION CONCERNING
CEMAX-ICON--Management."
OPTION AGREEMENT
As a condition to the willingness of Imation to execute the Merger
Agreement, concurrently with the execution of the Merger Agreement, Cemax-Icon
and Imation entered into an option agreement (the "Option Agreement") pursuant
to which Cemax-Icon granted to Imation an option (the "Option") to purchase up
to 1,075,917 shares of Cemax-Icon Common Stock at a price of $11.96 per share.
Imation will be able to exercise the Option, in whole or in part, at any time
and from time to time, on or before December 31, 1997, unless the Merger
Agreement is terminated because of a material misrepresentation, material breach
of a warranty or material breach of a covenant by Imation or Merger Subsidiary
under the Merger Agreement. In addition, Imation will be entitled to
registration rights with respect to any shares of Cemax-Icon Common Stock
acquired by Imation pursuant to the Option Agreement.
STOCKHOLDER AGREEMENTS
As a condition to the willingness of Imation to execute the Merger
Agreement, concurrently with the execution of the Merger Agreement, certain
stockholders of Cemax-Icon, who collectively had record ownership of
approximately 3,530,000 shares of Cemax-Icon Common Stock as of the Record Date
(representing approximately 66% of the total voting power of the outstanding
Cemax-Icon Common Stock and Cemax-Icon Preferred Stock as of such date), entered
into separate Stockholder Agreements with Imation, pursuant to which such
stockholders, in such capacity, have agreed to vote, and have granted to Imation
an irrevocable proxy to vote, such shares (and any other shares of Cemax-Icon
Common Stock acquired after the date of the Merger Agreement, including shares
acquired pursuant to the exercise of any rights to purchase or otherwise acquire
shares) in favor of approval of the Merger Agreement and Merger. In addition,
under the Stockholder Agreements, such stockholders have agreed that, if
Cemax-Icon seeks a vote of its stockholders with respect to (i) any proposal
made in opposition to or competition with consummation of the Merger, (ii) any
merger, consolidation, sale of assets, reorganization or recapitalization, with
any party other than Imation, Merger Subsidiary and their affiliates or (iii)
any liquidation or winding up of Cemax-Icon (each of (i), (ii) and (iii), an
"Opposing Proposal"), such stockholders will vote against such Opposing
Proposal. Also, under the Stockholder Agreements, such stockholders have also
agreed (i) not to solicit, initiate or encourage submission of any proposal or
offer from any person, group or entity relating to any acquisition of the
assets, business or capital stock of Cemax-Icon, or other similar transaction or
business combination involving the business of Cemax-Icon, (ii) not to
participate in any negotiations or discussions regarding or furnish to any other
person any information with respect to, or otherwise cooperate in any way with,
or assist or participate in, facilitate or encourage any effort or attempt by
any other person or entity to do or seek such acquisition or transaction and
(iii) to inform Imation of any inquiry regarding the foregoing (i) and (ii). The
Stockholder Agreements, other than the provisions relating to the grant of an
irrevocable proxy, terminate on the earlier to occur of (1) the Effective Time
or (2) such date and time as the Merger Agreement shall be terminated pursuant
to Article VIII of the Merger Agreement. Such stockholders received no monetary
consideration for entering into the Stockholder Agreements. See "THE
MERGER--Stockholder Agreements."
EMPLOYEE AGREEMENTS
As a condition to the obligations of Imation and Merger Subsidiary to
effect the Merger, each employee of Cemax-Icon will enter into Employee
Agreements with Imation pursuant to which such employee will agree, among other
things, that (i) Inventions (as defined below) with which such employee has had
any relationship will be owned entirely by Imation, (ii) such employee will not
use or disclose to any third party any Confidential Information (as defined
below) and will not own, operate or render services, directly or indirectly, as
an employee or consultant, advisor or in any other capacity to, a Conflicting
Organization (as defined below), (iii) such employee will provide written notice
to Imation of an employment offer with a Conflicting Organization (as defined
below) and will not, if Imation makes a timely election in response to the
written notice, directly or indirectly, render services to any Conflicting
Organization in the United States or in any country in which Imation has a plant
for manufacturing a product upon which such employee works during such
employee's employment with Imation or, if such employee is employed in a sales
capacity, will not render services in the United States, directly or indirectly,
to any Conflicting Organization in connection with the development or
manufacture of any Conflicting Product (as defined below) or the marketing,
sale, merchandising, leasing, servicing or promotion of any Conflicting Product
to any person or organization upon which such employee called during the last
three years of such employee's employment with Imation, or whose account such
employee supervised on behalf of Imation at any time during the last three years
of such employee's employment by Imation and (iv) any claims or controversies
arising between such employee and Imation relating to such employee's employment
with Imation or termination thereof, and any violation of state or federal law
will be resolved by arbitration in accordance with the applicable law or
arbitration rules of the American Arbitration Association.
Confidential Information means information, not generally known, and
confidential to Imation, including all (i) trade secret information about
Imation's processes and products, (ii) information relating to research,
development, manufacture, purchasing, accounting, engineering, marketing,
merchandising, selling, leasing, servicing finance and business systems and
techniques including customer or supplier lists, or similar information of a
third party who has entrusted such information to Imation, and (iii) all
information that has been or will be disclosed to such employee, or to which
such employee has obtained or will obtain access, whether originated by such
employee or by others, during the period of such employee's employment by
Imation, which such employee has reasonable basis to believe is confidential
information. Notwithstanding the foregoing, Confidential Information shall not
include information which is lawfully disclosed to such employee by a third
party after the period of such employee's employment by Imation.
Inventions means discoveries, improvements and ideas (whether or not
shown or described in writing or reduced to practice), mask works (topography or
semiconductor chips) and works of authorship, whether or not patentable,
copyrightable or registerable, (i) which relate directly to the business of
Imation, (ii) which relate to Imation's actual or demonstrably anticipated
research or development, (iii) which result or have resulted from any work
performed by such employee for Imation, (iv) for which equipment, supplies,
facility or Confidential Information of Imation is or have been used or (v)
which are or have been developed on any Imation time.
Conflicting Product means any product, process, system or service of
any person or organization other than Imation, in existence or under
development, which is the same as or similar to or competes with, or has a usage
allied to, a product, process, system or service upon which such employee works
(in either a sales or a non-sales capacity) during the last three years of
employment by Imation, or about which such employee acquires Confidential
Information.
Conflicting Organization means any person or organization which is
engaged in or about to become engaged in, research on or development,
production, marketing, leasing, selling, licensing or servicing of a Conflicting
Product.
AFFILIATE AGREEMENTS
In connection with the execution of the Merger Agreement, certain
persons deemed by Cemax-Icon as potential "affiliates" of Cemax-Icon for
purposes of the federal securities laws (an "Affiliate") entered into Affiliate
Agreements with Imation pursuant to which such Affiliate agreed (i) not to make
any sale, transfer or other disposition of Imation Common Stock in violation of
the Securities Act or Rule 145 of the SEC under the Securities Act and (ii) not
to sell, transfer or otherwise dispose of Imation Common Stock issued to such
Affiliate upon payment of the Contingent Payment Rights unless such sale,
transfer or other disposition is made in conformity with the requirements of
Rule 145 of the SEC under the Securities Act.
ACCOUNTING TREATMENT
The Merger will be accounted for under the purchase method of
accounting under which the total consideration paid in the Merger will be
allocated among the Surviving Corporation's consolidated assets and liabilities
based on the fair values of the assets acquired and liabilities assumed as
provided for under generally accepted accounting principles.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Under currently existing provisions of the Internal Revenue Code of
1986, as amended (the "Code"), the Treasury Regulations promulgated thereunder,
applicable judicial decisions and administrative rulings, all of which are
subject to change, the federal income tax consequences described below are
expected to arise in connection with the Merger. Due to the complexity of the
Code, the following discussion is limited to the material federal income tax
aspects of the Merger for a Cemax-Icon stockholder who is a citizen or resident
of the United States and who, on the date of disposition of such holder's shares
of Cemax-Icon Common Stock, holds such shares as a capital asset. The general
tax principles discussed below are subject to retroactive changes that may
result from subsequent amendments to the Code. The following discussion does not
address potential foreign, state, local and other tax consequences, nor does it
address tax consequences with respect to holders of Cemax-Icon Stock Options or
Cemax-Icon Warrants, nor does it address taxpayers subject to special treatment
under the federal income tax laws, such as life insurance companies, tax-exempt
organizations, S corporations and taxpayers subject to the alternative minimum
tax. In addition, the following discussion may not apply to Cemax-Icon
stockholders who acquired their shares upon the exercise of employee stock
options or otherwise as compensation. Neither Cemax-Icon nor Imation has
requested the Internal Revenue Service to rule or issue an opinion on the
federal income tax consequences of the Merger. ALL STOCKHOLDERS ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS REGARDING THE FEDERAL, FOREIGN, STATE AND LOCAL
TAX CONSEQUENCES OF THE DISPOSITION OF THEIR SHARES IN THE MERGER.
For federal income tax purposes, the Merger will be treated as a
taxable sale or exchange of Cemax-Icon Common Stock for cash (including any
amount retained in the Representatives' Fund) and the Contingent Payment Right
by each holder of Cemax-Icon Common Stock (including any holder of shares who
properly exercises dissenter's rights). The following discussion assumes that
the receipt of the Contingent Payment Right is not taxable currently as property
for federal income tax purposes and represents, instead, a right to receive
additional payments on account of the sale of the Cemax-Icon Common Stock under
certain circumstances. Accordingly, the federal income tax consequences to the
Cemax-Icon stockholders will generally be as follows:
(i) Assuming that the shares of Cemax-Icon Common Stock exchanged by a
Cemax-Icon stockholder for cash in connection with the Merger are capital assets
in the hands of the stockholder at the Effective Time, such stockholder may
recognize a capital gain or loss by reason of the consummation of the Merger.
(ii) A Cemax-Icon stockholder who expects to recognize a gain as a
result of the Merger should be able to treat the disposition of Cemax-Icon
Common Stock and the receipt of cash and a Contingent Payment Right as giving
rise to an installment sale subject to the provisions of Section 453 of the
Code. An installment sale generally arises under Section 453 of the Code when at
least one payment in connection with a sale of property is to be received after
the close of the taxable year in which disposition of the property first occurs.
If applicable, an installment sale would enable a Cemax-Icon stockholder who
expects to recognize a gain to defer a proportionate share of that gain until
payments, if any, are received pursuant to the Contingent Payment Rights. Such
stockholders should consult with their own tax advisors regarding the
application of the installment sale provisions of the Code, the amount of gain
to be recognized in the year of the Merger, and the possible application of the
rules requiring the payment of an interest charge on deferred tax liabilities
arising in connection with certain installment sales as provided in Section 453A
of the Code.
(iii) The capital gain or loss, if any, will be long-term with respect
to shares of Cemax-Icon Common Stock held for more than twelve (12) months as of
the Effective Time and short-term with respect to such shares held for twelve
(12) months or less.
(iv) The receipt of additional cash or Imation Common Stock by a
Cemax-Icon stockholder pursuant to the Contingent Payment Right should also
result in the recognition of capital gain; provided that a portion of any such
cash or Imation Common Stock received by a Cemax-Icon stockholder will be
taxable as a ordinary interest income. The amount of such interest income will
be based on (i) the amount of any such payment pursuant to the Contingent
Payment Right, (ii) the length of time between the Effective Time of the Merger
and the date of any such payment, and (iii) the short-term applicable federal
rate as provided in the Code as of the Effective Time of the Merger. While such
short-term applicable federal rate is not presently known, the current
short-term applicable federal rate is 5.98%, compounded semi-annually. The
amount of such interest income will generally be computed by using such
short-term applicable federal rate of interest to discount the fair market value
of any Imation Common Stock and cash received back to the Effective Time and
treating the difference between the gross amount received and that discounted
amount as ordinary interest income, with the remaining amount taxable as capital
gain. Cemax-Icon stockholders should consult with their own tax advisors
regarding the amount of such ordinary interest income.
(v) The basis of any Imation Common Stock received by a Cemax-Icon
stockholder pursuant to the Contingent Payment Rights is expected to be equal to
the fair market value thereof at the time of the distribution thereof, with the
holding period therefor beginning only at such time.
Payments made pursuant to the Merger (including any cash paid to a
holder of shares who properly exercises dissenter's rights and any payments
pursuant to the Contingent Payment Right) will be reported to the extent
required by the Code to Cemax-Icon stockholders and the Internal Revenue
Service. Such amounts will ordinarily not be subject to withholding of U.S.
federal income tax. However, backup withholding of such tax at a rate of 31% may
apply to certain stockholders by reason of the events specified in Section 3406
of the Code and the Treasury Regulations promulgated thereunder, which include
failure of a stockholder to supply Cemax-Icon or its agent with such
stockholder's taxpayer identification number. Accordingly, Cemax-Icon
stockholders will be asked to provide the stockholder's correct taxpayer
identification number on a Substitute Form W-9 which is to be included in the
appropriate letter of transmittal for the Cemax-Icon shares. Withholding may
also apply to Cemax-Icon stockholders who are otherwise exempt from such
withholding, such as a foreign person, if such person fails to properly document
its status as an exempt recipient.
NO INFORMATION IS PROVIDED HEREIN WITH RESPECT TO THE TAX CONSEQUENCES,
IF ANY, OF THE MERGER UNDER APPLICABLE FOREIGN, STATE, LOCAL AND OTHER TAX LAWS
OR WITH RESPECT TO THE CEMAX-ICON STOCK OPTIONS OR THE CEMAX-ICON WARRANTS. THE
FOREGOING DISCUSSION IS BASED UPON THE PROVISIONS OF THE CODE, APPLICABLE
TREASURY REGULATIONS THEREUNDER, INTERNAL REVENUE SERVICE RULINGS AND JUDICIAL
DECISIONS, AS IN EFFECT AS OF THE DATE HEREOF. THERE CAN BE NO ASSURANCE THAT
FUTURE LEGISLATIVE, ADMINISTRATIVE OR JUDICIAL CHANGES OR INTERPRETATIONS WILL
NOT AFFECT THE ACCURACY OF THE STATEMENTS OR CONCLUSIONS SET FORTH HEREIN. ANY
SUCH CHANGE COULD APPLY RETROACTIVELY AND COULD AFFECT THE ACCURACY OF SUCH
DISCUSSION. NO RULINGS HAVE OR WILL BE SOUGHT FROM THE INTERNAL REVENUE SERVICE
CONCERNING THE TAX CONSEQUENCES OF THE MERGER.
DISSENTERS' RIGHTS OF APPRAISAL
General
Under the Delaware General Corporation Law ("DGCL") any holder of
Cemax-Icon Common Stock on the date of the Demand (as defined below) who holds
such shares continually through the Effective Time and follows the procedures
set forth in Section 262 of the DGCL ("Section 262") will be entitled to have
his Cemax-Icon Common Stock appraised by the Delaware Court of Chancery and to
receive payment in cash of the "fair value" of such Cemax-Icon Common Stock,
exclusive of any element of value arising from the accomplishment or expectation
of the Merger, as determined by such Court.
Procedure
Under Section 262, where a merger is to be submitted for approval at a
meeting of stockholders, the corporation, not less than 20 days prior to the
meeting, must notify each of its stockholders who was such on the record date
for the meeting with respect to shares for which appraisal rights are available
under Section 262 that such appraisal rights are available and include in such
notice a copy of Section 262. This Proxy Statement/Prospectus constitutes such
notice to the holder of Cemax-Icon Common Stock and Section 262 is attached to
this Proxy Statement/Prospectus as Exhibit B.
A holder of Cemax-Icon Common Stock wishing to exercise his appraisal
rights must deliver to Cemax-Icon, before the vote of the holders of Cemax-Icon
Common Stock with respect to the Merger Agreement, a written demand for
appraisal (the "Demand") of his shares and must not vote in favor of approving
the Merger Agreement. Because a proxy which does not contain voting instructions
will, unless revoked, be voted FOR adoption of the Merger Agreement, a holder of
Cemax-Icon Common Stock who votes by proxy and who wishes to exercise his
appraisal rights must (i) vote AGAINST the adoption of the Merger Agreement or
(ii) ABSTAIN from voting on the adoption of the Merger Agreement. A vote against
approval of the Merger Agreement, in person or by proxy, will not in and of
itself constitute a written demand for appraisal satisfying the requirements of
Section 262.
Only a holder of record of Cemax-Icon Common Stock is entitled to
assert appraisal rights for the Cemax-Icon Common Stock registered in that
holder's name. A demand for appraisal should be executed by or on behalf of the
holder of record, fully and correctly, as such holder's name appears on his
stock certificates. If the shares of Cemax-Icon Common Stock are owned of record
in a fiduciary capacity, such as by a trustee, guardian or custodian, execution
of the Demand must be made by the fiduciary. If the shares of Cemax-Icon Common
Stock are owned of record by more than one person, as in a joint tenancy or
tenancy in common the Demand must be executed by or on behalf of all joint
owners. An authorized agent, including an agent for two or more joint owners,
may execute a Demand on behalf of a holder of record; however, the agent must
identify the recordowner or owners and expressly disclose the fact that in
executing the Demand, the agent is acting as agent for the record owner or
owners . A record holder, such as a broker, who holds Cemax-Icon Common Stock as
nominee for several beneficial owners, may exercise appraisal rights with
respect to which the holder is record holder. In such case, the Demand must set
forth the number of shares of Cemax-Icon Common Stock as to which appraisal is
sought. Where no number of shares of Cemax-Icon Common Stock is expressly
mentioned, the Demand will be presumed to cover all shares of Cemax-Icon Common
Stock held in the name of the record owner. Beneficial owners who are not record
owners and who intend to exercise appraisal rights should instruct the record
owner to comply strictly with the statutory requirements with respect to the
exercise of appraisal rights.
A holder of shares of Cemax-Icon Common Stock held in "street name" who
desires appraisal rights with respect to such shares must take such actions as
may be necessary to ensure that a timely and proper demand for appraisal is made
by the record owner of such shares. Shares of Cemax-Icon Common Stock held
through brokerage firms, banks, and other financial institutions are frequently
deposited with and held of record in the name of a nominee of a central security
depository, such as Cede & Co., Pacific & Co., Kray Co., Philadep and others.
Any holder of Cemax-Icon Common Stock desiring appraisal rights with respect to
such shares who held his or her shares through a brokerage firm, bank or other
financial institution is responsible for ensuring that the demand for appraisal
is made by their record holder thereof. The holder should instruct such firm,
bank or institution that the demand for appraisal must be made by the record
holder of the shares, which might be the nominee of a central security
depository if the shares have been so deposited. As required by Section 262, a
demand for appraisal must reasonably inform the corporation of the identity of
the record holder (which might be a nominee as described above) and of such
holder's intention to seek appraisal of such shares.
Holders who elect to exercise appraisal rights must mail or deliver
their written demands to: Cemax-Icon, Inc., 47281 Mission Falls Court, Fremont,
California 94539, Attention: Secretary. The written demand for appraisal should
specify that the holder is thereby demanding appraisal of his or her shares.
Within 10 days after the Effective Time, Imation, as the surviving
corporation in the Merger, must send a notice as the effectiveness of the Merger
to each holder of Cemax-Icon Common Stock who has satisfied the foregoing
provisions of Section 262, which notice shall also include a copy of Section
262. Within 120 days after the Effective Time, but not thereafter, Cemax-Icon or
any former holder of Cemax-Icon Common Stock entitled to appraisal rights under
Section 262 may file a petition in the Delaware Court of Chancery demanding a
determination of the value of Cemax-Icon Common Stock. Cemax-Icon will not file
any such petition. Accordingly, the dissenting holder of Cemax-Icon Common Stock
will need to initiate all necessary action to perfect his appraisal rights
within the time periods prescribed in Section 262.
Within 120 days after the Effective Time, any former holder of
Cemax-Icon Common Stock who has complied with the requirements for exercise of
appraisal rights will be entitled, upon written request, to receive from Imation
a statement setting forth the aggregate number of shares of Cemax-Icon Common
Stock not voted in favor of the adoption of the Merger Agreement and with
respect to which demands for appraisal have been received and the aggregate
number of holders of such shares. Such statement must be mailed within 10 days
after a written request therefor has been received by Imation or within 10 days
after expiration of the period for deliver of demands, whichever is later.
If a petition for an appraisal is timely filed, after a hearing on such
petition, the Delaware Court of Chancery will determine which former holders of
Cemax-Icon Common Stock are entitled to appraisal rights and will appraise the
"fair value" of the Cemax-Icon Common Stock exclusive of any element of value
arising from the accomplishment or expectation of the Merger. Holders of
Cemax-Icon Common Stock considering seeking appraisal should be aware that the
fair value of their shares as determined under Section 262 could be more than,
the same as or less than the consideration they would receive pursuant to the
Merger Agreement, if they did not seek appraisal of their shares and that
investment advisors' opinions as to fairness from a financial point of view of
the Merger Consideration are not necessarily opinions as to fairness of their
shares under Section 262. Any judicial determination of the "fair value" of the
Cemax-Icon Common Stock could be based on numerous considerations including, but
not limited to, the market value of Cemax-Icon Common Stock prior to the Merger
and the net asset value and earnings of Cemax-Icon. The Delaware Supreme Court
has stated that "proof of value by any techniques or methods which are generally
considered acceptable in the financial community and otherwise admissible in
court" should be considered in the appraisal proceeding. The Court will also
determine the amount of interest, if any, to be paid upon the amounts to be
received by persons whose shares have been appraised. The costs of the
proceeding may be determined by the Court and taxed upon the parties as the
Court deems equitable. The Court may also order that all or a portion of the
expenses incurred by any stockholder in connection with an appraisal proceeding,
be charged pro rata against the value of all the shares entitled to appraisal.
Any holder of Cemax-Icon Common Stock who has duly demanded an
appraisal in compliance with Section 262 will not, after the Effective Time, be
entitled to vote the shares of Cemax-Icon Common Stock subject to such demand
for any purpose or be entitled to the payment of dividends or other
distributions on those shares of Cemax-Icon Common Stock, except dividends or
other distributions payable to holders of Cemax-Icon Common Stock of record as
of a date prior to the Effective Time.
If any holder of Cemax-Icon Common Stock who demands appraisal of his
Cemax-Icon Common Stock under Section 262 fails to perfect, or effectively
withdraws or loses his right to appraisal, then the shares of Cemax-Icon Common
Stock of such holder will be converted into and become the right to receive the
Merger Consideration in accordance with the Merger Agreement. A holder of
Cemax-Icon Common Stock will fail to perfect, or effectively lose, his right of
appraisal if no petition for appraisal is filed within 120 days after the
Effective Time, or if the stockholder delivers to Cemax-Icon a written
withdrawal of his demand for appraisal and acceptance of the Merger, except that
any such attempt to withdraw made more than 60 days after the Effective Time
will require the written approval of the Cemax-Icon.
Failure to follow the steps required by Section 262 for perfecting
rights may result in the loss of such rights.
Cash received pursuant to the exercise of dissenters' rights may be
subject to federal or state income tax. See "--Federal Income Tax Consequence."
The foregoing summary of the applicable provisions of Section 262 is
not intended to be a complete statement of such provisions and is qualified in
its entirety by reference to such Section, the full text of which is attached as
Exhibit B to this Proxy Statement/Prospectus.
REGULATORY APPROVALS
Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"HSR Act") and the rules promulgated thereunder by the Federal Trade Commission
(the "FTC"), certain acquisition transactions may not be consummated unless
notice has 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 certain waiting period requirements have been
satisfied. Imation and Cemax-Icon each filed with the Antitrust Division and the
FTC a Notification and Report Form with respect to the Merger on June 13, 1997.
The waiting period under the HSR Act was terminated effective June 27, 1997.
At any time before or after the Effective Time, the FTC or the
Antitrust Division could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking to enjoin the
Merger or seeking the divestiture of Cemax-Icon by Imation, in whole or in part,
or the divestiture of substantial assets of Imation, Cemax-Icon or their
respective subsidiaries. State Attorneys General and private parties may also
bring legal actions under the federal or state antitrust laws under certain
circumstances. Based upon an examination of information available to Imation and
Cemax-Icon relating to the businesses in which Imation, Cemax-Icon and their
respective subsidiaries are engaged, Imation and Cemax-Icon believe that the
consummation of the Merger will not violate the antitrust laws. Nevertheless,
there can be no assurance that a challenge to the proposed Merger on antitrust
grounds will not be made or, if such a challenge is made, that Imation and
Cemax-Icon will prevail.
Neither Imation nor Cemax-Icon is aware of any other material
governmental approvals or actions that may be required for consummation of the
Merger except as described above. Should any such approval or action be
required, it is presently contemplated that such approval or action would be
sought. There can be no assurance, however, that any such approval or action, if
needed, could be obtained and would not be conditioned in a manner that would
cause the parties to abandon the Merger.
THE MERGER AGREEMENT
THE FOLLOWING IS A BRIEF SUMMARY OF THE MATERIAL PROVISIONS OF THE
MERGER AGREEMENT. THIS DESCRIPTION DOES NOT PURPORT TO BE COMPLETE AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE MERGER AGREEMENT INCLUDED AS
EXHIBIT A TO THIS PROXY STATEMENT/PROSPECTUS AND INCORPORATED HEREIN BY
REFERENCE. ALL STOCKHOLDERS ARE URGED TO READ THE MERGER AGREEMENT IN ITS
ENTIRETY. SEE ALSO "THE MERGER."
GENERAL
The Merger Agreement provides that, upon the satisfaction or waiver of
certain conditions, Merger Subsidiary will be merged with and into Cemax-Icon,
Cemax-Icon will continue as the Surviving Corporation, and the separate
existence of Merger Subsidiary will cease. Pursuant to the Merger Agreement, at
the Effective Time, (a) each outstanding share of common stock of Merger
Subsidiary will be converted into one share of the common stock of the Surviving
Corporation, (b) each outstanding share of Cemax-Icon Common Stock (other than
Dissenting Shares or shares owned by Imation, Merger Subsidiary or Cemax-Icon)
will be converted into and become a right to receive (i) a cash payment of
$5.25, without interest thereon, and (ii) a Contingent Payment Right and (c)
each share of Cemax-Icon Preferred Stock will be canceled and extinguished, and
no payment will be made therefor. Following the Merger, the Surviving
Corporation will be a wholly owned subsidiary of Imation. An aggregate of up to
$200,000 may be withheld from the initial payments to stockholders in a separate
fund for reimbursement of the Stockholders' Representatives' out-of
pocket-expenses in acting on behalf of stockholders of Cemax-Icon in connection
with the Merger. See "THE MERGER--Stockholders' Representatives' Fund."
CERTAIN REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains various representations and warranties of
Imation, Merger Subsidiary and Cemax-Icon relating to, among other things, the
following matters (which representations and warranties are subject, in certain
cases, to specified exceptions): (1) the due organization, power and standing
of, and similar corporate matters with respect to, each of Imation, Merger
Subsidiary and Cemax-Icon; (2) the authorization, execution, delivery and
performance by, and enforceability of, the Merger Agreement against each such
party; (3) corporate authorization and lack of conflicts with other agreements;
(4) except as set forth in the Merger Agreement, absence of any governmental or
regulatory authorization, consent or approval required to consummate the Merger;
and (6) the absence of any brokerage, finder's or other fees due in connection
with the Merger.
Cemax-Icon also has made certain additional representations and
warranties to Imation relating to, among other things, the following matters
(which representations and warranties are subject, in certain cases, to
specified exceptions): (1) the approval of the Merger Agreement by Cemax-Icon's
Board of Directors and its resolution to recommend the approval of the Merger
Agreement to Cemax-Icon's stockholders; (2) the proper organization and other
matters relating to Cemax-Icon's predecessors; (3) the absence of subsidiaries;
(4) capital stock; (5) financial statements; (6) the absence of undisclosed
liabilities; (7) the absence of a material adverse change the assets, financial
condition, relations with key management employees or key OEM's, operating
results or business condition of Cemax-Icon; (8) the absence of certain
developments; (9) title to properties; (10) accounts receivable; (11) inventory;
(12) tax matters; (13) Cemax-Icon's performance of material obligations in
connection with disclosed contracts and commitments; (14) intellectual property
rights; (15) the absence of material pending or threatened litigation; (16)
warranties and products; (17) employees; (18) employee benefit plans; (19)
insurance; (20) the absence of affiliate transactions; (21) customers and
suppliers; (22) officers and directors and the existence of bank accounts; (23)
compliance with applicable laws and the possession of all licenses, permits and
certificates necessary to operate the business of Cemax-Icon; (24) environmental
matters and (25) disclosures.
Imation and Merger Subsidiary also have made certain additional
representations and warranties to Cemax-Icon relating to, among other things,
the ownership of Merger Subsidiary.
COVENANTS
Pursuant to the Merger Agreement, Cemax-Icon has agreed that, prior to
the Effective Time, except as expressly permitted by the Merger Agreement or as
otherwise consented to by Imation, Cemax-Icon will, subject to certain
exceptions, among other things, (1) carry on its business in the ordinary course
of its business and observe the following terms and not, except as permitted in
Merger Agreement, (a) take any action except in, the ordinary course of
business, on an arm's-length basis and in accordance in all material respects
with all applicable laws, rules and regulations and Cemax-Icon's past custom and
practice; (b)(i) issue or sell any additional shares of its capital stock, or
any options, warrants, conversion privileges or rights of any kind to acquire
any shares of its capital stock, except as permitted in the Merger Agreement,
(ii) sell, pledge, dispose of or encumber any of its assets, except in the
ordinary course of business, (iii) amend or propose to amend its Certificate of
Incorporation or Bylaws, (iv) split, combine or reclassify any outstanding
shares of capital stock, or declare, set aside or pay any dividend or other
distribution payable in cash, stock, property or otherwise with respect to
shares of its capital stock, (v) redeem, purchase or acquire or offer to acquire
any shares of its capital stock or other securities, except as provided for in
the Merger Agreement, (vi) acquire any corporation, partnership, joint venture
or other business combination or division or material assets thereof, (vii)
incur any indebtedness for borrowed money or issue any debt securities except
the borrowing of working capital in the ordinary course of business consistent
with past practice, (viii) accelerate or defer the payment of undisputed
accounts payable or other accrued expenses owned to trade creditors or other
third parties having business relationships with Cemax-Icon, to use or occupy
real property or exercise or waive any option, or consent to any modification,
act or omission by any landlord requiring tenant's consent under any lease, or
propose to do any of the foregoing, (ix) accelerate, beyond the normal
collection cycle, or defer collection of manufacturers' rebates, promotional
allowances and other accounts receivable, (x) enter into or modify any lease (as
defined in the Merger Agreement) or agreement or arrangement, (xi) purchase
inventories or supplies for its business in manner outside the ordinary course
of business, inconsistent in amount, nature or composition with prior practice,
(xii) sell, lease, license or otherwise dispose of any material assets or
properties, other than in the ordinary course of business, (xiii) accelerate or
defer the construction or improvements at any of the locations of its business
or (xiv) accelerate or defer the purchase of material fixtures, equipment,
leasehold improvements, vehicles, other items of machinery and equipment and
other capital expenditures, or (xv) enter into or modify any agreement,
arrangement or understanding with respect to any of the matters set forth in
items (1)(b)(i) through (1)(b)(xiv) in any material respect, or propose to do
any of the foregoing; (c)(i) enter into or modify any employment, severance or
similar agreements or arrangements with, or grant any bonuses, salary increases,
severance or termination pay to, any officers or directors or consultants or
(ii) in the case of employees, officers or consultants who earn in excess of
$75,000 per year, take any action with respect to the grant of any bonuses,
salary increases, severance or termination pay or with respect to any increase
of benefits payable in effect as of the date of the Merger Agreement; (d) adopt
or amend any bonus, profit sharing, compensation, stock option, pension,
retirement, deferred compensation, employment or other employee benefit plan,
trust, fund or group arrangement for the benefit or welfare of any employees or
of any director; (e) cancel or terminate its current insurance policies or cause
any of the coverage to lapse, except as set forth in the Merger Agreement; (f)
fail to (i) use commercially reasonable efforts to preserve intact its business
organization and goodwill, keep available the services of its officers and
employees as a group and maintain satisfactory relationships with suppliers,
distributors, customers and others with which it has business relationships,
(ii) confer on a regular and frequent basis with representatives of Imation to
report operational matters and the general status of ongoing operations, (iii)
not intentionally take any action which would render, or which reasonably may be
expected to render, any representation or warranty made by it in the Merger
Agreement untrue at the closing of the Merger, (iv) notify Imation of any
emergency or other change in the normal course of business or in the operation
of its properties and of any governmental or third party complaints,
investigations or hearings if such emergency, change, complaint, investigation
or hearing would be material, individually or in the aggregate, to the business,
operations or financial condition of Cemax-Icon or to Cemax-Icon's, Imation's or
Merger Subsidiary's ability to consummate the transactions contemplated by the
Merger Agreement, and (v) promptly notify Imation and Merger Subsidiary in
writing if Cemax-Icon discovers that any representation or warranty made by it
in the Merger Agreement was when made, or has subsequently become, untrue in any
material respect; (g) fail to (i) file all Tax (as such term is defined in the
Merger Agreement) returns, elections or information statements with respect to
any liabilities for Taxes of Cemax-Icon which pursuant to applicable law must be
filed prior to the closing of the Merger, (ii) promptly upon filing provide
copies of any such Tax returns, elections or information statements to Imation
and Merger Subsidiary, (iii) make or rescind any such Tax elections or other
discretionary positions with respect to Taxes taken by or affecting Cemax-Icon
only upon prior consultation with and consent of Imation, (iv) not amend any
Return (as such term is defined in the Merger Agreement), (v) not increase the
rate or policy for any accrual or reserve for Taxes or otherwise accrue therefor
in a manner inconsistent with its practice for previous periods and not change
any of its methods of reporting income or deductions for federal income tax
purposes from those employed in the preparation of the federal income tax
returns for the taxable year ended December 31, 1995; (h) perform any act
referenced by (or omit to perform any act which omission is referenced by) the
terms of Section 3.11 of the Merger Agreement; (2) provide to Imation full
access at all reasonable times and upon reasonable notice access to Cemax-Icon's
books and records; (3) cause to be duly called and held a meeting the Cemax-Icon
stockholders; (4) make or cause to be made all filings and submissions under the
HSR Act) and any other laws and regulatory filings required pursuant to the
Merger; (5) furnish or cause to be furnished to Imation all information
concerning Cemax-Icon required to be included in the registration statement on
Form S-4 to be filed with the SEC under the Securities Act relating to
Contingent Payment Rights and the shares of Imation Common Stock which may be
delivered to Cemax-Icon's stockholders pursuant to the Contingent Payment Rights
(the "Registration Statement") and any other applicable documents which will
include a prospectus and proxy statement (the "Prospectus-Proxy Statement"); (6)
prepare and deliver to Imation all quarterly and monthly financial statements
for such periods set forth in the Merger Agreement; (7) take all commercially
reasonable actions necessary or desirable to cause the conditions set forth in
the Merger Agreement to be satisfied and to consummate the transactions
contemplated by the Merger Agreement and obtain all consents and waivers
contemplated by the Merger Agreement; (8) except as set forth in the Merger
Agreement, refrain from soliciting, initiating and encouraging submission of any
proposal or offer from any person or entity relating to any liquidation,
dissolution, recapitalization, merger, consolidation or acquisition or purchase
of all or a material portion of the assets of, or any equity interest in, the
Cemax-Icon or other similar transaction or business combination involving
Cemax-Icon or participate in any negotiations regarding the foregoing; and (9)
distribute the Prospectus-Proxy Statement, at the relevant time, to each holder
of Cemax-Icon Options or Cemax-Icon Warrants.
Pursuant to the Merger Agreement, Imation and Merger Subsidiary have
agreed that Imation will, subject to certain exceptions, among other things, (1)
promptly as practicable after the execution of the Merger Agreement, make or
cause to be made all filings and submissions under the HSR Act and any other
applicable laws or regulations; (2) take all commercially reasonable actions
necessary or desirable to cause the conditions set forth in Section 7.02 of the
Merger Agreement to be satisfied and to consummate the transactions contemplated
by the Merger Agreement; (3) file the Registration Statement and any applicable
documents, which will include the Prospectus-Proxy Statement with the SEC; (4)
file all documents required to be filed to list the Imation Common Stock to be
issued pursuant to the Contingent Payment Rights on the New York Stock Exchange;
(5) take all corporate action necessary to ensure that any shares of Imation
Common Stock issued by Imation to the Cemax-Icon stockholders pursuant to the
Contingent Payment Rights, is duly authorized, validly issued, fully paid and
nonassessable and free of any preemptive rights or other rights to purchase
securities of Imation and is issued in full compliance with applicable
securities laws; (6) file all documents required to obtain, prior to the
Effective Time, all necessary approvals under state securities laws, if any; (7)
take all corporate action necessary to reserve for issuance a sufficient number
of shares of Imation Common Stock for delivery upon exercise of Substitute
Options and Substitute Warrants and shall file a registration statement on Form
S-8 with respect to shares of Imation Common Stock subject to Substitute
Options; (8) make certain expenditures in connection with its image management
systems business objectives after the Effective Time and (9) maintain as of the
Effective Time certain identified employee benefit plans of Cemax-Icon as in
effect immediately prior to the Effective Time, subject to the modifications set
forth in the Merger Agreement and subject to further modification, amendment or
termination by Imation or the Surviving Corporation following the Effective
Time.
LIMITATIONS ON NEGOTIATIONS
Except is set forth in the Merger Agreement, Cemax-Icon will not,
directly or indirectly, through any officer, director, stockholder, agent or
otherwise, solicit, initiate or encourage submission of any proposal or offer
from any person or entity (including any of its or their officers, stockholders
or employees) relating to any liquidation, dissolution, recapitalization,
merger, consolidation or acquisition or purchase of all or a material portion of
the assets of, or any equity interest in, Cemax-Icon or other similar
transaction or business combination involving Cemax-Icon, or participate in any
negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in anyway with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other person or entity to
do or seek any of the foregoing. Cemax-Icon will promptly notify Imation of any
such proposal or offer, or any inquiry from or contact with any person with
respect thereto, is made and shall promptly provide Imation with such
information regarding such proposal, offer, inquiry or contact as Imation may
request.
CONDITIONS
The Merger will occur only if the Merger Agreement is approved and
adopted by the requisite vote of the stockholders of Cemax-Icon. Consummation of
the Merger is also subject to the satisfaction of certain other conditions
specified in the Merger Agreement, unless such conditions are waived (to the
extent such waiver is permitted by law).
Each party's respective obligations to effect the Merger are subject to
various conditions, including the following, unless waived by the other party to
the extent permitted by applicable law: (1) the stockholders of Cemax-Icon shall
have approved the Merger and the Merger Agreement by requisite vote; (2) the
applicable waiting periods under the HSR Act shall have expired or been
terminated, and all material governmental filings, authorizations and approval
that are required for the consummation transactions contemplated by the Merger
Agreement or the Certificate of Merger will have been duly made and obtained;
(3) there shall not be threatened, instituted or pending any action or
proceeding, before any court or governmental authority or agency relating to and
materially adversely affecting the transactions contemplated in the Merger
Agreement; (4) there shall not be any action taken, or any statute, rule or
regulation, judgment order or injunction enacted, entered, enforced,
promulgated, issued or deemed applicable to the transactions contemplated by the
Merger Agreement which would reasonably be expected to result in any of the
consequences referred to in item (3); and (5) the Registration Statement shall
have become effective and shall not be subject to any stop order, and no action
suit, proceeding or investigation by the SEC to suspend the effectiveness of the
Registration Statement shall have been initiated and be continuing, or have been
threatened or be unresolved and Imation shall have received all necessary state
securities law authorizations.
The obligations of Imation and Merger Subsidiary to effect the Merger
are subject to the satisfaction prior to or upon the Closing of the following
conditions, unless waived by Imation and Merger Subsidiary: (1) the
representations and warranties of Cemax-Icon set forth in the Merger Agreement
shall be true and correct in all material respects at and as of the Effective
Time of the Merger as though made on and as of such date; (2) Cemax-Icon shall
have performed in all material respects all the covenants and agreements
required to be performed by it under the Merger Agreement prior to the Effective
Time; (3) the consents and approvals described in the Merger Agreement shall
have been obtained by Cemax-Icon which consents and approvals could be
reasonably expected to result in a material adverse change in the assets,
financial condition, relationship with key management employees or key OEM's,
operating results or business condition of Cemax-Icon; (4) the Merger Agreement,
the Certificate of Merger and the Merger shall have been duly and validly
approved by the Cemax-Icon's Board of Directors and the Merger Agreement shall
have been approved by the Stockholders of Cemax-Icon; (5) there shall not have
been discovered any fact existing as of the date of the Merger Agreement
regarding Cemax-Icon, which has not been disclosed to Imation and Merger
Subsidiary as of the date of the Merger Agreement which is, individually or in
the aggregate with other such facts, would result in a material adverse change
in the assets, properties, financial condition, operating results or business
condition of Cemax-Icon; (6) there shall have been no damage or destruction or
loss of or to any property or properties owned or used by Cemax-Icon, whether or
not covered by insurance, which, in the aggregate, has, or would be reasonably
likely to have, a material adverse effect on Cemax-Icon; (7) Imation shall have
received from Wilson, Sonsini, Goodrich & Rosati, P.C. a written opinion, dated
the Effective Time, addressed to Imation; (8) not more than seven percent of the
outstanding shares of Cemax-Icon Common Stock shall be qualified to be
Dissenting Shares as of the Effective Time; (9) Imation shall have received from
Ernst & Young LLP, a "comfort" letter, dated as of the effective date of the
Registration Statement; (10) Cemax-Icon shall have delivered to Imation: (a)
officers' certificates executed by officers of Cemax-Icon, (b) copies of third
party and governmental consents and certain approvals, (c) the minute books,
stock transfer records, corporate seal and other materials related to the
corporate administration of Cemax-Icon, (d) resignations from certain of
Cemax-Icon's officers and directors, (e) a copy of the certified Certificate of
Incorporation of Cemax-Icon and Certificates of Good Standing of Cemax-Icon in
such states, (f) a copy of each of (i) the text of resolutions adopted by the
board of directors of Cemax-Icon authorizing the execution, delivery and
performance of the Merger Agreement and the Certificate of Merger and the
consummation of transactions contemplated by the Merger Agreement and the
Certificate of Merger and (ii) the bylaws of Cemax-Icon certified by its
corporate secretary, (g) incumbency certificates executed on behalf of
Cemax-Icon executed on behalf of Cemax-Icon by Cemax-Icon's corporate secretary,
(h) an executed copy of each of the Related Agreements as such term is defined
in the Merger Agreement and (i) such other certificates, documents and
instruments as Imation reasonably requests related to the transactions
contemplated by the Merger Agreement; (11) Cemax-Icon's employees shall have
entered into Imation's form of Employee Agreement and (12) each of Cemax-Icon's
employees identified in the Merger Agreement shall have agreed (i) to repay to
Cemax-Icon under the terms set forth in the Merger Agreement, all interest and
principal outstanding under certain promissory notes or (ii) to permit
Cemax-Icon to deduct the amount of such interest and principal from the payment
of 1997 cash consideration to such employee.
The obligation of Cemax-Icon and the Cemax-Icon stockholders to effect
the Merger is subject to the satisfaction prior to or upon the Closing of the
following conditions, unless waived by Cemax-Icon: (1) the representations and
warranties of Imation set forth in the Merger Agreement shall be true and
correct in all material respects at and as of the Effective Time, as though made
on and as of such date; (2) Imation and Merger Subsidiary shall have performed
in all material respects all the covenants and agreements required to be
performed by them under the Merger Agreement and the Certificate of Merger prior
to the Effective Time; (3) Cemax-Icon shall have received from Dorsey & Whitney
LLP a written opinion, dated the Effective Time, addressed to Cemax-Icon; (4)
Imation and Merger Subsidiary shall have delivered to Cemax-Icon: (a) officers'
certificates executed by officers of each of Imation and Merger Subsidiary, (b)
a copy of the certified Certificate of Incorporation of each of Imation and
Merger Subsidiary and Certificates of Good Standing of Imation and Merger
Subsidiary; (c) a copy of each of (i) the text of resolutions adopted by the
board of directors of each of Imation and Merger Subsidiary authorizing the
execution, delivery and performance of the Merger Agreement and the Certificate
of Merger and the consummation of transactions contemplated by the Merger
Agreement and the Certificate of Merger and (ii) the bylaws of each of Imation
and Merger Subsidiary certified by their respective corporate secretaries; (d)
incumbency certificates executed on behalf of each of Imation and Merger
Subsidiary by their respective corporate secretaries; (e) an executed copy of
each of the Related Agreements as such term is defined in the Merger Agreement
and (f) such other certificates, documents and instruments as Cemax-Icon
reasonably requests related to the transactions contemplated by the Merger
Agreement and (5) receipt from Imation of evidence of transfer to the Transfer
Agent of cash in the amount of the 1997 Cash Consideration, along with an
executed letter of instruction to pay such funds of the Cemax-Icon stockholder.
TERMINATION
The Merger Agreement may be terminated at any time prior to the
Effective Time: (i) by mutual consent of Imation, Merger Subsidiary and
Cemax-Icon; (ii) by either Imation or Merger Subsidiary, on the one hand, or
Cemax-Icon, on the other, in the event (a) there has been a material
misrepresentation, breach of warranty or breach of covenant on the part of the
other in the representations, warranties and covenants set forth in the Merger
Agreement provided, that, in the event of a curable breach, the non-breaching
party may terminate the Merger Agreement only after the breaching party has had
a reasonable time not to exceed 30 days to cure such breach after written notice
of such breach from the non-breaching party; (b) there shall be a final
nonappealable order of a federal or state court in effect preventing the
consummation of the Merger, or there shall be any action taken, or any statute,
rule, regulation or order enacted, promulgated or issued or deemed applicable to
the Merger by any governmental authority or agency which would make the
consummation of the Merger illegal; (c) there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or deemed
applicable to the Merger by any governmental authority or agency which would (x)
prohibit Cemax-Icon's or Imation's ownership or operation of all or a portion of
Cemax-Icon's business or (y) compel Imation or Cemax-Icon to dispose of or hold
separate all or a portion of the business or assets of Cemax-Icon or Imation as
a result of the Merger; or (d) the transactions contemplated by the Merger
Agreement or the Certificate of Merger have not been consummated on or before
August 31, 1997; provided that, neither will be entitled to terminate the Merger
Agreement if such party's willful breach of the Merger Agreement has prevented
the consummation of the transactions contemplated by the Merger Agreement or the
Certificate of Merger; or (iii) by Imation, if (a) more than seven percent of
the outstanding shares of Cemax-Icon Common Stock shall be qualified to be
Dissenting Shares after the first meeting of Cemax-Icon's stockholders to
approve the Merger Agreement and the Merger or (b) after the date of the Merger
Agreement, there shall have been a material adverse change in the assets,
properties, financial condition, operating results or business condition of
Cemax-Icon which shall continue to constitute such a material adverse charge on
or after July 31, 1997.
In the event of termination of the Merger Agreement by Imation, Merger
Subsidiary or Cemax-Icon, all provisions of the Merger Agreement will terminate
except such provisions set forth in the Merger Agreement relating to termination
fees, press releases and announcements, expenses, governing law and
confidentiality, which shall survive indefinitely.
TERMINATION FEES
Imation and Cemax-Icon have agreed that in the event the Merger
Agreement terminates as a result of (i) the failure of a party to proceed with
the Merger even though all of the conditions of such party's obligations to
consummate the transactions contemplated by the Merger Agreement have been
satisfied or (ii) a material misrepresentation, breach of warranty or breach of
covenant on the part of a party in the representations, warranties and covenants
set forth in the Merger Agreement, where such misrepresentation or breach
results or arises from the intentional, willful or grossly negligent acts or
omissions of such party, from information or circumstances known by such party
as of the date of the Merger Agreement or from information or circumstances not
known by such party as of the date of the Merger Agreement as a result of the
intentional or willful disregard or the gross negligence of such party, the
breaching party will promptly reimburse the non-breaching party for
out-of-pocket fees and expenses (in an amount not to exceed $1,000,000) incurred
by the non-breaching party in connection with transactions contemplated by the
Merger Agreement, except for salaries paid to employees of Imation or Cemax-Icon
and payments to financial advisors (other than out-of-pocket expenses of such
advisors) as discussed in the Merger Agreement. In the event Imation terminates
the Merger Agreement, Cemax-Icon may, at its option make the above-referenced
payment by delivering to Imation shares of Cemax-Icon Common Stock as set forth
in the Merger Agreement valued at a price of $10 per share.
In addition, in the event (i) Imation terminates the Merger Agreement
as a result of a material misrepresentation, material breach of warranty or
material breach of covenant on the part of Cemax-Icon in the representations,
warranties and covenants set forth in the Merger Agreement and (ii) Cemax-Icon
engages in, becomes subject to, or enters into an agreement or understanding
with respect to, a Control Transaction (as such term is defined below) with a
party other than Imation prior to December 31, 1997, Imation and Cemax-Icon have
agreed that Cemax-Icon shall promptly pay to Imation $3,000,000 in addition to
any amounts previously paid or required to be paid pursuant to the termination
provisions of the Merger Agreement. The Merger Agreement defines "Control
Transaction" as (i) any acquisition of effective control of Cemax-Icon, whether
by merger, purchase of all or substantially all of the assets of Cemax-Icon,
purchase of a majority of the equity of Cemax-Icon or otherwise, or (ii) any
issuance by Cemax-Icon, in a single or series of transactions, of shares of
capital stock, or rights to purchase shares of capital stock, representing equal
to or greater than 20% of the outstanding capital stock of Cemax-Icon.
Notwithstanding the foregoing, a Control Transaction shall not include the
issuance by Cemax-Icon of more than 20% of the outstanding capital stock of
Cemax-Icon (i) pursuant to an initial public offering of Cemax-Icon's equity
securities under Section 5 of the Securities Act, or (ii) pursuant to a pro rata
or substantially pro rata offering of Cemax-Icon's securities to Cemax-Icon's
current stockholders entitled to participate in such offering pursuant to
applicable securities laws, provided, that, in either case, after such offering,
(a) none of Cemax-Icon's current stockholders is the beneficial owner of more
than 40% of the outstanding capital stock of Cemax-Icon (computed as if all
securities beneficially owned by such stockholder which are convertible into
capital stock of Cemax-Icon had been converted), and (b) none of Imation's
competitors previously disclosed to Cemax-Icon is the beneficial owner of more
than 40% of the outstanding capital stock of Cemax-Icon (computed as if all
securities beneficially owned by such competitor which are convertible into
capital stock of Cemax-Icon have been converted).
The termination fees will be cumulative and in addition to any other
right, power or remedy available to the parties, whether conferred thereunder,
under the Option Agreement or now or hereafter available at law or in equity or
by statute or otherwise.
SURVIVAL AND OFFSET
The Merger Agreement provides that the representations and warranties
contained therein will survive the closing of the Merger until 30 days after the
Determination Date for the Second Earn-Out Year (as defined under "DESCRIPTION
OF CONTINGENT PAYMENT RIGHTS") (the "Offset Period") and will have no further
force or effect thereafter.
Pursuant to the Merger Agreement, Imation will have the right to
offset, from time to time, any loss, liability, deficiency, damage, expense or
cost (including reasonable legal expenses) whether or not actually incurred or
paid during the Offset Period and after taking into effect the tax effects of
such items and any use of the Offset Right thereunder (collectively, the
"Losses"), against payments to be made by Imation relating to the Contingent
Payment Rights, which Imation or the Surviving Corporation or (but only in
connection with any Losses incurred by, or Claims (as defined below) against,
Imation or the Surviving Corporation) any of their respective affiliates,
officers, directors, employees or agents (the "Protected Parties") may suffer or
become subject to, as a result of: (1) any misrepresentation in any of the
representations and warranties of Cemax-Icon contained in the Merger Agreement
or in any of the exhibits, schedules, certificates and other documents delivered
or to be delivered by or on behalf of Cemax-Icon pursuant to the Merger
Agreement or otherwise referenced or incorporated in the Merger Agreement
(collectively, the "Related Documents"); (2) any breach of, or failure to
perform, any agreement or covenant of Cemax-Icon contained in the Merger
Agreement or any of the Related Documents; and (3) any Claim or threatened Claim
against the Protected Parties arising out of actions or inactions of Cemax-Icon
with respect to Cemax-Icon's business or all the real property used or occupied
by Cemax-Icon prior to the Effective Time.
To exercise its Offset Right, the Merger Agreement requires Imation to
deliver to the Stockholders' Representative a schedule signed by an officer of
Imation reflecting the revised payments due or to become due under the
Contingent Payment Rights after giving effect to such exercise of its Offset
Right. In the event Imation exercises its Offset Right, such offset will be
applied first to the payment to be made in 1998 under the Contingent Payment
Rights and second to the payment being made in 1999 under the Contingent Payment
Rights.
In the event any of the Protected Parties becomes involved in any
legal, governmental or administrative proceeding which may result in Losses
subject to Imation's Offset Right thereunder, or if any such proceeding is
threatened or asserted (any such third party action or proceeding being referred
to therein as a "Claim"), Imation is required to promptly notify the
Stockholders' Representatives in writing of the nature of any such Claim and
Imation's estimate of the Losses arising therefrom.
The Stockholders Representatives shall be entitled to contest and
defend such Claim under the procedures and conditions set forth in the Merger
Agreement. However, in the event of a Claim under Section 10.02(c) of the Merger
Agreement or a dispute relating to the Offset Notice under Section 10.02(d) of
the Merger Agreement and if such Claim or Offset Notice would, if determined to
be valid, result in an offset against amounts due under the Contingent Payment
Rights, Imation may exercise its Offset Right to the extent of the estimated
Losses of the Protected Parties until the resolution of such Claim or dispute;
provided, that prior to the time of such resolution, if payment of the
Contingent Payment Right against which Imation is seeking to enforce its Offset
Right would otherwise be due and payable, Imation shall instead pay the amount
of such Offset Right into an escrow account with a third-party escrow agent
mutually acceptable to Imation and the Stockholders' Representatives pursuant to
an escrow agreement. Such funds shall be held in such escrow until the time of
resolution of such Claim (even if such Claim or dispute is not resolved until
after the end of the Offset Period) and thereafter returned to Imation to the
extent that such Offset Right is allowed and otherwise paid to the Stockholders'
Representative, Cemax-Icon Stockholders or a paying agent under the Contingent
Payment Rights, as may be appropriate. The portion of any Contingent Payment
Rights payments suspended pursuant to the terms of Section 10.02(e) of the
Merger Agreement which are not subject to the exercise of the Offset Right in
dispute and which, by their terms, have become due, shall be delivered to the
Stockholders' Representative, Cemax-Icon Stockholders or a paying agent under
the Contingent Payment Rights, as may be appropriate.
The Merger Agreement provides, subject to certain exceptions for
specified matters, that the right of Imation to exercise its Offset Right
thereunder will be subject to the following limitations: (1) Imation will not be
entitled to exercise its Offset Right with respect to any Losses, until the
aggregate amount of all Losses thereunder exceeds $250,000; provided that, once
the aggregate amount of all Losses thereunder exceeds $250,000, Imation will be
entitled to exercise its Offset Right with respect to all Losses, including,
without limitation, the initial $250,000 in Losses thereunder; (2) Imation will
not be entitled to exercise its Offset Right with respect to any Losses unless
Imation delivers to Stockholders' Representatives an Offset Notice or notice of
a Claim: (i) prior to the end of the Offset Period with respect to Losses as a
result of any misrepresentation in any of the representations and warranties of
Cemax-Icon contained in Section 3.07 (Capital Stock), Section 3.15 (Tax
Matters), Section 3.17 (Intellectual Property Rights), Section 3.20 (Employees),
Section 3.21 (Employee Benefit Plans) or Section 3.27 (Environmental Matters) of
the Merger Agreement and (ii) prior to the one-year anniversary of the Effective
Time with respect to all Losses not described in the preceding clause (i); (3)
Imation will not be entitled to exercise its Offset Right with respect to any
Losses to the extent that such Losses result from or arise out of the gross
negligence or willful misconduct of any Protected Party; (4) Imation will be
entitled to exercise its Offset Right only for Losses in an aggregate amount not
exceeding $9,650,979 and (5) the Offset Right will be Imation's sole and
exclusive remedy with respect to any Losses that any Protected Party may suffer,
sustain or become subject to pursuant to the terms of the Merger Agreement, and
Imation has agreed that it will not, and waives all rights to, institute or
maintain any suit, proceeding or action against Cemax-Icon's stockholders or
Stockholders' Representatives or utilize or exercise any other legal or
equitable remedy for the purpose of recovering damages or other relief with
respect to any Losses (including, without limitation, an action seeking to
recover any portion of the purchase price previously paid to Cemax-Icon's
stockholders) except for suits, proceedings or actions necessary to enforce or
implement the Offset Right, provided that, (i) nothing contained in the Merger
Agreement shall prevent a party from bringing an action based upon allegations
of fraud or other intentional misconduct with respect to another party hereto in
connection with the Merger Agreement, and (ii) nothing contained in the Merger
Agreement shall limit in any manner any other legal rights or remedies which any
Protected Party which is a party to an agreement identified under Article XI of
the Merger Agreement has against another party to such agreement in accordance
with the terms and conditions provided therein.
PRO FORMA UNAUDITED COMBINED FINANCIAL STATEMENTS
The pro forma unaudited statements of operations for the three months
ended March 31, 1997 and for the year ended December 31, 1996 set forth the
results of operations of Imation adjusted as though the purchase of Cemax-Icon
had been completed as of January 1, 1996. The pro forma unaudited statements of
operations reflect the elimination of sales and the related cost of goods sold
from Cemax-Icon to Imation, the amortization of goodwill recorded as a result of
the transaction, the incremental interest expense on the additional debt
incurred to finance the acquisition and the tax benefit of Cemax-Icon's pre-tax
loss being utilized by Imation. A non-recurring write-off of an estimated $36.3
million of in-process research and development which resulted directly from the
transaction was not considered in the unaudited pro forma statements of
operations.
The pro forma unaudited condensed balance sheet as of March 31, 1997
reflects the financial position of Imation adjusted as though the purchase of
Cemax-Icon had been completed as of March 31, 1997. The pro forma unaudited
condensed balance sheet reflects the addition of the fair value of net assets
acquired, the recording of goodwill and the write-off of the in-process research
and development as based on a preliminary estimate of the allocation of the
purchase price, the elimination of accounts receivable and accounts payable
between Imation and Cemax-Icon and the additional borrowings to fund the
acquisition.
These pro forma unaudited condensed financial statements have been
prepared based upon assumptions deemed appropriate for the fair presentation of
financial information. The allocation of the purchase price to the assets
acquired, including the in-process research and development, and liabilities
assumed has been estimated on a preliminary basis. The final allocation will be
completed after the transaction is consummated and once final appraisals and
other analyses are completed. The final allocation could be different than the
preliminary allocation based on these final appraisals and analyses. See the
accompanying note to pro forma unaudited condensed financial statements. The pro
forma unaudited financial statements should be read in conjunction with the
historical financial statements of Imation and Cemax-Icon and the notes thereto.
See "FINANCIAL STATEMENTS."
The pro forma unaudited condensed financial statements are presented
for illustrative purposes only and are not necessarily indicative of the
financial position or results of operations which would actually have been
reported had the transactions been in effect during the periods presented or
which may be reported in the future.
<TABLE>
<CAPTION>
IMATION CORP.
PRO FORMA STATEMENTS OF OPERATIONS
THREE MONTHS ENDED MARCH 31, 1997 AND YEAR ENDED DECEMBER 31, 1996
(IN MILLIONS, EXCEPT FOR PER SHARE DATA)
Three Months Ended March 31, 1997 Year Ended December 31, 1996
------------------------------------------------- -----------------------------------------------
Imation Cemax-Icon Pro Forma Pro Forma
Historical Historical Adjustments Pro Forma Imation Cemax-Icon Adjustments Pro Forma
(Unaudited) (Unaudited) (Unaudited) (Unaudited) Historical Historical (Unaudited) (Unaudited)
----------- ----------- ----------- ----------- ---------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net revenues .................. $ 547.7 $ 7.3 $ (0.2)(a) $ 554.8 $2,278.2 $ 25.1 $ (3.9)(a) $2,299.4
Cost of goods sold ............ 348.7 4.9 (0.2)(a) 353.4 1,482.8 14.4 (3.9)(a) 1,493.3
-------- -------- ------- -------- -------- -------- ------- --------
Gross profit .................. 199.0 2.4 -- 201.4 795.4 10.7 -- 806.1
Operating expenses:
Selling, general and
administrative ............. 133.0 1.7 0.6 (b) 135.3 563.0 7.2 2.4 (b) 572.6
Research and development ..... 37.8 1.6 -- 39.4 183.1 6.5 -- 189.6
Restructuring charges ........ -- -- -- -- 53.9 -- -- 53.9
-------- -------- ------- -------- -------- -------- ------- --------
Total operating
expenses ................ 170.8 3.3 0.6 174.7 800.0 13.7 2.4 816.1
Operating income (loss) ...... 28.2 (0.9) (0.6) 26.7 (4.6) (3.0) (2.4) (10.0)
Interest expense and other ... 6.4 0.1 0.4 (c) 6.9 10.4 0.1 1.8 (c) 12.3
-------- -------- ------- -------- -------- -------- ------- --------
Income (loss) before tax
and minority interest ...... 21.8 (1.0) (1.0) 19.8 (15.0) (3.1) (4.2) (22.3)
Income tax provision (benefit) 9.8 -- (0.2)(c) 9.2 5.9 -- (0.7)(c) 4.0
(0.4)(d) (1.2)(d)
Minority interest ............ -- -- -- -- (0.4) -- -- (0.4)
-------- -------- ------- -------- -------- -------- ------- --------
Net income (loss) ............. $ 12.0 $ (1.0) $ (0.4) $ 10.6 $ (20.5) $ (3.1) $ (2.3) $ (25.9)
Earnings (loss) per share ..... $ 0.30 $ 0.26 $ (0.49) $ (0.63)
SEE NOTE TO PRO FORMA UNAUDITED FINANCIAL STATEMENTS.
</TABLE>
<TABLE>
<CAPTION>
IMATION CORP.
PRO FORMA BALANCE SHEET
AS OF MARCH 31, 1997
(IN MILLIONS)
(UNAUDITED)
Imation Cemax-Icon Pro Forma
Historical Historical Adjustments Pro Forma
---------- ---------- ----------- ---------
<S> <C> <C> <C> <C>
ASSETS:
Current Assets
Cash and equivalents ................... $ 55.2 $ 3.3 $ 0.4 (f) $ 58.9
Accounts receivable, net ............... 465.9 8.1 (0.2)(a) 473.8
Inventories ............................ 407.5 3.3 -- 410.8
Other current assets ................... 85.1 0.2 -- 85.3
-------- -------- -------- --------
Total current assets ................. 1,013.7 14.9 0.2 1,028.8
Property, Plant and Equipment, net ........ 461.5 1.9 -- 463.4
Other Assets .............................. 73.8 -- 18.1 (b) 82.7
(9.2)(b)
-------- -------- -------- --------
Total Assets ........................... $1,549.0 $ 16.8 $ 9.1 $1,574.9
======== ======== ======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY:
Current Liabilities
Accounts payable ....................... $ 179.8 4.2 $ (0.2)(a) $ 183.8
Accrued payroll ........................ 40.4 1.3 -- 41.7
Income taxes payable ................... 6.5 -- -- 6.5
Short-term debt ........................ 24.3 0.3 -- 24.6
Other current liabilities .............. 140.4 6.8 -- 147.2
-------- -------- -------- --------
Total current liabilities ............ 391.4 12.6 (0.2) 403.8
Other Liabilities ......................... 96.4 0.1 -- 96.5
Long-Term Debt ............................ 148.8 5.5 30.2(c) 184.5
Commitments and Contingencies
Shareholders' Equity
Common stock ........................... 0.4 -- -- 0.4
Note receivable from stockholder ....... -- (0.4) 0.4 (f) --
Additional paid-in capital ............. 1,012.1 34.6 (34.6)(b) 1,026.1
14.0 (b)
Retained earnings (accumulated deficit) 23.2 (35.6) 35.6 (b) (13.1)
(36.3)(e)
Unearned ESOP shares ................... (43.8) -- -- (43.8)
Cumulative translation adjustment ...... (66.7) -- -- (66.7)
Treasury stock, at cost ................ (12.8) -- -- (12.8)
-------- -------- -------- --------
Total shareholders' equity ........... 912.4 (1.4) (20.9) 890.1
-------- -------- -------- --------
Total Liabilities and Shareholders' Equity $1,549.0 $ 16.8 $ 9.1 $1,574.9
======== ======== ======== ========
SEE NOTE TO PRO FORMA UNAUDITED FINANCIAL STATEMENTS.
</TABLE>
NOTE TO PRO FORMA UNAUDITED FINANCIAL STATEMENTS
The amounts reflected in the column captioned "pro forma adjustments" represent
the pro forma adjustments described below:
(a) Adjustments were made to eliminate sales from Cemax-Icon to Imation, to
eliminate the related cost of goods sold and to eliminate the related
accounts receivable and accounts payable. Sales from Cemax-Icon to
Imation were $0.2 million and $3.9 million for the three months ended
March 31, 1997 and the year ended December 31, 1996, respectively.
Related accounts receivable and accounts payable were $0.2 million as
of March 31, 1997.
(b) The acquisition cost prior to any contingent payments was approximately
$53.4 million. The acquisition cost included cash of $30.2 million (see
Note (c)), fair value of $14.0 million of the substitute options and
warrants on Imation Common Stock granted to certain option and warrant
holders of Cemax-Icon to replace their Cemax-Icon options and warrants
and Imation's prior investment in Cemax-Icon of $9.2 million, which was
eliminated. The amount of the acquisition cost allocated to in-process
research and development was $36.3 million (see Note (e)). The fair
value of the assets acquired and liabilities assumed approximated their
carrying value and thus no fair market value adjustments were made. The
liabilities assumed exceeded the assets acquired by $1.0 million,
resulting in goodwill of $18.1 million. Goodwill will be amortized over
seven years, resulting in amortization expense (based on what goodwill
would have been as of January 1, 1996) of $0.6 million and $2.4 million
for the three months ended March 31, 1997 and the year ended December
31, 1996, respectively.
The pro forma unaudited financial data does not reflect additional
amounts of goodwill, if any, that may result should additional
consideration be issuable pursuant to the Contingent Payment Rights.
Under generally accepted accounting principles, contingent
consideration is recorded when the results of the contingency become
known.
(c) Adjustments were made to interest expense and long-term debt to reflect
the incremental borrowings of $30.2 million to finance the initial cash
payment of $5.25 for each outstanding share of Cemax-Icon Common Stock
and related transaction costs. The average annual interest rate used
was 5.8% and 5.9% for the three months ended March 31, 1997 and the
year ended December 31, 1996, respectively, and was based on Imation's
borrowing rate terms under its revolving credit facility during the
respective periods, resulting in additional interest expense of $0.4
million and $1.8 million, respectively. The tax benefit associated with
the additional interest expense was $0.2 million and $0.7 million for
the three months ended March 31, 1997 and the year ended December 31,
1996, respectively. The effective tax rate used for both periods was
39%, based on a federal rate of 35% and a state rate, net federal
benefit, of 4%.
(d) Prior to the transaction, Cemax-Icon recorded a full valuation
allowance for deferred tax assets attributed to its net operating
losses as it was not considered more likely than not that Cemax-Icon
would be able to generate taxable income in the future sufficient to
recover its deferred tax assets. Based on an effective tax rate of 39%,
adjustments of $0.4 million and $1.2 million for the three months ended
March 31, 1997 and the year ended December 31, 1996, respectively, were
made to the tax provision to reflect the use of Cemax-Icon's net
operating loss in the current period to offset Imation taxable income.
No additional benefits have been reflected in the pro forma financial
statements for the utilization of loss carryforwards as the utilization
in the future is limited by the provisions of the Internal Revenue
Code.
(e) An adjustment was made to the pro forma balance sheet to reflect the
write-off of $36.3 million of acquired in-process research and
development. No adjustment has been made to the pro forma statements of
operations for this nonrecurring charge.
(f) An adjustment of $0.4 million was made to increase cash and equivalents
to reflect a payment received on a note receivable from a Cemax-Icon
stockholder which is due upon consummation of the Merger.
COMPARATIVE UNAUDITED PER SHARE DATA
The following table presents selected comparative unaudited per common
share data with respect to Imation Common Stock and Cemax-Icon Common Stock on a
historical basis and a pro forma combined basis, giving effect to the Merger
using the purchase method of accounting. This information is derived from the
historical financial statements and the related notes thereto. See "FINANCIAL
STATEMENTS." The per share data set forth below are presented for informational
purposes only and are not necessarily indicative of the results of the future
operations of the combined entity or the actual results that would have been
achieved had the Merger been consummated prior to the dates indicated above.
<TABLE>
<CAPTION>
Imation Cemax-Icon
Common Stock Common Stock Pro Forma
Historical Historical Combined
------------ ------------ ---------
<S> <C> <C> <C>
BOOK VALUE PER SHARE:
March 31, 1997 ....................................... $21.53 $(0.25) $21.00
CASH DIVIDENDS PER SHARE:
Three months ended March 31, 1997 .................... 0 0 0
Year ended December 31, 1996 ......................... 0 0 0
NET EARNINGS (LOSS) PER SHARE FROM CONTINUING OPERATIONS:
Three months ended March 31, 1997 .................... 0.30 (0.18) 0.26
Year ended December 31, 1996 ......................... (0.49) (0.59) (0.63)
</TABLE>
CERTAIN INFORMATION CONCERNING IMATION
GENERAL
Imation was incorporated as a Delaware corporation in March 1996.
Imation's principal executive offices are located at 1 Imation Place, Oakdale,
Minnesota 55128 (telephone number (612) 704-4000). Prior to July 1, 1996,
Minnesota Mining and Manufacturing Company ("3M") operated Imation's business
through various divisions and subsidiaries.
Imation was formed as a result of the decision by 3M to spin-off a
separate company comprised of substantially all of the businesses previously
operated within 3M's data storage and imaging systems groups (the "Transferred
Businesses"). To effectuate the transaction, on June 18, 1996, the Board of
Directors of 3M declared a dividend payable to the holders of record of 3M
common stock as of June 28, 1996, based upon a ratio of one share of Imation
Common Stock for every ten shares of 3M common stock owned on the record date.
Effective July 1, 1996 (the "Distribution Date"), the shares of Imation Common
Stock were distributed to 3M stockholders (the "Distribution"). In connection
with the Distribution, 3M and Imation entered into various agreements to
facilitate the transition of Imation to an independent business enterprise. See
"--Relationship Between 3M and Imation." As used herein, references to "Imation"
include the historical operating results and activities of the business and
operations which comprise Imation today.
BUSINESS
Imation develops, manufactures and markets a wide variety of products
and services worldwide for the information processing industry, specializing in
data storage and imaging applications. Imation's products, which number in
excess of 10,000, are used to capture, process, store, reproduce and distribute
information and images in a wide range of information-intensive markets,
including enterprise computing, network servers, personal computing, graphic
arts, medical imaging, photographic imaging, and commercial and consumer
markets. Approximately 57% of Imation's revenues in 1996 were derived from
products and services utilizing digital technologies. In addition, a number of
Imation's products are market leaders in the conventional/analog processes for
recording, manipulation and storage of data and images. While these established
products generate a substantial portion of Imation's revenues today, Imation is
expanding its opportunities to serve the growing needs of its customers to
create, process, manipulate, store, reproduce and distribute increasing amounts
of information and images through the use of digital technologies. Imation
intends to leverage its existing market positions to increase the use of its
products and services as well as to expand its opportunities in the information
processing industry by developing more complete workflow solutions based on
digital technologies.
Imation operates in a single industry segment, the information
processing industry, supplying products and services to meet the information
processing needs for a variety of customer applications. Below are the product
and service revenues by class of similar products or services for each of the
years ended December 31.
<TABLE>
<CAPTION>
Revenue by Classes of Similar Products or Services
1996 1995 1994
---- ---- ----
(In millions)
<S> <C> <C> <C>
Data Storage Products .......................... $ 923.0 $ 930.7 $ 935.4
Printing and Publishing Systems ................ 529.9 542.2 566.0
Medical Imaging Systems and Photo Color Products 673.2 608.1 589.1
Other .......................................... 152.1 164.6 190.0
Total ....................................... $2,278.2 $2,245.6 $2,280.5
</TABLE>
Imation does business in more than 60 countries and nearly half of Imation's
revenues are derived internationally. Expectations are for this percentage to
grow over time. Imation reports its operating results in three geographic
areas--United States, Europe/Middle East/Africa, and Latin America/Asia/Canada.
See Note 10 of the Notes to Imation Corp. Audited Consolidated Financial
Statements included herein.
Data Storage Products
Imation is the world's largest supplier and developer of branded
removable data storage media, in both magnetic and optical formats. Imation also
is a supplier of CD-ROM and laser disc replication and software services
provided to software developers. Imation's products include:
* Data cartridge and Travan(TM)cartridge products used for backup of data
from hard disk storage systems and for applications in which large
volumes of information do not need to be retrieved on a frequent basis.
Travan(TM)cartridges more than double the storage capacity of the prior
mini-cartridge. Used primarily on desktop personal computer systems,
local area networks and workstation computer systems, the
Travan(TM)cartridges make up a family of innovative products that were
introduced in 1995 through the joint efforts of 3M, Hewlett Packard
Company and a group of drive manufacturers. Imation maintains
relationships with these and other companies regarding the production
and joint marketing of compatible drives and cartridge storage media
and the development of future versions of the technology.
* Computer cartridge tapes used for near-line data storage and retrieval,
mass storage and archival storage of data. Large cartridge tapes are
used primarily on enterprise computer systems and in data library
systems that store very large volumes of data. The smaller 4 mm and 8
mm cartridges are used primarily in workstations and mid-size computer
systems and networks for backup and other data storage applications.
* Diskettes (3.5 inch, 5.25 inch and 8 inch) used for personal file
storage, for backup and for exchange of data. Diskettes are used
primarily in desktop and notebook personal computer systems, and also
in workstations, word processors and computer control equipment. In
April 1996, Imation released the LS-120 diskette, a "next generation"
3.5-inch diskette with a formatted capacity of 120 MB. The LS-120
diskette provides more than 80 times the storage capacity of a standard
diskette, and is read/write backward-compatible with the installed base
of more than 5 billion 1.44 MB and 720 KB DOS-formatted diskettes. The
LS-120 technology was originally developed as part of the Laser Servo
120 MB program in which Imation, Compaq Computer Corporation and MKE
are co-developers. In late 1996 and early 1997, drive manufacturers MKE
and Mitsubishi Electric Corp. announced that their production
facilities are capable of producing LS-120 drives in high volumes, and
OR Technology announced a strategic alliance with Kaifa Group, one of
the largest computer component manufacturers in China, to mass produce
an ultra slim-line LS-120 drive for notebook computers in 1997. Several
leading PC original equipment manufacturers, including Compaq Computer
Corporation and two European companies, Siemens Nixdorf Information
Systems AG and Fujitsu ICL Computers, Ltd., have announced plans to
integrate LS-120 drives into certain of their PC lines.
* Rewritable optical disks including magneto-optical (90mm and 130mm),
phase change disks (PD) and CD recordable disks used for the storage of
data and images on personal computers, workstations and local area
networks. These disks are also used in library systems for
multi-user/client server computer installations.
* Laserdiscs, CD-ROM and DVD-ROM products produced on a made-to-order
basis and used for the distribution of data and software to the
personal computer and mid-range markets. Imation recently announced it
will begin offering full DVD-ROM manufacturing, mastering, replication,
packaging and fulfillment services from Imation's Menomonie, Wisconsin
facility beginning in late 1997. DVD is a high-density, next generation
compact disc, identical in size and appearance to current CDs.
Printing and Publishing Systems
Imation manufactures and markets products and provides service and
technical support for the printing, publishing and graphic arts markets.
Products include conventional color proofing systems, digital color proofing
systems and software, pre-press software (Luminous), laser films and image
setting materials, metal printing plates, graphic arts films, photographic
chemicals and miscellaneous supplies. Imation also markets carbonless paper
products, such as multi-part business forms. Imation has strong leadership
positions in certain product areas, including the Matchprint(TM) color proofing
system, an industry standard for more than 20 years. More recently, the
Rainbow(TM) color proofing system, which provides color proofs from digital data
before a job is put on a printing press, also has established a leadership role,
winning both industry awards and acceptance as the digital proofer of choice
among many graphic arts professionals. Imation offers a two-page digital
proofing system (the Rainbow(TM) model 2730 digital proofer) and has announced
it intends to introduce a two-page digital proofer for professional applications
(the Rainbow(TM) model 2740 digital proofer). Imation has also announced it will
expand its line of Rainbow(TM) color proofers with a new four-page (A2 size) ink
jet digital proofing solution for users who require large format, contract
quality proofs. The new Rainbow(TM) model 4700 proofer is expected to be
available during the second quarter of 1997. In addition, in 1996 Imation
announced the development of two new Viking(TM) metal laser plates and a third
infrared thermal plate, which were designed for computer-to-plate printing
technology. Imation began shipping the two new Viking(TM) laser plates in
December 1996 and expects to introduce the third plate in the third quarter of
1997.
In October 1996, Imation acquired Luminous Corporation of Seattle,
Washington, a developer and marketer of desktop software for the prepress, print
production, printing and graphic arts industries. Luminous' portfolio of desktop
prepress software products strengthens Imation's existing digital capabilities
through its Rainbow(TM) digital color proofing systems and Color Locking
Software. As an increasing number of commercial printing operations are moving
their production processes to the desktop and are expanding their use of color
and networked computing, the need for integrated digital workflow solutions is
dramatically increasing. The acquisition of Luminous, combined with Imation `s
expertise in digital proofing, color science and high-capacity digital storage,
expands Imation's leadership in prepress workflow software to speed development
of integrated digital prepress solutions.
In addition to expanding its offerings of digital workflow solutions,
Imation intends to continue to develop its conventional product lines. In 1996,
Imation announced plans to leverage its proprietary dry film technology in the
medical imaging industry to develop a proprietary new dry imagesetting film for
the printing industry. The dry imagesetting film will be used in a new family of
dry film imagesetters being developed by systems developers including Scitex
Corporation Ltd., ECRM Incorporated and Ultre Division of Linotype-Hell Company,
and is expected to be available in late-1997. Imation also has announced it
intends to introduce a new line of high-quality, medium-run "no-process"
printing plates in the third quarter of 1997. The advantages to the user of both
the dry imagesetting film and the "no-process" plates include reduced operating
costs, increased productivity and the elimination of "wet chemistry" processing
resulting in substantial benefits to the environment. During 1996, Imation also
expanded its line of films and bases available for its conventional proofing
systems by introducing new large format Matchprint(TM)color proofing films and
bases. In November 1996, Imation announced its strategic decision to discontinue
manufacturing 3M(TM)Onyx(TM)polyester printing plates effective June 30, 1997.
The decision to exit the Onyx(TM)business was made to allow Imation to focus on
strategic conventional and digital platforms and to align Imation's product mix
with Imation's strategy of focusing on higher value-added products and services.
Medical Imaging Systems and Photo Color Products
Imation develops, manufactures and markets diagnostic imaging film,
film processors and imaging systems for both conventional X-ray film/screen and
electronic imaging systems. Imation's customers include major hospital network
buying groups as well as individual hospitals and medical imaging centers.
Imation participates in the conventional X-ray film market and is the world's
leading supplier of high-quality laser imagers for producing medical diagnostic
images directly from MRI, CT, ultrasound, nuclear and other electronic systems,
with more than 10,000 laser imagers installed worldwide. In late 1995, Imation
began shipping its proprietary line of DryView(TM) laser imagers that produce
high-quality film images without using standard wet chemistry through a
specially designed photothermographic process. Since no wet chemistry is
involved, the DryView(TM) laser imagers represent a significant technological
breakthrough and offer significant cost savings, productivity gains and
environmental benefits to the health care industry. In 1996, Imation introduced
a new desk-top version of the DryView(TM) laser imager, which conveniently may
be located in a variety of settings. As of December 31, 1996, Imation had
shipped more than 1,500 units of its DryView(TM) laser imaging systems. Through
an alliance with Cemax-Icon, hardware and software solutions are provided to
clients that help them manage, distribute and archive their medical images.
Under the alliance, in the U.S. Imation sells its DryView(TM) products and other
medical imaging equipment, and refers customers, to Cemax-Icon for solutions to
their image management systems needs. In Europe, Imation is the exclusive
private label distributor of the Cemax-Icon product family.
Imation is one of the world's leading suppliers of private label film
for the amateur photography retail market. Imation's primary geographic markets
for color photographic film are the United States and Europe, which represents
approximately 70% of the global demand for film. Imation manufactures a complete
line of print and slide films which fit in standard 35mm, 110, and 126 cameras
used by consumers globally. Imation also manufactures single use cameras which
are sold preloaded with Imation's ISO 400 speed film. Single-use cameras
represent a high growth segment of the consumer film market. Imation's color
print film can be found in more than 125 private label brands, as well as 3M's
Scotch(TM) brand. Imation continues to use certain 3M trademarks and tradenames
including the Scotch brand for a period of time following the Distribution. See
"--Relationship Between 3M and Imation--Intellectual Property Agreement." These
products and brands are positioned as a high value, comparable quality
alternative to global brands such as Kodak and Fuji.
In 1996, Imation announced the development of a new product that allows
desktop computer users to print photo-quality images on color ink jet printers.
The new photographic paper for ink jet printers is believed to provide superior
image quality and color reproduction, and significantly faster drying time than
competitive products. The new product, which was designed for use with a variety
of color ink jet printers, is expected to be available during the first half of
1997 through mass retail and photo stores.
Customer Service Technology
Imation's team of field service technicians provides technical
servicing and other post-sale technical support for equipment sold by Imation
and by 3M. Imation offers 24 hour information and customer support telephone
lines for the products it supports. Customers also benefit from user-friendly
product documentation and training programs in a variety of languages. Imation
intends to expand its technical service and support capabilities to assist
customers with the installation, service, support, integration and optimization
of equipment and systems offered for sale by Imation and other manufacturers.
Document Imaging
Imation supplies office and engineering document archiving and
management systems and produces and distributes black-and-white dry photographic
papers and films for the industrial imaging market.
Industry Background
The information processing industry in which Imation operates is
concerned with the creation, capture, manipulation, storage, production and
distribution of information. In data storage and imaging applications in which
Imation specializes, the industry has been profoundly impacted by advancements
in digital technologies. Digital technologies provide much needed information
processing solutions as users are required to use, manage and store more complex
information in less time and with fewer resources and greater accuracy. The
industry is also being profoundly impacted by the availability of new methods of
transporting and accessing data through software developments, networking and
the development of the World Wide Web.
Removable data storage solutions, based on digital technologies, are
used in applications across all computing platforms--enterprise systems, network
servers, desktop systems and mobile computing. International Data Corporation
("IDC") has estimated that there are over 150 million computer systems in use
worldwide that use removable data storage technologies. Removable data storage
technologies are used in a variety of applications including graphic imaging,
video imaging, medical diagnostics, communications systems and consumer
entertainment electronics. Overall, the data storage solution market is growing
at a double digit rate annually, with Asia, Latin America and Eastern Europe
leading this growth, although there is significant price competition. Customer
demand for these solutions is growing at an increasing pace due to enhanced
enabling software that increases the applications and usage rates and the
developing need by customers to manipulate, store and protect even larger
databases. The need for convenient digital storage solutions is also
accelerating as people gain access to information of all types from many
sources, including the Internet. Increasingly, end users want to download files
and information for later use. As the number of Internet users grow and the
variety of information increases, the demand for portable, cost-effective data
storage and output media also will grow. This is true in both commercial and
consumer markets.
Imaging technologies also have been profoundly impacted by advancements
in digital technologies as many users begin to convert their conventional/analog
processes to proprietary digital processes to capture, create, manipulate,
process, transmit and store still and moving images. Conventional/analog
technologies rely upon chemical or electrical processes which capture
information onto paper, film or other media by reacting to external stimuli.
Digital technologies have significantly increased the amount of information that
can be used, managed and stored and have reduced the need for film and chemicals
in the imaging process. Many work processes in use today are hybrid systems in
which users continue to use conventional materials for certain processes in
their work flows while utilizing the speed of digital processing.
Competition
Imation operates in a highly competitive environment. Imation's
principal competitors include large, well capitalized technology companies based
in the United States, Europe and Japan. These competitors include Eastman Kodak,
Fuji Photo Film, Sony, Agfa, Polaroid, Konica, KAO, Sterling and DuPont. Imation
also competes in certain product markets with smaller, more specialized firms
such as Polychrome, Scitex America, ADAC and Iomega. Businesses in the
information processing industry compete on a variety of factors such as price,
value, product quality, customer service, breadth of product line and
availability of system solutions.
Sales, Markets and Distribution Methods
Imation's products and services are sold directly to users through
Imation's field sales organizations and through numerous wholesalers, retailers,
jobbers, distributors and dealers in over 60 countries. No one customer
individually accounts for a material amount of Imation's total sales.
Raw Materials
The principal raw materials used by Imation are silver, polyester film
and aluminum. Imation makes significant purchases of these and other materials
and components used in Imation's manufacturing operations from many domestic and
foreign sources. Imation has been able to obtain sufficient materials and
components from sources around the world to meet its needs. 3M continues to be a
major supplier to Imation of certain raw materials and intermediate products
including film, specialty chemicals and abrasives, and certain contract
manufacturing services, primarily equipment assembly services. See
"--Relationship Between 3M and Imation--Supply, Service and Contract
Manufacturing Agreements."
Research and Patents
Research and product development have historically played an important
role in Imation's activities. Imation has research laboratories for the
improvement of its existing products and development of new products. Imation's
research and development expenses were $183.1 million, $222.4 million, and
$211.2 million for 1996, 1995 and 1994, respectively, Imation expects its
research and development expenses, as a percent of total revenues, to remain in
the 7-8% range during the next several years.
In connection with the Distribution, Imation was granted rights, on
both exclusive and non-exclusive bases, from 3M and others which enable it to
continue to use the intellectual property previously utilized by Imation when it
was part of 3M. See "--Relationship Between 3M and Imation--Intellectual
Property Agreement." Imation does not consider that its business as a whole is
materially dependent upon any one patent, license or trade secret or any group
of related patents, licenses or trade secrets, except with respect to those
rights granted from 3M.
Manufacturing
During 1996 Imation consolidated its manufacturing facilities by
centralizing such operations into the United States and Italy. This
consolidation was implemented in order to reduce costs and improve quality by
allowing Imation to adjust its capacity to current needs and take advantage of
the facilities with the most advanced quality management systems. In August
1996, Imation sold its offset printing plate production facility in Sulmona,
Italy, and in connection with the sale Imation entered into a contract with the
purchaser of the facility to supply Imation with Viking(TM) printing plates for
the European market. Imation has also announced it will close its manufacturing
facility in Rochester, New York by June 30, 1997. Costs associated with this
plant closing were recorded by Imation in its 1995 and 1996 consolidated
financial statements.
The core manufacturing competencies of Imation include coating, fine
chemical production for photographic film, state-of-the-art molding
capabilities, hardware prototyping and unit cost reduction. These competencies,
combined with Imation's research and development competencies of materials
science, color management, hardcopy imaging and magnetic and optical recording,
give Imation a strong technological base to take advantage of the opportunities
in the evolving information processing industry.
Employees
In connection with the Distribution, Imation achieved significant cost
reductions through changes in its corporate structure, including a more than 20
percent reduction in head count from the levels prior to the Distribution. As of
March 31, 1997, Imation had approximately 9,700 employees, approximately 5,700
in the United States and 4,000 internationally. As of December 31, 1995, Imation
had approximately 12,300 employees, which included both direct employees and
indirect equivalent positions in staff services functions at 3M which
historically provided services to Imation's businesses prior to the
Distribution. Approximately 1,600 positions were reduced prior to the
Distribution Date through employee separation programs and as a result of the
consolidation of Imation's manufacturing operations. The separation costs
associated with these reductions were recorded by Imation in its 1996
consolidated financial statements. Most of the cash requirements of the
separation programs were funded by 3M. In addition, approximately 1,100 staff
services equivalent positions remained with 3M. Imation continues to incur some
of the costs related to the staff services support provided by these employees
through a services agreement with 3M. See "--Relationship Between 3M and
Imation--Corporate Services Transition Agreement."
Environmental Matters
Imation's operations are subject to a wide range of environmental
protection laws. Imation has remedial and investigatory activities underway at
some of its current facilities. In connection with the Distribution, Imation
assumed and agreed to indemnify 3M from all liabilities relating to, arising out
of or resulting from (i) operations at Imation's facilities as conducted prior
to the Distribution Date; (ii) the disposal of hazardous materials from
Imation's facilities before the Distribution Date and at disposal sites operated
by third parties ("Superfund Sites"), where such liabilities are discovered
after the Distribution Date, or (iii) operations of Imation's businesses on and
after the Distribution Date. 3M agreed to retain responsibility for
environmental liabilities relating to former premises which may have been
associated with Imation's businesses prior to the Distribution Date and known
Superfund Sites associated with Imation's properties as of the Distribution
Date.
It is Imation's policy to accrue environmental remediation costs if it
is probable that a liability has been incurred and the amount of such liability
is reasonably estimable. As assessments and remediations proceed, these accruals
are reviewed periodically and adjusted, if necessary, as additional information
becomes available. The accruals for these liabilities can change due to such
factors as additional information on the nature or extent of contamination,
methods of remediation required, the allocated share of responsibility among
other parties, if applicable, and other actions by governmental agencies or
private parties. However, it is often difficult to estimate the future impact of
environmental matters, including potential liabilities.
As of December 31, 1996, Imation had reserved approximately $6 million
with respect to environmental liabilities. Although Imation believes that its
reserves are adequate, there can be no assurance that the amount of expenses
relating to remedial actions and compliance with applicable environmental laws
will not exceed the amounts reflected in Imation's reserves. Imation believes
that such additional charges, if any, will not have a material adverse effect on
the financial position, results of operations or cash flows of Imation.
Relationship Between 3M and Imation
For purposes of governing certain of the relationships between 3M and
Imation following the Distribution, 3M and Imation entered into the Transfer and
Distribution Agreement described below and various ancillary agreements to which
they are parties, including those described below. Certain of these agreements
have been filed as exhibits to Imation's Registration Statement on Form 10
relating to the Distribution, and the following summaries are qualified in their
entirety by reference to the agreements as filed.
TRANSFER AND DISTRIBUTION AGREEMENT. 3M and Imation have entered into
the Transfer and Distribution Agreement, which provides for, among other things,
the principal corporate transactions required to effect the Distribution, the
transfer to Imation of the Transferred Businesses, the division between 3M and
Imation of certain liabilities and certain other agreements governing the
relationship between 3M and Imation following the Distribution.
TAX SHARING AND INDEMNIFICATION AGREEMENT. 3M and Imation entered into
a Tax Sharing and Indemnification Agreement (the "Tax Sharing Agreement"),
providing for their respective obligations concerning various tax liabilities.
The Tax Sharing Agreement provides that 3M shall pay, and indemnify Imation if
necessary, with respect to all federal, state, local and foreign income taxes
relating to the Transferred Businesses for any taxable period ending on or
before the Distribution Date except that Imation shall indemnify 3M for any
income taxes arising out of the failure of the Distribution or any of the
transactions related to it to qualify as tax free as a result of certain actions
taken by Imation or any of its subsidiaries. Prior to the Distribution, 3M
received a ruling from the Internal Revenue Service that 3M stockholders who
received shares of Imation Common Stock in connection with the Distribution
would not recognize income, gain or loss upon receipt of such shares, except in
connection with any cash received in lieu of fractional shares. 3M also
generally agreed to pay all other taxes (other than those which are imposed
solely on Imation) that are payable in connection with the Distribution and the
transactions related to it the liability for which arose on or before the
Distribution Date. The Tax Sharing Agreement further provides for cooperation
with respect to certain tax matters, the exchange of information and the
retention of records which may affect the income tax liability of either party.
CORPORATE SERVICES TRANSITION AGREEMENT. 3M and Imation entered into a
Corporate Services Transition Agreement (the "Corporate Services Agreement")
pursuant to which 3M agreed to provide to Imation certain services, including
engineering and environmental services, logistics and information technology
services, financial services, human resources administration services and tax,
insurance, treasury and employee benefits administration, which 3M historically
provided to the Transferred Businesses prior to the Distribution Date. The
length of time that 3M will provide such services and the amount that Imation
will pay for such services varies based on the type of service. Generally, no
services are expected to be provided beyond two years following the Distribution
Date, and after such time Imation expects to provide such services on its own
behalf. The Corporate Services Agreement is terminable by each party upon 90
days notice, provided that 3M is not permitted to terminate certain specified
services, which the parties have determined will require a longer period to
replace. The costs associated with the services provided by 3M are either a
fixed dollar amount based on the estimated cost of the services provided, or an
amount determined pursuant to a formula based on the services actually provided.
Any services required by Imation beyond the first year will be based on costs
incurred plus an 8% mark-up. Certain foreign subsidiaries of Imation and 3M
entered into corporate services agreements pursuant to which 3M agreed to
provide to such subsidiaries services similar to those being provided to Imation
pursuant to the Corporate Services Agreement. The cost of all such services
supplied by 3M to Imation totaled approximately $51 million during the last six
months of 1996 and approximately $21 million for the first three months of 1997.
ENVIRONMENTAL MATTERS AGREEMENT. 3M and Imation entered into an
Environmental Matters Agreement (the "Environmental Matters Agreement")
providing for their respective obligations concerning environmental liabilities
arising out of the operation of the premises of the Transferred Businesses and
other environmental matters.
Under the Environmental Matters Agreement, Imation assumed and agreed
to indemnify 3M for all liabilities relating to, arising out of or resulting
from (i) operations at Imation's facilities as conducted before the Distribution
Date; (ii) the disposal of hazardous materials from Imation's facilities before
the Distribution Date and at Superfund Sites, where such liabilities are
discovered after the Distribution Date; or (iii) operations of the Transferred
Businesses on and after the Distribution Date. 3M agreed to retain
responsibility for environmental liabilities relating to former premises which
may have been associated with the Transferred Businesses, and known Superfund
sites associated with the properties of the Transferred Businesses on or before
the Distribution Date.
INTELLECTUAL PROPERTY AGREEMENT. 3M and Imation entered into an
Intellectual Property Rights Agreement (the "Intellectual Property Agreement")
pursuant to which 3M granted to Imation, effective as of the Distribution Date,
rights to use certain intellectual property (such as patent rights, copyrights,
mask work rights and proprietary information) exclusively in the fields of use
in which the Transferred Businesses operated as of the Distribution Date and
non-exclusively in certain other fields. In addition, 3M transferred to Imation
title to certain intellectual property rights previously used by the Transferred
Businesses, subject to certain rights of 3M to continue to use such intellectual
property rights. The Intellectual Property Agreement further provides for
cross-licensing of certain future intellectual property developed during a
transition period. In addition, for various transition periods specified in the
Intellectual Property Agreement, Imation is granted the right to use certain 3M
trademarks under a royalty-bearing license. Trademarks used only by the
Transferred Businesses were assigned to Imation as of the Distribution Date.
The Intellectual Property Agreement provides that the costs associated
with the procurement and maintenance of patents and trademarks licensed to
either party by the other under the Intellectual Property Agreement are the
responsibility of the party owning the particular patent or trademark. However,
with respect to patents, either party may designate a patent or patent
application under which it is licensed by the other party to be of "common
interest." The licensed party is granted certain rights to participate in
decisions involving such common interest patents and patent applications, and
the costs thereof are shared by the parties. The costs of enforcing licensed
patents against an infringer will be borne by the party instituting the lawsuit
unless the parties agree otherwise. For jointly-owned patents, enforcement costs
are shared if both parties desire to participate. The licensed party's
enforcement of patents requires prior approval by the party owning the patent.
With the exception of licensed trademark rights, no royalties or fees
are payable by Imation to 3M for the assignment and license of intellectual
property to Imation under the Intellectual Property Agreement. With respect to
licensed trademarks, Imation is required to pay a royalty, which Imation
believes is reasonable, through cash payments, commitments to purchase product
from 3M and/or engaging in certain other activities benefiting 3M. The cash
royalty is based on Imation's net sales of those products upon which the royalty
is due, and the amount of the royalty varies depending on the type of product
for which the trademark is being used by Imation. The amount of royalties paid
by Imation to 3M for the use of licensed trademarks during the last six months
of 1996 totaled approximately $1.8 million. Beginning in January 1997, Imation
reduced its use of certain 3M licensed trademarks. Imation paid approximately
$490,000 in royalties to 3M for licensed trademarks used during the first
quarter of 1997.
The parties have agreed to cross-license each other under certain
patents and proprietary information developed by each party during the two year
period following the Distribution Date. The cross-licenses are royalty-free and
generally of the same scope (i.e., exclusive or non-exclusive in defined fields)
as the licenses granted to and retained by Imation and 3M, respectively, under
the patents and proprietary information existing at the time of the
Distribution.
Imation and 3M have entered into joint development agreements pursuant
to which the parties will assist each other in the development of new products
following the Distribution Date. The relationship between the parties under the
agreements varies from simple purchased research to shared product development.
3M and Imation agreed not to compete with each other in their
respective businesses for a period of five years following the Distribution
Date. 3M agreed that, except for ancillary activity involving an insubstantial
business, it would not compete directly or indirectly in Imation's Exclusive
Fields (which, as defined in the Intellectual Property Agreement, are generally
the fields of business in which Imation was engaged as of the Distribution
Date). Imation agreed that, except for ancillary activity involving an
insubstantial business, it would not compete, directly or indirectly in the 3M
Business Fields (which, as defined in the Intellectual Property Agreement, are
generally the fields of business in which 3M was engaged as of the Distribution
Date). However, this provision does not preclude Imation from indirect activity,
outside of the 3M Reserved Fields (which, as defined in the Intellectual
Property Agreement, are generally fields closely related to Imation's Exclusive
Fields where 3M has retained exclusive rights), involving working with a third
party on that party's imaging and electronic information processing needs,
internal or external, as long as the activity does not benefit, in more than an
ancillary way, a product or service of the third party which competes with a
product or service in the 3M Business Fields.
SUPPLY, SERVICE AND CONTRACT MANUFACTURING AGREEMENTS. 3M and Imation
entered into various product and service supply agreements (the "Supply
Agreements") providing for the supply by 3M to Imation and by Imation to 3M, of
certain products and services. Under the Supply Agreements, 3M supplies to
Imation certain raw material and intermediate products including film, specialty
chemicals and abrasives and provides to Imation certain contract manufacturing
services, primarily equipment assembly services. Under the Supply Agreements,
Imation supplies to 3M certain semi-finished products and components and
provides to 3M certain contract manufacturing and other services, including
converting, slitting and coating services and technical field service. The
prices for products supplied by either party under the Supply Agreements are
based on the cost of supplying such product plus a 5% mark-up in 1996, a 10%
mark-up in 1997 and a 15% mark-up in 1998 and thereafter. The prices paid for
contract manufacturing services provided by either party vary depending on the
services provided but generally are based on costs incurred plus an 8% mark-up.
The net cost to Imation of all such transactions between 3M and Imation totaled
approximately $60 million in 1996.
SHARED FACILITY AND LEASE AGREEMENTS. 3M and Imation entered into
various lease agreements with respect to certain facilities (the "Shared
Facility Agreements") at which 3M and Imation share space. With respect to each
of these facilities, the party that is the owner (or primary tenant) of the
facility leases to the other party a portion of the facility so as to enable the
other party to conduct operations at such facility.
The form of lease entered into by 3M and Imation provides for the
payment of rent in an amount approximating the standard recharge rate used by
the lessor with respect to internal uses of such facilities. The leases
generally provide for a two year term, in some cases with an option to extend
for an additional two years. The amount paid by 3M to Imation during the last
six months of 1996 with respect to Shared Facility Agreements totaled
approximately $400,000 and the amount paid by Imation to 3M during the same
period and for the same purpose totaled approximately $9 million.
Imation has commenced construction of an office building and research
and development facilities at its headquarters site in Oakdale in order to
consolidate its headquarters operations. Imation will continue to lease certain
laboratory and manufacturing space from 3M following the consolidation of its
headquarters operations. See "--Properties."
PROPERTIES
Imation's headquarters are located in Oakdale, Minnesota. Imation is in
the process of constructing an office building and research and development
facilities at its Oakdale site in order to consolidate its headquarters
operations. The costs of construction of these research and development
facilities will be financed through a synthetic lease financing arrangement.
Construction of these facilities will enable Imation to re-locate approximately
1,100 employees currently located in facilities being leased by Imation from 3M.
Imation's major facilities (all of which are owned by Imation, except where
noted), and the products manufactured at such facilities are listed below.
Imation's facilities are in good operating condition suitable for their
respective uses and adequate for Imation's current needs.
FACILITY PRODUCTS
-------- --------
Domestic
--------
Camarillo, California Data tape
Fremont, California (leased) CD-ROM
Menomonie, Wisconsin (leased Laserdisc, CD-ROM and DVD-ROM
Middleway, West Virginia Printing plates
Nekoosa, Wisconsin Carbonless paper
Oakdale, Minnesota Headquarters
Pine City, Minnesota Micrographic cards
St. Paul, Minnesota (leased) Laboratory facilities
Tucson, Arizona Data tape
Vadnais Heights, Minnesota (leased) Optical
Wahpeton, North Dakota Diskettes/molding
Weatherford, Oklahoma Diskettes/photographic film
White City, Oregon Imagers/X-ray films
International
-------------
Bracknell, United Kingdom Administrative
Breda, Netherlands (leased) CD-ROM services
Milan, Italy (leased) Administrative
Rotterdam, Netherlands (leased) Administrative
Ferrania, Italy X-ray films/photographic film
Florida, Argentina X-ray films
Harlow, United Kingdom Research facility
London, Ontario, Canada Administrative
LEGAL PROCEEDINGS
In connection with the Distribution, Imation assumed substantially all
liabilities for legal proceedings relating to Imation's businesses as conducted
prior to the Distribution Date. See "--Relationship Between 3M and
Imation--Transfer and Distribution Agreement." In addition, in the normal course
of business, Imation is subject to proceedings, lawsuits and other claims,
including proceedings under laws and regulations related to environmental and
other matters. All such matters are subject to many uncertainties and outcomes
that are not predictable with assurance. Consequently, Imation is unable to
ascertain the ultimate aggregate amount of monetary liability or financial
impact with respect to these matters as of March 31, 1997. While these matters
could materially affect operating results of any one quarter when resolved in
future periods, it is management's opinion that after final disposition, any
monetary liability or financial impact to Imation beyond that provided in the
consolidated balance sheet as of March 31, 1997 would not be material to
Imation's financial position or annual results of operations or cash flows.
MARKET FOR IMATION COMMON STOCK AND RELATED STOCKHOLDER MATTERS
As of February 28, 1997, there were 42,627,470 shares of Imation Common
Stock outstanding held by approximately 67,394 stockholders of record. Imation
Common Stock is listed on the New York and Chicago Stock Exchanges. Imation did
not pay any dividends during 1996. Future dividends will be determined by the
Board of Directors.
In connection with Imation's acquisition of Luminous Corporation on
October 11, 1996, Imation issued 922,845 shares of Imation Common Stock to the
stockholders of Luminous Corporation in exchange for all of the issued and
outstanding shares of that company. The issuance of the shares of Imation Common
Stock did not involve a public offering and was exempt from registration
pursuant to Section 4(2) of the Securities Act.
The following table sets forth, for the periods indicated, the high and
low sales prices of Common Stock as reported on the New York Stock Exchange
Composite Transactions. Imation Common Stock commenced regular way trading on
the New York Stock Exchange on July 15, 1996:
Sales Prices
---------------------
High Low
------- -------
PERIOD:
Third Quarter 1996..................... $26.250 $20.375
Fourth Quarter 1996.................... 33.000 22.750
First Quarter 1997..................... 30.375 25.000
Second Quarter 1997.................... 27.375 22.250
Third Quarter 1997
(through_________)
On May 13, 1997, the last full trading day before Imation and
Cemax-Icon announced the execution of the Merger Agreement, the closing price
per share of Imation Common Stock was $24.50, and on_________, 1997, the closing
price per share of Imation Common Stock was $__________.
SECURITY OWNERSHIP
Security Ownership of Certain Beneficial Owners
The following table sets forth the holdings, as of the date indicated,
of Imation Common Stock of each person known to Imation to own beneficially (as
defined by the Securities and Exchange Commission for proxy statement purposes)
more than 5% of any class of Imation's voting securities.
Name and Address Amount and Nature of
Beneficial Owner Beneficial Ownership Percent of Class
---------------- -------------------- ----------------
FMR Corp. 5,450,891(1) 13.0%
82 Devonshire Street
Boston, Massachusetts 02109
State Street Bank and Trust Company 2,536,503(2) 5.93%
225 Franklin Street
Boston, Massachusetts 02110
- ---------------------
(1) Imation received a copy of a Schedule 13G filed with the Securities and
Exchange Commission by FMR Corp., indicating that, at November 30, 1996,
FMR Corp. and certain of its affiliates and subsidiaries, as investment
advisor to various investment company mutual funds, beneficially held a
total of 5,450,891 shares of Imation Common Stock. Such entities had sole
power to vote 2,201 of such shares and sole dispositive power with respect
to all such shares.
(2) Imation received a copy of a Schedule 13G filed with the Securities and
Exchange Commission by State Street Bank and Trust Company, indicating
that, at December 31, 1996, State Street Bank and Trust Company, as trustee
of the Imation Retirement Investment Plan and other trust accounts, held a
total of 2,536,503 shares of Imation Common Stock. Of such shares, State
Street Bank and Trust Company had sole power to vote 236,902 shares, shared
power to vote 2,292,321 shares, sole power to dispose of 240,795 shares and
shared power to dispose of 2,295,708 shares.
Security Ownership of Management
The following table sets forth the number of shares of Imation Common
Stock beneficially owned as of February 28, 1997, by each director, the five
most highly compensated executive officers in 1996, and all directors and
executive officers as a group. Except as otherwise indicated, the named
beneficial owner has sole voting and investment power with respect to the shares
held by such beneficial owner.
Amount and Nature of
Name of Beneficial Owner Beneficial Ownership (1)(2)
------------------------ ---------------------------
William T. Monahan 6,485
Lawrence E. Eaton 10,386
William W. George 3,631
Linda W. Hart 890
Ronald T. LeMay 373
Marvin L. Mann 2,000
Mark A. Pulido 1,252(3)
Daryl J. White 373
Krzysztof K. Burhardt 2,011
Clifford T. Pinder 1,097
Charles D. Oesterlein 309
Dennis A. Farmer 1,745
All Directors and Executive
Officers as a Group (23 persons) 40,860
- -------------------------
(1) Includes the following shares allocated as of February 28, 1997 to the
accounts of participants under the Imation Retirement Investment Plan:
W. T. Monahan, 353 shares; K. K. Burhardt, 206 shares; C. T. Pinder,
235 shares; C. D. Oesterlein, 205 shares; D. A. Farmer, 261 shares; and
all executive officers as a group, 3611 shares. The participants in the
Imation Retirement Investment Plan have shared voting and investment
power with respect to such shares.
(2) As of February 28, 1997, the percentage of shares of Common Stock
beneficially owned by any director, by any named executive officer and
by all directors and executive officers as a group was less than 1% of
the outstanding Imation Common Stock.
(3) Includes 276 shares owned by Mr. Pulido's wife, as to which Mr. Pulido
disclaims beneficial ownership.
MANAGEMENT
Executive Officers and Directors
The executive officers and directors of Imation as of July 1, 1997,
together with their ages and business experience, are set forth below:
Name Age Position
- ---- --- --------
William T. Monahan.................. 50 Chairman of the Board, President,
Chief Executive Officer
Carolyn A. Bates.................... 50 General Counsel
Stephen S. Brown.................... 47 Chief Information Officer
Jill D. Burchill.................... 42 Chief Financial Officer
Krzysztof K. Burhardt............... 55 Vice President, Technology
Development
Wilmer G. DeBoer.................... 52 Vice President, Customer Support
Technology and Document Imaging
Dennis A. Farmer.................... 53 Vice President, Talent Effectiveness
and Customer First Development
Barry R. Melchior................... 53 Director, Corporate Engineering and
Manufacturing Services
David G. Mell....................... 50 Vice President, Corporate Business
Processes
Richard W. Northrop................. 59 Vice President, European Operations
Charles D. Oesterlein............... 54 Vice President, Operations--Printing
and Publishing Systems
Clifford T. Pinder.................. 50 Vice President, Operations--Medical
Imaging Systems and Photo Products
Michael E. Sheridan................. 52 Vice President, Operations--Data
Storage Products
James R. Stewart.................... 40 Corporate Controller
Deborah D. Weiss.................... 41 Treasurer
David H. Wenck...................... 53 Vice President, International
Operations
Lawrence E. Eaton................... 59 Director
William W. George................... 54 Director
Linda W. Hart....................... 57 Director
Ronald T. LeMay..................... 51 Director
Marvin L. Mann...................... 63 Director
Mark A. Pulido...................... 44 Director
Daryl J. White...................... 49 Director
WILLIAM T. MONAHAN is Chairman of the Board, President and Chief
Executive Officer of Imation. From June 1993 to March 1996, he was Group Vice
President responsible for 3M's Electro and Communications Group, and from May
1992 to May 1993, he was Senior Managing Director of 3M Italy. From September
1989 to May 1992, he was Vice President of 3M's Data Storage Products Division.
CAROLYN A. BATES is Imation's General Counsel. From July 1, 1996 to May
14, 1997, she also served as Secretary of Imation. From 1991 to July 1, 1996,
she was Assistant Chief Intellectual Property Counsel of 3M.
STEPHEN S. BROWN joined Imation in August 1996 as Imation's Chief
Information Officer. From 1995 to August 1996 he was Vice President of Corporate
Technology for Genmar Holdings, Inc. (manufacturer of recreational boats). From
1992 to 1995 he served as Executive Consultant for Diversified Information
Technologies, Inc. (information technology consulting). From 1990 to 1992, Mr.
Brown served as Director of Enterprise Integration & Telecommunications for The
Pillsbury Company (produces food products).
JILL D. BURCHILL is Imation's Chief Financial Officer. From April 1995
to July 1, 1996, she was Sector Controller for 3M's Information, Imaging and
Electronic Sector. From May 1993 to April 1995, she was Group Controller for
3M's Memory Technology Group, and from July 1990 to May 1993, she was Financial
Manager for 3M's Audio/Video Products Division.
DR. KRZYSZTOF K. BURHARDT is Vice President, Technology Development for
Imation. From July 1991 to July 1, 1996, he was Research and Development Vice
President for 3M's Information, Imaging and Electronic Sector.
WILMER G. DEBOER is Vice President, Customer Support Technology and
Document Imaging for Imation. From July 1993 to July 1, 1996, he was Global
Field Service Director and Business Director of 3M's Document Systems
Department. From April 1990 to June 1993, he was Manufacturing Director for 3M's
Engineering Document Systems Division.
DENNIS A. FARMER is Vice President, Talent Effectiveness and Customer
First Development for Imation. He previously served as Vice President, Marketing
and Public Affairs for Imation. On February 1, 1997 he also became responsible
for Imation's human resources. From March 1994 to July 1, 1996, he was Vice
President of 3M's Data Storage Markets Division, and from May 1992 to February
1994, he was General Manager of that division. From February 1991 to January
1992, he was Sales Department Manager of 3M's Data Storage Products Division.
From July 1988 to January 1991, he was Group Director, Europe, for 3M's Memory
Technology Group.
BARRY R. MELCHIOR is Director, Corporate Engineering and Manufacturing
Services for Imation. From April 1995 to July 1, 1996, he was Engineering
Director of 3M's Information, Imaging and Electronic Sector. From August 1993 to
April 1995, he was Engineering Manager for 3M's Tape Group, and from January
1991 to August 1993 he was Plant Manager for 3M's Traffic Control Materials
Division plant in Brownwood, Texas.
DAVID G. MELL is Vice President, Corporate Business Processes for
Imation. He was Vice President of 3M's Data Storage Tape Technology Division
from May 1995 to July 1, 1996, Vice President of 3M's Data Storage Diskette and
Optical Technology Division from March 1994 to April 1995, and General Manager
of that division from May 1992 to February 1994. He was Department Manager of
3M's Computer Tape Technology Department, Data Storage Products Division, from
September 1989 to April 1992.
RICHARD W. NORTHROP is Vice President in charge of the Company's
European operations. He was a Managing Director of European operations for 3M's
Printing Systems, Hardgoods and Electronic Businesses from January 1994 through
July 1, 1996, a Managing Director of European operations for 3M's Hardgood and
Electronic Businesses from January 1992 through December 1993 and a Director of
3M's Information and Imaging Divisions from January 1991 through December 1992.
CHARLES D. OESTERLEIN is Vice President, Operations--Printing and
Publishing Systems. From 1994 to July 1, 1996, he was Vice President of 3M's
Printing and Publishing Systems Division and from 1992 to 1994, he was General
Manager of 3M's Audio and Video Technology Division. From 1989 to 1992, he was
Department Manager of 3M's Data Storage Products Division.
CLIFFORD T. PINDER is Vice President, Operations--Medical Imaging
Systems and Photo Products. From March 1994 to July 1, 1996, he was Vice
President of 3M's Medical Imaging Systems Division, and from July 1993 to March
1994, he was Vice President of 3M's Photo Color Systems Division. From November
1991 to June 1993, he was General Manager of 3M's Photo Color Systems and from
1986 to 1990, he was Managing Director of 3M Puerto Rico.
MICHAEL E. SHERIDAN is Vice President, Operations--Data Storage
Products. He was General Manager of Data Storage Diskette Technology Division
from May 1995 to July 1, 1996, Director of Sumitomo/3M's MTG Technology and
Special Projects from July 1993 to April 1995, and Group Director of 3M Europe's
Memory Technologies Group from May 1990 to July 1993.
JAMES R. STEWART is Corporate Controller. From July 1995 to July 1,
1996, he was Group Controller for 3M's Memory Technologies Group and from March
1992 to July 1995, he was Group Controller for 3M Europe's Medical Group. From
September 1989 to March 1992, he was the Financial Manager for 3M's Commercial
Office Supply Division.
DEBORAH D. WEISS is Treasurer of Imation. From 1988 to July 1, 1996,
she was Manager of 3M's Benefit Funds Investment.
DAVID H. WENCK is Vice President in charge of Imation's international
operations. From May 1995 to July 1, 1996, he was General Manager of 3M's Data
Storage Optical Technology Division. From December 1994 to April 1995, he was
Department Manager of 3M's Software Media and CD-ROM Services Department, and
from July 1986 to September 1994, he was Project Manager of 3M's Optical
Recording Project. From October 1981 to January 1986, he was Managing Director
of 3M's Singapore operations.
LAWRENCE E. EATON served as Executive Vice President of the
Information, Imaging and Electronic Sector and Corporate Services of 3M (a
diversified manufacturer) from 1991 to his retirement in August 1996. Prior to
1991, Mr. Eaton served in various other capacities at 3M, including from 1986 to
1991 as Group Vice President, Memory Technologies Group.
WILLIAM W. GEORGE is Chairman and Chief Executive Officer of Medtronic,
Inc. (a medical technology company). He joined Medtronic in 1989 as President
and Chief Operating Officer, was elected Chief Executive Officer in 1991 and
became Chairman of the Board in August 1996. Prior to such time, Mr. George
served as the President of Honeywell Space and Aviation Systems and the
President of Honeywell Industrial Automation and Control. Mr. George is also a
director of Dayton Hudson Corporation, Valspar Corporation and Allina Health
System.
LINDA W. HART is Vice-Chairman of Hart Group, Inc. (a diversified group
of companies primarily involved in insulation manufacturing and residential and
commercial services). Prior to joining Hart Group in 1990, Ms. Hart was a
partner of the law firm of Vinson & Elkins from July 1986 to January 1990. Ms.
Hart is a former director of both Conner Peripherals, Inc. and WordPerfect
Corporation and is currently a director of each of the Hart Group companies,
Hart Group, Inc. (management services and investments), Rmax, Inc. (insulation
manufacturing) and Axon, Inc. (residential and commercial services).
RONALD T. LEMAY has been the President and Chief Operating Officer of
Sprint Corporation (a telecommunications company) since February 1996. He has
been a director of Sprint since 1993. From March 1995 to September 1996, Mr.
LeMay served as the Chief Executive Officer of Sprint Spectrum, a partnership
among Sprint, Tele-Communications, Inc., Comcast Corporation and Cox
Communications. From October 1989 to March 1995, Mr. LeMay served as President
and Chief Operating Officer of Sprint Long Distance. Mr. LeMay is also a
director of Yellow Corporation, Ceredian Corporation and the Mercantile Bank of
Kansas City.
MARVIN L. MANN has been Chairman and Chief Executive Officer of Lexmark
International, Inc. (a supplier of network and personal printers and information
processing supplies) since March 1991 when the company was formed. Prior to such
time, Mr. Mann served in a number of executive positions at International
Business Machines Corporation. Mr. Mann is also a director of M.A. Hanna Company
and a member of the Fidelity Investments Board of Trustees.
MARK A. PULIDO was elected President and Chief Executive Officer of
McKesson Corporation (a supplier of healthcare products and services) effective
April 1, 1997. Since May 1996 he has served as the President and Chief Operating
Officer of McKesson and also serves as a director of that company. From January
1996 to May 1996, Mr. Pulido served as President and Chief Executive Officer of
Sandoz Pharmaceuticals Corporation (a research-based pharmaceutical
manufacturer). From December 1994 to December 1995, Mr. Pulido served as Chief
Operating Officer of Sandoz. Prior to that time, Mr. Pulido served as Chairman,
President & Chief Executive Officer of Red Line HealthCare Corporation (a
supplier of medical supplies and reimbursement services to the long-term
healthcare industry).
DARYL J. WHITE served as the Senior Vice President of Finance and Chief
Financial Officer of Compaq Computer Corporation (a computer equipment
manufacturer) from 1988 to May 1996. Prior to such time, he held the positions
of Corporate Controller and Director of Information Management at Compaq. Mr.
White is also the Chairman of the Board of Pinnacle Micro, Inc. and a director
of Paracelsus Healthcare Corp.
The Board of Directors of Imation is divided into three classes. The
members of each class are elected to serve three-year terms with the term of
office of each class ending in successive years. The terms of Messrs. George,
Mann and White will expire at the time of the Imation Annual Shareholders
Meeting to be held in 1998; the terms of Messrs. Monahan and Pulido and Ms. Hart
will expire at the time of the Imation Annual Shareholders Meeting to be held in
1999; and the terms of Messrs. Eaton and LeMay will expire at the time of the
Imation Annual Shareholders Meeting to be held in 2000. Each of such directors
has served on the Imation Board of Directors since July 1, 1996 except for Mr.
Mann who has served since January 1997.
Compensation of Executive Officers
The following table sets forth total compensation awarded or paid
during 1995 and 1996 to Imation's Chief Executive Officer and its other four
most highly compensated executive officers (the "Named Executive Officers"):
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term Compensation(1)
------------------------------------- -----------------------------------
Awards Payouts
Other ------------------------ -------
Annual Restricted Securities LTIP All Other
Name and Principal Compen- Stock Underlying Payouts Compen-
Position Year*(1) Salary($) Bonus($)(2) sation($) Awards($) Options(3) ($)(4) sation($)(5)
------------------ -------- --------- ----------- --------- ---------- ----------- ------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
W.T. MONAHAN .......... 1996 $467,500 $390,410 $ 0 $ 0 208,889 $ 86,070 $203,764
Chairman and Chief 1995 $236,025 $124,964 $ 0 $ 0 11,948 $ 45,980 $ 18,997
Executive Officer
K.K. BURHARDT ......... 1996 $201,000 $119,638 $ 0 $ 0 43,542 $ 49,830 $ 75,504
Vice President-- 1995 $196,500 $ 90,607 $ 0 $ 0 13,615 $ 45,890 $ 18,959
Research and
Development
C.T. PINDER ........... 1996 $198,880 $ 59,804 $ 0 $ 0 35,146 $ 49,830 $ 51,582
Vice President-- 1995 $171,800 $ 26,916 $ 0 $ 0 6,618 $ 37,620 $ 11,142
Operations
C.D. OESTERLEIN ....... 1996 $184,680 $ 69,928 $ 0 $ 0 32,660 $ 49,830 $ 64,526
Vice President-- 1995 $174,400 $ 35,014 $ 0 $ 0 4,800 $ 37,620 $ 20,101
Operations
D.A. FARMER ........... 1996 $171,880 $ 77,883 $ 0 $ 0 35,008 $ 49,830 $ 68,514
Vice President-- 1995 $161,315 $ 45,885 $ 0 $ 0 4,800 $ 37,620 $ 22,401
Talent Effectiveness
and Customer
First Development
</TABLE>
- -------------------
* No years prior to 1995 are reported since Imation first became subject
to the reporting requirements of the Exchange Act on the Distribution
Date when Imation's stock began trading on the New York and Chicago
Stock Exchanges.
(1) Compensation for 1995 and the first half of 1996 was determined solely
by 3M and was for services rendered by the named individuals prior to
the Distribution Date. The services rendered to 3M were, in many cases,
in capacities not comparable to the positions currently held by those
individuals for Imation. As described above, the base salaries for the
named individuals during the last half of 1996 remained at the levels
established by 3M for such individuals prior to the Distribution. The
Compensation Committee has approved a new executive compensation
program for Imation's executive officers for 1997.
(2) The amounts shown under the heading "Bonus" for 1995 are cash payments
received by the named individuals under 3M's Profit Sharing Plan.
Payments under the 3M Profit Sharing Plan are based upon 3M's
performance and are variable in accordance with a predetermined
formula. The amounts shown in this column for 1996 include the
following total cash payments received by the named individuals under
the 3M Profit Sharing Plan during the first half of 1996: W. T.
Monahan, $170,068; K. K. Burhardt, $61,406; C. T. Pinder, $27,614; C.
D. Oesterlein, $30,141; and D. A. Farmer, $40,821. The remainder of the
amounts shown for 1996 are cash payments received by the named
individuals during the last half of 1996 under Imation's Success
Sharing Plan. These amounts were based on Imation's achievement of
certain economic profit improvement targets for Imation as a whole.
(3) The stock options shown in this column for 1995 were granted to the
named individuals by 3M prior to the Distribution Date and represent
options to purchase 3M stock. In connection with the Distribution,
options to purchase 3M stock ("3M Options") held by employees of
Imation on the Distribution Date were retained as adjusted 3M options
and were not converted to options for Common Stock. 3M remains solely
responsible for satisfying all exercises of 3M Options. The number of
stock options shown for 1996 includes the following 3M Options granted
to the named individuals by 3M prior to the Distribution Date pursuant
to the exercise of a reload feature in outstanding 3M stock options: W.
T. Monahan, 3,899 shares; K. K. Burhardt, 10,882 shares; C. T. Pinder,
2,486 shares; C. D. Oesterlein, 0 shares; and D. A. Farmer, 2,348
shares. The 3M Options are forfeitable by the named individuals upon
termination of employment with Imation. The remainder of the stock
options shown for 1996 are options to purchase Common Stock granted
under the 1996 Plan following the Distribution Date.
(4) "LTIP Payouts" shown in this column reflect the value of certain LTIP
grants made to the named individuals by 3M prior to the Distribution
Date. The amounts shown reflect the value of the total grant for each
individual under 3M's Performance Unit Plan after the three year
performance period (e.g., for 1996, the performance period is
1994-1996); however, no amount will be paid to these individuals under
the grant for an additional three years pursuant to the terms of the
grant. The numbers shown represent estimates based upon information
available as of February 28, 1997. During this additional three year
period, interest will be paid at a rate determined by 3M's "return on
capital employed." These rights are forfeited by the named individuals
upon termination of employment with Imation.
(5) "All Other Compensation" includes the following components: (a) that
amount of the 3M Performance Unit Plan earnings allocated during the
year to the base amounts determined after the three year performance
periods of each respective grant, to the extent that such earnings are
in excess of market interest rates (as determined by the SEC); (b) the
value of premiums paid by Imation on split-dollar life insurance; (c)
reimbursement for unused vacation time; and (d) the value of Imation
contributions of Imation stock to the accounts of the named individuals
under the Retirement Investment Plan. For 1996, the dollar value of
each component is: W. T. Monahan--(a) $11,359; (b) $10,450; (c)
$178,047; and (d) $3,908; K. K. Burhardt--(a) $11,359; (b) $9,673; (c)
$51,570; and (d) $2,902; C. T. Pinder--(a) $5,576; (b) $6,083; (c)
$35,435; and (d) $4,488; C. D. Oesterlein--(a) $2,138; (b) $16,699; (c)
$42,895; and (d) $2,794; and D. A. Farmer--(a) $2,138; (b) $17,566; (c)
$44,291; and (d) $4,519.
The following table sets forth grants of stock options during the
fiscal year ended December 31, 1996 to each of the Named Executive Officers of
Imation:
<TABLE>
<CAPTION>
OPTION GRANTS IN LAST FISCAL YEAR (1996)
Individual Grants(1)
------------------------------------------------------------
Number of % of Total
Securities Options Granted Grant
Underlying to Employees Exercise Date
Options in Fiscal Price Expiration Present
Name Granted(#) Fiscal Year ($/Share) Date Value(2)
---- ---------- --------------- --------- ---------- --------
<S> <C> <C> <C> <C> <C>
W.T. MONAHAN
Imation Options............ 150,100 6.463% $ 22.38 7-30-2006 $ 1,523,515
Imation Options............ 54,890 2.363% $ 22.90 7-31-2006 $ 569,758
3M Options (3)............. 3,899 0.069% $ 65.375 (3) $ 32,982
K.K. BURHARDT
Imation Options............ 24,100 1.038% $ 22.38 7-30-2006 $ 244,615
Imation Options............ 8,560 0.369% $ 22.90 7-31-2006 $ 88,853
3M Options (3)............. 10,882 0.192% $ 67.85 (3) $ 92,051
C.T. PINDER
Imation Options............ 24,100 1.038% $ 22.38 7-30-2006 $ 244,615
Imation Options............ 8,560 0.369% $ 22.90 7-31-2006 $ 88,853
3M Options (3)............. 2,486 0.044% $ 67.875 (3) $ 21,029
C.D. OESTERLEIN
Imation Options............ 24,100 1.038% $ 22.38 7-30-2006 $ 244,615
Imation Options............ 8,560 0.369% $ 22.90 7-31-2006 $ 88,853
D.A. FARMER
Imation Options............ 24,100 1.038% $ 22.38 7-30-2006 $ 244,615
Imation Options............ 8,560 0.369% $ 22.90 7-31-2006 $ 88,853
3M Options (3)............. 2,348 0.041% $ 63.15 5-07-2004 $ 19,862
</TABLE>
- ------------------
(1) All options were granted at the fair market value of the underlying
stock on the grant date and expire ten years from the grant date (or in
the case of reload options, ten years from the grant date of the
primary 3M Option). All options vest immediately in the event of a
change of control.
(2) In accordance with SEC rules, the Black-Scholes option pricing model
was chosen to estimate the grant date present value of the options set
forth in this table. Imation's use of this model should not be
construed as an endorsement of its accuracy at valuing options. All
stock option valuation models, including the Black-Scholes model,
require a prediction about the future movement of the stock price. The
following assumptions were made for purposes of calculating the Grant
Date Present Value for the options designated as "Imation options": An
option term of five years, volatility at 40%, no dividend yield, and
interest rate at 6.57%. The following assumptions were made for
purposes of calculating the Grant Date Present Value for the reload
options designated as "3M Options": An option term of 26 months,
volatility at 15.53%, dividend yield at 4.26%, and interest rate at
5.83%.
(3) The 3M Options represent options to purchase 3M stock granted to the
named individuals prior to the Distribution Date in connection with the
exercise of a reload feature in outstanding 3M Options. In each case,
the reload option expires ten years from the grant date of the primary
3M Option. The amount shown for 3M Options under "Grant Date Present
Value" is the total grant date present value of all reload options
granted to the named individual in 1996 by 3M prior to the Distribution
Date.
The following table sets forth exercises of stock options during the
fiscal year ended December 31, 1996 by each of the Named Executive Officers of
Imation:
<TABLE>
<CAPTION>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR (1996)
AND FISCAL YEAR-END OPTION VALUES
Number of Value of Unexercised
Underlying Unexercised In-the-Money Options
Shares Options at Fiscal Year-End (#) at Fiscal Year-End($)(1)
Acquired on Value --------------------------------- ---------------------------------
Name Exercise(#) Realized($) Exercisable(2) Unexercisable(3) Exercisable(2) Unexercisable(3)
---- ----------- ----------- -------------- ---------------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
W.T. MONAHAN
Imation Options....... -- -- -- 204,990 -- $ 1,149,125
3M Options............ 10,648 $ 314,028 43,072 -- $ 1,376,934 --
K.K. BURHARDT
Imation Options....... -- -- -- 32,660 -- $ 183,181
3M Options............ 15,677 $ 248,831 36,749 -- $ 1,114,672 --
C.T. PINDER
Imation Options....... -- -- -- 32,660 -- $ 183,181
3M Options............ 7,873 $ 240,709 26,760 -- $ 876,751 --
C.D. OESTERLIEN
Imation Options....... -- -- -- 32,660 -- $ 183,181
3M Options............ 2,400 $ 56,160 17,480 -- $ 537,281 --
D.A. FARMER
Imation Options....... -- -- -- 32,660 -- $ 183,181
3M Options............ 5,090 $ 129,378 24,449 -- $ 812,422 --
</TABLE>
- ------------------
(1) Value of all unexercised options equals the fair market value at
December 31, 1996 of the shares underlying in-the-money options, less
the exercise price times the number of in-the-money options
outstanding.
(2) All exercisable options outstanding at December 31, 1996 are options to
purchase 3M stock and were granted by 3M prior to the Distribution
Date.
(3) All unexercisable options outstanding at December 31, 1996 are options
to purchase Imation Common Stock and are shown in the "Option Grants In
Last Fiscal Year (1996)" table above.
The following table sets forth awards under long-term incentive plans
during the fiscal year ended December 31, 1996 to each of the Named Executive
Officers of Imation:
<TABLE>
<CAPTION>
LONG-TERM INCENTIVE PLANS--AWARDS
IN LAST FISCAL YEAR (1996)*
Number Performance
of Shares, or Other
Units Period Until Estimated Future Payout
or Other Maturation Under Non-Stock Price Based Plans(3)
-------- ------------ ------------------------------------------
Name Rights(1) or Payout(2) Threshold Target Maximum
---- --------- ------------ --------- ------ -------
<S> <C> <C> <C> <C> <C>
W.T. Monahan.......... 1,600 6 years $ 0 $160,000 $320,000
K.K. Burhardt......... 550 6 years $ 0 $55,000 $110,000
C.T. Pinder........... 550 6 years $ 0 $55,000 $110,000
C.D. Oesterlein....... 550 6 years $ 0 $55,000 $110,000
D.A. Farmer........... 550 6 years $ 0 $55,000 $110,000
</TABLE>
- ----------------------
* The awards shown in this table were awarded by 3M to the named
individuals under 3M's Performance Unit Plan prior to the Distribution
Date. The rights will continue pursuant to the terms of the original
grants during the continued employment of the named individuals by
Imation; however, beginning in 1997 Imation (rather than 3M) will be
responsible for making any payments owed to the named individuals. No
long-term incentive awards (other than the stock options described
above) have been granted by Imation.
(1) To date, the 3M Compensation Committee has established the performance
goals based on criteria of return on capital employed and sales growth.
Performance units awarded to date have been assigned a face value of
$100 each. However, the actual amount of the payments is based upon
3M's attainment of the performance goals. If the targets established by
the 3M Compensation Committee are attained during the performance
periods, the performance unit will have a value of $100 and, if
exceeded, will be more than $100. The ultimate value of the performance
unit can vary from no value to $200, depending upon actual performance.
(2) The value of awards granted for 1996 will be determined by 3M's
attainment of return on capital employed and sales growth criteria
during a three-year performance period of 1996, 1997 and 1998. However,
there will be an additional three-year involuntary holding period
thereafter during which the base amounts determined during the
performance period will earn interest and remain subject to forfeiture
if the named individual discontinues employment with Imation for any
reason other than death, disability or retirement.
(3) The estimated future payouts do not include any interest factor that
would be earned annually during the three-year involuntary holding
period following the performance period. Interest during the
involuntary holding period would accrue annually at a rate equal to 50
percent of the return on capital employed by 3M during the three years
and would be payable, together with the base award, in 2002.
Retirement Plans
Imation adopted a Cash Balance Pension Plan (the "Pension Plan") that
is intended to be qualified under the applicable provisions of the Internal
Revenue Code. The plan covers substantially all domestic employees of Imation.
Under this plan, benefits are determined by the amount of annual pay credits to
each employee's account (equal to 6% of each employee's annual eligible
earnings) and annual interest credits (equal to the return on 30-year U.S.
Treasury Bonds as of November of the previous year) to such accounts. For the
Plan year 1997, the interest crediting rate will be 6.48%. At retirement,
participants eligible for benefits may receive their account balance in a lump
sum or as a monthly pension having an equivalent actuarial value. Certain
limitations on the amount of benefits under tax qualified plans, such as
Imation's Retirement Investment Plan and the Pension Plan, were imposed by the
Employee Retirement Income Security Act of 1974 ("ERISA") and Tax Reform Act of
1986 ("TRA"). Imation's nonqualified supplemental benefit plan provides for the
payment of amounts to officers who may be affected by those limitations so that,
in general, total benefits will be equal to the level of benefits which would
have been payable under the named plans but for the ERISA and TRA limitations.
The estimated annual compensation payable to each of the individuals
named in the Summary Compensation Table as a single life annuity payable at age
65 under both Imation's qualified and nonqualified plans (assuming that the
named individuals continue to be employed by Imation until age 65 and receive 5%
annual compensation increases) are as follows: W. T. Monahan, $219,012; K. K.
Burhardt, $35,896; C. T. Pinder, $57,491; C. D. Oesterlein, $35,248; and D. A.
Farmer, $34,173.
Each of the individuals named in the Summary Compensation Table also
will retain his right to receive benefits accrued as of the Distribution Date
under 3M's pension plan. Employees who were 3M employees immediately prior to
the Distribution, including the individuals named in the Summary Compensation
Table, whose age and years of 3M pension service as of the Distribution Date
equal or exceed 50 (with a minimum of 10 years of 3M pension service) continue
to be credited with service for purposes of early retirement subsidies under
3M's pension plan based on their combined pension service with Imation and 3M,
and will have their 3M accrued benefits as of the Distribution Date increased
following the Distribution by 4% per year of employment with Imation. One half
of the 4% per year increase will be paid to the individual by 3M and one half
will be paid by Imation. Each of the individuals named in the Summary
Compensation Table are eligible to continue to accrue service credit under 3M's
pension plan as described above. The annual amount payable by Imation to each of
the named individuals (assuming retirement from Imation at age 65) are as
follows: W. T. Monahan, $52,894; K. K. Burhardt, $27,676; C. T. Pinder, $26,745;
C. D. Oesterlein, $28,913; and D. A. Farmer, $28,110.
Employment Agreement
Imation has entered into an employment agreement with Mr. Monahan,
which commenced as of the Distribution Date for an initial four year term, with
automatic one-year renewals commencing as of the second anniversary of the
Distribution Date, unless notice not to renew is given by either party. Pursuant
to the agreement, Mr. Monahan will serve as the Chief Executive Officer of
Imation, and Imation will use its best efforts to have Mr. Monahan elected to
the Board.
The agreement provides that if Mr. Monahan's employment is terminated
by Imation without cause or by Mr. Monahan for good reason, he will be entitled
to receive, for the remainder of the term of the agreement (a) base salary, (b)
annual incentive compensation equal to the average annual incentive awards for
the three completed years immediately preceding the date of employment
termination (including, if applicable, annual incentive awards received from 3M
for any year within the applicable three-year period), plus a pro rata annual
incentive award for the year in which termination of employment occurs, (c) the
additional benefits that Mr. Monahan would have been entitled to receive under
Imation's defined benefit pension plans had he remained an employee during the
remainder of the term of the agreement, based on the base salary and incentive
compensation levels described in clauses (a) and (b) above and (d) continued
participation in all welfare benefit plans, subject to an offset to the extent
similar benefits are made available to Mr. Monahan without cost under welfare
benefit plans of a subsequent employer. In addition, Mr. Monahan's equity-based
awards will become fully vested and, with respect to his stock options, fully
exercisable, as of his date of termination.
The agreement provides that if Mr. Monahan's employment is terminated
by reason of death, his estate or designated beneficiary will be entitled to
receive his base salary and a prorated annual incentive compensation award for a
period of one year. If his employment is terminated by reason of disability, he
will be entitled to receive a prorated annual incentive compensation award for a
period of one year.
The agreement also provides that if Mr. Monahan receives payments under
his agreement that would subject him to any federal excise tax due under Section
280G of the Code, then he also will receive a cash "gross-up" payment so that he
will be in the same net after-tax position that he would have been in had such
excise tax not been applied.
During (a) the term of the agreement, (b) any period during which Mr.
Monahan continues to receive salary pursuant to the terms of the agreement, and
(c) the one-year period following termination of Mr. Monahan's employment by
Imation for cause or by Mr. Monahan other than for good reason, Mr. Monahan is
required to comply with provisions regarding noncompetition, nonsolicitation of
employees, disparagement of Imation, return of work papers and compliance with
policies regarding confidentiality of information.
Compensation of Directors
Directors who are not employees of Imation receive an annual retainer
of $40,000 and an additional fee of $5,000 per year for serving as chair of a
Board committee. Non-employee directors are paid $1,500 for attendance at each
meeting of the Board of Directors in excess of four meetings per year, $1,000
for attendance at meetings of Board committees, and $500 for attendance at each
meeting of the Board or Board committee held by telephone or video conference.
In addition, Imation matches gifts by each non-employee director to qualified
charitable institutions up to $15,000 per year.
Under the terms of the 1996 Directors Stock Compensation Program (the
"Directors Plan"), which was approved and adopted by 3M, as Imation's sole
stockholder, prior to the Distribution, each non-employee director automatically
receives, in lieu of 25% of his or her annual retainer fee, shares of restricted
Imation Common Stock equal in value to such portion of the retainer fee.
Restrictions on the stock lapse three years after the date of grant. The
Directors Plan also permits non-employee directors to elect to receive all or
part of the remainder of their annual retainer and meeting fees in shares of
Imation Common Stock or in restricted stock units equivalent to shares of
Imation Common Stock. In addition, each non-employee director automatically
receives an initial stock option grant for Imation Common Stock on the date he
or she becomes a director and an additional annual stock option grant on the
date of the Annual Meeting of Stockholders each year. The number of shares
subject to each option grant is 10,000, with the number of shares subject to the
initial grant prorated for the number of months the director served as a
director during the year. The options are nonqualified stock options with a term
of ten years and are granted at an option price equal to the fair market value
of Imation Common Stock on the date of grant. Each option becomes fully
exercisable on the date of the Annual Meeting of Stockholders in the year
following the date of grant, provided that all outstanding options of a director
will immediately vest and become fully exercisable upon the director's death or
disability, or upon a change of control (as defined in the Directors Plan).
Indemnification Agreements
It is Imation's policy to indemnify its directors and officers against
any costs, expenses and other liabilities to which they may become subject by
reason of their service to Imation and to insure its directors and officers
against such liabilities to the extent permitted by applicable law. Imation's
Bylaws provide for indemnification of Imation's directors, officers and
employees against such costs, expenses and other liabilities so long as the
director, officer or employee acts in good faith and in a manner he or she
reasonably believes to be in or not opposed to Imation's best interests. Imation
also has entered into Indemnity Agreements with each of its directors pursuant
to which Imation has agreed to indemnify each of its directors to the full
extent provided by applicable law and Imation's Bylaws as currently in effect.
SELECTED FINANCIAL DATA OF IMATION
Set forth below is selected consolidated historical financial
information of Imation derived from the unaudited consolidated financial
statements of Imation for the three months ended March 31, 1997 and 1996 and for
the fiscal year ended December 31, 1992, and the audited consolidated financial
statements of Imation for the fiscal years ended December 31, 1996, 1995, 1994
and 1993. The information should be read in conjunction with the Management's
Discussion and Analysis of Imation, the consolidated financial statements of
Imation and related notes thereto and the pro forma unaudited combined financial
statements and the related note thereto included elsewhere herein. In the
opinion of Imation's management, the operating results for the fiscal quarters
ended March 31, 1997 and 1996 and for the fiscal year ended December 31, 1992
reflect all adjustments (consisting of normal recurring accruals except for the
restructuring charges recorded in the first quarter of 1996) necessary to
present fairly the information contained therein. Results for the three months
ended March 31, 1997 are not necessarily indicative of the results for the full
year.
<TABLE>
<CAPTION>
Three Months Ended
March 31, Years Ended December 31,
--------------------- -------------------------------------------------------------
1997 1996 (a) 1996 (b) 1995 (c) 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
(In millions, except (In millions, except per share data) (Unaudited)
per share data)
(Unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net revenues ........... $ 548 $ 576 $ 2,278 $ 2,246 $ 2,281 $ 2,308 $ 2,350
Gross profit ........... 199 202 795 725 839 886 885
Selling, general and
administrative ....... 133 131 563 539 532 529 542
Research and
development .......... 38 48 183 222 211 217 181
Operating income (loss) 28 13 (5) (149) 96 141 162
Net income (loss) ......... 12 6 (21) (85) 54 75 94
Earnings (loss) per
common share ......... .30 .14 (0.49) (2.02) 1.28 n/a n/a
BALANCE SHEET DATA:
Total working capital .. $ 622 $ 607 $ 658 $ 714 $ 618 $ 608
Total assets ........... 1,549 1,561 1,542 1,672 1,546 1,534
Long-term obligations .. 245 222 97 88 85 96
Total shareholders'
equity ............. 912 930 1,149 1,300 1,200 1,172
</TABLE>
- --------------------
(a)Restructuring charges reduced results for the three months ended March 31,
1996 by $10.4 million before taxes and minority interest and $6.1 million
after taxes and minority interest. Net income for the three months ended
March 31, 1996 excluding these charges would have been $12.2 million. These
charges relate to costs for certain employee separation programs.
(b)Restructuring charges and one-time charges reduced 1996 results by $88.4
million before taxes and minority interest and $60.6 million after taxes and
minority interest. 1996 net income excluding these charges would have been
$40.1 million. These charges related to one-time costs associated with
start-up activities, restructuring charges primarily for employee severance
programs and the write-off of in-process research and development related to
the acquisition of Luminous Corporation.
(c)Restructuring charges and asset write-offs reduced 1995 results by $166.3
million before taxes and minority interest and $88.3 million after taxes and
minority interest. 1995 net income excluding these charges would have been
$3.3 million. The majority of these charges related to the write-down of
property, plant and equipment.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF IMATION
GENERAL OVERVIEW
On June 18, 1996, the Board of Directors of 3M approved the
Distribution of Imation, which is comprised of substantially all of the
businesses previously operated within 3M's data storage and imaging systems
groups. To effectuate the transaction, the Board of Directors of 3M declared a
dividend payable to the holders of record of 3M common stock as of June 28,
1996, based upon a ratio of one share of Imation Common Stock for every ten
shares of 3M common stock owned on the record date. Effective July 1, 1996,
shares of Imation Common Stock were distributed to 3M stockholders. Following
the Distribution, Imation began operations as an independent, publicly held
company. Prior to July 1, 1996, the financial statements reflect the results of
operations, financial position and cash flows of the businesses transferred to
Imation from 3M as they operated within 3M. As a result, the financial
statements of Imation prior to July 1, 1996 have been carved out from the
financial statements of 3M using the historical results of operations and
historical basis of the assets and liabilities of such businesses. Imation's
statements of operations prior to July 1, 1996 include all of the related costs
of doing business, including charges for the use of facilities and for employee
benefits, and include an allocation of certain general corporate expenses of 3M
which were not directly related to these businesses, including costs for
corporate logistics, corporate research and development, information
technologies, finance, legal and corporate executives. Management of Imation
believes these allocations were made on a reasonable basis. The financial
information for periods prior to July 1, 1996 included herein, however, may not
necessarily be indicative of the results of operations, financial position and
cash flows of Imation in the future or what the results of operations, financial
position and cash flows would have been had Imation been a separate, independent
company during the periods presented.
In late 1995, Imation developed a reorganization plan to rationalize
its manufacturing operations, streamline its organizational structure and write
off impaired assets. Imation has made significant progress in implementing this
plan, including the closure or consolidation of five factory locations and the
consolidation of Imation laboratories from fourteen to seven. As part of the
reorganization, the number of reported employees of Imation was reduced from
approximately 12,300 at December 31, 1995 to 9,400 at December 31, 1996 through
voluntary and involuntary separation programs offered to employees of Imation
prior to the Distribution, as well as the retention by 3M of staff services
positions which had been allocated to Imation as part of 3M. Imation continues,
however, to obtain certain staff services functions from 3M pursuant to the
Corporate Services Agreement entered into between 3M and Imation in connection
with the Distribution.
During 1995 and 1996, Imation recorded one-time pre-tax charges of
$254.7 million based upon the timing criteria required for the recognition of
such charges. Imation recorded $166.3 million of these charges in its 1995
statement of operations, primarily for the write-down of assets associated with
its manufacturing rationalization programs and $76.4 million in the first six
months of 1996, primarily related to employee separations for direct employees
of Imation and one-time charges associated with start-up activities. In
addition, in the fourth quarter of 1996, Imation recognized a non-deductible
write-off of $12.0 million for the in-process research and development related
to its acquisition of Luminous Corporation (see Note 3 of the Notes to Imation
Corp. Audited Consolidated Financial Statements included herein).
At the time of the Distribution, Imation established an overall
financial goal of improving Imation economic profit (measured as operating
income after taxes in excess of a charge for the use of capital) by $150 million
by the end of 1998. This goal is based on anticipated cost reductions and
Imation objectives for improved revenue growth and increased asset utilization.
During 1996, Imation's economic profit improved by $65 million over
1995, with all three components contributing to the improvement. Cost reductions
contributed $30 million to the increased economic profit, revenue growth
contributed $5 million and improved asset management contributed $30 million.
The improvement in economic profit due to cost reductions was driven by
Imation's lower cost structure following the Distribution, including more than a
20 percent reduction in headcount from the levels prior to the Distribution. In
addition, improved factory performance and lower material costs contributed to
the cost improvement. These cost reductions were partially offset by recurring
start-up costs for establishing the Imation brand and identity, and activities
to design and implement more efficient business processes. The improvement in
economic profit from revenue growth was driven by sales of Imation's newly
introduced product platforms, primarily Travan(TM) data cartridges and
DryView(TM) laser imagers. The economic profit improvement from better asset
utilization was driven by working capital reductions in accounts receivable and
inventory and lower levels of fixed assets due to the asset write-offs at the
end of 1995.
During the first quarter of 1997, Imation improved economic profit by
$7.5 million over the first quarter of 1996. Cost reductions and improved asset
management generated approximately $7.0 million and $6.0 million, respectively,
of this improvement, partially offset by the revenue decline. Since the
beginning of 1996, economic profit has improved by approximately $72 million,
with $36 million of the improvement coming from cost reductions and $36 million
from improved asset management.
RESULTS OF OPERATIONS
Comparison of Three Months Ended March 31, 1997 and 1996
The following table displays the components of Imation's consolidated
statements of operations as a percentage of total revenues. The 1996 percentages
exclude the impact of $10.4 million of pretax restructuring charges ($6.1
million after tax) recorded in the first quarter of 1996.
Three Months Ended March 31,
----------------------------
Adjusted
1997 1996
---- ----
Net revenues ........................... 100.0% 100.0%
Cost of goods sold ..................... 63.7 64.9
----- -----
Gross profit ......................... 36.3 35.1
OPERATING EXPENSES:
Selling, general and administrative . 24.3 22.7
Research and development ............ 6.9 8.3
----- -----
Total ............................. 31.2 31.0
Operating income ....................... 5.1 4.1
OTHER INCOME AND EXPENSE:
Interest expense .................... 0.4 0.6
Other, net .......................... 0.7 (0.1)
----- -----
Total ............................. 1.1 0.5
Income before tax and minority interest 4.0 3.6
Income tax provision ................... 1.8 1.5
Minority interest ...................... -- --
----- -----
Net income ............................. 2.2% 2.1%
===== =====
Net revenues for the first quarter of 1997 were $547.7 million, a
decrease of $28.4 million or 4.9 percent from the same period in 1996. Volume
increases of 3.5 percent were more than offset by price declines of 4.9 percent
and the negative effect of changes in currency exchange rates of 3.5 percent.
Volume growth was negatively impacted approximately 2.6 percent by Imation's
decision to reduce sales in certain low margin product lines in which Imation is
operating under a harvest strategy, including a portion of Imation's non-branded
duplicator diskette sales, certain photo color markets and certain graphic arts
supplies. Volume growth was also negatively impacted by weakness in Imation's
European operations. Imation's growth portfolio, including Luminous software
products, represented approximately 16 percent of revenues, up from 7 percent in
the first quarter of 1996 and up from 11 percent for the full year of 1996.
Price erosion of 4.9 percent improved from the price erosion experienced in the
first quarter of 1996 of 5.6 percent and is consistent with Imation's
expectations.
Net revenues in the United States decreased 1.7 percent with volume
increases of 1.3 percent more than offset by pricing declines of 3.0 percent.
Internationally, net revenues decreased 8.0 percent. Volume increases of 5.5
percent were more than offset by price declines of 6.7 percent and a 6.8 percent
negative effect of changes in currency exchange rates. Based on the currency
exchange rates as of March 31, 1997, changes in currency exchange rates will
continue to negatively impact revenues and earnings on a quarter over the same
quarter of the previous year basis for the remainder of 1997, although to a
lesser degree than in the first quarter of 1997. International revenues
accounted for 49.6 percent of first quarter 1997 revenues, down from 51.3
percent of total revenues for first quarter 1996.
Gross profit in the first quarter of 1997 was $199.0 million or 36.3
percent of revenues, an increase of 1.2 percentage points from the first quarter
of 1996. This increase is due to unit cost reductions, raw material price
declines and the reduction of sales in some low margin product lines, partially
offset by negative pricing pressure and foreign currency impacts.
Selling, general and administrative expenses were $133.0 million or
24.3 percent of revenues, up $2.3 million or 1.6 percentage points from the same
period in 1996. The increase is driven by $4.7 million, or 0.9% of revenues, of
costs related to designing and implementing more efficient business processes
and developing Imation's brand identity that were incurred in the first quarter
of 1997. There were no comparable costs in the first quarter of 1996. It is
expected that these start-up costs will continue throughout 1997. The remaining
increase in selling, general and administrative expenses as a percentage of
revenues is primarily due to the decline in revenues.
Research and development costs totaled $37.8 million or 6.9 percent of
revenues in the first quarter of 1997, down $10.1 million or 1.4 percentage
points from the same period in 1996. This decrease reflects the efficiencies and
productivity Imation has obtained by the consolidation of laboratories and the
reduction of spending on harvest businesses, partially offset by investment in
key future technology programs.
Imation recorded restructuring charges of $10.4 million in the first
quarter of 1996 reflecting costs for certain voluntary employee separation
programs. No such charges were recorded in the first quarter of 1997.
Operating income for the first quarter of 1997 was $28.2 million, or
5.1 percent of revenues. This represents a $4.5 million increase over operating
income in the first quarter of 1996 of $23.7 million, after excluding the first
quarter 1996 restructuring charges.
First quarter 1997 interest expense was $2.4 million, down $1.3 million
from the same quarter last year. This decrease was due to lower average debt
balances and a lower effective interest rate. Interest expense prior to July 1,
1996 was based on an assumed $250 million in outstanding debt and 3M's effective
interest rate during the period. The allocation of interest expense for periods
prior to July 1, 1996 is more fully discussed in Note 7 of the Notes to Imation
Corp. Audited Consolidated Financial Statements included herein.
The net other income and expense in the first quarter of 1997 totaled
$4.0 million of expense, compared to $0.5 million of income in the comparable
period of 1996. The 1997 expense is primarily due to transaction losses on
foreign currency exposures.
Imation's effective tax rate in the first quarter of 1997 was 45.0
percent, compared to 41.0 percent in the first quarter of 1996 and 48.2 percent
in the last six months of 1996 (excluding the impact of the non-deductible $12.0
million write-off of the in-process research and development related to the
Luminous acquisition that occurred in the fourth quarter of 1996). The first
quarter 1997 rate is lower than the rate incurred as an independent company in
1996 as Imation has started to realize the benefits of its new, tax-effective
structure.
Net income in the first quarter of 1997 was $12.0 million, or $.30 per
share. Net income in the comparable period of 1996 was $6.1 million, or $.14 per
share. Excluding restructuring charges, first quarter 1996 net income would have
been $12.2 million, or $.29 per share.
Comparison of the Years Ended December 31, 1996, 1995 and 1994
The following table sets forth the components of net revenue changes
for 1996 and 1995.
<TABLE>
<CAPTION>
1996 1995
------------------------------------------- ---------------------------------------------
United States International Worldwide United States International Worldwide
------------- ------------- --------- ------------- ------------- ---------
<S> <C> <C> <C> <C> <C> <C>
Volume......... 5.6 % 10.1 % 7.9 % (0.5) % 6.3 % 2.7 %
Price.......... (2.9) (7.0) (4.9) (5.4) (7.3) (6.3)
Translation.... -- (2.9) (1.5) -- 4.3 2.0
--- --- --- ---- --- ----
Total....... 2.7 % 0.2 % 1.5 % (5.9) % 3.3 % (1.6) %
=== === === ==== === ====
</TABLE>
The following table sets forth Imation's consolidated statements of
operations, restructuring and other one-time charges and resulting adjusted
balances for the years ending December 31, 1996 and 1995. The adjusted balances
are also presented as a percentage of net revenues.
<TABLE>
<CAPTION>
Year Ended December 31, 1996 Year Ended December 31, 1995
----------------------------------------------- --------------------------------------------
One Time Percent of One Time Percent of
Reported Charges Adjusted Revenues Reported Charges Adjusted Revenues
-------- -------- -------- ---------- -------- -------- -------- ----------
(Dollars in millions, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net revenues ..................... $ 2,278.2 $ -- $ 2,278.2 100.0% $ 2,245.6 $ -- $ 2,245.6 100.0 %
Cost of goods sold ............... 1,482.8 (7.9) 1,474.9 64.7 1,520.9 (50.2) 1,470.7 65.5
--------- ------- --------- ----- --------- -------- --------- -----
Gross profit .................. 795.4 7.9 803.3 35.3 724.7 50.2 774.9 34.5
OPERATING EXPENSES:
Selling, general and
administrative .............. 563.0 (14.6) 548.4 24.1 539.4 -- 539.4 24.0
Research and development ...... 183.1 (12.0) 171.1 7.5 222.4 (4.3) 218.1 9.7
Restructuring charges ......... 53.9 (53.9) -- -- 111.8 (111.8) -- --
--------- ------- --------- ----- --------- -------- --------- -----
Total operating expenses .. 800.0 (80.5) 719.5 31.6 873.6 (116.1) 757.5 33.7
OTHER INCOME AND EXPENSES:
Operating income (loss) ....... (4.6) 88.4 83.8 3.7 (148.9) 166.3 17.4 0.8
Interest expense and other .... 10.4 -- 10.4 0.5 17.9 -- 17.9 0.8
--------- ------- --------- ----- --------- -------- --------- -----
Income (loss) before tax
and minority interest ....... (15.0) 88.4 73.4 3.2 (166.8) 166.3 (0.5) 0.0
Income tax provision (benefit) 5.9 27.8 33.7 1.4 (70.5) 70.3 (0.2) 0.0
Minority interest ............. (0.4) -- (0.4) 0.0 (11.3) 7.7 (3.6) (0.1)
--------- ------- --------- ----- --------- -------- --------- -----
Net income (loss) ............. $ (20.5) $ 60.6 $ 40.1 1.8% $ (85.0) $ 88.3 $ 3.3 0.1%
Earnings (loss) per share ..... $ (0.49) $ 1.46 $ 0.97 $ (2.02) $ 2.10 $ 0.08
</TABLE>
Net revenues increased 1.5 percent in 1996 compared to a decline of 1.6
percent in 1995. Volume growth was 7.9 percent in 1996 compared to 2.7 percent
in 1995. Volume growth in 1996 was driven by increased sales of newly introduced
product platforms (principally Travan(TM) data cartridges and DryView(TM) laser
imagers) and greater international market penetration. Price declines were 4.9
percent in 1996 compared to 6.3 percent in 1995. Price erosion lessened in 1996
compared to 1995 due to product mix and greater pricing discipline. Changes in
currency exchange rates negatively impacted net revenues 1.5 percent in 1996
while positively impacting net revenues 2.0 percent in 1995. The 1.6 percent
decline in net revenues in 1995 as compared to 1994 was primarily due to the
effects of downward pricing pressures which exceeded Imation's volume growth.
Imation's expectation is for price erosion to continue in the same general range
in the near term.
Approximately 49 percent of Imation's net revenues in 1996 were from
sales outside the United States compared to 50 percent in 1995, with this
decrease due to the impact of currency exchange rates. In 1994, 47 percent of
Imation net revenues were from outside the United States. In Imation's
international operations, volume rose 10.1 percent in 1996 and 6.3 percent in
1995. The increase in volume growth in 1996 was due to greater market
penetration. Price declines of 7.0 percent and 7.3 percent occurred in 1996 and
1995, respectively. The net result of the volume and price changes was a 3.1
percent growth in local currencies in 1996 while local currency revenue
decreased 1.0 percent in 1995. Changes in currency exchange rates negatively
impacted international net revenues by 2.9 percent in 1996 and positively
impacted international net revenues by 4.3 percent in 1995. Based on the
strengthening of the U.S. dollar during the first part of 1997, changes in
currency exchange rates are likely to negatively impact 1997 revenues and
earnings.
United States net revenues increased by 2.7 percent in 1996 compared to
a decline of 5.9 percent in 1995. The increase in 1996 was driven by sales of
the newly introduced product platforms mentioned above. Volume growth was 5.6
percent in 1996 while volume declined slightly in 1995. Price declines were 2.9
percent in 1996 compared to 5.4 percent in 1995, with price erosion lessening
due to product mix and greater pricing discipline.
Gross profit for 1996 was $795.4 million, which includes the impact of
$7.9 million in one-time charges primarily related to the write-off of certain
packaging materials in connection with the Distribution. Gross profit in 1995
was $724.7 million, which includes the impact of $50.2 million in one-time
charges primarily related to asset write-offs. Excluding the impact of one-time
charges, gross profit in 1996 would have been $803.3 million or 35.3 percent of
revenues compared to $774.9 million or 34.5 percent of revenues in 1995. This
margin improvement was primarily due to volume increases, productivity
improvements, and lower raw material costs, partially offset by lower selling
prices. In 1994, gross profit was 36.8 percent of revenues. The decrease from
1994 to 1995 was primarily due to the effect of lower selling prices.
In 1996, selling, general and administrative expenses were $563.0
million. Excluding special one-time charges of $14.6 million related to
activities in connection with the Distribution, selling, general and
administrative expenses would have been $548.4 million, or 24.1 percent of
revenues. This is essentially unchanged from 1995, when selling, general and
administrative expenses were 24.0 percent of revenues. The full year 1996
selling, general and administrative expenses include $41.8 million of start-up
costs related to designing and implementing more efficient business processes
and developing Imation brand identity, offset by reduced sales related costs. It
is expected that these start-up costs will continue in 1997. In 1994, selling,
general and administrative expenses were 23.3 percent of revenues. The increase
in selling, general and administrative expenses as a percentage of revenues in
1995 over 1994 was primarily due to the decline in the revenue base. Imation's
goal is to lower the level of selling, general and administrative expenses as a
percentage of revenues as a part of achieving its economic profit goal discussed
in "--General Overview."
Research and development expenses in 1996 were $183.1 million, which
includes a non-deductible charge of $12.0 million for the acquired in-process
research and development related to Imation's acquisition of Luminous
Corporation. Research and development expenses in 1995 were $222.4 million,
which includes $4.3 million in one-time charges related to asset write-offs.
Excluding the impact of one-time charges, research and development expenses in
1996 would have been $171.1 million or 7.5 percent of revenues compared to
$218.1 million or 9.7 percent of revenues in 1995. This decrease is due to a
consolidation of laboratories from fourteen to seven, the implementation of a
more efficient research and development cost structure and higher than normal
spending in 1995 reflecting investments made in a number of Imation's new
products which came to market during 1995 and early 1996. In 1997, Imation
expects to continue to gain the benefits of this restructuring. In 1994,
research and development expenses were 9.3 percent of revenues. The increase in
1995 over 1994 was due to higher than normal spending in 1995 on new products as
noted above.
Imation recorded restructuring charges of $53.9 million in 1996. These
charges primarily relate to employee separation programs. In 1995, Imation
recorded restructuring charges of $111.8 million related to world-wide
manufacturing rationalization programs to exit less profitable manufacturing
locations and to centralize manufacturing in the United States and in Italy, and
consists principally of write-offs of property, plant and equipment.
The operating loss for 1996 totaled $4.6 million while the operating
loss for 1995 was $148.9 million. Losses in both years were the result of the
restructuring and other one-time charges discussed above. Excluding these
charges, operating income would have been $83.8 million in 1996 and $17.4
million in 1995, an improvement of $66.4 million. This improvement is primarily
a result of higher gross profit, lower research and development spending and
sales growth as discussed above. Operating income in 1995, excluding special
charges, would have been $17.4 million, or $78.4 million lower than 1994
operating income of $95.8 million. This decline primarily reflects the factors
affecting the lower gross profit as discussed above, and to a lesser extent the
increase in research and development spending.
Non-operating expense (primarily interest expense) for 1996 totaled
$10.4 million, down $7.5 million from 1995. This decrease is due to an increase
in other income of $2.9 million, primarily related to investment gains prior to
the Distribution, and to lower interest expense due to lower outstanding debt
levels and a lower effective interest rate. Interest expense prior to the
Distribution was based on an assumed $250 million in outstanding debt and 3M's
effective interest rate during the period. The allocation of interest prior to
the Distribution is more fully discussed in Note 7 of the Notes to Imation Corp.
Audited Consolidated Financial Statements contained herein. Non-operating
expense in 1995 was $17.9 million, up from $14.5 million in 1994. This increase
is due to 3M's rising effective interest rate in 1995 over 1994.
Excluding restructuring and one-time charges, Imation's effective tax
rate was 45.9, 42.3 and 36.0 percent of pre-tax income for 1996, 1995 and 1994,
respectively. Although a new, tax effective structure was implemented in 1996,
Imation continues to earn profits in high tax jurisdictions. Benefits from the
new structure will be realized over time, with an expected decrease in future
rates. Management believes Imation will generate sufficient income in future
periods to fully recover Imation's deferred tax assets.
Minority interest was $0.4 million, $11.3 million and $2.3 million in
1996, 1995 and 1994, respectively. The 1995 minority interest includes $7.7
million of restructuring charges related to Imation's operations in Japan.
The net loss for 1996 totaled $20.5 million compared to a net loss of
$85.0 million in 1995. Excluding restructuring and one-time charges, net income
would have been $40.1 million ($0.97 per share) in 1996 and $3.3 million ($0.08
per share) in 1995, an improvement of $36.8 million or $0.89 per share. Net
income in 1994 was $54.3 million or $1.28 per share. All per share amounts prior
to the Distribution are based on an average number of shares outstanding equal
to one-tenth the weighted average number of 3M shares outstanding based on the
distribution ratio of one share of Imation Common Stock for ten shares of 3M
common stock.
PERFORMANCE BY GEOGRAPHIC AREA
United States
In 1996, United States net revenues totaled $1,159.5 million, up 2.7
percent from $1,128.8 million in 1995. Volume increased 5.6 percent while
selling prices decreased 2.9 percent. Operating loss was $95.3 million in 1996
compared to $169.0 in 1995. Excluding restructuring and one-time charges of
$77.1 million in 1996 and $99.8 million in 1995, the operating loss would have
been $18.2 million in 1996 and $69.2 million in 1995, an improvement of $51.0
million. The improvement in the United States results was primarily due to
increased volume growth, reduced spending and the lessening of price erosion.
Europe, Middle East and Africa
Net revenues totaled $816.2 million in 1996, up 1.0 percent from $808.4
million in 1995. Excluding restructuring and one-time charges in Europe of $9.8
million in 1996 and $20.4 million in 1995, operating income would have been
$88.6 million in 1996 and $76.2 million in 1995, an increase of $12.4 million.
In 1996, volume increased 7.6 percent, selling prices declined 5.3 percent, and
changes in currency exchange rates negatively impacted revenues by 1.3 percent.
Latin America, Asia and Canada
Net revenues declined by 1.9 percent in 1996 to $302.5 million. Changes
in currency exchange rates caused revenues to decrease by 7.1 percent. In local
currencies, revenues were up 5.2 percent due to volume increases of 16.7 percent
offset by selling price declines of 11.5 percent. Operating income increased by
$3.0 million, after excluding special charges of $1.5 million in 1996 and $46.1
million in 1995.
FINANCIAL POSITION
Imation had 3.4, 3.2 and 3.4 months of inventory on hand as of March
31, 1997, December 31, 1996 and December 31, 1995, respectively. The accounts
receivable days sales outstanding was 76, 75 and 78 days as of March 31, 1997,
December 31, 1996 and December 31, 1995, respectively. Other current assets were
$94.5 million at December 31, 1996, an increase of $45.7 million over the 1995
balance. This increase is primarily due to an increase in current deferred tax
assets of $14.9 million, an increase in prepaid value added taxes in Europe of
$11.9 million and an increase in other prepaid expenses of $5.8 million.
The book value of property, plant and equipment at March 31, 1997 was
$461.5, a decrease of $18.6 million from the December 31, 1996 balance of $480.1
million. This decrease is primarily due to capital spending being lower than
depreciation. The December 31, 1996 net book value of property, plant and
equipment was $33.1 million lower than the December 31, 1995 balance of $513.2
million. This decrease is due to capital spending being lower than depreciation
and the sale of Imation's Sulmona, Italy facility. The decrease in machinery and
equipment cost of $143.6 million is primarily due to the disposal in 1996 of
machinery and equipment that was fully reserved for in 1995 as part of the
restructuring and other one-time charges.
Accounts payable at December 31, 1996 increased $56.2 million from
December 31, 1995. This increase is primarily due to establishing the normal
third party payables to 3M for products and transitional services that were
previously eliminated as intercompany balances. The balance in other current
liabilities at December 31, 1996 was $151.2 million, an increase of $25.3
million over 1995. This increase is primarily due to an increase in the accrual
for value added taxes in Europe and an increase in self insurance reserves.
LIQUIDITY
Comparison of the Three Months Ended March 31, 1997 and 1996
Prior to July 1, 1996, cash and equivalents and debt were not allocated
to Imation from 3M since 3M uses a centralized approach to cash management and
the financing of its operations. Imation financing requirements prior to July 1,
1996 are represented by cash transactions with 3M and are reflected in "Net cash
(paid to) received from 3M" in the consolidated statements of cash flows. This
financial support was discontinued following the Distribution.
Cash provided by operating activities was $19.2 million during the
three months ended March 31, 1997, compared to $69.7 million during the same
period in 1996. This change was primarily due to working capital increasing
$38.0 million in the first quarter of 1997, while working capital decreased $7.8
million in the comparable period of 1996. In addition, depreciation decreased
$10.4 million, from $48.5 million in the first quarter of 1996 to $38.1 million
in the first quarter of 1997.
Cash used in investing activities was $40.2 million for the first three
months of 1997 compared to $40.1 million in the comparable period of 1996.
Investing activities included capital expenditures of $28.0 million for the
first quarter of 1997 compared to $40.7 million during the same period of 1996.
It is expected that capital expenditures will approximately equal depreciation
for all of 1997. Capitalized software was $11.2 million in the first quarter of
1997, primarily related to establishing information technology systems
independent of 3M. It is expected that capitalized software costs related to
establishing independent systems will continue through the remainder of 1997.
Amortization of these costs will not begin until the systems are implemented,
beginning in late 1997.
Financing activities during the first quarter of 1997 provided cash of
$15.2 million. Financing activities primarily related to the net borrowing of
$25.1 million and the payment of $12.8 million to repurchase approximately
514,000 shares of Imation Common Stock. In the first quarter of 1997, Imation's
Board of Directors authorized Imation to repurchase up to six million shares of
Imation Common Stock.
At March 31, 1997, Imation's ratio of total debt to total capital was
15.9%. Imation believes this ratio will increase over time due to the cash
requirements for funding future growth opportunities. Imation also believes it
has the financial resources needed to meet its business requirements in the
foreseeable future.
Comparison of the Years Ended December 31, 1996, 1995 and 1994
Cash provided by operating activities was $306.0 million in 1996,
$256.8 million in 1995 and $170.1 million in 1994. The adjustments to net income
include depreciation, which ranged from $181.1 million to $189.5 million per
year during these periods, and restructuring and other one-time charges which
were $88.4 million in 1996 and $166.3 million in 1995. Working capital and
related cash requirements decreased $40.3 million in 1996 and $30.7 million in
1995, while in 1994 working capital and related cash requirements increased
$91.8 million.
Investing activities, mainly capital expenditures, utilized cash of
$184.6 million in 1996, $187.5 million in 1995 and $179.7 million in 1994. It is
expected that capital expenditures in 1997 will be similar to the expenditures
made in 1996 of $167.4 million. In addition to capital expenditures in 1996,
Imation capitalized $13.5 million of software expenditures related to the
development and implementation of independent Imation-supported systems to
replace those provided by 3M through service contracts.
During 1996, Imation established a $350 million credit facility with a
syndicate of banks. At the time of the Distribution, Imation borrowed
approximately $155.0 million to purchase from 3M certain assets located outside
the United States and to repay intercompany indebtedness assumed by Imation in
connection with the Distribution. During the third quarter, Imation borrowed an
additional $50 million to loan to the ESOP for the purchase of Imation Common
Stock to satisfy Imation's obligation to make matching contributions with
respect to employee salary deferrals and other performance based contributions.
Additional funds were borrowed and repaid from time to time for funding working
capital needs. At year-end, Imation had borrowed $120.0 million under the credit
facility. In addition, certain international subsidiaries have arranged
borrowings locally outside the credit facility. As of year end, $29.6 million of
borrowings were outstanding, primarily short term, under these arrangements. As
of December 31, 1996, Imation had a ratio of total debt to total capital of
approximately 13.9 percent. Imation believes this ratio will increase over time
due to the cash requirements for funding future growth opportunities.
In connection with Imation's acquisition of Luminous Corporation in
October 1996, Imation issued 922,845 shares of Imation Common Stock.
CERTAIN INFORMATION CONCERNING CEMAX-ICON
BUSINESS
Cemax-Icon designs, manufactures and markets medical image information
systems which electronically acquire, archive, distribute and display medical
images throughout hospitals, outpatient facilities and integrated delivery
networks ("IDNs"). Cemax-Icon's systems interface with virtually all
commercially available imaging modalities, including x-rays, computed tomography
("CT"), magnetic resonance imaging ("MRI"), computed radiography, ultrasound and
nuclear medicine. By automating and increasing the availability of medical
images within a healthcare facility or throughout an IDN, management believes
that Cemax-Icon's systems reduce the cost and improve the management of medical
care. Cemax-Icon's systems and modules are based on an open architecture and
utilize standard hardware and standard network protocols in order to facilitate
integration with existing image acquisition devices and healthcare information
systems. Cemax-Icon provides complete turn-key systems as well as scalable
software modules that integrate with commercially available third-party
hardware. Cemax-Icon sells its systems and software directly to end-users as
well as through OEMs and distributors. Cemax-Icon's OEM relationships are with
several leading suppliers of imaging and information systems to the healthcare
industry, including Imation, Toshiba Corporation ("Toshiba"), Lucent
Technologies, Inc. (formerly a division of AT&T, "Lucent"), Picker
International, General Electric Co. ("General Electric") and Eastman Kodak
Company ("Kodak"). Cemax-Icon's systems and software are installed at over 1,600
sites worldwide.
Cemax-Icon's systems enable healthcare providers to cost-effectively
implement picture archiving and communication systems ("PACS") within a
healthcare facility or throughout an IDN. Cemax-Icon's systems, designed in
consultation with clinicians, enable healthcare providers to reengineer the
management of medical images to increase the productivity of radiologists, other
clinicians and support staff. Cemax-Icon's systems also reduce film use and
film-related expenses, clinical problems and costs related to lost films, and
costs of storing and accessing medical images. In addition, Cemax-Icon's systems
increase the accessibility of medical images to clinical staff, both within an
institution and at remote sites and enable healthcare providers to broaden their
geographic service areas.
Cemax-Icon's systems are designed to address the technical challenges
in implementing PACS. Cemax-Icon's systems are based on an open architecture
adhering to industry standards, allowing customers to choose from a variety of
standard commercially available hardware. For these reasons and because
Cemax-Icon's systems are modular in design, investment in early systems
implementation is preserved as the network expands. Cemax-Icon's systems acquire
images from virtually all commercially available imaging modalities including
x-ray, CT, MRI, computed radiography, ultrasound and nuclear medicine.
Cemax-Icon has developed a large library of interfaces to provide connectivity
with standard interfaces as well as the large installed base of proprietary
image acquisition devices. Cemax-Icon's systems utilize a distributed server and
database architecture and advanced image compression technology to
cost-effectively store and transmit large image data sets at clinically
acceptable speeds.
Products
Cemax-Icon's medical image information systems are primarily
software-based and consist of the following modules: (i) INPUT MODULES enable
Cemax-Icon's medical image information system to digitally acquire images from
virtually all commercially available imaging modalities including x-rays, CT,
MRI, computed radiology, ultrasound and nuclear medicine; (ii) DISTRIBUTION AND
STORAGE MODULES route medical images throughout the network and save images for
immediate retrieval and long-term storage; (iii) DISPLAY MODULES display,
process or print medical images supporting a wide range of clinical needs and
applications ranging from centralized diagnostic reading to remote clinical
review; and (iv) HARDWARE PRODUCTS allow costly and specialized medical-imaging
specific functions to be performed on cost-effective PC platforms.
The following chart summarizes the various software modules comprising
Cemax-Icon's systems:
<TABLE>
<CAPTION>
Acquisition Modalities Input Modules Distribution & Storage Modules Display Modules
---------------------- ------------- ------------------------------ ---------------
<S> <C> <C> <C>
* X-rays * DICOM * ImageServer(TM) * Clinical View(TM)
* CT * Legacy * ImageCom(TM) * Diagnostic View(TM)
* MRI * Printer * Network Film Server(TM) * VIP(TM)
* Computed * Digitizer * Archive Manager(TM)1.0 * RadAccess(TM)
* Radiography * CR * Archive Manager(TM)2.0 * TeleMax(TM)
* Ultrasound * AutoRad(TM)
* Nuclear Medicine
</TABLE>
INPUT MODULES. Cemax-Icon's family of input modules enables
Cemax-Icon's medical image information systems to interface with virtually all
commercially available medical imaging modalities. Each of these modules
acquires medical images and associated patient and study information from the
imaging devices in digitized format and distributes them to the network in
compliance with the emerging industry-standard communications protocol for an
open network, DICOM (Digital Image Communications in Medicine). Cemax-Icon has
developed approximately 125 ScanLink interfaces.
* DICOM SCANLINKS are platform-independent software modules which
interface with DICOM-compliant image acquisition devices to support
sending, querying, receiving and printing images and study information.
DICOM SCANLINKS incorporate Cemax-Icon's compression technology which
allows transmission over low bandwidth connections such as telephone
lines.
* LEGACY SCANLINKS interface with virtually all existing CT and MRI
scanners which utilize a proprietary network protocol (a standardized
method to move data over a network between two computers). LEGACY
SCANLINKS are a differentiating technology for Cemax-Icon because most
vendors do not have access to the proprietary information necessary to
develop interfaces for devices other than their own. Cemax-Icon has
been able to obtain protocol specifications from the majority of CT and
MRI scanner vendors due to its many longstanding OEM relationships.
* PRINTER SCANLINKS interface with many medical scanners which output
images to commercial medical film printers but which are not designed
to interface with any network, whether proprietary or DICOM-compliant.
PRINTER SCANLINKS emulate the interface on these scanners to digitally
send images to an open network. For teleradiology applications, up to
four scanners may share a centralized PRINTER SCANLINK by performing
remote image acquisition using up to four TECHNOLOGIST KEYPADS
described below.
* DIGITIZER SCANLINKS digitize and route film-based medical images to an
open network. DIGITIZER SCANLINKS support virtually all medical film
digitizers. DIGITIZER SCANLINK software provides full control over the
image digitization process (a process of converting an analog image
into a digital image) including selection of image resolution, image
grayscale (the number of levels of gray used to display an image),
image orientation, default window/level setting (the grayscale setting
used to adjust image brightness and/or contrast) and region of
interest. The software also supports a quality-assurance function
allowing technologists to review the scanned image and make corrections
prior to saving it.
* CR SCANLINKS interface with virtually all computed radiography devices,
allowing x-ray images to be directly input and accessible on an open
network without ever having been filmed. CR SCANLINKS automatically
receive images from computed radiography devices, extract patient,
study and image information from the proprietary file format and apply
proprietary image processing as specified by parameters in the image
file, for routing to other DICOM-compliant devices.
DISTRIBUTION AND STORAGE MODULES. Cemax-Icon's distribution and storage
modules route digital images from Cemax-Icon's input modules throughout an open
network and save images for immediate and long-term storage and retrieval.
* IMAGESERVER is a distributed image database which allows users to
access specific images regardless of where the images are stored or the
users are located. The IMAGESERVER is integrated with CLINICALVIEW,
DIAGNOSTICVIEW, VIP and NETWORK FILM SERVER modules as described below.
IMAGESERVER may be integrated with Cemax-Icon's display modules as well
as with any DICOM-compliant devices. The distributed scalable nature of
the database provides maximum availability of information in the
unlikely event any one or more servers on an open network fail.
* IMAGECOM provides the ability to send, receive, retrieve and track
medical imaging studies to and from remote locations. This module
supports optimized compression for transmission over low bandwidth
connections as well as transmission over a range of wide area
connections including telephone lines, T1 and Frame Relay (each a
wide-area network communications link which allows standard network
protocols to move data from one site to another) and ISDN. IMAGECOM
provides fail-safe telecommunications allowing it to run in an
unattended mode and resume transmission automatically after an
interruption.
* NETWORK FILM SERVER transmits images from CLINICALVIEW, DIAGNOSTICVIEW
or VIP to virtually all medical film printers, including those produced
by Imation, Agfa-Gevaert N.V., Sterling Diagnostics, Inc., Fuji Photo
Film Co., Ltd., Kodak and Konica Corporation.
* ARCHIVE MANAGER 1.0 provides the ability to store images to removable
tape cartridges for later retrieval and to manage the tapes as a large
shelf library. ARCHIVE MANAGER 1.0 is expected to be superseded by
ARCHIVE MANAGER 2.0.
* ARCHIVE MANAGER 2.0, currently in production, is a scalable rules-based
medical image information warehouse that automatically stores,
retrieves and distributes medical images. ARCHIVE MANAGER 2.0 is a
distributed object-oriented DICOM-compliant database that supports the
reliability and volume demands of PACS and health care information
systems environments. ARCHIVE MANAGER 2.0 offers capabilities ranging
from routine queries to complex data mining, supporting utilization
review and research applications. Its sophisticated hierarchial storage
management capability allows it to automatically migrate images between
rapid on-line storage and lower cost jukebox media (a removable disk
cartridge used for data storage). The module supports medical-optimized
compressions allowing medical facilities to specify that archived
studies be compressed in order to lower storage costs and expand
capacity.
DISPLAY MODULES. Cemax-Icon's display modules enable Cemax-Icon's
medical image information system to support a wide range of clinical needs and
applications ranging from remote clinical review to centralized diagnostic
reading. Each of these modules allows the user to access and display specific
medical images and associated patient and study information from Cemax-Icon's
distribution and storage systems.
* CLINICALVIEW is a Unix-based software module designed for use by
clinical staff to display and review patients' current and historical
medical images from an open network, regardless of
where the images are stored or the users are physically located.
CLINICALVIEW is DICOM-compliant, presents images at medium resolution
(1,500 lines) on one or two monitors and provides a simple intuitive
user interface which allows clinicians to perform basic image
manipulation and enhancement.
* DIAGNOSTICVIEW is a Unix-based software module designed for use by
radiologists for diagnostic reading of medical images from an open
network, regardless of where the images are stored or the users are
physically located. DIAGNOSTICVIEW is DICOM-compliant, presents images
at high-resolution (2,000 lines) on one or two monitors, and provides
access to powerful image manipulation, enhancement and printing
functions.
* VIP is a Unix-based software module designed for use by radiologists
whose practice requires three dimensional ("3D") reconstruction and
visualization capability. VIP receives two dimensional CT and MRI
images and renders these as 3D images which may be viewed and
manipulated electronically. User definable protocols provide a powerful
tool to automate complex image processing and presentation functions.
Additional features include real-time monitoring of scan progress,
real-time multi-planar reconstruction, interactive tissue
classification and disarticulation and creation of spinal and dental
clinical protocol packages.
* TELEMAX DISPLAY software is designed for use by radiologists and
clinical staff at home or office using their existing Windows 95 based
or Macintosh personal computers. TELEMAX works in conjunction with
ImageCom software which transfers medical images over telephone lines
or ISDN. TELEMAX allows users to create predefined or custom annotated
illustrated reports which may be printed or faxed to referring
physicians. TELEMAX software presents images at conventional PC
resolution (500-1,000 lines) on a single monitor and provides image
viewing and manipulation functions.
* AUTORAD, currently under ongoing development, is a DICOM-compliant
primary diagnostic reading module which optimizes radiologists'
clinical productivity and enhances communications of images and results
with clinical staff. Cemax-Icon currently has 25 AUTORAD clinical
sites, ranging in scale from a freestanding imaging center to a
teaching hospital. AUTORAD enables healthcare institutions to
transition from film-based to filmless reading of medical images.
AUTORAD displays medical images on as many as four high-resolution
monitors (2,500 lines) using Cemax-Icon developed graphics-accelerated
PCI display controllers. It allows multiple image files to be accessed
and compared simultaneously, providing the capability to view
electronically high volumes of medical images faster than with film. By
automatically sorting and arranging current and historical studies in
accordance with each radiologist's preference, AUTORAD significantly
increases the efficiency of interpretation. AUTORAD allows radiologists
to annotate selected images with text notes and to incorporate them
into illustrated reports which may be printed or faxed to referring
clinicians.
HARDWARE PRODUCTS. Cemax-Icon designs hardware products to enable its
software to implement fully functional image information networks on
cost-effective industry standard hardware. Cemax-Icon's hardware products use
industry standard PCI interfaces for maximum performance and compatibility with
existing PC platforms.
* PCI DISPLAY CONTROLLER allows standard PCs to display high resolution
images on medical monitors up to a resolution of 2,500 x 2,000 lines.
To Cemax-Icon's knowledge, PCI DISPLAY CONTROLLER is the only
commercially available controller at this resolution to drive up to two
monitors from each controller card, allowing a typical PC system to
drive up to eight monitors.
* PCI ANALOG and DIGITAL PRINTER INTERFACES acquire images from
proprietary medical scanners not designed to support a network
connection. An advanced switching capability allows the operator to
select among three modes without reconfiguring the system: (i) print to
the network; (ii) print to the film printer; and (iii) print to both
the network and the film printer. This allows the users to transition
to a filmless environment and still have back-up use of the printer in
the event of network failure.
* TECHNOLOGIST KEYPAD is an LCD-based controller which allows
technologists to monitor and control image input and routing in
conjunction with the PCI ANALOG and DIGITAL PRINTER INTERFACES
described above. This product provides barcode input capability which
eliminates the requirement for manual entry of patient and study
demographics.
* REMOTE WORKSTATION allows up to four remote users to have full
keyboard, mouse and monitor control over a shared central teleradiology
acquisition system. This product reduces cost in teleradiology
applications by eliminating the need to install a dedicated input
computer for each remote monitor.
* LASERLINK connects to the printer port on commercially available
medical film printers and allows users to print electronic medical
images to a medical film printer from any station on the network. This
controller emulates the digital printer interface found on current
generation CT and MRI scanners. It supports virtually all of the
commercially available printing protocols.
Technology
Cemax-Icon's software is developed using object-oriented design
methodology and leading commercial C/C++ (standard programming languages)
compilers. Cemax-Icon's core technologies have been developed using an open,
platform-independent architecture. Communications modules are compliant with
industry standard DICOM 3.0, TCP/IP and HL-7. Archive modules under development
utilize a commercially available distributed object-oriented database.
Cemax-Icon's systems operate on a wide range of platforms including SUN
Sparc/Sparcstation work stations under Unix, Pentium PC's under Windows 95 and
NT, and Macintosh computers under MacOS 7.5. Acquisition and display hardware
products are based on PCI interfaces and support industry-standard drivers for
Windows 95, NT and Macintosh.
All Cemax-Icon systems are designed and developed according to product
development procedures reviewed by the FDA and stringent quality assurance
procedures which meet or exceed FDA Good Manufacturing Practices.
Marketing and Sales
The primary market for Cemax-Icon's systems includes hospitals,
outpatient facilities and IDNs. Cemax-Icon currently sells its products directly
through its own sales organization and indirectly through OEMs, including
Imation, Toshiba, Lucent, Sterling, General Electric and Kodak, and three
distributors. The use of OEMs and distributors allows Cemax-Icon to leverage its
sales force and to penetrate accounts which have strong customer loyalty to the
OEM.
Cemax-Icon's OEM relationships often consists of multi-year
distribution agreements providing the OEMs with the right to acquire
Cemax-Icon's systems at a discount and to offer such systems to third parties
under private labels. Cemax-Icon's distributor relationships consist of
multi-year agreements providing the distributors with the right to purchase
Cemax-Icon's systems at a discount for resale. When working with an OEM or
distributor, Cemax-Icon's sales people work as a complementary extension of
their sales team. Further revenue growth depends, in part, on Cemax-Icon's
ability to successfully maintain and expand OEM and distributor relationships
and rapidly grow its direct sales force.
Cemax-Icon has entered into an international distribution agreement
with Imation in addition to its domestic OEM arrangements. This distribution
agreement provides Imation with exclusive sales rights to jointly label
Cemax-Icon's products for sale in Europe through the Imation sales force and
calls for minimum quarterly purchase commitments by Imation. Other OEMs and
distributors can sell private label Cemax-Icon products in Europe.
Cemax-Icon's foreign sales totaled $6.0 million and $1.1 million for
the year ended December 31, 1996 and for the three months ended March 31, 1997,
respectively.
Cemax-Icon currently sells its products directly through eight
representatives located in Chicago, Kansas City, Los Angeles, New Haven, San
Antonio, San Francisco and Sarasota with marketing, sales and technical support
provided through Cemax-Icon's headquarters in Fremont, California.
Cemax-Icon's marketing department is comprised of technical personnel
experienced in network analysis, product management, target marketing,
competitive analysis, sales support, quoting, proposals and advertising.
Cemax-Icon supports these efforts by publishing articles, presenting or
sponsoring talks at professional meetings, assuming leadership positions in
professional organizations, participating in trade shows, advertising in trade
magazines and issuing frequent announcements to the trade press. Prospective
clients are identified through the marketing programs of Cemax-Icon's OEMs and
distributors, as well as Cemax-Icon's own direct mail and telemarketing efforts.
Cemax-Icon's success is dependent on the success of its marketing and
distribution strategy which involves, to a significant degree reliance on
Cemax-Icon's OEMs to sell its software modules as a component of the systems
being marketed by such OEMs. Cemax-Icon's OEM agreements are subject to
cancellation by the OEMs under certain circumstances. If Cemax-Icon's current or
future OEMs elect to terminate their agreements with Cemax-Icon or elect not to
include Cemax-Icon's software modules as components in their systems or are
unsuccessful in achieving significant sales of the systems, Cemax-Icon's total
business would be materially and adversely affected. In addition, a significant
portion of Cemax-Icon's total revenues are derived from a small number of
customers.
Cemax-Icon expects to continue to depend upon its principal customers
for a significant portion of its revenues, although there can be no assurance
that Cemax-Icon's principal customers will continue to purchase systems and
services from Cemax-Icon at current levels, if at all. The loss of one or more
major customers or a change in their buying pattern could have a material
adverse effect on Cemax-Icon's business and results of operations. Recruiting
and retaining qualified sales, customer service and technical personnel will
also be critical to Cemax-Icon's success. There can be no assurance that
Cemax-Icon will be successful in attracting and retaining skilled technical
personnel who generally are in high demand in Cemax-Icon's geographic area. The
loss of certain key employees or Cemax-Icon's inability to attract and retain
other qualified employees could have a material adverse effect on Cemax-Icon's
business.
Customers
Cemax-Icon's customers include healthcare providers located throughout
the United States, Europe and Japan. As of March 31, 1997, Cemax-Icon had over
1,600 end-user customers. Cemax-Icon believes that the installed customer base
of its OEMs and distributors also represents a significant opportunity to market
and sell its systems and services.
The decision by a healthcare provider to replace or substantially
upgrade its image information systems typically involves a major commitment of
capital and an extended review and approval process. Accordingly, the sales and
delivery cycle for Cemax-Icon's system is typically two to 12 months from
initial contact to delivery and acceptance. The time required from initial
contact to contract execution is typically one to six months. During these
periods, Cemax-Icon may expend substantial time, effort and funds preparing a
contract proposal and negotiating the contract. Any significant or ongoing
failure to identify appropriate potential customers, to achieve signed
contracts, to successfully complete products under development, and to obtain
customer acceptance after expending time, effort and funds could have a material
adverse effect on Cemax-Icon's business, financial condition and results of
operations.
At March 31, 1997, Cemax-Icon had approximately $9.8 million of signed
sales contracts for systems and services which had not yet been delivered but
are scheduled for delivery within the next twelve months, including products
under development. Cemax-Icon adjusts the timing of an installation,
which typically requires one to six months to complete, to accommodate
customers' needs, and Cemax-Icon cannot accurately predict the time it will take
to complete products under development. Consequently, Cemax-Icon cannot
accurately predict the amount of revenue it expects to achieve in any particular
period. A termination or installation delay of one or more contracts, or the
failure of Cemax-Icon to procure additional contracts, could have a material
adverse effect on Cemax-Icon's business.
A sample of Cemax-Icon's direct customers include the following
purchasers of PACS systems having a sales price of over $500,000:
Northwest Texas Hospital, Amarillo, TX
Saint Vincent Medical Center, Toledo, OH
Slagelse Central Hospital, West-Zealand County, Denmark
Stanford Health Services, Stanford, CA
University of Iowa, Iowa City, IA
University of North Carolina Medical Center, Chapel Hill, NC
Turku University Central Hospital, Turku, Finland
Veteran's Administration Medical Center Oklahoma, Oklahoma City, OK
Customer Support
Cemax-Icon currently intends to continue to invest in the customer
service area by increasing headcount, building infrastructure (including a
state-of-the-art customer call handling service management system and diagnostic
service and installation tools), and developing and implementing training
programs for its internal staff, customers, OEMs and distributors. Customer
support is provided either directly from Cemax-Icon by on-site staff visits,
technical support by phone or direct log onto the system via modem, or through
Cemax-Icon's OEM relationships.
Manufacturing
Cemax-Icon's manufacturing activities consist primarily of assembling
and testing components and subassemblies acquired from qualified vendors, and
subsequently integrating the appropriate application software programs.
Cemax-Icon operates under the FDA Good Manufacturing Practices guidelines and is
a registered medical device manufacturer. Cemax-Icon has recently received ISO
9001 award certification.
Cemax-Icon purchases industry-standard parts and components for the
assembly of its products, generally from multiple vendors. Cemax-Icon generally
maintains good relationships with its vendors and, to date, has not experienced
any material supply problems.
Competition
Competition in the market for Cemax-Icon's systems is intense. A large
number of companies offer teleradiology systems which are competitive with those
of Cemax-Icon. Many of Cemax-Icon's competitors are larger and more established
and have substantially more financial, technical, research and development and
marketing resources than Cemax-Icon. Several large multi-national corporations,
including Philips, Agfa and Siemens, offer competitive products in the PACS
market. Other large corporations have the technical and financial ability to
design and market competitive products, and some of them have produced and
marketed such products in the past. There can be no assurance that such large
potential competitors will not elect to reenter the market for Cemax-Icon's
systems, which could have a material adverse effect on Cemax-Icon's ability to
sell its products. In the past, certain competitors have from time to time
offered PACS for sale at substantial discounts to prevailing prices or offered
PACS to customers at no additional charge in connection with the sale of
complementary systems, which has had and could have a material adverse effect on
Cemax-Icon's ability to sell its systems.
Cemax-Icon's ability to compete successfully in the sale of its systems
will depend in large part upon its ability to implement successfully its
strategy of selling systems as a total solution as well as its ability to
attract new customers, sell new systems, deliver and support system enhancements
to its existing customers and respond effectively to continuing technological
change by developing new systems. There can be no assurance that Cemax-Icon will
be able to compete successfully in the future, nor that future competition for
product sales will not have a material adverse effect on the business, results
of operations and financial condition of Cemax-Icon.
Cemax-Icon believes that the principal competitive factors in its
market are customer recommendations and references, company reputation, system
reliability, system features (including ease of use), technological
advancements, breadth of product line, customer service and support, the
effectiveness of marketing and sales efforts, product price and performance. In
addition, Cemax-Icon believes that the speed with which companies in its market
can anticipate the evolving healthcare industry structure and identify unmet
needs are important competitive factors. There can be no assurance that
Cemax-Icon will be able to compete successfully in the future against existing
or potential competitors.
Patents and Intellectual Property
Cemax-Icon generally does not rely on patent protection with respect to
its products. Instead, Cemax-Icon relies on a combination of copyright and trade
secret law, employee and third-party nondisclosure agreements, and other
protective measures to protect intellectual property rights pertaining to its
systems and technology. There can be no assurance, however, that applicable
copyright or trade secret law or these agreements will provide meaningful
protection of Cemax-Icon's copyrights, trade secrets, know-how or other
proprietary information in the event of any unauthorized use, misappropriation
or disclosure of such copyrights, trade secrets, know-how or other proprietary
information. In addition, the laws of certain foreign countries do not protect
Cemax-Icon's intellectual property rights to the same extent as do the laws of
the United States. There can be no assurance that Cemax-Icon will be able to
protect its intellectual property successfully.
Cemax-Icon's systems and technology incorporate subject matter that
Cemax-Icon believes is in the public domain or that it otherwise has the right
to use. There can be no assurance that third parties will not assert patent,
copyright or other intellectual property infringement claims against Cemax-Icon
with respect to its products or technology or other matters. There may be
third-party patents, copyrights and other intellectual property relevant to
Cemax-Icon's systems and technology which are not known to Cemax-Icon. There can
be no assurance that litigation by a third party asserting that Cemax-Icon is
infringing such third party's patent rights, copyrights or other intellectual
property will not be initiated, that Cemax-Icon would prevail in any such
litigation or that Cemax-Icon would be able to obtain any necessary licenses on
reasonable terms if at all. Any such claims against Cemax-Icon, with or without
merit, as well as claims initiated by Cemax-Icon against third parties, can be
time-consuming and expensive to defend or prosecute and to resolve.
Government Regulation
The manufacturing and marketing of Cemax-Icon's systems are subject to
extensive government regulation as medical devices in the United States by the
FDA and in other countries by corresponding foreign regulatory authorities. The
process of obtaining and maintaining required regulatory clearances and
approvals is lengthy, expensive and uncertain. Cemax-Icon believes that its
success depends upon commercial sales of improved versions of its systems,
certain of which cannot be marketed in the United States and other regulated
markets unless and until Cemax-Icon obtains clearance or approval from the FDA
and its foreign counterparts.
The FDA requires that a manufacturer seeking to market a new medical
device or an existing medical device for a new indication obtain either a
premarket notification clearance under Section 510(k) of the Federal Food, Drug
and Cosmetic Act or the approval of a premarket approval application under this
Act ("PMA") prior to the introduction of such product into the market. Material
changes to existing medical devices are also subject to FDA review and clearance
or approval prior to commercialization in the United States. Cemax-Icon is
currently relying on the Section 510(k) premarket notification method to obtain
governmental clearance ("510(k) clearance") to market its medical devices in the
United States. Although it is believed to be a shorter, less costly regulatory
plan than the process to obtain a PMA, the process of obtaining a 510(k)
clearance generally requires supporting data, which can be extensive and extend
the regulatory review process for a considerable length of time. All models of
Cemax-Icon's systems that are commercially available have received 510(k)
clearance by the FDA. In addition, Cemax-Icon recently received 510(k) clearance
for ARCHIVE MANAGER 2.0 and for its DICOM and AUTORAD modules. There can be no
assurance that 510(k) clearance for any future product or modifications of
existing products will be granted by the FDA within a reasonable time frame, if
at all. Furthermore, the FDA may require that a request for 510(k) clearance be
supported by data from clinical trials demonstrating substantial equivalence and
the safety and effectiveness of the device, which may prolong the Section 510(k)
notification review period for a particular device or may result in a finding
that the product is not substantially equivalent, so that a full PMA could be
required.
Failure to comply with applicable regulatory requirements could result
among other things, in warning letters, seizures of products, total or partial
suspension of production refusal of the government to grant market clearance or
pre-market approval withdrawal of approvals or criminal prosecution.
Cemax-Icon is also required to register as a medical device
manufacturer with the FDA and the Food and Drug Branch of the California
Department of Health Services ("CDHS"). Cemax-Icon will be inspected on a
routine basis by both the FDA and CDHS for compliance with the FDA's Good
Manufacturing Practices and other applicable regulations.
Cemax-Icon is also subject to other federal, state and local laws and
regulations relating to safe working conditions and manufacturing practices. The
extent of government regulation that might result from any future legislation or
administrative action cannot be predicted. Failure to comply with regulatory
requirements could have a material adverse effect on Cemax-Icon's business,
financial condition and results of operations.
Sales of Cemax-Icon's systems outside the United States are subject to
foreign regulatory requirements that vary from country to country. Additional
approvals from foreign regulatory authorities may be required, and there can be
no assurance that Cemax-Icon will be able to obtain foreign marketing approvals
on a timely basis or at all, or that it will not be required to incur
significant costs in obtaining or maintaining its foreign regulatory approvals.
In Europe, Cemax-Icon will be required to obtain the certificates necessary to
enable the CE Mark, an international symbol of adherence to quality assurance
standards and compliance with applicable European Union Medical Device
Directives, to be affixed to Cemax-Icon's systems for sales in member countries.
Failure to obtain such certifications, any necessary foreign regulatory
approvals or any other failure to comply with regulatory requirements outside
the United States could have a material adverse effect on Cemax-Icon's business,
financial condition and results of operations.
Third-Party Reimbursement
Third-party payors, such as governmental programs and private insurance
plans, can indirectly affect the pricing or the relative attractiveness of
Cemax-Icon's systems by regulating the maximum amount of reimbursement that they
will provide for the acquisition, storage and interpretations of medical images.
In recent years, healthcare costs have risen substantially, and third-party
payors have come under increasing pressure to reduce such costs. In this regard,
extensive studies undertaken by the federal government, even though not
successfully translated into regulatory action, have stimulated widespread
analysis and reactions in the private sector focused on healthcare cost
reductions, which may involve reductions in reimbursement rates in radiology. A
decrease in the reimbursement amounts for radiological procedure may decrease
the amount which physicians, clinics and hospitals are able to charge patients
for such services. As a result, adoption of teleradiology and PACS may slow as
capital investment budgets are reduced, and the demand for Cemax-Icon's systems
could be significantly reduced.
Product Liability and Insurance
The manufacture and sale of medical image information systems entail
significant risk of product liability claims. There can be no assurance that
Cemax-Icon's existing insurance coverage limits are adequate to protect
Cemax-Icon from any liabilities it might incur in connection with the sale of
Cemax-Icon's systems. In addition, Cemax-Icon may require increased product
liability coverage as additional systems are commercialized. Such insurance is
expensive and in the future may not be available on acceptable terms, if at all.
A successful product liability claim or series of claims brought
against Cemax-Icon in excess of its insurance coverage could have a material
adverse effect on Cemax-Icon's business, financial condition and results of
operations.
Employees
As of March 31, 1997, Cemax-Icon had 153 full-time employees, including
43 employees in research and development, 72 in quality, service and support, 23
in sales and marketing and support activities and 13 in general administration
and finance. Two employees reside in Europe performing sales and technical
customer support roles. Cemax-Icon also relies on several part-time employees
and consultants. None of Cemax-Icon's employees is represented by a collective
bargaining agreement nor has Cemax-Icon experienced a work stoppage. Management
believes that Cemax-Icon's relationship with its employees is good.
PROPERTIES
Cemax-Icon's principal facilities are located in Fremont, California,
in an approximately 26,000 square foot facility leased through December 1998.
Cemax-Icon anticipates that additional space will be required as its business
expands and believes that it will be able to obtain suitable space as needed.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Set forth below are the names and addresses of and the number of shares
held as of the Record Date for the Special Meeting by (i) those persons who may
be deemed to own beneficially, whether directly or indirectly 5% or more of the
outstanding shares of Cemax-Icon Common Stock, (ii) each executive officer or
director of Cemax-Icon and (iii) all directors and executive officers of
Cemax-Icon as a group. Each shareholder named below has sole voting and
investment power over the shares shown in the table, unless otherwise indicated.
<TABLE>
<CAPTION>
Name and Address Beneficially Owned (1) Percent of Class (2)
---------------- ---------------------- --------------------
<S> <C> <C>
Jeremy B. Rubin, M.D.(3) 1,748,672 32.5%
Cemax-Icon, Inc.
47281 Mission Falls Court
Fremont, CA 94539
Imation Corp.(4) 1,073,077 16.6%
1 Imation Place
Oakdale, MN 55128
Entities affiliated with 800,152 14.9%
Institutional Venture Partners(5)
3000 Sand Hill Road
Building 2, Suite 290
Menlo Park, CA 94025
Reid W. Dennis(5) 800,152 14.9%
Institutional Venture Partners
3000 Sand Hill Road
Building 2, Suite 290
Menlo Park, CA 94025
Philip E. McCarthy(6)(8) 482,859 9.0%
MBW Venture Partners
365 South Street
Morristown, NJ 07960
Entities affiliated with 482,848 9.0%
MBW Management(6)
365 South Street
Morristown, NJ 07960
Entities affiliated with 325,151 6.0%
Technology Funding Inc.(7)
2000 Alameda de las Pulgas
San Mateo, CA 94403
Terry Ross(9) 311,127 5.8%
David N. White, M.D.(10) 90,293 1.7%
Gregory C. Patti(11) 67,771 1.3%
Jean-Luc Chatelain(12) 63,235 1.2%
Oran E. Murduroglu(13) 82,688 1.5%
Grady Floyd(14) 38,243 1.0%
M. David Titus(15) 12,826 *
All directors and officers 3,697,861 67.8%
as a group (10 persons)(16)
</TABLE>
- ---------------------------
* Represents beneficial ownership of less than 1%.
(1) Beneficial ownership is determined by the rules of the Securities and
Exchange Commission and generally includes voting or investment power
with respect to securities. Shares of Cemax-Icon Common Stock subject
to stock options and warrants currently exercisable or exercisable
within 60 days of the date of this table are deemed to be outstanding
for computing the percentage ownership of the person holding such
options and the percentage ownership of any group of which the holder
is a member, but are not deemed outstanding for computing the
percentage of any other person. Except as indicated by footnotes, and
subject to community property laws where applicable, the persons named
in the table have sole voting and investment power with respect to all
shares of Cemax-Icon Common Stock shown beneficially owned by them.
(2) Applicable percentage of ownership is based on 5,379,227 shares of
Cemax-Icon Common Stock outstanding.
(3) Includes 4,900 shares issuable pursuant to options exercisable within
60 days of the Record Date.
(4) Assumes conversion of 2,521,733 outstanding shares of Cemax-Icon
Preferred Stock held by Imation to Cemax-Icon Common Stock.
(5) Includes 11,986 shares held by Institutional Venture Management III,
L.P. ("IVMIII") and 788,166 shares held by Institutional Venture
Partners III, L.P. ("IVPIII"). Reid W. Dennis, a director of
Cemax-Icon, is a general partner of IVMIII and the general partner of
IVPIII.
(6) Includes 395,935 shares held by MBW Venture Partners, L.P. and 86,913
shares held by Michigan Investment Fund, L.P. Philip E. McCarthy, a
director of Cemax-Icon, is Managing Director of MBW Management and the
authorized agent of MBW Venture Partners and Michigan Investment Fund.
(7) Includes 72,264 shares held by Technology Funding Inc. TTEE Technology
Funding Partners I Liquidating Trust, 86,446 shares are held by
Technology Funding Inc. TTEE Funding Partners II and 166,441 shares are
held by Technology Funding Private Reserve, L.P.
(8) Includes 11 shares held by the Philip E. McCarthy Pension Fund.
(9) Includes 4,255 shares held by Guarantee & Trust Co. Cdn Terry Ross IRA
and includes 14,000 shares issuable pursuant to options exercisable
within 60 days of the Record Date.
(10) Includes 2,100 shares issuable pursuant to options exercisable within
60 days of the Record Date.
(11) Includes 4,255 shares held by Guarantee & Trust Co. Cdn Gregory C.
Patti and includes 2,100 shares issuable pursuant to options
exercisable within 60 days of the Record Date.
(12) Includes 188 shares issuable pursuant to options exercisable within 60
days of the Record Date by Mr. Chatelain's wife and includes 5,600
shares issuable pursuant to options exercisable by Mr. Chatelain within
60 days of the Record Date.
(13) Includes 33,495 shares issuable pursuant to options exercisable within
60 days of the Record Date.
(14) Includes 4,200 shares issuable pursuant to options exercisable within
60 days of the Record Date.
(15) Includes 4,254 shares issuable pursuant to options exercisable within
60 days of the Record Date.
(16) Includes 70,837 shares issuable pursuant to options exercisable within
60 days of the Record Date.
As of the Record Date, Imation owned all 2,521,733 outstanding shares
of Cemax-Icon Preferred Stock, representing approximately 17% of the total
voting power of the outstanding shares of Cemax-Icon Common Stock and Cemax-Icon
Preferred Stock as of such date.
MANAGEMENT
Directors, Executive Officers and Key Employees
The directors, executive officers and key employees of Cemax-Icon as of
July 1, 1997 are as follows:
Name Age Position
- ---- --- --------
Terry Ross........................ 49 President, Chief Executive Officer
and Director
Jeremy B. Rubin, M.D.............. 41 Vice President, Chief Technical
Officer, Vice Chairman
Gregory C. Patti.................. 41 Chief Financial Officer and Vice
President Finance
Oran E. Muduroglu................. 35 Vice President, Sales and Marketing
Jean-Luc Chatelain................ 39 Vice President, Engineering
Grady Floyd. 34 Vice President, Operations
David N. White, M.D. (1).......... 47 Chairman of the Board
Reid W. Dennis (1)................ 70 Director
Philip E. McCarthy (2)............ 59 Director
M. David Titus (2)................ 39 Director
- -------------------
(1) Member of the Compensation Committee
(2) Member of the Audit Committee
After the Effective Time of the Merger, Imation currently expects that
Terry Ross and Jeremy B. Rubin will be reelected to the Board of Directors of
Cemax-Icon, the Surviving Corporation. The identities of the other Board members
after the Effective Time of the Merger have not yet been determined. Imation
anticipates that the executive officers named above will continue in their
present functional capacities following the Merger.
TERRY ROSS has served as President, Chief Executive Officer and
Director of Cemax-Icon since August 1989. Mr. Ross also served as Chief
Financial Officer from October 1989 to June 1994 and as Vice President of Sales
and Marketing from January 1988 to August 1989. Prior to joining Cemax-Icon, Mr.
Ross was Vice President of Sales and Marketing for Imatron, Inc. and held
executive sales positions at Picker International, Inc. and Adac Laboratories,
Inc., all of which are medical imaging companies. Mr. Ross is currently a member
of the Board of Directors of Imatron, Inc.
JEREMY B. RUBIN, M.D., joined Cemax-Icon as Vice Chairman of the Board,
Vice President and Chief Technical Officer in June 1995. From November 1989
until he joined Cemax-Icon, Dr. Rubin served as President and CEO of ICON
Medical Systems, Inc., a teleradiology company which was merged with Cemax in
June 1995. Prior to 1989, Dr. Rubin practiced clinical radiology for several
years at Good Samaritan Hospital in San Jose.
GREGORY C. PATTI has served as Chief Financial Officer of Cemax-Icon
since June 1994 and as Vice President, Finance since June 1995. From November
1989 until he joined Cemax-Icon in May 1994, Mr. Patti served as Corporate
Controller for Supreme Technology, Inc., a computer digital video product
manufacturer. Prior to that time Mr. Patti served in senior financial positions
with a network software company and a computer workstation company and was a
practicing CPA with Price Waterhouse.
ORAN E. MUDUROGLU joined Cemax-Icon as Vice President of Sales and
Marketing in December 1991. From April 1989 until he joined Cemax-Icon, Mr.
Muduroglu was Product Manager, a senior sales position with Toshiba America
Medical Systems, Inc., a medical imaging company. Prior to that, Mr. Muduroglu
co-founded Voxel, Inc., a company which developed holographic visualization
technology for medical imaging.
JEAN-LUC CHATELAIN joined Cemax-Icon as Director of Engineering in May
1994 and became Vice President of Engineering in June 1995. From August 1992 to
May 1994 Mr. Chatelain was a Director of Marketing for ADAC Laboratories, Inc.,
a medical imaging company. From 1986 to August 1992 Mr. Chatelain was Director
of Engineering for Dynamic Digital Design, Inc., a medical workstation company.
GRADY FLOYD joined Cemax-Icon as Director of Engineering in May 1995
and became Vice President of Service and Quality Assurance in December 1995 and
Vice President, Operations in January 1996. From November 1993 until he joined
Cemax-Icon, Mr. Floyd served as Engineering Manager for ADAC Laboratories, Inc.,
a medical imaging company. Prior to that he served as a software manager
specializing in advance imaging products of 3D Systems, Inc., a medical imaging
company from March 1988 to July 1993.
DAVID N. WHITE, M.D. founded Cemax-Icon in 1982 and has served as the
Chairman of the Board since that time. Dr. White has been a practicing
reconstructive surgeon with the Palo Alto Medical Foundation since 1983.
REID W. DENNIS has served as a director of Cemax-Icon since June 1986.
Mr. Dennis is a general partner of Institutional Venture Partners, a venture
capital investment firm which he founded in 1974. Mr. Dennis is a director of
Collagen Corporation.
M. DAVID TITUS has served as a director of Cemax-Icon since August
1989. Mr. Titus also serves as general partner of Coronado Capital, a venture
capital investment firm which he founded in January 1993. From May 1986 through
December 1992 he held several positions including general partner with
Technology Funding, a venture capital investment firm.
PHILIP E. MCCARTHY has served as a director of Cemax-Icon since
December 1994. Mr. McCarthy has served as Managing Director of MBW Management, a
venture capital investment firm, since 1984.
There are no family relationships among any of the directors, officers
of key employees of Cemax-Icon.
Board Committees
The Board of Directors has an Audit Committee and a Compensation
Committee. The Audit Committee, comprised of Philip E. McCarthy and M. David
Titus, reviews the internal accounting procedures of Cemax-Icon and consults
with and reviews the services provided by Cemax-Icon's independent accountants.
The Compensation Committee, comprised of Reid W. Dennis and David N. White,
M.D., reviews and recommends to the Board the compensation and benefits of all
officers of Cemax-Icon and reviews general policy relating to compensation and
benefits of employees. The Compensation Committee also recommends to the Board
the issuance of stock options and other awards under Cemax-Icon's stock plans.
Board Composition
Cemax-Icon's Bylaws provide for a Board of Directors consisting of
seven members. Cemax-Icon's Board of Directors currently has six members and one
board seat is currently vacant. In accordance with the terms of Cemax-Icon's
Certificate of Incorporation, the terms of office of the Board of Directors is
divided into three classes, Class I, whose term will expire at the annual
meeting of stockholders to be held in 1997, Class II, whose term will expire at
the annual meeting of stockholders to be held in 1998, and Class III, whose term
will expire at the annual meeting of stockholders to be held in 1999. The Class
I directors are Philip E. McCarthy and Terry Ross, the Class II directors are
David N. White, M.D., and Reid W. Dennis and the Class III directors are Jeremy
B. Rubin, M.D. and M. David Titus. After each such election, the directors in
each class will then serve in succeeding terms of three years until their
successors are duly elected and qualified. Although directors of Cemax-Icon may
be removed for cause by the affirmative vote of the holders of a majority of the
Cemax-Icon Common Stock, Cemax-Icon's Certificate of Incorporation provides that
holders of 66-2/3% of the Cemax-Icon Common Stock must vote to approve the
removal of a director without cause.
Director Compensation
Directors do not currently receive any cash compensation from
Cemax-Icon for their service as members of the Board of Directors, although they
are reimbursed for certain expenses in connection with attendance at Board and
Committee meetings. David N. White, M.D., the current Chairman of the Board of
Cemax-Icon, received the amount of $24,000 during 1996 for services rendered to
Cemax-Icon. In addition, Dr. White was granted options to purchase an aggregate
of 15,000 shares of Cemax-Icon Common Stock under Cemax-Icon's 1996 Stock Plan
during 1996 at an exercise price of $5.00 per share.
Executive Compensation
The following table sets forth certain compensation awarded or paid by
Cemax-Icon to its President and Chief Executive Officer and each other executive
officer who earned more than $100,000 during the year ended December 31, 1996
(collectively, the "Named Executive Officers").
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
Annual Compensation
--------------------------------------- Long-Term
Name and Principal Fiscal Other Annual Compensation All Other
Position Year Salary(1) Bonus(2) Compensation Options/SARs Compensation
------------------- ---- --------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Terry Ross ................... 1996 $194,518 $ 90,000 $ 0 $100,000 $ 0
President and ............. 1995 $193,033 $ 75,000 $ 0 $100,000 $ 0
Chief Executive Officer
Gregory C. Patti ............. 1996 $128,000 $ 39,000 $ 0 $ 15,000 $ 0
Chief Financial Officer ... 1995 $128,142 $ 25,000 $ 0 $ 25,000 $ 0
Oran E. Muduroglu ............ 1996 $140,000 $ 60,000 $ 0 $ 35,000 $ 0
Vice President, Sales ..... 1995 $153,089 $ 27,000 $ 0 $ 50,000 $ 0
and Marketing
Jeremy B. Rubin, M.D ......... 1996 $150,497 $ 45,000 $ 0 $ 35,000 $ 0
Vice President, Chief ..... 1995 $150,289 $ 0 $ 0 $ 0 $ 0
Jean-Luc Chatelain ........... 1996 $126,417 $ 45,000 $ 0 $ 40,000 $ 0
Vice President, Engineering 1995 $111,181 $ 20,000 $ 0 $ 37,500 $ 0
</TABLE>
Stock Plans
1986 STOCK OPTION PLAN. In December 1986 Cemax-Icon adopted the 1986
Stock Option Plan (the "1986 Plan") under which an aggregate of 1,500,000 shares
of Cemax-Icon Common Stock have been reserved for issuance upon exercise of
options granted to employees, officers and employee-directors of and consultants
to Cemax-Icon. As of June 30, 1997, options to purchase an aggregate of 382,132
shares of Cemax-Icon Common Stock were outstanding under the 1986 Plan. In June
1996, the Board of Directors determined that no additional options would be
granted under the 1986 Plan. The 1986 Plan terminated in December 1996.
1996 STOCK PLAN. Cemax-Icon's 1996 Stock Plan (the "1996 Plan") was
adopted by the Board of Directors in June 1996 and approved by the stockholders
in August 1996. As of June 30, 1997, 604,645 shares of Cemax-Icon Common
Stock were outstanding under the 1996 Plan. The 1996 Plan allows for the grant
to employees of incentive stock options, and for the grant to employees and
consultants of nonstatutory stock options and stock purchase rights. The 1996
Plan is not qualified under Section 401(a) of the Internal Revenue Code, as
amended (the "Code") and is not subject to the Employee Retirement Income
Security Act of 1974. Unless sooner terminated by the Board of Directors the
1996 Plan will terminate automatically in June 2006.
The purpose of the 1996 Plan is to attract and retain the best possible
available personnel for positions of substantial responsibility with Cemax-Icon,
to provide additional incentive to the employees and consultants of Cemax-Icon
and to promote the success of Cemax-Icon's business. The 1996 Plan is
administered by the Board of Directors of Cemax-Icon or a committee appointed by
the Board.
The Board of Directors or a committee appointed by the Board in its
discretion selects the employees and consultants to whom options and stock
purchase rights may be granted, the time or times at which such awards may be
exercised (vest), the number of shares subject to each such award, the form of
consideration payable upon exercise and the other terms and conditions of such
grant. The 1996 Plan provides for a maximum number of 300,000 shares of
Cemax-Icon Common Stock for which options or stock purchase rights may be
granted to any one participant in any fiscal year; provided that in connection
with an employee's initial employment, options or rights to purchase up to an
additional 150,000 shares may be granted.
The exercise price for stock options granted under the 1996 Plan is
determined by the Board of Directors of Cemax-Icon or its committee and may not
be less than 100% of the fair market value of the Cemax-Icon Common Stock on the
date such option is granted, except in the case of options granted to 10%
shareholders, the exercise price of which may not be less than 110% of such fair
market value. Options are not generally transferable by the participant other
than by will or the laws of descent or distribution, and are exercisable during
the participant's lifetime only by him, or, in the event of death of the
participant, by a person, who acquires the right to exercise the options by
bequest or inheritance by reason of the death of the participant. Options
granted under the 1996 Plan generally vest (become exercisable) over a four-year
period based upon continued service to Cemax-Icon and typically expire 30 days
after the date of termination of employment. Options granted under the 1996 Plan
have a maximum term of ten years from the date of grant; provided that in the
case of an option granted to a 10% stockholder, the term of the option may be no
longer than five years from the date of grant.
The 1996 Plan also allows for the grant of stock purchase rights which
give the purchaser a period of up to six months from the date of grant to
purchase shares of Cemax-Icon Common Stock. The price to be paid for the shares
to be purchased under the 1996 Plan, the form of consideration to be paid for
the shares, and the terms of payment are determined by the Board or a committee
appointed by the Board. Payment for the shares may be made in installments or at
one time, as determined by the Board, and provision may be made by the Board for
aiding any eligible person in paying for the shares by promissory note or
otherwise.
The 1996 Plan provides that in the event of a merger of Cemax-Icon with
or into another corporation, a sale of substantially all of the assets or a like
transaction involving Cemax-Icon, each outstanding option or stock purchase
right may be assumed or an equivalent option substituted by the successor
corporation. If the outstanding options and stock purchase rights are not
assumed or substituted, the holder of such option or stock purchase right shall
be entitled to fully exercise the option or stock purchase right including
shares not otherwise exercisable.
1996 EMPLOYEE STOCK PURCHASE PLAN. Cemax-Icon's 1996 Employee Stock
Purchase Plan (the "Purchase Plan") was adopted by the Board of Directors in
June 1996 and approved by the stockholders in August 1996. A total of 150,000
shares of Cemax-Icon Common Stock is reserved for issuance under the Purchase
Plan. The Purchase Plan is intended to qualify as an employee stock purchase
plan within the meaning of Section 423 of the Internal Revenue Code. Under the
Purchase Plan, the Board of Directors may authorize participation by eligible
employees, including officers, in periodic offerings following the adoption of
the Purchase Plan. The Purchase Plan is administered over offering periods of 24
months each, with each offering period divided into four consecutive six-month
purchase periods. Unless sooner terminated by the Board of Directors, the
Purchase Plan will terminate in June 2006.
Employees are eligible to participate if they are employed by
Cemax-Icon or an affiliate of Cemax-Icon designated by the Board of Directors
for at least 20 hours per week and are employed by Cemax-Icon or a subsidiary of
Cemax-Icon designated by the Board for at least five months per calendar year.
Employees who participate in an offering can have up to 15% of their earnings
withheld pursuant to the Purchase Plan. The amount withheld will then be used to
purchase shares of the Cemax-Icon Common Stock on specified dates determined by
the Board of Directors. The price of Cemax-Icon Common Stock purchased under the
Purchase Plan will be equal to 85% of the lower of the fair market value of the
Cemax-Icon Common Stock on the commencement date of each offering period or the
relevant purchase date. Employees may end their participation in the offering at
any time during the offering period, and participation ends automatically on
termination of employment with Cemax-Icon.
In the event of a merger, reorganization, consolidation or liquidation
involving Cemax-Icon in which Cemax-Icon is not a surviving corporation, the
Board of Directors has the discretion to provide that each right to purchase
Cemax-Icon Common Stock will be assumed or an equivalent right substituted by
the successor corporation, or the Board may shorten the offering period and
provide for all sums collected by payroll deductions to be applied to purchase
stock immediately prior to such merger or other transaction. The Board has the
authority to amend or terminate the Purchase Plan, subject to the limitation
that no such action may adversely affect any outstanding rights to purchase
Cemax-Icon Common Stock.
1996 DIRECTOR OPTION PLAN. Cemax-Icon's 1996 Director Option Plan (the
"Director Plan") was adopted by the Board of Directors in June 1996 and approved
by the stockholders in August 1996. A total of 100,000 shares of Cemax-Icon
Common Stock is reserved for issuance under the Director Plan. The option grants
under the Director Plan shall be automatic and non-discretionary, and the
exercise price of the options shall be 100% of the fair market value of the
Cemax-Icon Common Stock on the grant date. The Director Plan provides for the
grant of options to purchase 5,000 shares of Cemax-Icon Common Stock to each
non-employee director of Cemax-Icon upon the effectiveness of an initial public
offering and at each annual meeting of the stockholders thereafter, provided
such non-employee director has been a non-employee director of Cemax-Icon for at
least six months prior to the date of such annual meeting of the stockholders.
Each new non-employee director shall automatically be granted an option to
purchase 10,000 shares of Cemax-Icon Common Stock upon the date such person
joins the Board of Directors. Any option granted to a non-employee director
shall become exercisable over a four-year period following the date of grant
based upon continued service as a member of the Board of Directors. The term of
such options is ten years. No option may be transferred by the optionee other
than by will of the laws of descent and distribution. Any optionee whose
relationship with Cemax-Icon or any related corporation ceases for any reason
may generally exercise options only during a 90-day period following such
cessation (unless such options terminate or expire sooner by their terms). Upon
a merger or asset sale, all outstanding options under the Director Plan will be
assumed or replaced with an equivalent option by the successor corporation. In
the event that the successor corporation does not agree to assume the
outstanding options or substitute an equivalent option, each outstanding option
shall become fully vested and exercisable, including as to shares not otherwise
exercisable. The Director Plan will terminate in June 2006, unless sooner
terminated by the Board of Directors.
401(k) Plan
In 1990, Cemax-Icon adopted a tax-qualified employee savings and
retirement plan (the "401(k) Plan") covering all of Cemax-Icon's employees.
Pursuant to the 401(k) Plan, employees may elect to reduce their current
compensation up to the annual statutory limit ($9,500 in 1996) and have the
amount of such reduction contributed to the 401(k) Plan. The 401(k) Plan
provides that Cemax-Icon will match up to 25% of the employee's eligible
contributions, up to a maximum of $500. Cemax-Icon may also make an additional
discretionary employer matching contribution to the 401(k) Plan each year to be
allocated among the participants based on each participant's total compensation
received during the 401(k) Plan year. Contributions made by the employee and
Cemax-Icon are fully vested and are not subject to forfeiture. The trustee under
the 401(k) Plan invests the assets of the 401(k) Plan in any of several
investment options. The 401(k) Plan is intended to qualify under Section 401 of
the Code so that contributions by employees to the 401(k) Plan, and income
earned on plan contributions, are not taxable to employees until withdrawn, and
so that the contributions by employees will be deductible by Cemax-Icon when
made.
Option Grants in Last Fiscal Year
The following table sets forth each grant of stock options made during
the fiscal year ended December 31, 1996 to each of the Named Executive Officers:
<TABLE>
<CAPTION>
Individual Grants
-----------------------------------------
Percentage Potential Realizable Value of
Number of of Total Assumed Annual Rates of
Securities Options Stock Price Appreciation for
Underlying Granted to Exercise Option Terms(4)
Options Employees in Price Expiration -----------------------------
Name Granted(1) 1996(2) ($/Share)(3) Date 5% 10%
---- ---------- ------- ------------ ---- -- ---
<S> <C> <C> <C> <C> <C> <C>
Terry Ross ........ 100,000 17.3% $ 5.00 12-12-2006 $314,447 $796,871
Gregory C. Patti .. 15,000 2.6% 5.00 12-12-2006 47,167 119,531
Oran E. Muduroglu . 35,000 6% 5.00 12-12-2006 110,057 278,905
Jean-Luc Chatelain 40,000 6.9% 5.00 12-12-2006 125,779 318,748
</TABLE>
- -------------------
(1) All options are incentive stock options granted pursuant to the 1996
Plan. Options granted become exercisable over a 50 month period
following the date of grant based upon continued service to Cemax-Icon.
(2) Based on an aggregate of 578,815 options granted to employees of
Cemax-Icon in 1996, including the Named Executive Officers.
(3) The exercise price per share of each option was equal to the fair
market value of the Cemax-Icon Common Stock on the date of grant as
determined by the Board of Directors.
(4) Options granted terminate on the earlier of 30 days after termination
of employment or ten years after date of grant. The potential
realizable value is calculated based on an assumed ten year term of the
option. The 5% and 10% assumed annual rates of compounded stock price
appreciation are mandated by the rules of the Commission and do not
represent Cemax-Icon's estimate or projection of Cemax-Icon's future
Cemax-Icon Common Stock prices.
Aggregate Option Exercises in Last Fiscal Year and Fiscal Year-End
Option Values
The following table sets forth for each of the Named Executive Officers
the shares acquired and the value realized on each exercise of stock options
during the fiscal year ended December 31, 1996 and the number and value of
securities underlying unexercised options held by the Named Executive Officers
at December 31, 1996.
<TABLE>
<CAPTION>
Value of Unexercised
Number of Securities In-the-Money
Shares Underlying Unexercised Options at
Acquired on Value Options at Year End December 31, 1996 ($)(1)
Name Exercise Realized (1) Exercisable Unexercisable Exercisable Unexercisable
---- ----------- -------------- ----------- ------------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C>
Terry Ross................. 85,106 $ 305,530 0 100,000 $ 0 $ 0
Gregory C. Patti........... 27,660 91,800 0 15,000 0 0
Oran E. Muduroglu.......... 49,191 228,615 19,301 72,889 74,846 143,531
Jean-Luc Chatelain......... 57,447 228,735 0 40,000 0 0
</TABLE>
- ----------------------
(1) Based on the fair market value of Cemax-Icon Common Stock at year-end
($5.00 per share, as determined by the Board of Directors) less the
exercise price payable for such shares. Amounts reflected are based on
the assumed value minus the exercise price and do not indicate that the
optionee sold such stock.
Limitation of Liability and Indemnification Matters
As permitted by the DGCL, Cemax-Icon's Certificate of Incorporation
provides that no director of Cemax-Icon will be personally liable to Cemax-Icon
or its stockholders for monetary damages for breach of fiduciary duty as a
director except for liability (i) for any breach of the director's duty of
loyalty to Cemax-Icon or to its stockholders; (ii) for acts of omissions not
made in good faith or which involved intentional misconduct or a knowing
violation of law; (iii) under Section 174 of the DGCL, relating to prohibited
dividends or distribution or the repurchase or redemption of stock or (iv) for
any transaction from which the director derives an improper personal benefit. In
addition, Cemax-Icon's Certificate of Incorporation provides that any director
or officer who was or is a party or is threatened to be made a party to any
action or proceeding by reason of his or her services to Cemax-Icon will be
indemnified to the fullest extent permitted by the DGCL.
Cemax-Icon has entered into indemnification agreements with each of its
directors and officers under which Cemax-Icon has indemnified each of them
against expenses and losses incurred for claims brought against them by reason
of their being a director or officer of Cemax-Icon, and Cemax-Icon maintains
directors' and officers' liability insurance.
There is no pending litigation or proceeding involving a director or
officer of Cemax-Icon as to which indemnification is being sought, nor is
Cemax-Icon aware of any pending or threatened litigation that may result in
claims for indemnification by any director or officer.
CERTAIN RELATIONSHIP AND RELATED TRANSACTIONS
Exercise of Stock Options; Officer Loans
In April 1996, the following directors and officers executed promissory
notes payable to Cemax-Icon in the amounts set forth below in connection with
such individual's exercise of outstanding stock options to purchase Cemax-Icon
Common Stock (the "Shares"). Each promissory note is secured by the underlying
Cemax-Icon Common Stock, bears interest at the rate of 5% per year and becomes
due and payable on May 31, 1998.
Name Amount
---- --------------
Terry Ross (1)................................................. $ 120,000
Jean-Luc Chatelain (2)......................................... 58,500
Grady Floyd (3)................................................ 45,000
Gregory C. Patti (4)........................................... 46,500
David N. White (5)............................................. 27,203
Oran E. Muduroglu (6).......................................... 17,340
- -------------------
(1) 100,000 shares exercised at a price of $1.20 per share.
(2) 15,000 shares exercised at a price of $0.30 per share, 15,000 shares
exercised at a price of $0.60 per share and 37,500 shares exercised at
a price of $1.20 per share.
(3) 10,000 shares exercised at a price of $0.90 per share, 30,000 shares
exercised at a price of $1.20 per share.
(4) 40,000 shares exercised at a price of $0.30 per share, 7,500 shares
exercised at a price of $0.60 per share and 25,000 shares exercised at
a price of $1.20 per share.
(5) 53,211 shares exercised at a price of $0.08 per share, 37,250 shares
exercised at a price of $0.90 per share and 9,000 shares exercised at a
price of $1.20 per share.
(6) 57,800 shares exercised at a price of $0.30 per share.
A portion of the Shares relate to options which were exercised in
advance of vesting by the above-named individuals (the "Restricted Shares").
Cemax-Icon retains the rights to repurchase these Restricted Shares at a
repurchase price equal to the original purchase price. The right of repurchase
expires ratably on a monthly basis at a rate equivalent to the original option
vesting period (approximately 2% per month). In connection with the Merger,
Cemax-Icon will exercise its repurchase right with respect to the Restricted
Shares. In payment of the repurchase price, Cemax-Icon will cancel the portion
of the particular individual's promissory note corresponding to the Restricted
Shares. In addition, pursuant to Key Management Agreements with the above-named
individuals, Imation has agreed to grant to each of the above-named individuals
an option to purchase shares of Imation Common Stock. The value of the Imation
option will be substantially equivalent to the value of the unrealized gain as a
result of the Merger on Restricted Shares being repurchased.
In October 1995 Cemax-Icon loaned Terry Ross, its President and Chief
Executive Officer, the sum of $300,000 pursuant to a promissory note bearing
interest at the prime rate plus 1% due and payable on October 31, 1996, secured
by a pledge of 437,000 shares of Cemax-Icon Common Stock owned by Mr. Ross. In
June 1996 Cemax-Icon agreed with Mr. Ross to extend the due date of such
promissory note to October 31, 1997. In December 1996, Terry Ross repaid the
full principal amount owing pursuant to the promissory note plus accrued
interest.
Cemax-Icon believes that all of the foregoing transactions were in its
best interest and were on terms no less favorable to Cemax-Icon than could have
been obtained from unaffiliated third parties.
SELECTED FINANCIAL DATA OF CEMAX-ICON
Set forth below is selected historical financial information of
Cemax-Icon derived from the unaudited financial statements of Cemax-Icon for the
three months ended March 31, 1997 and 1996 and for the fiscal years ended
December 31, 1993 and 1992, and the audited financial statements of Cemax-Icon
for the fiscal years ended December 31, 1996, 1995 and 1994. The information
should be read in conjunction with the Management's Discussion and Analysis of
Cemax-Icon, the financial statements of Cemax-Icon and related notes thereto and
the pro forma combined financial statements and the related note thereto
included elsewhere herein. In the opinion of Cemax-Icon's management, the
operating results for the fiscal quarters ended March 31, 1997 and 1996 and for
the fiscal years ended December 31, 1993 and 1992 reflect all adjustments
(consisting of normal recurring accruals) necessary to present fairly the
information contained therein. Results for the three months ended March 31, 1997
are not necessarily indicative of the results for the full year.
<TABLE>
<CAPTION>
Three Months Ended
March 31, Years Ended December 31,
---------------------- ----------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- -------- -------- -------- -------- --------
(In millions, except (In millions, except per share data)
per share data)
(Unaudited) (Unaudited) (Unaudited)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net revenues ............... $ 7,283 $ 4,818 $ 25,148 $ 17,030 $ 16,457 $ 12,114 $ 8,314
Gross profit ............... 2,443 2,313 10,728 6,518 7,654 6,055 5,213
Selling, general and
administrative ........... 1,693 1,507 7,178 6,235 6,010 3,947 3,851
Research and
development .............. 1,642 1,622 6,481 6,501 4,134 3,249 2,171
Operating income (loss) ... (892) (816) (2,931) (6,842) (2,490) (1,141) (809)
Net income (loss) ......... (969) (819) (3,056) (6,815) (2,578) (1,198) (843)
Earnings (loss) per
common share ............. (0.18) (0.17) (0.59) (1.75) (1.10) (0.59) (0.46)
BALANCE SHEET DATA:
Total working capital ...... $ 2,275 $ 3,454 $ (538) $ (50) $ 584 $ 1,114
Total assets ............... 16,776 16,708 9,279 7,019 5,465 3,733
Long-term obligations. 5,562 5,619 604 891 570 414
Accumulated deficit ........ (35,606) (34,637) (31,581) (24,766) (22,188) (20,880)
Total shareholders'
equity (net capital
deficiency) ............. (1,366) (400) 370 235 1,098 1,594
</TABLE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CEMAX-ICON
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, certain
operating data as a percentage of total revenues.
<TABLE>
<CAPTION>
Three Months Ended
March 31, Year Ended December 31,
----------------- -----------------------------
1997 1996 1996 1995 1994
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
REVENUES:
Product revenues ...................... 90.0% 84.0% 86.8% 88.4% 91.2%
Service revenues ...................... 10.0 16.0 13.2 11.6 8.8
---- ---- ---- ---- ----
Total revenues ...................... 100.0 100.0 100.0 100.0 100.0
COST OF REVENUES:
Cost of product revenues .............. 47.2 35.2 40.0 45.7 43.5
Cost of service revenues .............. 19.3 16.7 17.4 16.0 10.0
---- ---- ---- ---- ----
Total cost of revenues .............. 66.5 51.9 57.4 61.7 53.5
---- ---- ---- ---- ----
Gross profit ............................. 33.5 48.1 42.6 38.3 46.5
OPERATING EXPENSE:
Research and development .............. 22.5 33.6 25.8 38.2 25.1
Sales, general and administrative...... 23.2 31.3 28.5 36.6 36.5
Merger related expense ................ -- -- -- 3.7 --
---- ---- ---- ---- ----
Total operating expenses ............ 45.7 64.9 54.3 78.5 61.6
Loss from operations ..................... (12.2) (16.8) (11.7) (40.2) (15.1)
Interest and other income (expense) ..... (1.1) (0.1) (0.5) 0.2 (0.6)
---- ---- ---- ---- ----
Net loss ................................. (13.3)% (16.9)% (12.2)% (40.0)% (15.7)%
===== ===== ===== ===== =====
</TABLE>
Comparison of Three Months Ended March 31, 1997 and 1996
Cemax-Icon's total revenues were $7.3 million for the three months
ended March 31, 1997, compared to $4.8 million for the same period in 1996, an
increase of $2.5 million or 51.2%. Product revenue was $6.6 million, a 61.9%
increase to the same period in 1996. The product revenue improvement was driven
by increased PACS and Autorad systems sales. Service revenue was $0.7 million
for the three months ended March 31, 1997, essentially flat compared to the same
period in 1996.
Gross profit for the first quarter of 1997 was $2.4 million or 33.5% of
revenues compared to $2.3 million or 48.1% for the first quarter of 1996. The
gross margin change was the result of the significant mix changes between the
systems and OEM software business, due to one time OEM contracts in the first
quarter of 1996, and the increased investment in the service business in the
first quarter of 1997. During the first quarter of 1996, Cemax-Icon had $2.7
million of license agreements, primarily from Toshiba, Imation and Kodak. These
agreements were primarily software with gross margins in the range of 90% to
95%. During the first quarter of 1997, the total OEM business segment accounted
for $1.5 million of revenue, 45.8% lower than prior year. Direct systems
business accounted for $5.1 million of revenue with a gross margin of 49.2 % for
the first quarter of 1997 compared to $1.4 million of revenue the prior year.
Service gross profit(loss) for the first quarter of 1997 was ($0.7)
million, or (92.8%) of service revenues, compared to a break even gross profit
for the first quarter of 1996. Cost of service revenue includes cost related to
pre-installation logistics, on-site installation, technical support and spare
parts. This increase in total dollar spending relates directly to increased
staffing and service activities.
Research and development expenses include expenses associated with the
development of new products, enhancements of existing products and quality
assurance activities, and consist principally of personnel costs, overhead costs
relating to occupancy, equipment depreciation and supplies. Cost related to
research, design and development of products are charged to research and
development expense as incurred. Research and development expenses were $1.6
million for the three months ended March 31, 1997 compared to $1.6 million for
the same period of 1996. As a percentage of total revenues, these expenses were
22.5% in the first three months of 1997, compared to 33.6% for the first quarter
of 1996.
Sales, general and administrative expenses consist of salaries, sales
commissions, promotional expenses, legal and travel for sales, marketing and
finance staffs. Sales, general and administrative expenses were $1.7 million for
the three months ended March 31, 1997 and $1.5 million for the first quarter of
1996. The increase in spending was due primarily to increases in sales and
marketing headcount and related travel expenses. As a percentage of total
revenues, sales, general and administrative expenses improved to 23.2% of total
revenues for first quarter of 1997, compared to 31.3% in the first quarter of
1996.
Comparison of the Years Ended December 31, 1996, 1995 and 1994
Cemax-Icon's total revenues were $25.1 million, $17.0 million and $16.5
million in 1996, 1995 and 1994, respectively, increasing 47.7% from 1995 to
1996, and 3.5% from 1994 to 1995. Product revenue was $21.8 million, $15.1
million and $15.0 million in 1996, 1995 and 1994, respectively, increasing 45.0%
from 1995 to 1996 and 0.3% from 1994 to 1995. The increase from 1995 to 1996
resulted primarily from increased volumes in the PACS and Autorad product lines,
and increased licensing revenues from OEMs. From 1994 to 1995, product revenues
were relatively flat due to the adverse effect of the merger of Cemax, Inc. and
Icon Medical Systems, Inc. and related restructuring, which temporarily
disrupted the sales organization and sales activities. Service revenue was $3.3
million, $2.0 million and $1.4 million in 1996, 1995 and 1994 respectively. The
increase from 1995 to 1996 and from 1994 to 1995 was the result of increased
staffing levels and management's focus on providing increased service offerings
to customers.
International revenue represents revenue from customers located outside
North America, primarily Europe and Japan. International revenue (export sales)
as a percentage of total revenues represented approximately 24%, 17% and 22% in
1996, 1995 and 1994, respectively. All sales are denominated in United States
dollars.
Gross profit was $10.7 million, $6.5 million and $7.7 million in 1996,
1995 and 1994 respectively. Gross profit from product revenue was $11.8 million,
$7.3 million and $7.9 million, respectively. The improvement in gross margin
from 1995 to 1996 reflects the mix change of higher OEM business during the
period as well as the growth in the more profitable PACS and Autorad product
lines. The decrease in gross margin from 1994 to 1995 was due to price erosion
on certain mature products. Gross profit(loss) from service revenue was ($1.1)
million, ($0.7) million, and ($0.2) million in 1996, 1995 and 1994,
respectively. The increase in the cost of service revenue across all three
periods resulted from Cemax-Icon's increased investment in customer service and
support.
Research and development expenses were $6.5 million, $6.5 million and
$4.1 million, respectively, unchanged from 1995 to 1996 and increasing 57.3%
from 1994 to 1995. Increased expenses from 1994 to 1995 were due to increased
investment associated with integrating the product lines of Cemax, Inc. and Icon
Medical Systems, Inc. following the merger, as well as costs associated with
developing new products. Research and development expenses as a percentage of
total revenues were 25.8%, 38.2% and 25.1% in 1996, 1995 and 1994, respectively.
Sales, general and administrative expenses were $7.2 million, $6.2
million and $6.0 million in 1996, 1995 and 1994, respectively. The increase from
1995 to 1996 was due to an increase in the bad debt reserve of $0.5 million and
increases to sales and marketing headcount, including related travel costs. The
increase from 1994 to 1995 was due to increased promotional expenses related to
an industry trade show. Sales, general and administrative expenses as a
percentage of total revenues were 28.5%, 36.6% and 36.5% in 1996, 1995 and 1994,
respectively.
LIQUIDITY AND CAPITAL RESOURCES
Comparison of the Three Months Ended March 31, 1997 and 1996
Cemax-Icon's cash and cash equivalents were $3.3 million at March 31
1997, down from $6.3 million at year end 1996. Cash used from operating
activities was $2.5 million during the first quarter of 1997 compared to $0.1
million provided by operating activities in the first quarter of 1996. This
change was primarily due to the growth in receivables and inventories resulting
from $7.3 million of revenue during the quarter. Cash used in investing
activities was $0.4 million during the quarter which represented expenditures
for computer equipment in support of headcount growth. Cash used in financing
was $0.1 million which included the paydown of existing equipment loans.
Comparison of the Years Ended December 31, 1996, 1995 and 1994
Cemax-Icon's cash and cash equivalents balance was $6.3 million, $1.8
million and $2.5 million at December 31, 1996, 1995 and 1994, respectively. Cash
used in operating activities was $1.8 million during 1996, resulting primarily
from a $3.1 million net loss and increases to accounts receivable and
inventories of $2.0 million and $0.9 million, respectively. The increases to
accounts receivable and inventories were a result of revenue growth during the
year from $17.0 million in 1995 to $25.1 million in 1996. Cash was provided by
increases to accounts payable, other accrued liabilities and deferred revenue.
During 1995, cash used in operating activities was $5.9 million, resulting
primarily from a $6.8 million net loss and increases to accounts receivable and
inventories of $1.8 million and $0.6 million, respectively. Offsets during 1995
included increases to accounts payable, other accrued liabilities and deferred
revenue. During 1994, cash provided by operating activities was $0.8 million
resulting from a $2.6 million net loss, offset by increases to accounts payable,
other accrued liabilities and deferred revenue.
Cash used in investing activities was $1.1 million, $1.4 million and
$0.9 million during 1996, 1995 and 1994. These expenditures were primarily for
computer equipment in support of headcount growth.
Cash provided by financing activities was $7.4 million, $6.5 million
and $0.7 million during 1996, 1995 and 1994. In September 1996, Imation
exercised an outstanding warrant for 535,855 shares of Cemax-Icon Preferred
Stock for $2.1 million. Also in September 1996, Cemax-Icon issued a $5.0 million
convertible note payable to Dominion Fund IV. In addition, Cemax-Icon issued
$0.5 million of Cemax-Icon Common Stock upon the exercise of stock options and
warrants. During June 1995, Cemax-Icon issued 1,985,878 shares of Cemax-Icon
Preferred Stock to Imation for $6.9 million. During 1994, $0.7 million of cash
was provided by proceeds from equipment financing, a revolving line of credit
and proceeds from a note payable.
DESCRIPTION OF IMATION CAPITAL STOCK
AUTHORIZED CAPITAL STOCK
Under Imation's Certificate of Incorporation, the total number of
shares of all classes of stock that Imation has authority to issue is
125,000,000, of which 25,000,000 are shares of preferred stock and 100,000,000
are shares of Imation Common Stock.
IMATION COMMON STOCK
The holders of Imation Common Stock are entitled to one vote for each
share on all matters voted on by stockholders, and the holders of such shares
possess all voting power, except as otherwise required by law or provided in any
resolution adopted by the Board of Directors of Imation with respect to any
series of preferred stock of Imation (the "Imation Preferred Stock"). Subject to
any preferential or other rights of any outstanding series of Imation Preferred
Stock that may be designated by the Board of Directors of Imation, the holders
of Imation Common Stock are entitled to such dividends as may be declared from
time to time by the Board of Directors of Imation from funds available therefor,
and upon liquidation are entitled to receive pro rata all assets of Imation
available for distribution to such holders.
IMATION PREFERRED STOCK
The Board of Directors of Imation are authorized to provide for the
issuance of shares of preferred stock, in one or more series, and to fix for
each such series such voting powers, designations, preferences and relative,
participating, optional and other special rights, and such qualifications,
limitations or restrictions, as are stated in the resolution adopted by the
Board of Directors of Imation providing for the issuance of such series as are
permitted by the DGCL.
NO PREEMPTIVE RIGHTS
No holder of any stock of Imation of any class has any preemptive right
to subscribe to any securities of Imation of any kind or class.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Imation Common Stock is
Norwest Bank Minnesota, N.A.
DESCRIPTION OF CONTINGENT PAYMENT RIGHTS
THE FOLLOWING INFORMATION DESCRIBES THE MATERIAL ASPECTS OF THE
CONTINGENT PAYMENT RIGHTS. THIS DESCRIPTION DOES NOT PURPORT TO BE COMPLETE AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE TERMS OF THE CONTINGENT PAYMENT
RIGHTS WHICH IS ATTACHED TO THIS PROXY STATEMENT/PROSPECTUS AS EXHIBIT C AND IS
INCORPORATED HEREIN BY REFERENCE. ALL STOCKHOLDERS ARE URGED TO READ EXHIBIT C
IN ITS ENTIRETY.
Pursuant to the Merger Agreement, Imation has agreed to deliver to each
holder of shares of Cemax-Icon Common Stock one Contingent Payment Right per
share of Cemax-Icon Common Stock. Each Contingent Payment Right will represent
only a right to receive a cash or stock payment (the "Earn-Out") from Imation,
subject to the terms set forth below. Contingent Payment Rights will not possess
any attributes of common stock and will not entitle the holders of the
Contingent Payment Rights to any rights of any kind other than as specifically
set forth therein.
DETERMINATION OF EARN-OUT
Each Contingent Payment Right will represent only a right to receive
the Earn-Out from Imation. The term "Earn-Out Year" refers to each of the
following twelve-month periods: (a) the period from July 1, 1997 through June
30, 1998 (the "First Earn-Out Year"), and (b) the period from July 1, 1998
through June 30, 1999 (the "Second Earn-Out Year"). Holders of Contingent
Payment Rights will be entitled to receive the Earn-Out no later than 30 days
after the Determination Date (as defined below) for each Earn-Out Year. The term
"Determination Date" means the date of final determination of Gross Revenues (as
defined below) for an Earn-Out Year as set forth below.
Subject to Imation's right of offset set forth in the Merger Agreement,
the Earn-Out in the First Earn-Out Year will be $2.50 in cash (the "1998
Payment"), in the event that Gross Revenues during the First Earn-Out Year
("1998 Gross Revenues"), equal or exceed $45,000,000. In the event that 1998
Gross Revenues are less than $45,000,000, the 1998 Payment will be reduced as
follows:
1998 Gross Revenues
---------------------------------------- Adjusted Amount of
Equal or Greater Than Less Than 1998 Payment
--------------------- ------------ ------------------
$0 $35 million $0.00
$35 million $36 million $1.25
$36 million $37 million $1.45
$37 million $38 million $1.65
$38 million $39 million $1.85
$39 million $40 million $2.05
$40 million $45 million Pro rata portion
of $2.50
The aggregate 1998 Payment payable to each holder of the Contingent
Payment Rights ("Holders"), may be paid, at the election of such Holder, in
whole shares of Imation Common Stock equal to the aggregate number of Contingent
Payment Rights held by such Holder multiplied by the quotient of (i) the 1998
Payment, as adjusted if appropriate, and (ii) the average closing price per
share of Imation Common Stock on the New York Stock Exchange--Composite
Transactions, as reported in The Wall Street Journal, for each of the 10
consecutive trading days ending on the third business day prior to June 30,
1998.
In the event that 1998 Gross Revenues exceed $45,000,000, any such
excess up to $5,000,000 will be carried forward and counted as part of 1999
Gross Revenues (as defined below).
Subject to Imation's right of offset set forth in the Merger Agreement,
the Earn-Out in the Second Earn-Out Year will be $6.00 in cash (the "1999
Payment"), in the event that Gross Revenues during the twelve-month period from
July 1, 1998 through June 30, 1999, plus any amount of 1998 Gross Revenues
carried forward as set forth above ("1999 Gross Revenues"), equal or exceed
$60,000,000. In the event that 1999 Gross Revenues are less than $60,000,000,
the 1999 Payment will be reduced as follows:
1999 Gross Revenues
---------------------------------------- Adjusted Amount of
Equal or Greater Than Less Than 1999 Payment
--------------------- ------------ ------------------
$0 $50 million $0.00
$50 million $51 million $3.00
$51 million $52 million $3.50
$52 million $53 million $4.00
$53 million $54 million $4.50
$54 million $55 million $5.00
$55 million $60 million Pro rata portion
of $6.00
In the event that 1998 Gross Revenues are less than $45,000,000 and
1999 Gross Revenues exceed $60,000,000, the amount of 1999 Gross Revenues in
excess of $60,000,000, up to $5,000,000, will be treated as 1998 Gross Revenues
and the 1999 Payment will be increased above $6.00 by an amount equal to the
difference between (i) the amount of the 1998 Payment computed after including
such excess 1999 Gross Revenues and (ii) the amount of the 1998 Payment.
The aggregate 1999 Payment payable to each Holder may be paid, at the
election of such Holder, in whole shares of Imation Common Stock equal to the
product of (i) the 1999 Payment, as adjusted if appropriate, divided by $6.00,
(ii) 0.17 and (iii) the aggregate number of Contingent Payment Rights held by
such Holder. Based on this formula, the market price of Imation Common Stock at
the time of such payment must exceed $35.29 per share in order for the value of
the stock election to exceed the value of the cash election at such time.
The term "Gross Revenues" means gross revenues of the Image Management
Systems Business (as defined below) of Imation, Cemax-Icon, the Surviving
Corporation and their affiliated companies, reduced only by customer trade
discounts actually given in good faith and actual returns, and determined in
accordance with generally accepted accounting principles consistent with past
practices of Cemax-Icon and its annual financial statements; provided that the
Surviving Corporation will receive credit for the full commercial value (as
represented by standard sales prices) of any product (a) provided by the
Surviving Corporation to any other business division of Imation for resale, or
(b) given or sold by the Surviving Corporation at the direction of Imation or
one of its affiliated companies (other than the Surviving Corporation) to
customers at a discount to induce the purchase of products or services (other
than products or services of the Image Management Systems Business) of Imation
or its affiliated companies. Gross Revenues will not include revenues of the
Image Management Systems Business of Imation, the Surviving Corporation or their
affiliated companies attributable to the acquisition (by purchase, license or
other means) of any related businesses, products or services in a single
transaction or series of transactions after the Effective Time.
The term "Image Management Systems Business" means (i) products
currently sold by Cemax-Icon or under research and/or development by Cemax-Icon
and any natural extensions thereof, and (ii) services related to such products
provided by Cemax-Icon, Imation or their affiliated companies.
PAYMENT ELECTION PROCEDURE
Holders of Contingent Payment Rights may elect whether to receive any
payment to which they are entitled thereunder in cash or shares of Imation
Common Stock. To facilitate such election, Imation will provide written notice
to the Holders (either the "1998 Earn-Out Notice" or "1999 Earn-Out Notice," as
applicable), together with a current Prospectus containing updated disclosure of
the information contained in this Proxy Statement/Prospectus, within 15 days
after the Determination Date for 1998 Gross Revenues or 1999 Gross Revenues, as
applicable, which notice will specify the amount of the 1998 Payment or 1999
Payment, as applicable, and the amount of Imation Common Stock receivable in
lieu of cash in connection with the 1998 Payment or 1999 Payment, as applicable.
Each Holder may elect to receive Imation Common Stock in lieu of all (but not
less than all) of the cash otherwise payable in connection with the 1998 Payment
or 1999 Payment, as applicable, by providing written notice of such election to
Imation within 15 days after receiving the 1998 Earn-Out Notice or 1999 Earn-Out
Notice, as applicable. Any Holder which does not provide such written notice
will receive solely cash in connection with the 1998 Payment or 1999 Payment, as
applicable.
DETERMINATION OF GROSS REVENUES BY IMATION
Within 15 days after the end of each Earn-Out Year, Imation will
prepare and deliver to the Stockholders' Representatives a statement (an
"Earn-Out Statement"), certified as being true and correct in all material
respects by an officer of Imation, which will identify the Gross Revenues for
such Earn-Out Year in reasonable detail and the Earn-Out resulting from such
Gross Revenues.
The Earn-Out Statement will be subject to review and verification by
the Stockholders' Representatives or, at their option and expense (unless such
accounting firm will discover a discrepancy of at least ten percent, in which
case the fees of such accounting firm will be paid by Imation), by an
independent public accounting firm of their choice. Imation will permit the
Stockholders' Representatives and their representatives to have reasonable
access to the data and information on which the Earn-Out Statement was prepared
and to Imation's employees and/or representatives who assisted in its
preparation to the extent necessary to verify such information.
The Stockholders' Representatives will be deemed to have accepted the
Earn-Out Statement and the Earn-Out indicated therein, on behalf of the Holders,
unless within 20 days after the date of delivery of the Earn-Out Statement, the
Stockholders' Representatives give written notice to Imation of objection to any
item thereon, which notice will specify in reasonable detail the basis for such
objection. If the Stockholders' Representatives give such notice of objection,
Imation and the Stockholders' Representatives will attempt in good faith to
resolve the dispute as promptly as possible.
If Imation and the Stockholders' Representatives have not been able to
agree upon a resolution of the dispute within 30 days after the date the
Stockholders' Representatives gave such notice of objection (the "Objection
Notice"), such dispute will be resolved fully and finally in the jurisdiction of
the principal office of Imation by an arbitration governed by the Center for
Public Resources Rules for Non-Administered Arbitration of Business Disputes,
provided that a sole arbitrator will be employed. The arbitration will be
governed by the state equivalent of the Federal Arbitration Act, 9 U.S.C. ss.
1-16, and judgment upon the award rendered by the arbitrator may be entered by
any court having jurisdiction thereof. The parties will have 10 days from the
end of the discussion among the Stockholders' Representatives and Imation to
agree upon a mutually acceptable person to act as arbitrator. The arbitrator
will be a neutral person (i.e., a person not affiliated with either of the
parties). If no arbitrator has been selected within such time, the Stockholders'
Representatives and Imation will jointly request the Center for Public Resources
or another mutually agreed upon organization to supply within 10 days of such
request 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
Stockholders' Representatives and Imation will independently rank the proposed
candidates, will simultaneously exchange rankings, and will be deemed to have
selected as the arbitrator the individual receiving the highest combined ranking
who is available to serve. If there is a tie, then the tie will be broken by
putting the names on slips of paper, mixing them up and having one party draw
one slip of paper. If either the Stockholders' Representatives or Imation will
not cooperate in the selection of the arbitrator, the other may solely select
the arbitrator utilizing the procedures set forth in the Merger Agreement. The
costs of arbitration will be apportioned between the Stockholders'
Representatives and Imation as determined by the arbitrator in such manner as
the arbitrator deems reasonable taking into account the circumstances of the
case, the conduct of the parties during the proceeding, and the result of the
arbitration.
Notwithstanding any of the foregoing, any amount which is due and
payable and not in dispute will immediately be paid to the Paying Agent or the
Stockholders' Representatives. Any disputed amount will be deposited into escrow
on terms as set forth in the Merger Agreement. Nothing contained in the Merger
Agreement will act to prevent Cemax-Icon or the Stockholders' Representatives
from commencing litigation to compel payment of any due and payable amounts not
in dispute thereunder.
The Earn-Out payments, if any, will not include any interest computed
from the Effective Time of the Merger to the date of each such payment.
NONTRANSFERABILITY
The Contingent Payment Rights are personal to each initial holder
thereof and are and will remain nontransferable for any reason other than by
operation of law or by will or the laws of descent and distribution. Any
attempted transfer of a Contingent Payment Right by any holder thereof (other
than as set forth in the preceding sentence) will be null and void.
Consequently, the Contingent Payment Rights are an illiquid investment until
such time as any payments due thereunder are made.
PAYMENT OF THE EARN-OUT
Payment of the Earn-Out will be made by Imation to the Paying Agent
together with a letter of instructions for payment no later than 30 days after
Determination Date for each Earn-Out Year, for distribution by the Paying Agent
as promptly as practicable thereafter, after taking such action as is necessary
to assure that all applicable federal or state payroll, income withholding and
any other taxes are withheld, to the accounts of the Holders in accordance with
their respective ownership interests as of the Effective Time.
Payment of the Earn-Out is contingent upon the ability of the Image
Management Systems Business to achieve the Gross Revenues targets specified
above. It is possible that such Gross Revenues targets will not be achieved for
any number of reasons, including the risk factors relating to Cemax-Icon and
Imation discussed herein. See "RISK FACTORS." Although Imation has agreed
pursuant to the Merger Agreement to make certain expenditures to support the
Image Management Systems Business following the Effective Time, there can be no
assurance that such expenditures (or any other support) will be adequate for the
Gross Revenues targets to be achieved. If Gross Revenues targets are not
achieved, the amount of the Earn-Out payments will be reduced or eliminated as
described above. See "--Determination of Earn-Out."
RIGHT OF OFFSET
Imation will have the right to offset the amount of each Earn-Out by
Losses in accordance with the Merger Agreement, but will have no other right to
reduce or offset the amount of each Earn Out. Under the terms of the Merger
Agreement, Imation is required to promptly notify the Stockholders'
Representatives in writing of the nature of any Claim (as defined in the Merger
Agreement) and Imation's estimate of the Losses (as defined in the Merger
Agreement) arising therefrom. To exercise its offset rights, Imation is required
to deliver to the Stockholders' Representatives a schedule signed by an officer
of Imation reflecting the revised payments due or to become due under the
Contingent Payment Rights. Imation's right to exercise its offset rights is
subject to certain exceptions as provided in the Merger Agreement, including,
but not limited to, the right by Imation to exercise its offset rights only
after the aggregate of Losses exceeds $250,000 and then only up to an aggregate
amount not exceeding $9,650,979, subject in each case to certain exceptions. In
the event Imation has a claim giving rise to an offset right which does not
involve a third party claim or proceeding, Imation is required to deliver notice
of such claim to the Stockholders' Representatives. The Stockholders'
Representatives may arbitrate resolution of any such claim which they timely
dispute as described in the Merger Agreement. All offsets made pursuant to
Imation's offset rights will be applied against the Contingent Payment Rights on
a pro rata basis. See "THE MERGER AGREEMENT--Survival and Offset." If Imation
has the right to offset an Earn-Out payment, the amount of such Earn-Out payment
may be reduced or eliminated.
LEGAL MATTERS
The validity of the Contingent Payment Rights to be issued in
connection with the Merger and any shares of Imation Common Stock to be issued
upon payment of the Contingent Payment Rights will be passed upon for Imation by
Dorsey & Whitney LLP.
EXPERTS
The consolidated balance sheets as of December 31, 1996 and 1995, and
the consolidated statements of operations and cash flows for each of the three
years in the period ended December 31, 1996 of Imation, included in this Proxy
Statement/Prospectus, have been included herein in reliance on the report of
Coopers & Lybrand L.L.P., independent accountants, given on the authority of
that firm as experts in auditing and accounting. With respect to the unaudited
interim consolidated financial information for the periods ended March 31, 1997
and 1996 of Imation, included in this Proxy Statement/Prospectus, Coopers &
Lybrand L.L.P. has reported that they have applied limited procedures in
accordance with professional standards for a review of such information.
However, their separate report included in the Company's quarterly report on
Form 10-Q for the quarter ended March 31, 1997, and included herein, states that
they did not audit and they do not express an opinion on that interim
consolidated financial information. Accordingly, the degree of reliance on their
report on such information should be restricted in light of the limited nature
of the review procedures applied. Coopers & Lybrand L.L.P. is not subject to the
liability provisions of Section 11 of the Securities Act for their report on the
unaudited interim consolidated financial information because that report is not
a "report" or a "part" of the Registration Statement prepared or certified by
the accountants within the meaning of Sections 7 and 11 of the Securities Act.
The financial statements of Cemax-Icon, Inc. at December 31, 1995 and
1996, and for each of the three years in the period ended December 31, 1996,
included in the Proxy Statement of Cemax-Icon, which is referred to and made a
part of this Prospectus and Registration Statement, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report appearing
elsewhere herein, and are included in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
OTHER MATTERS
The management of Cemax-Icon is not aware of any other business that
may come before the Special Meeting. However, if additional matters properly
come before the Special Meeting, proxies will be voted at the discretion of the
proxy holders.
INDEX TO FINANCIAL STATEMENTS
Page
----
IMATION CORP. AUDITED CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Accountants.......................................F-2
Consolidated Statements of Operations for the years ended
December 31, 1996, 1995 and 1994....................................F-3
Consolidated Balance Sheets as of December 31, 1996 and 1995............F-4
Consolidated Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994....................................F-5
Notes to Consolidated Financial Statements..............................F-6
IMATION CORP. UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
Report of Independent Accountants......................................F-22
Consolidated Statements of Operations for the
three month periods ended March 31, 1997 and 1996.................F-23
Condensed Consolidated Balance Sheets as of March 31, 1997
and December 31, 1996.............................................F-24
Condensed Consolidated Statements of Cash Flows for the
three month periods ended March 31, 1997 and 1996..................F-25
Notes to Consolidated Financial Statements.............................F-26
CEMAX-ICON, INC. AUDITED FINANCIAL STATEMENTS
Report of Independent Auditors.........................................F-29
Statements of Operations for the years ended
December 31, 1996, 1995 and 1994...................................F-30
Balance Sheets as of December 31, 1996 and 1995........................F-31
Statements of Stockholders' Equity (Net Capital Deficiency)
for the years ended December 31, 1996, 1995 and 1994..............F-32
Statements of Cash Flows for the years ended
December 31, 1996, 1995 and 1994...................................F-33
Notes to Financial Statements..........................................F-35
CEMAX-ICON, INC. UNAUDITED FINANCIAL STATEMENTS
Statements of Operations for the three month periods ended
March 31, 1997 and 1996............................................F-43
Balance Sheets as of March 31, 1997 and December 31, 1996..............F-44
Statements of Cash Flows for the three month periods ended
March 31, 1997 and 1996............................................F-45
Notes to Financial Statements..........................................F-46
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders, Imation Corp.:
We have audited the accompanying consolidated balance sheets of Imation
Corp. and subsidiaries as of December 31, 1996 and 1995, and the related
consolidated statements of operations and cash flows for each of the three years
in the period ended December 31, 1996. These financial statements are the
responsibility of the Company'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 financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Imation
Corp. and subsidiaries as of December 31, 1996 and 1995, and the consolidated
results of their operations and their cash flows for each of the three years in
the period ended December 31, 1996, in conformity with generally accepted
accounting principles.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
February 14, 1997
IMATION CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share amounts)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------
1996 1995 1994
----------- ----------- -----------
<S> <C> <C> <C>
Net revenues ...................................... $ 2,278.2 $ 2,245.6 $ 2,280.5
Cost of goods sold ................................ 1,482.8 1,520.9 1,442.0
----------- ----------- -----------
Gross profit ...................................... 795.4 724.7 838.5
Operating expenses:
Selling, general and administrative ............ 563.0 539.4 531.5
Research and development ....................... 183.1 222.4 211.2
Restructuring charges .......................... 53.9 111.8 --
----------- ----------- -----------
Total operating expenses ..................... 800.0 873.6 742.7
Other income and expenses:
Operating income (loss) ........................ (4.6) (148.9) 95.8
Interest expense and other ..................... 10.4 17.9 14.5
----------- ----------- -----------
Income (loss) before tax and minority interest . (15.0) (166.8) 81.3
Income tax provision (benefit) .................... 5.9 (70.5) 29.3
Minority interest ................................. (0.4) (11.3) (2.3)
----------- ----------- -----------
Net income (loss) ................................. $ (20.5) $ (85.0) $ 54.3
----------- ----------- -----------
Earnings (loss) per common share................... $ (0.49) $ (2.02) $ 1.28
----------- ----------- -----------
Average shares outstanding ........................ 41.3 42.0 42.3
----------- ----------- -----------
</TABLE>
THE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARE AN INTEGRAL PART
OF THESE STATEMENTS.
IMATION CORP.
CONSOLIDATED BALANCE SHEETS
(In millions, except share amounts)
<TABLE>
<CAPTION>
As of December 31,
----------------------
1996 1995
---------- ----------
ASSETS:
Current Assets
<S> <C> <C>
Cash and equivalents .............................................. $ 61.7 $ --
Accounts receivable, net .......................................... 467.6 479.5
Inventories ....................................................... 392.8 426.3
Other current assets .............................................. 94.5 48.8
---------- ----------
Total current assets ............................................ 1,016.6 954.6
Property, Plant and Equipment, Net ................................... 480.1 513.2
Other Assets ......................................................... 64.6 73.7
---------- ----------
Total Assets .................................................... $ 1,561.3 $ 1,541.5
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY:
Current Liabilities
Accounts payable .................................................. $ 182.1 $ 125.9
Accrued payroll ................................................... 41.9 44.4
Income taxes payable .............................................. 7.6 --
Short-term debt ................................................... 26.5 --
Other current liabilities ......................................... 151.2 125.9
---------- ----------
Total current liabilities ....................................... 409.3 296.2
Other Liabilities .................................................... 98.6 96.6
Long-term Debt ....................................................... 123.1 --
Commitments and Contingencies
Shareholders' Equity
Preferred stock, $.01 par value, authorized 25,000,000 shares, none
issued and outstanding .......................................... -- --
Common stock, $.01 par value, authorized 100,000,000 shares,
issued and outstanding 42,879,880 as of December 31, 1996 ...... .4 --
Additional paid-in capital ........................................ 1,011.5 --
Retained earnings ................................................. 11.2 --
Unearned ESOP shares .............................................. (46.6) --
Cumulative translation adjustment ................................. (46.2) (39.1)
Net investment by 3M .............................................. -- 1,187.8
---------- ----------
Total shareholders' equity ...................................... 930.3 1,148.7
---------- ----------
Total Liabilities and Shareholders' Equity ...................... $ 1,561.3 $ 1,541.5
========== ==========
</TABLE>
THE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARE AN INTEGRAL PART
OF THESE STATEMENTS.
IMATION CORP.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) ..................................... $ (20.5) $ (85.0) $ 54.3
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation ........................................ 181.1 189.5 185.9
Deferred income taxes ............................... 12.6 (68.1) 14.0
Restructuring and other one-time charges ............ 88.4 166.3 --
Accounts receivable ................................. 12.0 (0.6) (16.8)
Inventories ......................................... 22.3 25.4 (87.8)
Other current assets ................................ (29.8) 1.1 (1.1)
Accounts payable .................................... 73.7 (4.5) 11.7
Accrued payroll and other current liabilities. (37.9) 9.3 2.2
Other ............................................... 4.1 23.4 7.7
--------- --------- ---------
Net cash provided by operating activities ......... 306.0 256.8 170.1
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures ................................... (167.4) (180.2) (182.7)
Capitalized software ................................... (13.5) -- --
Other .................................................. (3.7) (7.3) 3.0
--------- --------- ---------
Net cash used in investing activities ............. (184.6) (187.5) (179.7)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net change in short-term debt .......................... 25.4 -- --
Borrowings on long-term debt ........................... 270.3 -- --
Repayment of long-term debt ............................ (146.3) -- --
Loan to ESOP ........................................... (50.0) -- --
Decrease in unearned ESOP shares ....................... 3.4 -- --
Net cash (paid to) received from 3M .................... (155.9) (72.9) 18.5
--------- --------- ---------
Net cash (used in) provided
by financing activities ......................... (53.1) (72.9) 18.5
Effect of exchange rate changes on cash ................ (6.6) 3.6 (8.9)
--------- --------- ---------
Change in cash and equivalents ......................... 61.7 -- --
Cash and equivalents - beginning of year ............... -- -- --
--------- --------- ---------
Cash and equivalents - end of year ..................... $ 61.7 $ -- $ --
--------- --------- ---------
</TABLE>
THE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARE AN INTEGRAL PART
OF THESE STATEMENTS.
IMATION CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. BACKGROUND AND BASIS OF PRESENTATION
BACKGROUND
Imation Corp. (the "Company") became an independent, publicly held
company as of July 1, 1996 (the "Distribution Date"), when Minnesota Mining and
Manufacturing Company ("3M") spun off its data storage and imaging systems
businesses as an independent, publicly owned company (the "Distribution"). One
share of the Company's common stock was issued for every ten shares of 3M stock
outstanding to stockholders of record on June 18, 1996.
BASIS OF PRESENTATION
Subsequent to the Distribution, the consolidated financial statements
include the accounts and operations of the Company on a stand-alone basis. 3M
and the Company have entered into a number of agreements to facilitate the
transition of the Company to an independent business enterprise.
Prior to the Distribution, the consolidated financial statements
reflect the assets, liabilities, revenues and expenses that were directly
related to the Company as they were operated within 3M. Where assets and
liabilities were not specifically identifiable to any particular business of 3M,
only those assets and liabilities transferred to the Company are included in the
Company's consolidated balance sheets. Regardless of the allocation of these
assets and liabilities, however, the Company's consolidated statements of
operations include all of the related costs of doing business including an
allocation of certain general corporate expenses of 3M which were not directly
related to the Company including costs for corporate logistics, corporate
research and development, information technologies, finance, legal and corporate
executives. These allocations were based on a variety of factors including, for
example, personnel, space, time and effort, and sales volume. Management
believes these allocations were made on a reasonable basis.
Cash and equivalents and debt were not allocated to the Company in the
financial statements as 3M uses a centralized approach to cash management and
the financing of its operations. The consolidated statements of operations
include an allocation of 3M's interest expense (see Note 7). The Company's
financing requirements are represented by cash transactions with 3M and are
reflected in the "Net Investment by 3M" account (see Note 9). Certain assets and
liabilities of 3M such as certain employee benefit and income tax-related
balances have not been allocated to the Company and are included in the Net
Investment by 3M account. Activity in the Net Investment by 3M equity account
relates to net cash flows of the Company as well as changes in the assets and
liabilities not allocated to the Company.
The Company also participated in 3M's centralized interest rate risk
management function. As part of this activity, derivative financial instruments
were utilized to manage risks generally associated with interest rate market
volatility. 3M did not hold or issue derivative financial instruments for
trading purposes. 3M was not a party to leveraged derivatives. The consolidated
balance sheets of the Company do not reflect any of the associated asset or
liability positions resulting from this activity because the Company did not
assume any of 3M's derivative financial instruments in connection with the
Distribution. The consolidated statements of operations and statements of cash
flows, however, do reflect an allocation of the related gains and losses. Such
gains and losses were recognized by 3M as interest expense over the borrowing
period and, as a result, are reflected in the effective interest rates utilized
by the Company in deriving its interest expense.
The minority interest within the consolidated statements of operations
gives recognition to the Company's share of net income (loss) of certain
majority owned subsidiaries of 3M. The minority shareholders' proportionate
interests in the Company's net assets of majority owned subsidiaries have not
been presented in the consolidated balance sheets as the Company obtained 100
percent ownership of the assets and liabilities of these subsidiaries in
connection with the Distribution.
The financial information included herein for periods prior to the
Distribution may not necessarily be indicative of the financial position,
results of operations or cash flows of Company if it had been a separate,
independent company during the periods prior to the Distribution.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
CONSOLIDATION
Commencing with the Distribution, the consolidated financial statements
include the accounts of the Company and its wholly-owned subsidiaries. Prior to
the Distribution, the consolidated financial statements include the accounts of
the Company as described in Note 1. All significant intercompany transactions
and balances have been eliminated.
FOREIGN CURRENCY
Local currencies are considered the functional currencies outside the
U.S. except for Imation Europe B.V., the Company's European holding company, and
subsidiaries located in highly inflationary economies. For operations in local
currency environments, assets and liabilities are translated at year-end
exchange rates with cumulative translation adjustments included as a component
of shareholders' equity. Income and expense items are translated at average
rates of exchange prevailing during the year. For operations in which the U.S.
dollar is considered the functional currency, certain financial statement
amounts are translated at historical exchange rates, with all other assets and
liabilities translated at year-end exchange rates. These translation adjustments
are reflected in the results of operations.
The Company enters into foreign currency forward exchange and
derivative contracts to hedge foreign currency transaction exposures. Gains and
losses arising from foreign currency contracts offset gains and losses resulting
from the underlying hedged transactions. The Company's policy is to selectively
hedge anticipated transaction exposures. Aggregated transaction gains and losses
included in the determination of net income (loss) are not material for any
period presented. As of December 31, 1996, the notional amount of outstanding
forward contracts was not material.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates. Principal
areas requiring the use of estimates include: the allocation of financial
statement amounts between the Company and 3M for periods prior to the
Distribution, determination of allowances for uncollectible accounts receivable
and obsolete/excess inventories, and assessments of the recoverability of
deferred tax assets and certain long-lived assets.
CASH EQUIVALENTS
Cash equivalents consist of temporary investments purchased with
original maturities of three months or less.
INVENTORIES
Inventories are stated at the lower of cost or market, with cost
generally determined on a first-in first-out basis.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are recorded at cost. Plant and equipment
are generally depreciated on a straight-line basis over their estimated useful
lives. Maintenance and repairs are expensed as incurred. Periodic reviews for
impairment of the carrying value of property, plant and equipment are made based
on undiscounted expected future cash flows.
OTHER ASSETS
Other assets consist primarily of deferred taxes, goodwill, capitalized
software and investments. Intangible assets are amortized over their useful
lives, which currently range from five to seven years. The carrying value of
intangible assets are periodically reviewed to assess recoverability based on
undiscounted expected future cash flows.
EMPLOYEE SEVERANCE INDEMNITIES
Employee severance indemnities consist of termination indemnities and
are accrued for each employee in accordance with labor legislation in each
applicable country.
REVENUE RECOGNITION
Revenue is recognized upon shipment of goods to customers or upon
performance of services. Revenues from service contracts are deferred and
recognized over the life of the contracts as service is performed.
CONCENTRATIONS OF CREDIT RISK
The Company sells a wide range of products and services to a
diversified base of customers around the world and performs ongoing credit
evaluations of its customers' financial condition, and therefore believes there
is no material concentration of credit risk.
RESEARCH AND DEVELOPMENT COSTS
Research and development costs are charged to expense as incurred.
ADVERTISING COSTS
Advertising costs are charged to expense as incurred and totaled $73
million, $52 million and $52 million in 1996, 1995 and 1994 respectively.
Advertising costs in 1996 include $22 million related to start-up costs for
identity development.
INCOME TAXES
Upon the Distribution, the Company became responsible for its income
taxes and will file its own income tax returns. Prior to the Distribution, the
Company did not file separate tax returns but rather was included in the income
tax returns filed by 3M and its subsidiaries in various domestic and foreign
jurisdictions. For purposes of the Company's consolidated financial statements
prior to the Distribution, the Company's allocated share of 3M's income tax
provision was based on the "separate return" method, except that the tax benefit
of the Company's tax losses in certain jurisdictions was allocated to the
Company on a current basis if such losses could be utilized by 3M in its tax
returns and an assessment of realizability of certain deferred tax assets was
made assuming the availability of future 3M taxable income. Had the Company's
1996 provision for income taxes been calculated on a purely "separate return"
method, the impact on the Company's 1996 results of operations would not have
been material. Prior to the Distribution, the balance of accrued current income
taxes for the Company's operations is included in the Net Investment by 3M
equity account because 3M paid all taxes and received all tax refunds on the
Company's behalf.
STOCK-BASED COMPENSATION
The Company adopted Statement of Financial Accounting Standards No.
123, "Accounting for Stock-Based Compensation", in 1996. This standard gives
entities the choice of recognizing stock-based compensation by adopting the new
fair value method or to continue to measure compensation expense using the
intrinsic value approach under Accounting Principles Board Opinion (APB) No. 25,
"Accounting for Stock Issued to Employees". The Company has chosen to account
for stock-based compensation under APB No. 25. Accordingly, compensation cost
for stock options is measured as the excess, if any, of the quoted market price
of the Company's common stock at the date of the grant over the amount an
employee must pay to acquire the stock.
EARNINGS PER SHARE
For periods after the Distribution, earnings per share are computed
using the weighted average shares outstanding during the period, net of
unallocated shares held by the Company's ESOP. Common share equivalents were not
material. For periods prior to the Distribution, the number of weighted average
shares outstanding used in the earnings per share calculation is one-tenth of
the weighted average number of 3M shares outstanding based on the distribution
of one share of the Company for ten shares of 3M pursuant to the Distribution.
3. ACQUISITION
In October 1996, the Company acquired all of the outstanding common and
preferred shares of Luminous Corporation (Luminous) for cash, 922,845 shares of
the Company common stock and assumption of Luminous' obligations under
outstanding employee stock options, which, after conversion to options to
purchase the Company common stock, represent options to purchase 317,062 shares
of the Company common stock. Luminous is a developer and marketer of desktop
software to the prepress, print production, printing and graphic arts
industries. The acquisition was accounted for using the purchase method of
accounting. The Company allocated a portion of the purchase price to in-process
research and development projects that had not yet reached technological
feasibility and had no probable alternative future uses, which resulted in a
one-time non-deductible charge of $12.0 million. The Company has allocated the
remaining excess purchase price over net assets acquired to goodwill which is
being amortized over seven years. Operating results for Luminous are included in
results of operations since the date of acquisition. The pro forma effect on
prior periods' results of operations is not material.
4. SUPPLEMENTAL BALANCE SHEET INFORMATION
1996 1995
----------- -----------
(In millions)
ACCOUNTS RECEIVABLE:
Accounts receivable ................. $ 490.9 $ 497.0
Less allowances ..................... (23.3) (17.5)
----------- -----------
Accounts receivable, net ......... $ 467.6 $ 479.5
INVENTORIES:
Finished goods ...................... $ 248.1 $ 244.0
Work in process ..................... 57.3 81.2
Raw materials and supplies .......... 87.4 101.1
----------- -----------
Total inventories ................ $ 392.8 $ 426.3
OTHER CURRENT ASSETS:
Deferred taxes ...................... $ 38.3 $ 23.4
Other ............................... 56.2 25.4
----------- -----------
Total other current assets ....... $ 94.5 $ 48.8
PROPERTY, PLANT AND EQUIPMENT:
Land ................................ $ 8.3 $ 7.7
Buildings and leasehold improvements 185.0 180.9
Machinery and equipment ............. 1,472.6 1,616.2
Construction in progress ............ 44.0 63.5
----------- -----------
Total ............................ 1,709.9 1,868.3
Less accumulated depreciation ....... 1,229.8 1,355.1
----------- -----------
Property, plant and equipment, net $ 480.1 $ 513.2
OTHER ASSETS:
Deferred taxes ...................... $ 8.1 $ 60.6
Other ............................... 56.5 13.1
----------- -----------
Total other assets ............... $ 64.6 $ 73.7
OTHER CURRENT LIABILITIES:
Accrued rebates ..................... $ 42.9 $ 44.6
Deferred income ..................... 26.1 35.8
Taxes other than income taxes ....... 23.2 11.7
Other ............................... 59.0 33.8
----------- -----------
Total other current liabilities .. $ 151.2 $ 125.9
OTHER LIABILITIES:
Employee severance indemnities ...... $ 49.3 $ 59.2
Other ............................... 49.3 37.4
----------- -----------
Total other liabilities .......... $ 98.6 $ 96.6
5. RESTRUCTURING CHARGES AND OTHER ONE-TIME COSTS
In late 1995, the Company initiated a review of all of its operations,
including its organizational structure, manufacturing operations, products and
markets. In connection with this review, the Company adopted a reorganization
plan to rationalize its manufacturing operations, streamline its organizational
structure and write-off impaired assets.
The Company has reflected restructuring and other one-time charges of
$254.7 million in its financial statements, partially in 1995 and partially in
1996 based upon the timing recognition criteria required for the restructuring
charges. The Company recorded $166.3 million of these charges ($88.3 million
after taxes and minority interest) in its 1995 financial statements and an
additional $88.4 million ($60.6 million after taxes) in 1996.
The 1995 special charges of $166.3 million includes $111.8 million
related to world-wide manufacturing rationalization programs to exit less
profitable manufacturing locations and to centralize manufacturing in the U.S.
and in Italy, and consists principally of write-offs of property, plant and
equipment. This $111.8 million charge is included as a separate restructuring
charge in the statement of operations. The remaining 1995 special charges of
$54.5 million relates primarily to asset write-offs included in cost of goods
sold.
In 1996, special charges of $88.4 million were recorded. These charges
include $53.9 million in restructuring charges primarily for employee separation
programs resulting in the reduction of approximately 1,600 employees and $22.5
million of one-time charges associated with start-up activities which are
included in costs of goods sold and selling, general and administrative
expenses. The unpaid restructuring charges for the employee separation programs
as of June 30, 1996, were retained by 3M pursuant to the Distribution. In
addition to the above charges, the Company also recognized a non-deductible
write-off of $12.0 million for the in-process research and development related
to the Luminous acquisition (see Note 3).
6. INCOME TAXES
The components of income (loss) before tax and minority interest are as
follows:
<TABLE>
<CAPTION>
1996 1995 1994
-------- --------- -------
(In millions)
<S> <C> <C> <C>
United States .................................... $ (16.9) $ (136.1) $ 63.2
International .................................... 1.9 (30.7) 18.1
-------- --------- -------
Total ......................................... $ (15.0) $ (166.8) $ 81.3
The income tax provision (benefit) is as follows:
1996 1995 1994
-------- --------- -------
(In millions)
Currently payable (refundable)
Federal ....................................... $ (9.9) $ (14.0) $ 8.3
State ......................................... (0.4) (4.3) 1.7
International ................................. 3.9 15.6 4.6
Deferred
Federal ....................................... 3.3 (34.9) 9.4
State ......................................... (0.4) (3.1) 0.8
International ................................. 9.4 (29.8) 4.5
-------- --------- -------
Total ....................................... $ 5.9 $ (70.5) $ 29.3
The componennts of net deferred tax assets and liabilities are as
follows:
1996 1995
--------- -------
(In millions)
Receivables ...................................... $ 7.8 $ 4.0
Inventories ...................................... 15.4 5.9
Property, plant and equipment .................... (0.4) 44.5
Payroll .......................................... 3.2 19.2
Other, net ....................................... 17.9 9.5
--------- -------
Net deferred tax assets and liabilities. $ 43.9 $ 83.1
</TABLE>
Management believes the Company, or in certain cases 3M prior to the
Distribution, will generate sufficient taxable income in future periods to fully
recover the Company's deferred tax assets.
The provision (benefit) for income taxes differs from the amount
computed by applying the statutory U.S. income tax rate (35%) because of the
following items:
1996 1995 1994
------- ------- --------
(In millions)
Tax at statutory U.S. tax rate ............... $ (5.3) $ (58.4) $ 28.5
State income taxes, net of federal benefit ... (1.2) (5.4) 2.9
International taxes in excess of
statutory U.S. tax rate ................... 7.1 (7.7) (3.0)
Non-deductible expense related to acquisition 4.9 -- --
Other ........................................ 0.4 1.0 0.9
------- ------- --------
Income tax provision (benefit) .............. $ 5.9 $ (70.5) $ 29.3
As of December 31, 1996, approximately $151 million of earnings
attributable to international subsidiaries (inclusive of earnings prior to the
Distribution for certain international subsidiaries) were considered to be
permanently invested. No provision has been made for taxes that might be payable
if these earnings were remitted to the U. S. It is not practical to determine
the amount of incremental tax that might arise if these earnings were to be
remitted.
Cash paid for income taxes in the period from July 1, 1996 to December
31, 1996 was not material. Prior to July 1, 1996, 3M paid all taxes and received
all tax refunds on the Company's behalf.
7. DEBT
The components of long-term debt as of December 31, 1996, are as
follows:
(In millions)
Revolving credit facility $ 120.0
Other .................... 4.0
---------
124.0
Less current portion ..... (0.9)
---------
Total long-term debt .. $ 123.1
=========
The Company maintains a $350 million revolving credit facility with a
syndicate of banks which expires on June 30, 2001. The commitment fee for the
credit facility is based on the Company interest coverage ratio, and as of
December 31, 1996, was .15 of one percent on the total amount of the credit
facility. Borrowings under the credit facility bear interest based on the London
interbank offered rate (LIBOR) or the administrative agent bank's base rate,
plus an applicable margin based on the Company interest coverage ratio. As of
December 31, 1996, $120 million in borrowings under this credit facility were
outstanding at interest rates ranging from 5.80% to 5.86%. The agreement
contains financial covenants that include a maximum debt to capital ratio, a
minimum interest coverage ratio, and a minimum tangible net worth. As of
December 31, 1996, the Company was in compliance with these covenants.
Long-term debt maturities are as follows:
1997 1998 1999 2000 2001
---- ---- ---- ---- ----
(In millions)
Long-term debt maturities. $ 0.9 $ 1.0 $ 1.0 $ 1.1 $ 120.0
Short-term debt as of December 31, 1996, consisted of $25.6 million of
uncollateralized borrowings primarily held by international subsidiaries. These
borrowings have original maturities of one year or less and have a weighted
average interest rate of 2.9% as of December 31, 1996. As of December 31, 1996,
the Company had an additional $53 million available under credit facilities held
by various subsidiaries outside the U. S.
The Company estimates that the fair value of short-term and long-term
debt approximates the carrying amount of debt.
The Company's interest expense for the period from July 1, 1996 through
December 31, 1996 was $6.8 million and cash paid for interest was $6.2 million.
Prior to the Distribution, the Company's financial statements include
allocations of 3M's interest expense totaling $7.4 million for the period from
January 1, 1996 to June 30, 1996, $18.8 million for 1995 and $16.3 million for
1994. Total 1996 interest expense was $14.2 million. Allocations prior to the
Distribution were based on an assumed non-ESOP debt level of $250 million. The
interest rates used were 6.4%, 7.5% and 6.5% in 1996, 1995 and 1994,
respectively, which reflect 3M's weighted average effective interest rates on
non-ESOP debt during these periods. The consolidated balance sheet of the
Company prior to the Distribution does not include this debt as the total
capitalization of the Company was reflected in Net Investment by 3M.
8. LEASES
Rent expense under operating leases, which primarily relate to
equipment and office space, amounted to $15.1 million, $9.0 million and $9.0
million in 1996, 1995 and 1994, respectively. The following table sets forth the
minimum rental payments under operating leases with non-cancelable terms in
excess of one year as of December 31, 1996:
<TABLE>
<CAPTION>
After
1997 1998 1999 2000 2001 2001 Total
---- ---- ---- ---- ---- ---- -----
(in millions)
<S> <C> <C> <C> <C> <C> <C> <C>
Minimum Lease Payments. $ 9.5 $ 6.5 $ 3.5 $ 2.1 $ 0.9 $ 0.2 $ 22.7
</TABLE>
9. SHAREHOLDERS' EQUITY
The Company authorized stock consists of 100,000,000 shares of common
stock, par value $0.01, and 25,000,000 shares of preferred stock, par value
$0.01. Common shares issued as of December 31, 1996 were 42,879,880 shares.
There were no preferred shares issued as of December 31, 1996.
The Company maintains a stockholder rights plan under which the Company
has issued one preferred share purchase right (Right) for each common share of
the Company. Each Right will entitle its holder to purchase one one-hundredth of
a share of Series A Junior Participating Preferred Stock at an exercise price of
$125, subject to adjustment. The Rights are exercisable only if a person or
group acquires beneficial ownership of 15 percent or more of the Company's
outstanding common stock. The Rights expire on July 1, 2006 and may be redeemed
earlier by the Board of Directors for $0.01 per Right.
The following table summarizes the changes in the components of
shareholders' equity:
<TABLE>
<CAPTION>
Additional Unearned Cumulative Net Total
Common Paid-In Retained ESOP Translation Investment Shareholders'
Stock Capital Earnings Shares Adjustment by 3M Equity
-------- -------- -------- --------- --------- -------- ---------
(In millions)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31,1993 . $ (73.1) $ 1,272.9 $ 1,199.8
Net income ............... 54.3 54.3
Net amount received
from 3M ................ 18.5 18.5
Net change in cumulative
translation ............ 27.4 27.4
-------- -------- -------- --------- --------- -------- ---------
Balance at December 31, 1994 -- -- -- -- (45.7) 1,345.7 1,300.0
Net loss ................. (85.0) (85.0)
Net amount paid to 3M .... (72.9) (72.9)
Net change in cumulative
translation ........... 6.6 6.6
-------- -------- -------- --------- --------- -------- ---------
Balance at December 31, 1995 -- -- -- -- (39.1) 1,187.8 1,148.7
Net equity transactions
with 3M ................ (164.0) (164.0)
Issuance of common
stock to 3M shareholders
(41,930,187 shares) .... $ 0.4 $ 991.7 (992.1) --
Loan to ESOP ............. $ (50.0) (50.0)
Amortization of
unearned ESOP shares ... -- 0.4 3.4 3.8
Issuance of common
stock (922,845 shares)
in connection
with acquisition ....... -- 14.6 14.6
Value of stock options
issued in connection
with acquisition ....... -- 4.8 4.8
Exercise of stock
options (26,848 shares) -- -- --
Net income (loss) ........ $ 11.2 (31.7) (20.5)
Net change in cumulative
translation ............ (7.1) (7.1)
-------- -------- -------- --------- --------- -------- ---------
Balance at December 31, 1996 $ 0.4 $1,011.5 $ 11.2 $ (46.6) $ (46.2) -- $ 930.3
======== ======== ======== ========= ========= ======== =========
</TABLE>
10. SEGMENT INFORMATION
The Company operates in one industry segment, the imaging and
information industry, supplying products and services to meet the information
processing needs for a variety of customer applications. Geographic information
in the table below is presented on the same basis utilized by the Company to
manage its business. Export sales and certain income and expense items are
reported in the geographic area where the final sale to customers is made,
rather than where the transaction originates.
<TABLE>
<CAPTION>
Other
United International Eliminations Total
Year States Europe(1) Areas(2) And Other Company
---- ------ --------- -------- --------- -------
(In millions)
<S> <C> <C> <C> <C> <C>
Net revenues to customers............... 1996 $ 1,159.5 $ 816.2 $ 302.5 $ 2,278.2
1995 1,128.8 808.4 308.4 2,245.6
1994 1,199.9 764.1 316.5 2,280.5
Transfers between geographic areas..... 1996 $ 351.1 $ 92.5 $ 6.8 $ (450.4)
1995 290.9 76.2 4.0 (371.1)
1994 341.2 89.4 0.1 (430.7)
Operating income (loss)................ 1996(3) $ (95.3) $ 78.8 $ 11.9 $ (4.6)
1995(4) (169.0) 55.8 (35.7) (148.9)
1994 1.5 72.9 21.4 95.8
Identifiable assets.................... 1996 $ 777.1 $ 618.1 $ 166.1 -- $ 1,561.3
1995 816.4 575.7 149.7 $ (0.3) 1,541.5
1994 894.9 582.9 194.7 (0.8) 1,671.7
</TABLE>
(1) Includes operations in the Middle East and Africa since such regions
are managed together with Europe. These operations are not material to
the overall financial results of the Company.
(2) Includes Latin America, Asia and Canada.
(3) Includes restructuring and one-time charges of $77.1 million in the
United States, $9.8 million in Europe and $1.5 million in Other
International Areas.
(4) Includes restructuring and one-time charges of $99.8 million in the
United States, $20.4 million in Europe and $46.1 million in Other
International Areas.
11. RETIREMENT PLANS
The Company has various non-contributory defined benefit employee
pension plans covering substantially all U.S. employees and certain employees
outside the U.S. For the U.S. plan, employees are eligible to participate at
date of hire and are fully vested after five years of service, including pension
service time while employed by 3M. Benefits are based primarily on employees'
annual salary and annual interest credits. For plans outside the U.S., benefits
are based principally on years of service and compensation near retirement. The
Company's funding policy is to deposit with a Trustee amounts at least equal to
those required by law. Pension investments consist primarily of common stocks
and fixed-income securities. The Company has not made any contributions to the
U.S. plan as of December 31, 1996, as such funding is not required until 1997.
Prior to the Distribution, employees of the Company participated in
various 3M-sponsored retirement plans. For U.S. employees, 3M has retained
responsibility for the benefits earned under the plan. For plans outside the
U.S., the Company generally has assumed the assets and related liabilities. For
periods prior to the Distribution, pension expense was allocated to the Company
as part of 3M. Allocated pension expense was $12 million in the period January
1, 1996 to June 30, 1996, $24 million in 1995 and $25 million in 1994. Total
pension expense in 1996 was $21.3 million.
The following table details net pension cost for period July 1, 1996 to
December 31, 1996:
United States International
Plan Plans
------ -------
(In millions)
Service cost ......................................... $ 7.5 $ 1.5
Interest cost ........................................ -- 2.0
Return on plan assets - actual ....................... -- (2.0)
Net amortization and deferral ........................ -- 0.3
------ -------
Net pension cost ..................................... $ 7.5 $ 1.8
The following table details the funded status of the pension plans as
of December 31, 1996:
United States International
Plan Plans
------ -------
Actuarial present value of:
Vested benefit obligation ......................... $ 6.9 $ 36.2
Non-vested benefit obligation ..................... 0.6 5.6
------ -------
Accumulated benefit obligation .................... $ 7.5 $ 41.8
Projected benefit obligation ......................... $ 7.5 $ 60.3
Plan assets at fair value ............................ -- $ 52.5
Plan assets less than the projected benefit obligation $ (7.5) $ (7.8)
Unrecognized net transition obligation ............... -- 0.9
Other unrecognized items ............................. -- 5.6
------ -------
Accrued pension cost ................................. $ (7.5) $ (1.3)
The assumptions at year end are as follows:
United States International
Plan Plans
------ -------
Discount rate ........................................ 8.00 % 8.00 %
Compensation rate increase .......................... 4.75 % 6.20 %
Long-term rate of return on assets .................. 9.00 % 8.30 %
Net pension cost was determined using assumptions as of July 1, 1996
(Distribution Date), which were the same as the December 31, 1996 assumptions
used to determine the funded status.
In addition to the above, the Company's Italian subsidiary sponsors an
employee severance indemnity as required by law. The accrued liability for this
severance indemnity is included in other liabilities and was $49.3 million and
$59.2 million as of December 31, 1996 and 1995, respectively. The Company
measures the vested benefit obligation as the amount that would be payable if
the employees under the plan would separate currently. Expense for this plan was
$5.0 million, $7.8 million and $6.3 million in 1996, 1995 and 1994,
respectively.
12. EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLANS
The Company sponsors a 401(k) retirement savings plan under which
eligible U.S. employees may choose to save up to 15% of eligible compensation on
a pre-tax basis, subject to certain IRS limitations. The Company matches
employee contributions 100% on the first three percent of eligible compensation
and 25% on the next three percent of eligible compensation. The Company also
sponsors a variable compensation program, in which the Company will contribute
up to three percent of eligible employee compensation to employees' 401(k)
retirement accounts, depending upon Company performance.
The Company established an Employee Stock Ownership Plan (ESOP) during
1996 as a cost-effective way of funding the employee retirement savings benefits
noted above. The ESOP borrowed $50.0 million from the Company and used the
proceeds to purchase approximately 2.2 million shares of the Company's common
stock, with the ESOP shares pledged as collateral for the debt. The Company
makes monthly contributions to the ESOP equal to the debt service plus an
applicable amount so that the total contribution releases a number of shares
equal to that required to satisfy the Company's matching requirements. As the
debt is repaid, shares are released from collateral and allocated to employee
accounts. The shares pledged as collateral are reported as unearned ESOP shares
in the consolidated balance sheets. The Company reports compensation expense
equal to the current market price of the shares released, and released shares
are considered outstanding for the computation of earnings per share.
Compensation expense related to the ESOP was $3.8 million in the period from
July 1, 1996 to December 31, 1996.
The ESOP shares as of December 31, 1996 are as follows:
Released and allocated shares .......................... 146,149
Unreleased shares ...................................... 2,029,738
-----------
Total ESOP shares ................................... 2,175,887
-----------
Fair value of unreleased shares as of December 31, 1996 $57,086,000
===========
Prior to the July 1, 1996, U.S. employees of the Company participated
in a 3M-sponsored employee savings plan under Section 401(k) of the Internal
Revenue Code. 3M matched employee contributions of up to six percent of
compensation at rates ranging from 35 to 85 percent depending upon financial
performance. The Company's allocation of the expense related to the 3M employee
savings plan was $2.3 million in the period from January 1, 1996 to June 30,
1996, $4.5 million in 1995 and $4.6 million in 1994. Total expense for 1996 was
$6.1 million.
13. EMPLOYEE STOCK PLANS
The Company currently has stock options outstanding under the Imation
1996 Employee Stock Incentive Program (the "Employee Plan"), the Imation 1996
Directors Stock Compensation Program (the "Directors Plan") and the Imation
Stock Option Plan for Employees of Luminous Technology Corporation (the
"Luminous Plan").
The Employee Plan was approved and adopted by 3M on June 18, 1996, as
the sole stockholder of the Company, and became effective on July 1, 1996, the
Distribution Date. The total number of shares of common stock that may be issued
or awarded under the Employee Plan may not exceed 6,000,000. All shares subject
to awards under the Employee Plan that are forfeited or terminated will be
available again for issuance pursuant to awards under the Employee Plan.
Generally, grant prices are equal to the fair market value of the Company's
common stock at date of grant. The options normally have a term of ten years and
become exercisable from one to five years after grant date. At December 31,
1996, there were 3,677,532 shares available for grant under the Employee Plan.
The Directors Plan was also approved and adopted by 3M prior to the
Distribution Date, as the sole shareholder of the Company, and became effective
on July 1, 1996. The total number of shares of common stock that may be issued
or awarded under the Directors Plan may not exceed 800,000. The outstanding
options are non-qualified options with a term of ten years and generally become
exercisable one year after grant. Grant prices are equal to the fair market
value of the Company's common stock at date of grant. As of December 31, 1996,
there were 740,000 shares available for grant under the Directors Plan.
The Luminous Plan was approved and adopted by the shareholders of
Luminous Corporation (Luminous) prior to the acquisition of Luminous by the
Company (see Note 3). In connection with the acquisition, the Company assumed
certain outstanding stock options held by Luminous employees and agreed to
convert such options into 317,062 options to purchase the Company's common
stock. The outstanding options were amended to accelerate the dates on which the
options become exercisable. No additional grants may be made pursuant to the
Luminous Plan.
The following table summarizes stock option activity for 1996:
Weighted Average
Stock Options Exercise Price
------------- --------------
Granted ................. 2,699,530 $ 21.14
Exercised ............... 26,848 2.16
Forfeited ............... 24,525 22.54
---------
Outstanding, End of Year 2,648,157 $ 21.31
Exercisable, End of Year 131,857 $ 10.58
The following table summarizes information about stock options
outstanding as of December 31, 1996:
<TABLE>
<CAPTION>
Weighted
Average Options Options
Remaining Outstanding- Exercisable-
Range of Options Contractual Weighted Average Options Weighted Average
Exercise Prices Outstanding Life Exercise Price Exercisable Exercise Price
--------------- ----------- ---- -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
$0.31 171,754 9 years $ 0.31 74,219 $ 0.31
$22.38 to $26.80 2,476,403 9 years 22.76 57,638 23.81
$0.31 to $26.80 2,648,157 131,857
</TABLE>
The Company has adopted the disclosure only provisions of Statement of
Financial Accounting Standard No. 123 (SFAS 123), "Accounting for Stock-Based
Compensation". Accordingly, no compensation expense has been recognized for the
stock option plans. If the fair value of options granted had been recognized as
compensation expense on a straight-line basis over the vesting periods in
accordance with the provisions of SFAS 123, pro forma pretax loss would have
been $9.4 million higher ($5.1 million after tax or $0.12 per share) in 1996 and
$3.4 million higher ($1.9 million after tax or $0.05 per share) in 1995. The pro
forma effects on net income (loss) for 1996 and 1995 are not representative of
the pro forma effects on net income (loss) in future years due to differences
between the Company's and 3M's option plans, including vesting periods, and the
exclusion of compensation expense related to the vesting of grants made prior to
1995.
The weighted average fair value at date of grant for options granted in
1996 was as follows:
Exercise price equals market price on grant date: $ 8.96
Exercise price less than market price on grant date: $ 21.97
As part of 3M, certain employees of the Company were granted stock
options prior to the Distribution to purchase 3M stock. Options granted to the
Company's employees under 3M's General Employees' Stock Purchase Plan (GESPP)
were 72,522 from January 1, 1996 to June 30, 1996 and 144,366 in 1995. The
weighted average fair value per option granted under the GESPP was $10.37 in
1996 and $8.60 in 1995. Options granted to the Company's employees under 3M's
Management Stock Option Plan (MSOP) were 271,200 in 1995 with a weighted average
fair value of $12.48 per option. No options were issued to the Company's
employees under the MSOP in 1996. Pursuant to the Distribution, options granted
to the Company's employees while part of 3M have not been converted into options
to purchase shares of the Company's stock.
The fair values at date of grant were estimated using the Black-Scholes
option pricing model with the following weighted average assumptions (1995
grants reflect 3M assumptions):
1996 1995
----- -----
Volatility ............ 40.0% 14.4%
Risk free interest rate 6.38% 5.90%
Expected life (months) 49 66
Dividend growth ....... Zero 5.2%
14. SUPPLEMENTAL NON-CASH ITEMS
Pursuant to the Distribution on July 1, 1996, certain assets and
liabilities with a net value of $8.1 million were retained by 3M, primarily
comprised of certain deferred tax assets of $26.9 million and severance
obligations of $23.9 million. Pursuant to the acquisition of Luminous (see Note
3), the Company issued $14.6 million of common stock and $4.8 million of stock
options.
15. COMMITMENTS AND CONTINGENCIES
In connection with the Distribution, the Company assumed substantially
all liabilities for legal proceedings relating to the Company's businesses as
conducted prior to the Distribution.
In addition, in the normal course of business, the Company is subject
to proceedings, lawsuits and other claims, including proceedings under laws and
regulations related to environmental and other matters. All such matters are
subject to many uncertainties and outcomes that are not predictable with
assurance. Consequently, the Company is unable to ascertain the ultimate
aggregate amount of monetary liability or financial impact with respect to these
matters at December 31, 1996. While these matters could materially affect
operating results of any one quarter when resolved in future periods, it is
management's opinion that after final disposition, any monetary liability or
financial impact to the Company beyond that provided in the consolidated balance
sheet as of December 31, 1996 would not be material to the Company financial
position, or annual results of operations or cash flows.
16. QUARTERLY DATA (UNAUDITED)
<TABLE>
<CAPTION>
First Second Third Fourth Total
--------- ---------- --------- --------- ----------
(In millions, except per share data)
<S> <C> <C> <C> <C> <C>
1996
Net revenues ........... $ 576.1 $ 561.2 $ 559.3 $ 581.6 $ 2,278.2
Gross profit ........... 202.3 192.7 196.6 203.8 795.4
Operating income (loss) 13.3 (55.6) 24.5 13.2 (4.6)
Net income (loss) ..... 6.1 (37.8) 11.8 (0.6) (20.5)
Earnings (loss) per
common share ........ 0.14 (0.90) 0.29 (0.02) (0.49)
1995
Net revenues ........... $ 576.7 $ 565.0 $ 546.2 $ 557.7 $ 2,245.6
Gross profit ........... 212.5 194.6 181.7 135.9 724.7
Operating income ....... 18.2 (1.9) (1.3) (163.9) (148.9)
Net income (loss) ..... 7.5 (3.2) (1.8) (87.5) (85.0)
Earnings (loss) per
common share ........ 0.18 (0.08) (0.04) (2.08) (2.02)
</TABLE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Imation Corp.:
We have reviewed the accompanying condensed consolidated balance sheet
of Imation Corp. (the Company) and subsidiaries as of March 31, 1997, and the
related consolidated statements of operations and condensed consolidated
statements of cash flows for the three-month periods ended March 31, 1997 and
1996. These consolidated financial statements are the responsibility of the
Company's management.
We conducted our reviews in accordance with standards established by
the American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, the objective of which is
the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications
that should be made to the consolidated financial statements referred to above
for them to be in conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet as of December 31, 1996, and
the related consolidated statements of operations and cash flows for the year
then ended; and in our report dated February 14, 1997, we expressed an
unqualified opinion on those consolidated financial statements. In our opinion,
the information set forth in the accompanying condensed consolidated balance
sheet as of December 31, 1996, is fairly stated in all material respects in
relation to the consolidated balance sheet from which it has been derived.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
April 30, 1997
IMATION CORP.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions, except per share amounts)
(Unaudited)
Three months ended March 31,
------------------------
1997 1996
--------- ---------
Net revenues ........................... $ 547.7 $ 576.1
Cost of goods sold ..................... 348.7 373.8
--------- ---------
Gross profit ......................... 199.0 202.3
Operating expenses:
Selling, general and administrative .. 133.0 130.7
Research and development ............. 37.8 47.9
Restructuring charges ................ -- 10.4
--------- ---------
Total ............................. 170.8 189.0
Operating income ....................... 28.2 13.3
Other income and expense:
Interest expense ..................... 2.4 3.7
Other, net ........................... 4.0 (0.5)
--------- ---------
Total ............................. 6.4 3.2
Income before tax and minority interest 21.8 10.1
Income tax provision ................... 9.8 4.1
Minority interest ...................... -- (0.1)
--------- ---------
Net income. ............................ $ 12.0 $ 6.1
========= =========
Earnings per share .................... $ 0.30 $ 0.14
========= =========
Weighted average shares outstanding .... 40.7 41.9
========= =========
THE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARE AN
INTEGRAL PART OF THESE STATEMENTS.
IMATION CORP.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In millions, except share amounts)
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
--------------- ----------------
(Unaudited)
<S> <C> <C>
ASSETS:
Current Assets
Cash and equivalents ........................ $ 55.2 $ 61.7
Accounts receivable - net ................... 465.9 467.6
Inventories ................................. 407.5 392.8
Other current assets ........................ 85.1 94.5
--------------- ----------------
Total current assets ..................... 1,013.7 1,016.6
Property, Plant and Equipment - net ........... 461.5 480.1
Other Assets .................................. 73.8 64.6
--------------- ----------------
Total Assets ............................. $ 1,549.0 $ 1,561.3
=============== ================
LIABILITIES AND SHAREHOLDERS' EQUITY:
Current Liabilities
Accounts payable ............................ $ 179.8 $ 182.1
Accrued payroll ............................. 40.4 41.9
Income taxes payable ........................ 6.5 7.6
Short-term debt ............................. 24.3 26.5
Other current liabilities ................... 140.4 151.2
--------------- ----------------
Total current liabilities ................ 391.4 409.3
Other Liabilities ............................. 96.4 98.6
Long-Term Debt ................................ 148.8 123.1
Commitments and Contingencies
Shareholders' Equity - net .................... 912.4 930.3
Shares issued:
March 31, 1997: 42,898,045
December 31, 1996: 42,879,880
--------------- ----------------
Total Liabilities and Shareholders' Equity $ 1,549.0 $ 1,561.3
=============== ================
</TABLE>
THE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARE AN
INTEGRAL PART OF THESE STATEMENTS.
IMATION CORP.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended March 31,
-----------------------
1997 1996
-------- -------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C>
Net income ......................................... $ 12.0 $ 6.1
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation ..................................... 38.1 48.5
Deferred income taxes ............................ 3.7 6.1
Restructuring and other one-time charges ......... -- 10.4
Working capital changes .......................... (38.0) 7.8
Other ............................................ 3.4 (9.2)
-------- -------
Net cash provided by operating activities .......... 19.2 69.7
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures ............................. (28.0) (40.7)
Capitalized software ............................. (11.2) --
Other ............................................ (1.0) 0.6
-------- -------
Net cash used in investing activities .............. (40.2) (40.1)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net change in short-term debt .................... (0.9) --
Borrowings of long-term debt ..................... 246.6 --
Repayment of long-term debt ...................... (220.6) --
Purchases of treasury shares ..................... (12.8) --
Decrease in unearned ESOP shares ................. 2.8 --
Employee stock plans and other ................... 0.1 --
Net cash paid to 3M .............................. -- (27.0)
-------- -------
Net cash provided by (used in) financing activities 15.2 (27.0)
Effect of exchange rate changes on cash ............ (0.7) (2.6)
Net change in cash and equivalents ................. (6.5) --
Cash and equivalents - beginning of period ......... 61.7 --
-------- -------
Cash and equivalents - end of period ............... $ 55.2 $ --
======== =======
</TABLE>
THE ACCOMPANYING NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ARE AN
INTEGRAL PART OF THESE STATEMENTS.
IMATION CORP.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. FINANCIAL STATEMENTS
Imation Corp. (the "Company") became an independent, publicly held
company as of July 1, 1996 (the "Distribution Date"), when Minnesota Mining and
Manufacturing ("3M") spun off its data storage and imaging businesses as an
independent, publicly held company (the "Distribution"). One share of the
Company's common stock was issued for every ten shares of 3M stock outstanding
to stockholders of record on June 18, 1996. 3M and the Company have entered into
a number of agreements to facilitate the transition of the Company to an
independent business enterprise. Descriptions of the various agreements are set
forth under the caption "Relationship Between 3M and the Company" contained in
the Company's 1996 Annual Report on Form 10-K filed with the Securities and
Exchange Commission.
The consolidated financial statements for periods prior to July 1, 1996
reflect the assets, liabilities, revenues, and expenses that were directly
related to the Company as it was operated within 3M. The Company's consolidated
statements of operations for periods prior to July 1, 1996 include all of the
related costs of doing business including an allocation of certain general
corporate expenses of 3M which were not directly related to these businesses,
including costs for corporate logistics, corporate research and development,
information technologies, finance, legal and corporate executives.
Management believes these allocations were made on a reasonable basis.
All material inter-company transactions and balances between the Company's
businesses have been eliminated. The financial information included herein for
periods prior to July 1, 1996 may not necessarily be indicative of the results
of operations or cash flows of the Company if it had been a separate,
independent company during the periods prior to July 1, 1996.
The interim consolidated financial statements are unaudited but, in the
opinion of management, reflect all adjustments necessary for a fair presentation
of financial position, results of operations and cash flows for the periods
presented. These adjustments, except for the restructuring charges recorded in
1996, consist of normal, recurring items. The results of operations for any
interim period are not necessarily indicative of results for the full year. The
consolidated financial statements and notes are presented as permitted by the
requirements of the Securities and Exchange Commission relating to quarterly
financial statements and do not contain certain information included in the
Company's annual consolidated financial statements and notes. These consolidated
financial statements and notes should be read in conjunction with the Company's
consolidated financial statements and notes included elsewhere in this Proxy
Statement/Prospectus.
2. SUPPLEMENTAL BALANCE SHEET INFORMATION
March 31, December 31,
1997 1996
---------- ----------
(In millions)
(unaudited)
Inventories
Finished goods ....................... $ 270.2 $ 248.1
Work in process ...................... 57.4 57.3
Raw materials and supplies ........... 79.9 87.4
---------- ----------
Total inventories ................. $ 407.5 $ 392.8
========== ==========
Property, Plant and Equipment
Property, plant and equipment ........ $ 1,700.8 $ 1,709.9
Less accumulated depreciation ........ (1,239.3) (1,229.8)
---------- ----------
Property, plant and equipment - net $ 461.5 $ 480.1
========== ==========
Shareholders' Equity
Common stock ......................... $ 0.4 $ 0.4
Additional paid-in capital ........... 1,012.1 1,011.5
Retained earnings .................... 23.2 11.2
Unearned ESOP shares ................. (43.8) (46.6)
Cumulative translation adjustment .... (66.7) (46.2)
Treasury stock, at cost
March 31, 1997: 514,141 shares ... (12.8) --
---------- ----------
Total shareholders' equity ........ $ 912.4 $ 930.3
========== ==========
3. COMMITMENTS AND CONTINGENCIES
The Company, in the ordinary course of its business, is the subject of
various pending or threatened legal actions. All such matters are subject to
many uncertainties and outcomes that are not predictable with assurance.
Consequently, the Company is unable to ascertain the ultimate aggregate amount
of monetary liability or financial impact with respect to these matters. While
these matters could materially affect operating results of any one quarter when
resolved in future periods, it is management's opinion that after final
disposition, any monetary liability or financial impact to the Company beyond
that provided in the condensed consolidated balance sheet would not be material
to the Company's financial position or annual results of operations or cash
flows.
4. MASTER LEASE AND SECURITY AGREEMENT
In March 1997, the Company entered into a Master Lease and Security
Agreement in connection with the construction of a new research and development
facility at the Company's headquarters site. Construction is expected to be
completed in June 1998, at which time the lease payments will commence. The
Company has the option to purchase the facility at the end of the lease term,
March 2002. In the event the Company chooses not to exercise this purchase
option, the Company is obligated to arrange for the sale of the facility and has
guaranteed the lessor a sale price of $58.5 million.
5. INTEREST RATE SWAP AGREEMENT
Effective March 25, 1997, the Company entered into an interest rate
swap agreement with a financial institution. The notional amount of the interest
rate swap agreement is $100 million with the Company paying fixed rate and
receiving variable rate. The agreement expires March 31, 2000. Net payments or
receipts under the agreement are recorded as adjustments to interest expense. As
of March 31, 1997, the effective interest rate on the $146.0 million in debt
outstanding under the Company's revolving credit facility was 6.42%, including
the effect of the interest rate swap agreement.
6. EARNINGS PER SHARE
The number of weighted average shares outstanding used in the
computation of earnings per share (EPS) for the first quarter of 1996 is equal
to one-tenth the weighted average number of 3M shares outstanding based on the
distribution ratio of one share of Imation Corp. for every ten shares of 3M
pursuant to the spin-off on July 1, 1996.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, "Earnings Per Share". This statement establishes standards
for computing and presenting basic and diluted earnings per share for financial
statements issued for periods ending after December 15, 1997. The adoption of
this statement is not expected to have a material effect on the Company's
reported EPS.
*****
Coopers & Lybrand L.L.P., the Company's independent accountants, have
performed a review of the unaudited interim consolidated financial statements
included herein and their report thereon accompanies this filing.
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Cemax-Icon, Inc.
We have audited the accompanying balance sheets of Cemax-Icon, Inc. as
of December 31, 1996 and 1995, and the related statements of operations,
stockholders' equity (net capital deficiency) and cash flows for each of the
three years in the period ended December 31, 1996. These financial statements
are the responsibility of the Company'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 that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of Cemax-Icon, Inc. at
December 31, 1996 and 1995, and the results of its operations and its cash flows
for each of the three years in the period ended December 31, 1996 in conformity
with generally accepted accounting principles.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Palo Alto, California
March 12, 1997
CEMAX-ICON, INC.
STATEMENTS OF OPERATIONS
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------------------------
1996 1995 1994
-------- -------- --------
<S> <C> <C> <C>
Revenues:
Product revenues, including sales to Imation $ 21,841 $ 15,059 $ 15,017
Service revenues ............................ 3,307 1,971 1,440
-------- -------- --------
Total revenues ................................. 25,148 17,030 16,457
Costs of revenues:
Cost of product revenues .................... 10,054 7,793 7,165
Cost of service revenues .................... 4,366 2,719 1,638
-------- -------- --------
Total cost of revenues ......................... 14,420 10,512 8,803
-------- -------- --------
Gross profit ................................... 10,728 6,518 7,654
Operating expenses:
Research and development .................... 6,481 6,501 4,134
Sales, general and administrative ........... 7,178 6,235 6,010
Merger related expense ...................... -- 624 --
-------- -------- --------
Total operating expenses ....................... 13,659 13,360 10,144
-------- -------- --------
Loss from operations ........................... (2,931) (6,842) (2,490)
Interest and other income (expense), net ....... (125) 27 (88)
-------- -------- --------
Net loss ....................................... $ (3,056) $ (6,815) $ (2,578)
======== ======== ========
Net loss per share ............................. $ (0.59) $ (1.75) $ (1.10)
======== ======== ========
Shares used in calculating net loss per share .. 5,181 3,895 2,347
======== ======== ========
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
As of December 31,
----------------------
1996 1995
-------- --------
<S> <C> <C>
ASSETS:
Current assets
Cash and cash equivalents .............................................. $ 6,302 $ 1,775
Accounts receivable, less allowance for doubtful accounts
of $1,230 in 1996 and $773 in 1995 ................................... 5,540 3,510
Note receivable-related party .......................................... -- 300
Inventories ............................................................ 2,945 2,005
Other current assets ................................................... 156 177
-------- --------
Total current assets ...................................................... 14,943 7,767
Property and equipment, net ............................................... 1,765 1,512
-------- --------
$ 16,708 $ 9,279
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (NET CAPITAL DEFICIENCY):
Current liabilities
Accounts payable ....................................................... $ 3,699 $ 2,479
Accrued compensation ................................................... 1,113 796
Other accrued liabilities .............................................. 1,799 699
Sales tax accrual ...................................................... 567 600
Deferred revenue ....................................................... 4,019 3,520
Equipment financing, current portion ................................... 292 211
-------- --------
Total current liabilities ................................................. 11,489 8,305
Accrued rent .............................................................. 44 53
Equipment financing, less current portion ................................. 575 551
Convertible note payable .................................................. 5,000 --
Commitments
Stockholders' equity (net capital deficiency):
Convertible preferred stock, $0.001 par value:
30,000,000 shares authorized, issuable in series:
2,521,733 and 1,985,878 shares designated series A,
issued and outstanding as of December 31, 1996
and 1995, respectively, aggregate liquidation
preference of $10,087 at December 31, 1996 ........................... 3 2
Common stock, $0.001 par value:
50,000,000 shares authorized: 5,362,595 and 4,877,325
shares issued and outstanding at December 31, 1996
and 1995, respectively ............................................... 5 5
Additional paid-in capital ............................................. 34,599 31,944
Notes receivable from stockholders ..................................... (370) --
Accumulated deficit .................................................... (34,637) (31,581)
-------- --------
Total stockholders' equity (net capital deficiency) ...................... (400) 370
-------- --------
$ 16,708 $ 9,279
======== ========
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY (NET CAPITAL DEFICIENCY)
FOR THE YEARS ENDED DECEMBER 31, 1996,
1995 AND 1994 (In thousands, except share data)
<TABLE>
<CAPTION>
Total
Notes Stock-
Receivables holders'
Additional From Equity (Net
Preferred Stock Common Stock Paid-In Stock- Accumulated Capital
Shares Amount Shares Amount Capital holders Deficit (Deficiency)
---------- ----- --------- ------ -------- ------ --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balances at December 31, 1993 .......... 10,341,460 $ 10 2,221,719 $ 2 $ 23,274 $-- $(22,188) $ 1,098
Issuance of Series D preferred stock
in June 1994 for cancellation of
subordinated convertible notes
with principal of $1,464 and
accrued interest of $36, net of
issuance costs ($9) ................. 500,048 1 -- -- 1,490 -- -- 1,491
Issuance of common stock for cash
and conversion of notes payable ..... -- -- 20,053 -- 150 -- -- 150
Issuance of common stock upon
the exercise of stock options ....... -- -- 286,142 1 73 -- -- 74
Net loss ............................. -- -- -- -- -- -- (2,578) (2,578)
---------- ----- --------- ------ -------- ------ --------- --------
Balances at December 31, 1994 .......... 10,841,508 $ 11 2,527,914 $ 3 $ 24,987 $-- $(24,766) $ 235
Conversion of Series A, B,
C and D preferred stock in
June 1995 to common stock ........... (10,841,508) (11) 2,305,907 2 9 -- -- --
Issuance of Series A preferred
stock in June of 1995 for cash
investment and conversion of
bridge note, net of issuance
costs ($13) ......................... 1,985,878 2 -- -- 6,930 -- -- 6,932
Issuance of common stock upon the
exercise of stock options ........... -- -- 43,504 -- 18 -- -- 18
Net loss ............................. -- -- -- -- -- -- (6,815) (6,815)
---------- ----- --------- ------ -------- ------ --------- --------
Balances at December 31, 1995 .......... 1,985,878 $ 2 4,877,325 $ 5 $ 31,944 $-- $(31,581) $ 370
Issuance of Series A preferred
stock upon exercise of warrant
by Imation, net of issuance costs. 535,855 1 -- -- 2,113 -- -- 2,114
Issuance of common stock upon the
exercise of stock options and
warrants ............................ -- -- 485,270 -- 542 (370) -- 172
Net loss ............................. -- -- -- -- -- -- (3,056) (3,056)
---------- ----- --------- ------ -------- ------ --------- --------
Balances at December 31, 1996 .......... 2,521,733 $ 3 5,362,595 $ 5 $ 34,599 $(370) $(34,637) $ (400)
========== ===== ========= ====== ======== ====== ========= ========
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------
1996 1995 1994
------- ------- -------
CASH FLOWS FROM OPERATING ACTIVITIES:
<S> <C> <C> <C>
Net loss ...................................................... $(3,056) $(6,815) $(2,578)
Adjustments to reconcile net loss to net cash (used in)
provided by operating activities:
Depreciation and amortization ............................ 827 662 761
Loss on disposal and retirement of property and equipment -- 342 --
Changes in assets and liabilities:
Accounts receivable .................................... (2,030) (1,784) (429)
Note receivable-related party .......................... 300 (300) --
Inventories ............................................ (940) (550) (424)
Other current assets ................................... 21 18 (79)
Accounts payable ....................................... 1,220 597 960
Accrued compensation ................................... 317 329 215
Other accrued liabilities .............................. 1,058 127 1,086
Deferred revenue ....................................... 499 1,519 1,277
------- ------- -------
Net cash (used in) provided by operating activities ........... (1,784) (5,855) 789
------- ------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property and equipment ......................... (1,084) (1,376) (913)
Proceeds from sale of property and equipment .................. 4 -- --
------- ------- -------
Net cash used in investing activities ......................... (1,080) (1,376) (913)
------- ------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from equipment financing ............................. 341 575 250
Repayment of equipment financing .............................. (236) (708) (206)
Net proceeds from revolving line of credit .................... -- (314) 232
Proceeds from note payable .................................... 5,000 -- 300
Proceeds from issuance of preferred stock ..................... 2,114 6,932 --
Proceeds from issuance of common stock ....................... 172 18 74
------- ------- -------
Net cash provided by financing activities ..................... 7,391 6,503 650
------- ------- -------
Net increase (decrease) in cash and cash equivalents .......... 4,527 (728) 526
Cash and cash equivalents at beginning of year ................ 1,775 2,503 1,977
------- ------- -------
Cash and cash equivalents at end of year ...................... $ 6,302 $ 1,775 $ 2,503
======= ======= =======
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------
1996 1995 1994
------ ------ ------
<S> <C> <C> <C>
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Interest paid ........................................... $ 218 $ 114 $ 46
====== ====== ======
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING
AND FINANCING ACTIVITIES:
Issuance of common stock in exchange
for notes receivable ................................. $ 370 $ -- $ --
====== ====== ======
Conversion of Series A, B, C and D preferred stock
into common stock .................................... $ -- $7,749 $ --
====== ====== ======
Property and equipment acquired under capital leases. $ -- $ -- $ 16
====== ====== ======
Conversion of subordination convertible notes
and accrued interest into Series D preferred
stock, net of issuance costs ......................... $ -- $ -- $1,491
====== ====== ======
Issuance of common stock for conversion of
note payable ......................................... $ -- $ -- $ 150
====== ====== ======
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION AND DESCRIPTION OF BUSINESS
Cemax-Icon, Inc. (the "Company"), formerly Cemax, Inc. and ICON Medical
Systems, Inc., designs, manufactures and markets picture archiving and
communication systems ("PACS") and teleradiology systems which are used
primarily by medical imaging providers and users. The Company's software
products provide image management solutions using advanced technology to assist
radiology departments reduce operating expenses and improve efficiency. The
Company markets its medical imaging software to both Other Equipment
Manufacturers ("OEMs") and end users.
In March 1997, the Company signed a letter of intent to merge with
Imation Corporation, a related party and a customer. Under the proposed terms of
the agreement, holders of Cemax-Icon common stock outstanding at the time of
merger will be entitled to receive cash consideration in the amount not to
exceed $13.75 per share payable in cash or shares of Imation common stock
payable over two years from the date of merger. The portion of the purchase
price payable after the one and two year anniversary dates of the agreement is
subject to reduction if certain levels of revenue as defined, are not met.
Additionally, holders of options and warrants to purchase Cemax-Icon common
stock will be able to convert their options and warrants into options and
warrants of Imation based on the specified exchange ratio. According to the
terms of the Company's convertible note payable (see Note 2), on the sale or
merger of the Company, the note holder has the option to require repayment of
the convertible note.
REVERSE STOCK SPLIT
On June 13, 1996, the Board of Directors of the Company authorized a
reverse stock split in which each 2.35 shares of common stock were split into
one share of common stock. All the share and per share data in the accompanying
financial statements have been adjusted retroactively to give effect to the
reverse stock split.
BUSINESS COMBINATION
On June 14, 1995, Cemax, Inc. ("Cemax") completed its merger with ICON
Medical Systems, Inc. ("ICON"), a teleradiology company located in Campbell,
California. In accordance with the agreement, the exchange ratio for each share
of ICON common stock and common stock option was 0.271 of a share of Cemax
common stock and common stock option, respectively (total of 1,879,157 shares of
Cemax common stock and 323,211 options to purchase Cemax common stock). In
conjunction with the offering, 10,841,508 shares of Cemax preferred stock
converted to 2,305,907 shares of common stock . The merger was accounted for as
a pooling of interests and, accordingly, the recorded book values of the assets
and liabilities and prior operating results are combined retroactively.
The Company incurred costs in connection with the merger and
consolidation of operations. Included in the accompanying statements of
operations for the year ended December 31, 1995 are merger related expenses of
$624,000, consisting primarily of charges for transaction and professional fees,
personnel severance costs, and elimination of duplicate facilities.
Results of operations for the periods ending December 31, 1995 and 1994
are as follows (in thousands):
<TABLE>
<CAPTION>
Merger
Cemax- Related
Icon Cemax Icon Expenses Combined
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1995
Net revenues ............... $ 9,510(1) $ 4,178(2) $ 3,342(2) $ -- $ 17,030
========= ========= ========= ========= =========
Net loss ................... $ (4,388)(1) $ (316)(2) $ (1,487)(2) $ (624) $ (6,815)
========= ========= ========= ========= =========
Year ended December 31, 1994
Net revenues ............... $ -- $ 8,711 $ 7,746 $ -- $ 16,457
========= ========= ========= ========= =========
Net income (loss)........... $ -- $ 34 $ (2,612) $ -- $ (2,578)
========= ========= ========= ========= =========
</TABLE>
(1) For the periods June 1, 1995 through December 31, 1995.
(2) For periods January 1, 1995 through May 31, 1995.
USE OF ESTIMATES
The preparation of the financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
CASH AND CASH EQUIVALENTS
Cash and cash equivalents are held in United States banks. Cash
equivalents consist of financial investments with original maturities of 90 days
or less at time of acquisition that are readily convertible into cash and have
insignificant interest rate risk.
The Company classifies its investments as available-for-sale. As of
December 31, 1996, and 1995, the Company's investments consisted of money market
funds. Investments are recorded at market value. In 1996, the Company did not
realize any material gains or losses on its investments. There was no difference
between cost and market value at December 31, 1996.
INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out
method) or market. Inventories at December 31, 1996 and 1995 consist of the
following:
1996 1995
------ ------
(In thousands)
Raw materials .................................. $1,572 $ 522
Finished goods, service and marketing inventory 1,373 1,483
------ ------
$2,945 $2,005
====== ======
PROPERTY AND EQUIPMENT
Property and equipment are stated at cost. Depreciation is computed on
the straight-line method using useful lives of three to five years.
Property and equipment at December 31, 1996 and 1995 are as follows:
1996 1995
------- --------
(In thousands)
Machinery and equipment ....................... $ 165 $ 569
Computer equipment ............................ 2,901 3,680
Furniture and fixtures ........................ 57 96
Leasehold improvements ........................ 152 95
------- --------
3,275 4,440
Less accumulated depreciation and amortization (1,510) (2,928)
------- --------
$ 1,765 $ 1,512
======= ========
REVENUE RECOGNITION
Product revenues are derived from system sales, software licenses, and
development contracts. Systems and licensing revenue is generated from software
licenses that grant the right to use the Company's software modules and hardware
products which are typically sold in conjunction with the Company's systems. In
addition to the software license typically sold as part of a system, the Company
generates revenue from sales of software licenses to its OEMs.
Service and maintenance revenue is generated from installation,
training, documentation, maintenance and support services. Fees for such
services are generally charged separately from the Company's software license
fees.
Revenue from systems sales is recognized upon delivery of the system,
which typically occurs from one to six months after execution of a contract,
depending on the size and complexity of the system if no significant vendor
obligations remain and collection of the resulting receivable is probable.
Revenue from software licenses sold to OEMs is recognized upon shipment, or upon
completion of specific milestones. Service and maintenance contract revenue is
recognized ratably over the service period, generally twelve months.
SOFTWARE DEVELOPMENT COSTS
Statement of Financial Accounting Standard No. 86, "Accounting for the
Costs of Computer Software to be Sold, Leased or Otherwise Marketed," requires
capitalization of certain software development costs subsequent to the
establishment of technological feasibility. Based on the Company's product
development process, technological feasibility is established upon completion of
a working model. Costs incurred by the Company between completion of the working
model and the point at which the product is ready for general release have been
insignificant.
NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of
shares of Common Stock outstanding. Common stock equivalent shares from
convertible preferred stock, stock options and warrants are not included as
their effect is anti-dilutive.
CONCENTRATION OF CREDIT RISK
The Company sells its processing workstations and software to customers
in the medical and health care industries primarily in North America. The
Company performs ongoing credit evaluations of its customers and generally does
not require collateral. The Company maintains reserves for potential credit
losses and such losses have been within management's expectations. One customer
accounted for 15% of total revenues in 1996, one customer accounted for 13% of
total revenues in 1995 and one customer accounted for 10% of total revenues in
1994. One customer accounted for 19% of total accounts receivable at December
31, 1996. The Company also derives revenues from the sale of its product to
customers in foreign geographic areas, including Europe and Asia. Revenue from
export sales was $6.0 million, $2.8 million and $3.6 million for the years ended
December 31, 1996, 1995 and 1994, respectively.
STOCK-BASED COMPENSATION
As permitted under Financial Accounting Standards Board Statement No.
123, "Accounting for Stock-Based Compensation" ("FASB 123"), the Company has
elected to follow Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees" ("APB 25") in accounting for stock-based awards to
employees.
Under APB 25, the Company generally recognizes no compensation expense
with respect to such awards. However, FASB 123 requires estimation of the fair
value of options granted and related disclosures, if material. The Company has
utilized the minimum value method for estimating the fair value of options
granted. The minimum value method is similar to the Black-Scholes option
valuation model except that it excludes the factor for volatility. The
Black-Scholes Model was developed for use in estimating the fair value of
publicly traded options which have no vesting restrictions and are fully
transferable.
Because the Company's employee stock options have characteristics
significantly different from those of traded options, and because changes in the
subjective input assumptions can materially affect the fair value estimate, in
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options. The effect of
applying the minimum value method for estimating the fair value of the Company's
stock option grants did not result in pro forma net loss that is materially
different from historical amounts reported. Therefore, such pro forma disclosure
information is not separately presented herein. Future pro forma net income
(loss) and net income (loss) per share results may be materially different from
actual amounts reported. The fair value of each option is estimated on the date
of grant using the minimum value method with the following assumptions: no
dividends, an expected life of four years and a risk-free rate of 6% for the
year ended December 31, 1996, and 1995. The weighted average value of options
granted during 1995 and 1996 was $0.31 and $1.09 respectively.
TRANSACTIONS WITH IMATION CORP.
In June 1995, the Company sold 1,985,878 shares of its Series A
Preferred Stock to Imation and issued to Imation a warrant exercisable for
467,267 shares of Common Stock of the Company at an exercise price of $5.50 per
share. In May 1996, the Company and Imation agreed to amend the warrant to
reduce the exercise price to $4.25 per share and to provide that the warrant
would be exercisable for 535,855 shares of Series A Preferred Stock. In
addition, Imation agreed to exercise the warrant in full prior to September 30,
1996. The exercise occurred in September 1996.
In addition to the sale of the Series A Preferred Stock and the
issuance of the warrant to Imation, the Company and Imation entered into a sales
agreement having a term of three years providing for the Company to assume
service and warranty obligations of Imation with regard to 17 PACS customer
sites in exchange for the payment by Imation to the Company of approximately $
1.0 million and for Imation to refer customer leads to the Company from sales to
such customers. The Company recorded product and service revenues of $3,852,000
from Imation during 1996 and had accounts receivable of $240,000 from Imation as
of December 31, 1996.
2. CONVERTIBLE NOTE PAYABLE
In September 1996, the Company issued a $5 million convertible note
payable to Dominion Fund IV. The note payable bears interest at 11% per annum
through September 30, 1998 and at 12% thereafter until paid or converted.
Interest is payable monthly. The principal of the note is repayable in ten equal
quarterly installments of $500,000 beginning June 30, 1998. The note is
repayable earlier, in whole or in part, upon the occurrence of an initial public
offering which results in gross proceeds of at least $25 million. Should the
Company complete such a transaction which results in gross proceeds of less than
$25 million, then the Company shall be obligated to make a payment on the
remaining outstanding balance of the note and accrued interest of up to 20% of
the gross proceeds received in such offering. The note holder also has the
option to require repayment of the note, in whole or in part, in the event of a
sale of the Company or substantially all of its assets, or a merger in which the
stockholders of the Company control less than a majority of the merged entity.
The note is secured by substantially all assets of the Company.
Up to $2.5 million of the note may be converted to common stock at the
option of the holder on or after the earlier of April 15, 1998 or the closing of
an initial public offering. If the initial public offering occurs prior to April
15, 1998, the conversion price shall be equal to the price per share paid in the
initial public offering. If the initial public offering occurs after April 15,
1998, or does not occur, then the conversion price shall be equal to the lesser
of $10 per share or the price per share paid in the initial public offering. The
fair value of the convertible note payable at December 31, 1996, approximated
the carrying value based on the Company's current incremental borrowing rate for
similar types of borrowing arrangements.
In connection with the note payable, the Company issued warrants to
acquire up to $1.5 million of common stock at either $8 or $10 per share,
depending on the occurrence and timing of specific events. The warrants expire
in October 2001. The Company believes that the value of the warrants at the date
of their issuance was not material, and no value has been attributed to them in
these financial statements.
3. EQUIPMENT FINANCING AND RENTAL COMMITMENTS
In October 1996, the Company established an equipment purchase line of
credit for $341,000. Borrowings bear interest at 14.05% per annum and are
secured by property and equipment. During 1995, the Company borrowed $575,000 on
a bank equipment purchase line of credit. Borrowings bear interest at 12.16% per
annum and are secured by property and equipment. During 1994, the Company
borrowed $250,000 on a bank equipment purchase line of credit. Borrowings bear
interest at prime plus 1.5% and are secured by property and equipment. The fair
value of these borrowings at December 31, 1996, approximated the carrying value,
based on the Company's current incremental borrowing rates for similar types of
borrowing arrangements.
The Company leases facilities and equipment under noncancelable
operating leases. As of December 31, 1996, future minimum lease commitments
under operating leases and equipment purchase lines of credit are as follows:
Equipment and
Operating Purchase Lines
Leases of Credit
------ ------
(In thousands)
Year ended December 31,
1997 ....................................... $ 194 $ 385
1998 ....................................... 169 298
1999 ....................................... -- 287
2000 ....................................... -- 81
------ ------
Total minimum payments required .................. $ 363 $1,051
======
Less amount representing interest ................ (184)
------
Present value of minimum lease payment ........... 867
Less current portion of capital lease obligations (292)
------
Long-term portion of capital lease obligations ... $ 575
======
Rent expense for operating leases was approximately $229,000, $267,500
and $350,000 in 1996, 1995 and 1994, respectively.
4. NOTES RECEIVABLE FROM STOCKHOLDERS
During the year ended December 31, 1995, the Company made a loan
totaling $300,000 to an officer of the Company. Principal plus accrued interest
(at prime plus 1 %) was repaid in December 1996. Additionally, the Company has
recorded stockholder notes receivable for amounts loaned to employees used to
purchase shares pursuant to stock options. These amounts have been recorded as a
separate component of stockholders equity in the accompanying balance sheets.
5. INCOME TAXES
As of December 31, 1996, the Company had net operating loss and
research and development credit carryforwards of approximately $23,000,000. The
net operating loss and credit carryforwards will expire at various dates
beginning in 1997 through 2011, if not utilized.
Utilization of the net operating losses and credits will be subject to
a substantial limitation due to the ownership change provisions of the Internal
Revenue Code of 1986. Because of an ownership change in 1995, a substantial
amount of the Company's net operating losses and credits will expire before
being utilized.
As of December 31, 1996 and December 31, 1995, the Company had deferred
tax assets of approximately $5,400,000 and $5,300,000 respectively. The net
deferred tax asset has been fully offset by a valuation allowance. Deferred tax
assets relate primarily to net operating loss carryforwards, research credits
and capitalized research and development costs.
6. PREFERRED STOCK
Series A preferred stock entitles the holder to receive noncumulative
dividends of $0.32 per share if declared by the board of directors. The Series A
preferred stock is convertible at the option of the holder, or automatically
upon a public offering with aggregate proceeds greater than $5,000,000 at the
rate of one share of common stock for each 2.35 shares of preferred stock
(subject to antidilution provisions). The holders of these shares are entitled
to one vote for each share of common stock into which such shares can be
converted. The terms of the preferred stock purchase also limit the number of
future shares which may be granted as incentive options or stock purchase rights
to 500,000 shares.
At any time after January 1, 2000, the Company may redeem, at the
option of the board of directors, all outstanding shares of Series A preferred
stock at the redemption price of $4.00 per share plus any declared and unpaid
dividends. Upon liquidation of the Company, Series A preferred stockholders
shall have a liquidation preference of $4.00 per share plus all declared but
unpaid dividends. If the assets and funds of the Company are insufficient to pay
the preferential amounts in full, such assets and funds shall be distributed to
the holders of preferred stock in proportion to the full amount to which each
holder is entitled. After such payments, the holders of common shares are
entitled to receive all remaining assets of the Company.
7. STOCK OPTION AND EMPLOYEE INCENTIVE PLANS
In 1986, the Company established the 1986 Amended Incentive Stock Plan.
As amended there are 1,276,596 shares of common stock reserved for issuance
under this plan.
In June 1996, the Board of Directors of the Company adopted the 1996
Stock Plan which authorized the issuance of 700,000 shares of common stock, the
1996 Employee Stock Purchase Plan which authorized the issuance of 150,000
shares of common stock and the 1996 Director Option Plan which authorized the
issuance of 100,000 shares of common stock.
Options, which may be either incentive stock options or nonstatutory
stock options, may be granted at prices greater than or equal to the fair value
of the stock on the date of grant, as determined by the board of directors.
Generally options may be exercised at any time, vest over four years and expire
five to ten years from the date of grant.
Stock option activity is summarized below:
<TABLE>
<CAPTION>
Shares Weighted
----------------------------- Average Aggregate
Incentive Nonstatutory Exercise Exercise
Options Options Price Price
--------- ------ -------- ------------
<S> <C> <C> <C> <C>
Options outstanding at
December 31, 1993 889,197 53,540 $ 0.98 $ 921,803
Granted ............... 241,884 14,681 0.58 137,208
Exercised ............. (263,389) (22,752) 0.41 (117,318)
Canceled .............. (141,096) (1,595) 0.66 (94,176)
--------- ------ -------- ------------
Options outstanding at
December 31, 1994 726,596 43,874 $ 1.10 $ 847,517
Granted ............... 393,034 -- 1.62 636,715
Exercised ............. (39,249) (4,255) 0.39 (16,967)
Canceled .............. (79,411) -- 4.05 (321,615)
--------- ------ -------- ------------
Options outstanding at
December 31, 1995 1,000,970 39,619 $ 1.10 $ 1,145,650
Granted ............... 578,815 -- 5.10 2,951,957
Exercised ............. (473,674) (4,000) 0.96 (458,567)
Canceled .............. (55,011) -- 1.74 (95,719)
--------- ------ -------- ------------
Options outstanding at
December 31, 1996 1,051,100 35,619 $ 3.23 $ 3,543,321
========= ====== ======== ============
</TABLE>
At December 31, 1996 and 1995, 377,986 and 541,947, respectively, of
the outstanding options to purchase common stock were exercisable. Options
exercised prior to the vesting date are subject to stock purchase agreements
that allow the Company to repurchase, at the original issuance price, unvested
shares upon termination of employment. As of December 31, 1996 and 1995, 152,479
and 38,283 shares, respectively, were subject to this repurchase provision at
the original price ($0.35 - $1.41 per share). Vesting of such shares is
generally ratable over a four-year period, as determined by the board of
directors.
The following table summarizes information about options outstanding at
December 31, 1996:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
----------------------------------------------------------------- -----------------------
Weighted
Average Weighted Weighted
Range of Number Remaining Average Number Average
Exercise Outstanding Contractual Exercise Exercisable Exercise
Price at 12/31/96 Life Price at 12/31/96 Price
----------------- ----------- ----------- ------------ ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
$ 0.35 - 0.71 180,608 6.46 $ 0.41 141,365 $ 0.39
$ 1.06 - 1.76 341,141 7.18 $ 1.43 223,704 $ 1.44
$ 5.00 - 11.75 564,970 9.84 $ 5.22 12,917 $ 6.71
--------- -------
$ 0.35 - 11.75 1,086,719 8.44 $ 3.23 377,986 $ 1.23
========= =======
</TABLE>
CEMAX-ICON, INC.
STATEMENTS OF OPERATIONS
(In thousands, unaudited)
Three Months Ended
March 31,
---------------------
1997 1996
------- -------
Revenues:
Product revenues ............................. $ 6,554 $ 4,048
Service revenues ............................. 729 770
------- -------
Total revenues ............................ 7,283 4,818
Cost of revenues:
Cost of product revenues ..................... 3,436 1,698
Cost of service revenues ..................... 1,404 807
------- -------
Total cost of revenues .................... 4,840 2,505
Gross profit ................................. 2,443 2,313
Operating expenses:
Research and development ..................... 1,642 1,622
Sales, general and administrative ............ 1,693 1,507
------- -------
Total operating expenses .................. 3,335 3,129
Loss from operations ......................... (892) (816)
Interest income .............................. 52 20
Interest expense ............................. (162) (23)
Other income (expense) ...................... 33 --
------- -------
(77) (3)
Income (loss) before taxes ................... (969) (819)
Income taxes ................................. -- --
------- -------
Net loss .................................. $ (969) $ (819)
======= =======
Net loss per share ........................... $ (0.18) $ (0.17)
======= =======
Shares used in calculating net loss per share 5,367 4,896
======= =======
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
-------- --------
(Unaudited)
<S> <C> <C>
ASSETS:
Cash and cash equivalents .................................... $ 3,283 $ 6,302
Accounts receivable, net ..................................... 8,059 5,540
Inventories .................................................. 3,333 2,945
Other current assets ......................................... 180 156
-------- --------
Total current assets ...................................... 14,855 14,943
Property and equipment, net .................................. 1,921 1,765
-------- --------
$ 16,776 $ 16,708
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (NET CAPITAL DEFICIENCY):
Accounts payable ............................................. $ 4,163 $ 3,699
Accrued compensation ......................................... 1,286 1,113
Other accrued liabilities .................................... 1,946 1,799
Sales tax accrual ............................................ 567 567
Deferred revenue ............................................. 4,340 4,019
Equipment financing, current portion ......................... 278 292
-------- --------
Total current liabilities ................................. 12,580 11,489
-------- --------
Accrued rent ................................................. 39 44
Equipment financing, less current portion .................... 523 575
Convertible note payable ..................................... 5,000 5,000
Commitments
Stockholders' equity (net capital deficiency):
Preferred stock .............................................. 2 3
Common stock ................................................. 6 5
Note receivable from stockholder ............................. (373) (370)
Additional paid-in capital ................................... 34,605 34,599
Accumulated deficit .......................................... (35,606) (34,637)
-------- --------
Total stockholders' equity (net capital deficiency) ...... (1,366) (400)
-------- --------
$ 16,776 $ 16,708
======== =========
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
STATEMENTS OF CASH FLOWS
(In thousands, unaudited)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------------------
1997 1996
------- -------
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net loss ................................................. $ (969) $ (819)
Adjustments to reconcile net loss to net cash (used in)
provided by operating activities:
Depreciation and amortization ......................... 262 186
Changes in assets and liabilities:
Accounts receivable ................................. (2,519) 273
Note receivable-related party ....................... 3 (42)
Inventories ......................................... (388) (291)
Other current assets ................................ (24) 16
Accounts payable .................................... 464 (334)
Accrued compensation ................................ 173 273
Other accrued liabilities ........................... 141 351
Deferred revenue .................................... 321 466
------- -------
Net cash (used in) provided by operating activities $(2,536) $ 79
------- -------
CASH FLOWS FROM INVESTING ACTIVITIES:
Acquisition of property and equipment .................... (418) (182)
------- -------
Net cash used in investing activities: ............. $ (418) (182)
------- -------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from equipment financing ........................ -- --
Repayment of equipment financing ......................... (65) (54)
Proceeds from note payable ............................... -- --
Proceeds from issuance of preferred stock................. -- --
Proceeds from issuance of common stock.................... -- (36)
------- -------
Net cash used in financing activities ............... $ (65) $ (18)
------- -------
Net decrease in cash and cash equivalents ............. (3,019) (121)
Cash and cash equivalents at beginning of period ...... 6,302 1,777
------- -------
Cash and cash equivalents at end of period ............ $ 3,283 $ 1,656
======= =======
</TABLE>
SEE ACCOMPANYING NOTES.
CEMAX-ICON, INC.
NOTES TO UNAUDITED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The accompanying financial information is unaudited, but, in the
opinion of management, reflects all adjustments (which include only normally
recurring adjustments) necessary for a fair presentation of the Company's
financial position, operating results and cash flows for those periods
presented. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to the rules and regulations
of the Securities and Exchange Commission. The financial information should be
read in conjunction with the audited financial statements and notes thereto
included elsewhere herein. The accompanying balance sheet at December 31, 1996
is derived from audited financial statements at that date. Results for the
interim period are not necessarily indicative of results for the entire year.
2. NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of
shares of common stock outstanding. Common stock equivalent shares from
convertible preferred stock, stock options and warrants are not included as
their effect is anti-dilutive.
3. INVENTORIES
Inventories are stated at the lower of cost (first-in, first-out
method) or market. Inventories at March 31, 1997 and December 31, 1996 consist
of the following:
March 31, December 31,
1997 1996
------ ------
Raw Materials .................................. $2,045 $1,572
Finished goods, services and marketing inventory $1,288 $1,373
------ ------
$3,333 $2,945
====== ======
Exhibit A
AGREEMENT AND PLAN OF MERGER
by and among
IMATION CORP.,
CI ACQUISITION CORP.
AND
CEMAX-ICON, INC.
May 13, 1997
TABLE OF CONTENTS
ARTICLE I - THE MERGER 1
1.01 The Merger 1
1.02 Effect of Merger. 1
1.03 Effective Time 1
1.04 Directors and Officers 2
1.05 Certificate of Incorporation; Bylaws 2
1.06 Taking of Necessary Action; Further Action 2
1.07 The Closing 2
ARTICLE II - MERGER CONSIDERATION/EFFECT ON CAPITAL STOCK 2
2.01 Effect on Securities 2
2.02 Dissenting Shares 4
2.03 Payment of Consideration for Company Capital Stock 4
2.04 Stock Transfer Books 5
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE COMPANY 5
3.01 Incorporation and Corporate Power 5
3.02 Execution, Delivery; Valid and Binding Agreement 6
3.03 Approval of Agreement; Meeting of Stockholders 6
3.04 No Breach 6
3.05 Governmental Authorities; Consents 6
3.06 Subsidiaries; Predecessors 7
3.07 Capital Stock 8
3.08 Financial Statements 9
3.09 Absence of Undisclosed Liabilities 10
3.10 No Material Adverse Changes 10
3.11 Absence of Certain Developments. 11
3.12 Title to Properties 13
3.13 Accounts Receivable 14
3.14 Inventory 14
3.15 Tax Matters 14
3.16 Contracts and Commitments 16
3.17 Intellectual Property Rights 18
3.18 Litigation 19
3.19 Warranties; Products 19
3.20 Employees 19
3.21 Employee Benefit Plans 20
3.22 Insurance 22
3.23 Affiliate Transactions 22
3.24 Customers and Suppliers 22
3.25 Officers and Directors; Bank Accounts 23
3.26 Compliance with Laws; Permits 23
3.27 Environmental Matters 23
3.28 Brokerage 25
3.29 Disclosure 25
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER
SUBSIDIARY 26
4.01 Incorporation and Corporate Power 26
4.02 Execution, Delivery; Valid and Binding Agreement 26
4.03 No Breach 26
4.04 Merger Subsidiary 26
4.05 Governmental Authorities; Consents 26
4.06 Brokerage 27
ARTICLE V - COVENANTS OF THE COMPANY 27
5.01 Conduct of the Business 27
5.02 Access to Books and Records 29
5.03 Meeting of Stockholders 30
5.04 Regulatory Filings 30
5.05 Registration Statement 30
5.06 Financial Statements 30
5.07 Conditions 30
5.08 No Negotiations 31
5.09 Substitute Options and Warrants 31
ARTICLE VI - COVENANTS OF PARENT AND MERGER SUBSIDIARY 31
6.01 Regulatory Filings 31
6.02 Conditions 31
6.03 Registration Statement 31
6.04 Stock Exchange Listings 32
6.05 Due Authorization, etc. of Stock Issued in Merger 32
6.06 Blue Sky Approvals 32
6.07 Substitute Options Registration Statement 32
6.08 Operation of the Business 32
6.09 Employee Benefit Plans 33
ARTICLE VII - CONDITIONS TO CLOSING 33
7.01 Conditions to Parent's and Merger Subsidiary's Obligations 33
7.02 Conditions to the Company's and the
Stockholders' Obligations 36
ARTICLE VIII - TERMINATION 37
8.01 Termination 37
8.02 Effect of Termination 38
8.03 Termination Fees 38
ARTICLE IX - THE STOCKHOLDERS' REPRESENTATIVE 40
9.01 Appointment 40
9.02 Election and Replacement 40
9.03 Authority 40
9.04 No Liability of Parent 41
ARTICLE X - SURVIVAL AND OFFSET 41
10.01 Survival of Representations and Warranties 41
10.02 Right of Offset 41
ARTICLE XI - ANCILLARY AGREEMENTS 45
11.01 Option Agreement 45
11.02 Stockholder Agreements 45
11.03 Affiliate Agreements 45
11.04 Key Management Agreements 45
11.05 Noncompetition Agreements 46
ARTICLE XII -MISCELLANEOUS 46
12.01 Press Releases and Announcements 46
12.02 Expenses 46
12.03 Amendment and Waiver 46
12.04 Notices 46
12.05 Assignment 47
12.06 Severability 47
12.07 Complete Agreement 47
12.08 Counterparts 48
12.09 Governing Law 48
12.10 Knowledge 48
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") dated as of May
13, 1997, is made and entered into by and among Imation Corp., a Delaware
corporation ("Parent"), CI Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Parent ("Merger Subsidiary"), and Cemax-Icon, Inc., a
Delaware corporation (the "Company"). Merger Subsidiary and the Company are
hereinafter sometimes collectively referred to as the "Constituent
Corporations."
WHEREAS, the respective Boards of Directors of Parent, Merger
Subsidiary and the Company have determined that it is advisable and in the best
interests of the respective corporations and their stockholders that Merger
Subsidiary be merged with and into the Company in accordance with the General
Corporation Law of the State of Delaware (the "Delaware Act") and the terms of
this Agreement, pursuant to which the Company will be the surviving corporation
as a wholly owned subsidiary of Parent (the "Merger"); and
WHEREAS, Parent, Merger Subsidiary and the Company desire to make
certain representations, warranties, covenants, indemnities and agreements in
connection with, and establish various conditions precedent to, the Merger.
NOW, THEREFORE, in consideration of the foregoing, the representations,
warranties, covenants, indemnities and agreements set forth in this Agreement,
and other good and valuable consideration, the adequacy and receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
1.01 THE MERGER. At the Effective Time (as defined in Section 1.03
hereof), and subject to the terms and conditions of this Agreement and the
Certificate of Merger (as defined in Section 1.03 hereof), the Merger Subsidiary
shall be merged with and into the Company, the separate existence of the Merger
Subsidiary shall cease, and the Company shall continue as the surviving
corporation under the corporate name of the Company. In its capacity as the
corporation surviving the Merger, the Company is hereinafter sometimes referred
to as the "Surviving Corporation."
1.02 EFFECT OF MERGER. The effect of the Merger shall be as set forth
in Section 259 of the Delaware Act, and the Surviving Corporation shall succeed
to and possess all the properties, rights, privileges, immunities, powers,
franchises and purposes, and be subject to all the duties, liabilities, debts,
obligations, restrictions and disabilities, of the Constituent Corporations, all
without further act or deed.
1.03 EFFECTIVE TIME. The consummation of the Merger shall be effected
as promptly as practicable, but in no event more than three business days, after
the satisfaction or waiver of the conditions set forth in Article VII of this
Agreement, and the parties hereto will cause a copy of the Certificate of
Merger, attached hereto as Exhibit 1.03(i) (the "Certificate of Merger"), to be
executed, delivered and filed with the Secretary of State of the State of
Delaware in accordance with the Delaware Act. The Merger shall become effective
at the time and date of the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware. The date and time on which the
Merger shall become effective is referred to herein as the "Effective Time."
1.04 DIRECTORS AND OFFICERS. From and after the Effective Time, the
directors and officers of the Surviving Corporation shall be the persons who
were the directors and officers of the Merger Subsidiary immediately prior to
the Effective Time. Such directors and officers of the Surviving Corporation
shall hold office for the term specified in, and subject to the provisions
contained in, the Certificate of Incorporation and Bylaws of the Surviving
Corporation and applicable law. If, at or after the Effective Time, a vacancy
shall exist on the Board of Directors or in any of the offices of the Surviving
Corporation, such vacancy shall be filled in the manner provided in the
Certificate of Incorporation and Bylaws of the Surviving Corporation.
1.05 CERTIFICATE OF INCORPORATION; BYLAWS. From and after the Effective
Time and until further amended in accordance with applicable law, the
Certificate of Incorporation of Merger Subsidiary as in effect immediately prior
to the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation; provided, that, at the Effective Time, Article I of the Certificate
of Incorporation of the Surviving Corporation shall be amended to read in full
as follows: "The name of this corporation is Cemax-Icon, Inc." From and after
the Effective Time and until further amended in accordance with applicable law,
the Bylaws of Merger Subsidiary as in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation.
1.06 TAKING OF NECESSARY ACTION; FURTHER ACTION. Parent, Merger
Subsidiary and the Company, respectively, shall each use its best efforts to
take all such action as may be necessary or appropriate to effectuate the Merger
under the Delaware Act at the time specified in Section 1.03. If, at any time
after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all properties, rights, privileges,
immunities, powers and franchises of either of the Constituent Corporations, the
officers of the Surviving Corporation are fully authorized in the name of each
Constituent Corporation or otherwise to take, and shall take, all such lawful
and necessary action.
1.07 THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Cemax-Icon, Inc.,
47281 Mission Falls Court, Fremont, California 94539, and will be effective as
of the Effective Time. At the Closing, the parties shall deliver to each other
the documents required to be delivered pursuant to Article VII hereof.
ARTICLE II
MERGER CONSIDERATION/EFFECT ON CAPITAL STOCK
2.01 EFFECT ON SECURITIES.
(a) Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of Parent, Merger
Subsidiary, the Company, the Surviving Corporation or the holder of any
of the following securities:
(i) Each share of Common Stock, par value $0.001 per
share, of the Company ("Company Common Stock"), issued and
outstanding immediately prior to the Effective Time and not
held of record by Parent shall be converted into and become a
right to receive (A) a cash payment of $5.25, without interest
thereon, payable on or after the Effective Time in accordance
with, and subject to the deductions set forth in, Section 2.03
(the "1997 Cash Consideration"), and (B) one contingent
payment right, as described and payable in accordance with the
terms set forth in Exhibit 2.01(a)(i) (a "Contingent Payment
Right," and collectively with the 1997 Cash Consideration, the
"Merger Consideration");
(ii) Each share of Series A Preferred Stock, par
value $0.001 per share, of the Company ("Company Preferred
Stock"), issued and outstanding immediately prior to the
Effective Time, and each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time and
held of record by Parent, shall be canceled and extinguished,
and no payment shall be made therefor; and
(iii) Each share of Common Stock, par value $0.001
per share, of the Merger Subsidiary ("Merger Subsidiary
Stock"), issued and outstanding immediately prior to the
Effective Time shall be converted into and become a right to
receive one share of Common Stock, par value $0.001 per share,
of the Surviving Corporation ("Surviving Corporation Stock").
(b) Effect on Stock Options and Warrants.
(i) Any option issued pursuant to the Cemax-Icon,
Inc. 1996 Stock Plan, the Icon Medical Systems, Inc. 1992
Stock Option Plan and the Cemax/Icon, Inc. 1986 Amended
Incentive Stock Plan (collectively, the "Option Plans") and
outstanding immediately prior to the Effective Time (an
"Outstanding Stock Option"), shall be converted into, without
any further action on the part of Parent, Merger Subsidiary,
the Company, the Surviving Corporation or the holder thereof,
a substitute option (a "Substitute Option") to purchase a
number of shares of Parent equal to the number of shares
subject to such Outstanding Stock Option immediately prior to
the Effective Time multiplied by the Common Exchange Ratio (as
defined below), and the exercise price of such Substitute
Option shall be equal to the exercise price of such
Outstanding Stock Option immediately prior to the Effective
Time divided by the Common Exchange Ratio. Each Substitute
Option will be subject to the existing terms and conditions of
the Option Plan and stock option agreement governing the
Outstanding Stock Option immediately prior to the Effective
Time, except, that (A) no Substitute Option will be intended
to qualify as an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), (B) each Substitute Option replacing an
Outstanding Stock Option that vests at the rate of either (x)
twenty-five percent (25%) per year during the first year and
two percent (2%) per month thereafter or (y) two percent (2%)
per month will vest at the rate of four percent (4%) per month
during the first 12 months after the Effective Time, and (C)
each Substitute Option replacing an Outstanding Stock Option
held by a consultant, contractor or non-employee director will
not be subject to early termination as a result of termination
of status as a consultant, contractor or director of the
Company or Surviving Corporation and in the event of such
termination shall vest and become exercisable in full
(including as to shares not otherwise exercisable as of the
date of such termination).
(ii) Any warrant to purchase Company Common Stock
issued and outstanding immediately prior to the Effective Time
(an "Outstanding Stock Warrant"), shall be converted into,
without any further action on the part of Parent, Merger
Subsidiary, the Company, the Surviving Corporation or holder
thereof, a substitute warrant (a "Substitute Warrant") to
purchase a number of shares of Parent equal to the number of
shares subject to such Outstanding Stock Warrant immediately
prior to the Effective Time multiplied by the Common Exchange
Ratio (as defined below), and the exercise price of such
Substitute Warrant shall be equal to the exercise price of
such Outstanding Stock Warrant immediately prior to the
Effective Time divided by the Common Exchange Ratio. Each
Substitute Warrant will be subject to the existing terms and
conditions of the stock subscription warrant governing the
Outstanding Stock Warrant immediately prior to the Effective
Time.
(iii) For purposes of this Section 2.01(b), "Common
Exchange Ratio" shall mean the quotient of (A) $11.96, and (B)
the average closing price per share of Parent Common Stock on
the New York Stock Exchange -- Composite Transactions, as
reported in The Wall Street Journal, for each of the 10
consecutive trading days ending on the third business day
prior to the Effective Time.
2.02 DISSENTING SHARES.
(a) Notwithstanding anything in this Agreement to the
contrary, if Section 262 of the Delaware Act shall be applicable to the
Merger, shares of Company Common Stock that are issued and outstanding
immediately prior to the Effective Time and which are held by
stockholders who have not voted such shares in favor of the Merger, who
shall have delivered, prior to any vote on the merger, a written demand
for the fair value of such shares in the manner provided in Section 262
of the Delaware Act and who, as of the Effective Time, shall not have
effectively withdrawn or lost such right to appraisal rights
("Dissenting Shares"), shall not be converted into or represent a right
to receive the Merger Consideration pursuant to Section 2.01 hereof,
but the holders thereof shall be entitled only to such rights as are
granted by Section 262 of the Delaware Act. Each holder of Dissenting
Shares who becomes entitled to payment for such shares pursuant to
Section 262 of the Delaware Act shall receive payment therefor from the
Surviving Corporation in accordance with the Delaware Act; provided,
however, that if any such holder of Dissenting Shares shall have
effectively withdrawn such holder's demand for appraisal of such shares
or lost such holder's right to appraisal and payment of such shares
under Section 262 of the Delaware Act, such holder or holders (as the
case may be) shall forfeit the right to appraisal of such shares and
each such share shall thereupon be deemed to have been canceled,
extinguished and converted, as of the Effective Time, into and
represent the right to receive payment from the Surviving Corporation
of the consideration provided for in Section 2.01 hereof.
(b) The Company shall give Parent (i) prompt notice of any
written demand for fair value, any withdrawal of a demand for fair
value and any other instrument served pursuant to Section 262 of the
Delaware Act received by the Company, and (ii) the opportunity to
direct all negotiations and proceedings with respect to demands for
fair value under such Section 262 of the Delaware Act. The Company
shall not, except with the prior written consent of Parent, voluntarily
make any payment with respect to any demand for fair value or offer to
settle or settle any such demand.
2.03 PAYMENT OF CONSIDERATION FOR COMPANY CAPITAL STOCK.
(a) As of the Effective Time, Parent shall deposit, or shall
cause to be deposited, cash in the amount of the aggregate 1997 Cash
Consideration (the "Payment Fund") with First Trust Company or such
other bank or trust company designated by Parent and acceptable to the
Company (the "Paying Agent"), for the benefit of the Company's
stockholders and in exchange for outstanding shares of Company Common
Stock. The Payment Fund shall not be used for any other purpose.
(b) Within three business days after the Effective Time,
Parent shall instruct the Paying Agent to mail to each holder of record
(the "Company Stockholders") of a certificate or certificates which
immediately prior to the Effective Time represented outstanding shares
of Company Common Stock (the "Certificates"), a (i) a letter of
transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon proper
delivery of the Certificates to the Paying Agent and shall be in
customary form), and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for the Merger Consideration.
Upon surrender of a Certificate for cancellation to the Paying Agent,
together with such letter of transmittal, duly executed, and such other
documents as may be reasonably required pursuant to such instructions,
the holder of such Certificate shall receive in exchange the 1997 Cash
Consideration and shall be entitled to the Contingent Payment Right as
set forth in Exhibit 2.01(a)(i), in each case which such holder is
entitled to receive in the Merger with respect to the shares of Company
Common Stock formerly represented by such Certificate, and the
Certificate so surrendered shall forthwith be canceled. Until
surrendered as contemplated by this Section 2.03(b), each Certificate
shall be deemed at any time after the Effective Time to represent
solely the right to receive the Merger Consideration with respect to
the shares of Company Common Stock formerly represented by such
Certificate.
Pursuant to a separate agreement between the Paying Agent and
the Stockholders' Representatives (on behalf of the Company's
stockholders), the Paying Agent shall withhold up to Two Hundred
Thousand Dollars ($200,000) from the initial payments of 1997 Cash
Consideration in a separate fund (the "Representatives' Fund") for
reimbursement of the Stockholders' Representatives' out-of-pocket
expenses in acting on behalf of the Company's stockholders in
connection with the Merger before and after the Effective Time. The
Paying Agent shall distribute any remaining amounts in the
Representatives' Fund to the Company's stockholders after the
Stockholders' Representatives have completed their representation of
the Company's stockholders in connection with the Merger before and
after the Effective Time.
(c) Any portion of the Payment Fund which remains
undistributed to the Company Stockholders for one year after the
Effective Time shall be delivered to Parent, upon demand, and any
Common Stockholders who have not theretofore complied with this Section
2.03 shall thereafter look only to Parent for the Merger Consideration
to which they are entitled under Section 2.01(a)(i).
2.04 STOCK TRANSFER BOOKS. At the Effective Time, the stock transfer
books of the Company shall be closed and there shall be no further registration
of transfers of shares of Company Common Stock thereafter on the records of the
Company. From and after the Effective Time, the holders of certificates
representing shares of Company Common Stock immediately prior to the Effective
Time shall cease to have any rights with respect to such shares of Company
Common Stock except as otherwise provided in this Agreement or by law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Merger
Subsidiary that, except as set forth in the Disclosure Schedule delivered by the
Company to Parent and Merger Subsidiary on the date hereof (the "Disclosure
Schedule"):
3.01 INCORPORATION AND CORPORATE POWER. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of Delaware and, subject to approval of this Agreement by the Company's
stockholders, the Company has the requisite corporate power and authority to
execute and deliver this Agreement the Certificate of Merger and the agreements
identified in Article XI to which the Company is a party (the "Company Ancillary
Agreements") and to perform its obligations hereunder and thereunder. The
Company has the corporate power and authority and all authorizations, licenses,
permits and certifications necessary to own and operate its properties and to
carry on its business as now conducted and presently proposed to be conducted.
The copies of the Certificate of Incorporation and Bylaws of the Company which
have been furnished by the Company to Parent prior to the date hereof reflect
all amendments made thereto and are correct and complete as of the date hereof.
The Company is qualified to do business as a foreign corporation in every
jurisdiction in which the nature of its business or its ownership of property
requires it to be so qualified, except for those jurisdictions in which the
failure to be so qualified would not, individually or in the aggregate, have a
material adverse effect on the business or results of operations of the Company.
3.02 EXECUTION, DELIVERY; VALID AND BINDING AGREEMENT. The execution,
delivery and performance of this Agreement, the Certificate of Merger and the
Company Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
requisite corporate action, and no other corporate proceedings on its part are
necessary to authorize the execution, delivery and performance of this
Agreement, the Certificate of Merger and the Company Ancillary Agreements, other
than the approval of this Agreement by the Company's stockholders. This
Agreement and the Company Ancillary Agreements have been duly executed and
delivered by the Company and constitute the valid and binding obligations of the
Company, enforceable in accordance with their terms, and the Certificate of
Merger, when executed and delivered by the Company, will constitute the valid
and binding obligation of the Company, enforceable in accordance with its terms.
3.03 APPROVAL OF AGREEMENT; MEETING OF STOCKHOLDERS. The Company hereby
represents that its Board of Directors has, by resolutions duly adopted by
written consent effective as of May 12, 1997, approved this Agreement, the
Certificate of Merger and the Company Ancillary Agreements and the transactions
contemplated hereby and thereby, including the Merger, and resolved to recommend
approval of this Agreement by the Company's stockholders. None of the
resolutions described in this Section 3.03 has been amended or otherwise
modified in any respect since the date of adoption thereof and all such
resolutions remain in full force and effect.
3.04 NO BREACH. The execution, delivery and performance of this
Agreement, the Certificate of Merger and the Company Ancillary Agreements by the
Company and the consummation by the Company of the transactions contemplated
hereby and thereby do not conflict with or result in any breach of any of the
provisions of, constitute a default under, result in a violation of, result in
the creation of a right of termination or acceleration or any lien, security
interest, charge or encumbrance upon any assets of the Company, or require any
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under the provisions of the Certificate of
Incorporation or Bylaws of the Company or any indenture, mortgage, lease, loan
agreement or other agreement or instrument by which the Company is bound or
affected, or any law, statute, rule or regulation or order, judgment or decree
to which the Company is subject.
3.05 GOVERNMENTAL AUTHORITIES; CONSENTS. Except for the applicable
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
and except for the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware, the Company is not required to submit any
notice, report or other filing with any governmental authority in connection
with the execution or delivery by it of this Agreement, the Certificate of
Merger or the Company Ancillary Agreements or the consummation of the
transactions contemplated hereby or thereby. No consent, approval or
authorization of any governmental or regulatory authority or any other party or
person (except the approval of this Agreement by the stockholders of the
Company) is required to be obtained by the Company in connection with its
execution, delivery and performance of this Agreement, the Certificate of Merger
or the Company Ancillary Agreements or the transactions contemplated hereby or
thereby.
3.06 SUBSIDIARIES; PREDECESSORS.
(a) The Company does not own any stock, partnership interest,
joint venture interest or any other security or ownership interest
issued by any other corporation, organization, joint venture,
partnership, limited liability company or entity.
(b) The Company is the successor-in-interest to the assets,
liabilities and business of ICON Medical Systems, Inc., a California
corporation ("ICON") as a result of a merger (the "ICON Merger") of
ICON into the Company pursuant to and in accordance with the Agreement
and Plan of Reorganization (the "Reorganization Agreement"), dated
April 12, 1995, by and between the Company and ICON, a correct and
complete copy of which has heretofore been delivered to Parent. As a
result of the ICON Merger, pursuant to the provisions of applicable
corporate law, the separate existence of ICON ceased, with the Company
remaining as the sole surviving corporation and possessing all of the
assets, liabilities and business of ICON, except as otherwise provided
in the Reorganization Agreement. The ICON Merger was effective as of
June 14, 1995 in accordance with applicable corporate law.
The Reorganization Agreement and the ICON Merger were duly and
validly authorized by all necessary corporate actions on the part of
each of the parties to the Reorganization Agreement, pursuant to the
provisions of the applicable charter, bylaws and other organizational
documents of each party thereto and applicable law; and all necessary
consents and approvals to the ICON Merger and transfer of the rights,
liabilities, assets and business of ICON to the Company pursuant to the
ICON Merger have been obtained. The execution and performance of the
Reorganization Agreement and the consummation of the transactions
therein contemplated did not and will not (i) violate any provisions of
the charter or bylaws, or other organization documents of the Company
or ICON, (ii) conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or passage of time, or
both, a default under any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument to which the
Company or ICON, is or was, as the case may be, a party or by which the
Company or ICON, or any of their properties, may be or may have been,
as the case may be, bound or affected, or (iii) conflict with or
violate any statue or any authorization, judgment, decree, order, rule
or regulation of any court or any regulatory body, administrative
agency or other governmental body applicable to the Company or ICON, or
any of their properties, in any such case in a manner that would have a
material adverse effect on the Company.
The Company has made no claims for breach of a representation,
warranty or covenant in the Reorganization Agreement. All income, sales
and other taxes and recording and other fees arising out of or relating
to the transfer from ICON to the Company of liabilities, assets and
business of ICON have been (or, if not yet due, will be) paid in a
timely manner by ICON or the Company as applicable. All of the shares
of capital stock of ICON issued and outstanding as of the time
immediately preceding the ICON Merger were duly authorized and validly
issued, were fully paid and nonassessable, were issued in compliance
with all registration and qualification provisions of applicable
federal and state securities laws, and were not issued in violation of
or subject to any preemptive rights or other rights to subscribe for or
purchase securities. Pursuant to the terms of the Reorganization
Agreement, all the outstanding capital stock of ICON was converted into
the right to receive shares of capital stock of the Company, all of
which have previously been delivered.
(c) The Company is the successor-in-interest to the assets,
liabilities and business of Virtual Imaging, Inc., a California
corporation ("Virtual") as a result of a merger (the "Virtual
Exchange") of Virtual into the Company pursuant to and in accordance
with the Plan and Agreement of Reorganization Agreement (the "Exchange
Agreement"), dated as of January 11, 1993, by and between the Company
and Virtual, a correct and complete copy of which has heretofore been
delivered to Parent. As a result of the Virtual Exchange, pursuant to
the provisions of applicable corporate law, the separate existence of
Virtual ceased, with the Company remaining as the sole surviving
corporation and possessing all of the assets, liabilities and business
of Virtual, except as otherwise provided in the Exchange Agreement. The
Virtual Exchange was effective as of January 11, 1993 in accordance
with applicable corporate law.
The Exchange Agreement and the Virtual Exchange were duly and
validly authorized by all necessary corporate actions on the part of
each of the parties to the Exchange Agreement, pursuant to the
provisions of the applicable charter, bylaws and other organizational
documents of each party thereto and applicable law; and all necessary
consents and approvals to the Virtual Exchange and transfer of the
rights, liabilities, assets and business of Virtual to the Company
pursuant to the Virtual Exchange have been obtained. The execution and
performance of the Exchange Agreement and the consummation of the
transactions therein contemplated did not and will not (i) violate any
provisions of the charter or bylaws, or other organization documents of
the Company or Virtual, (ii) conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or passage
of time, or both, a default under any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument
to which the Company or Virtual, is or was, as the case may be, a party
or by which the Company or Virtual, or any of their properties, may be
or may have been, as the case may be, bound or affected, or (iii)
conflict with or violate any statue or any authorization, judgment,
decree, order, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the
Company or Virtual, or any of their properties, in any such case in a
manner that would have a material adverse effect on the Company.
The Company has made no claims for breach of a representation,
warranty or covenant in the Exchange Agreement. All income, sales and
other taxes and recording and other fees arising out of or relating to
the transfer from Virtual to the Company of liabilities, assets and
business of Virtual have been (or, if not yet due, will be) paid in a
timely manner by Virtual or the Company as applicable. Pursuant to the
terms of the Exchange Agreement, all the outstanding capital stock of
Virtual was converted into the right to receive shares of capital stock
of the Company, all of which have previously been delivered.
3.07 CAPITAL STOCK.
(a) The authorized capital stock of the Company consists of
50,000,000 shares of Company Common Stock, par value $0.001 per share,
of which, as of the date hereof, 5,379,587 shares are issued and
outstanding, 30,000,000 shares of preferred stock, par value $0.001 per
share, of which as of the date hereof 1,985,878 shares are designated
Company Preferred Stock, as of which as of the date hereof 1,073,077
shares are issued and outstanding. The Company Common Stock and Company
Preferred Stock is held of record by the persons and in the amounts set
forth on the Disclosure Schedule. All such outstanding shares of
Company's capital stock (i) have been duly authorized and are validly
issued, fully paid and nonassessable, (ii) are not subject to
preemptive rights created by statute, the Company's Certificate of
Incorporation or Bylaws, or any other agreement to which either the
Company or, the knowledge of the Company, the Company's stockholders
are bound, and (iii) were issued in full compliance with all applicable
securities laws. As of June 30, 1997, a total of 121,306 shares of
Company Common Stock, held of record by the persons and in the amount
set forth in the Disclosure Schedule, will be subject to repurchase by
the Company, at the original purchase price (the "Restricted Common
Stock").
(b) The Company has reserved a total of 2,549,806 shares of
Company Common Stock for issuance to employees, directors and
consultants pursuant to the Option Plans, under which options to
purchase 1,180,640 shares of Company Common Stock are outstanding, with
a weighted average exercise price of $3.773 per share. The Company has
reserved a total of (i) 150,000 shares of Company Common Stock for
issuance pursuant to a warrant held by Dominion Fund IV, and (ii)
250,000 shares of Company Common Stock for issuance pursuant to
convertible debt held by Dominion Fund IV. The Disclosure Schedule sets
forth for each Outstanding Stock Option and Outstanding Stock Warrant,
the number of shares of Company Common Stock subject to such option or
warrant, the exercise price of such option or warrant, the expiration
date of such option or warrant, and the vesting schedule of such option
or warrant (including the extent vested to date and the extent, if any,
to which exercisability will be accelerated by the transactions
contemplated by this Agreement). The Company has reserved a total of
170,000 shares of Company Common Stock for the Picker Shares and
Warrants (as defined in Section 5.01(i)). Except for the Outstanding
Stock Options and Outstanding Stock Warrants identified on the
Disclosure Schedule, the Picker Shares and Warrants, and the conversion
and other rights of the Company Preferred Stock specified in the
Company's Certificate of Incorporation, there are no rights,
subscriptions, warrants, options, conversion rights or agreements of
any kind outstanding to purchase or otherwise acquire from the Company
any shares of capital stock or other securities of the Company of any
kind, there are no agreements or other obligations (contingent or
otherwise) which may require the Company to repurchase or otherwise
acquire any shares of its capital stock, and there are no agreements or
other obligations of the Company to grant, extend, accelerate the
vesting of, change the price of or otherwise amend any Outstanding
Stock Option or Outstanding Stock Warrant (except as otherwise set
forth herein or in the Key Management Agreements). Except to reflect
the 2.35-for-1 reverse split of shares of Company Common Stock
effective July 1996, no adjustment has occurred with respect to the
number of shares of Common Stock issuable upon conversion of the
Company Preferred Stock since the original issuance thereof. The
holders of Outstanding Stock Options and Outstanding Stock Warrants
have been or will be given, or shall have properly waived, any required
notice prior to the Merger. The Company has delivered to Parent
complete and accurate stock record books reflecting original issuances
and, transfers of capital stock of the Company and its predecessors, in
all material respects.
(c) The Disclosure Schedule sets forth those persons who are,
in the Company's reasonable judgment, "affiliates" of the Company
within the meaning of Rule 145 promulgated by the Securities Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act").
3.08 FINANCIAL STATEMENTS.
(a) The Company has delivered to Purchaser copies of (i) the
unaudited balance sheets, as of March 31, 1997, of the Company (the
"Latest Balance Sheet") and the unaudited statements of earnings,
stockholders' equity and cash flows of the Company for the three-month
period ended March 31, 1997 (such statements and the Latest Balance
Sheet being herein referred to as the "Latest Financial Statements"),
and (ii) the audited balance sheets, as of December 31, 1996, December
31, 1995 and December 31, 1994, of the Company and the audited
statements of earnings, stockholders' equity and cash flows of the
Company for each of the years ended December 31, 1996, December 31,
1995 and December 31, 1994 (collectively, the "Annual Financial
Statements"). The Latest Financial Statements and the Annual Financial
Statements are based upon the information contained in the books and
records of the Company and fairly present the financial condition of
the Company as of the dates thereof and respective results of
operations for the periods referred to therein. The Annual Financial
Statements have been prepared in accordance with generally accepted
accounting principles, consistently applied through the periods
indicated, and the Latest Financial Statements have been prepared in
accordance with generally accepted accounting principles applicable to
unaudited interim financial statements (and thus may not contain all
notes and may not contain prior period comparative data which are
required to be prepared in accordance with generally accepted
accounting principles), are consistent with the Annual Financial
Statements and reflect all adjustments necessary to a fair statement of
the results for the interim period(s) presented.
(b) The Disclosure Schedule includes the Company's financial
projections for results of operations on a stand-alone basis for the
twelve-month periods ending June 30, 1998 and June 30, 1999 (the
"Projections"). The Company represents and warrants that the
Projections were prepared by management of the Company in good faith
and, as of March 12, 1997, represent the best estimates of such
officers of the Company for the periods then ending, based on
assumptions they believed were reasonable as of such date, but without
adjustment for the Merger and the consummation of the other
transactions contemplated hereby. The assumptions underlying the
Projections consist of various factors based upon the information
available to such officers as of the date of the preparation of the
Projections, including the financial and business condition of the
Company, the development stage, size and strength of markets for the
Company's products, the status of the Company's competitors and their
products, the continuation of the Company's management personnel and
the Company's continued ability to attract and retain suitable
employees, the continued successful technical development of the
Company's existing and anticipated future products, general conditions
in the health care industry, and economic conditions and government
regulatory and reimbursement policies. Parent and Merger Subsidiary
acknowledge that no representation or warranty of any kind is made that
the Projections will accurately reflect the actual results of future
operations, and that actual results of operations during the projection
period may vary from the Projections.
3.09 ABSENCE OF UNDISCLOSED LIABILITIES. Except as reflected in the
Latest Balance Sheet, the Company has no liabilities (whether accrued, absolute,
contingent, unliquidated or otherwise, whether due or to become due, whether
known or unknown, and regardless of when asserted) arising out of transactions
or events heretofore entered into, or any action or inaction, or any state of
facts existing, with respect to or based upon transactions or events heretofore
occurring, except liabilities which have arisen after the date of the Latest
Balance Sheet in the ordinary course of business (none of which is a material
uninsured liability for breach of contract, breach of warranty, tort,
infringement, claim or lawsuit).
3.10 NO MATERIAL ADVERSE CHANGES. Since the date of the Latest Balance
Sheet (the "Balance Sheet Date"), there has been no material adverse change in
the assets, financial condition, relations with key management employees or key
OEM's, operating results or business condition of the Company.
3.11 ABSENCE OF CERTAIN DEVELOPMENTS. Since the Balance Sheet Date, the
Company has not:
(a) borrowed any amount or incurred or become subject to any
liability in excess of $50,000, except (i) current liabilities incurred
in the ordinary course of business and (ii) liabilities under contracts
entered into in the ordinary course of business;
(b) mortgaged, pledged or subjected to any lien, charge or any
other encumbrance, any of its assets with a fair market value in excess
of $25,000, except (i) liens for current property taxes not yet due and
payable, (ii) liens imposed by law and incurred in the ordinary course
of business for obligations not yet due to carriers, warehousemen,
laborers, materialmen and the like, (iii) liens in respect of pledges
or deposits under workers' compensation laws, (iv) liens set forth in
the Disclosure Schedule, or (v) liens voluntarily created in the
ordinary course of business, all of which liens aggregate less than
$25,000;
(c) discharged or satisfied any lien or encumbrance or paid
any liability, in each case with a value in excess of $50,000, other
than current liabilities paid in the ordinary course of business;
(d) sold, assigned or transferred (including, without
limitation, transfers to any employees, affiliates or stockholders) any
tangible assets with a fair market value in excess of $50,000, or
canceled any debts or claims, in each case, except in the ordinary
course of business;
(e) sold, assigned or transferred (including, without
limitation, transfers to any employees, affiliates or stockholders) any
patents, trademarks, trade names, copyrights, trade secrets or other
intangible assets;
(f) disclosed, to any person other than Parent or Merger
Subsidiary and authorized representatives of Parent or Merger
Subsidiary, any proprietary confidential information, other than
pursuant to a confidentiality agreement prohibiting the use or further
disclosure of such information, which agreement is identified in the
Disclosure Schedule and is in full force and effect on the date hereof;
(g) waived any rights of material value or suffered any
extraordinary losses or adverse changes in collection loss experience,
whether or not in the ordinary course of business or consistent with
past practice;
(h) declared or paid any dividends or other distributions with
respect to any shares of the Company's capital stock or redeemed or
purchased, directly or indirectly, any shares of the Company's capital
stock or any options;
(i) issued, sold or transferred any of its equity securities,
securities convertible into or exchangeable for its equity securities
or warrants, options or other rights to acquire its equity securities,
or any bonds or debt securities except the Picker Shares and Warrants
or as described in the Disclosure Schedule;
(j) taken any other material action or entered into any other
material transaction other than in the ordinary course of business and
in accordance with past custom and practice, or entered into any
transaction with any "insider" (as defined in Section 3.23 hereof)
other than employment arrangements otherwise disclosed in this
Agreement and the Disclosure Schedule, or the transactions expressly
contemplated by this Agreement;
(k) suffered any material theft, damage, destruction or loss
of or to any property or properties owned or used by it, whether or not
covered by insurance;
(l) made or granted any bonus, or any wage, salary or
compensation increase to any director, officer, employee or consultant
who earns more than $75,000 per year, or made or granted any increase
in any employee benefit plan or arrangement, or amended or terminated
any existing employee benefit plan or arrangement, or adopted any new
employee benefit plan or arrangement or made any commitment or incurred
any liability to any labor organization;
(m) made any single capital expenditure or commitment therefor
in excess of $20,000, except any single capital expenditure or
commitment in the ordinary course of business consistent with past
practice not in excess of $50,000;
(n) made any loans or advances to, or guarantees for the
benefit of, any persons (except advances for customary travel and
entertainment expenditures in the ordinary course of business);
(o) made any charitable contributions or pledges;
(p) made any change in accounting principles or practices from
those utilized in the preparation of the Latest Financial Statements;
(q) experienced any amendment, modification or termination of
any existing, or entered into any new, contract, agreement, plan,
lease, license, permit or franchise which is, either individual or in
the aggregate, material to the business, operations, financial position
or prospects of the Company other than in the ordinary course of
business;
(r) experienced any labor dispute material to the business,
operations, financial position or prospects of the Company;
(s) experienced any change in any method of calculating, any
bad debt, inventory, contingency or other reserve;
(t) written off as uncollectible any note or account
receivable, or canceled any debts, other than in the ordinary course of
business and consistent with past practice;
(u) except as previously discussed with and agreed to by
Parent, failed to replace or replenish inventory or supplies as such
inventory or supplies may have been depleted from time to time, collect
accounts receivable, pay accounts payable or shorten or lengthen the
customary payment cycles for any of its payables or receivables or
otherwise manage its working capital accounts in a manner consistent
with past practice;
(v) experienced any writedown or writeup of (or failed to
writedown or writeup in accordance with generally accepted accounting
principles) the value of any inventories, receivables or other assets,
or revalued any assets of the Company;
(w) failed to maintain all material physical assets in
accordance with good business practice and in good operating condition
and repair, ordinary wear and tear excepted;
(x) experienced any lapse or termination of any material
permit that was issued or relates to the Company or its business, or
any failure to renew any such permit; or
(y) discontinued or altered, in any material respect, its
advertising or promotional activities or its pricing and purchasing
policies other than in a manner consistent with past practices.
3.12 TITLE TO PROPERTIES.
(a) The Company does not own, and neither the Company nor any
of its predecessors has owned, any real property. The real property
demised by the leases (the "Leases") described in the Disclosure
Schedule constitutes all of the real property used or occupied by the
Company (the "Real Property"). The Real Property has access, sufficient
for the conduct of the business of the Company as now conducted to
public roads and to all utilities, including electricity, sanitary and
storm sewer, potable water, natural gas and other utilities, used in
the operation of the business of the Company at that location.
(b) The Leases are in full force and effect, and the Company
holds a valid and existing leasehold interest under each of the Leases
for the term set forth in the Disclosure Schedule. The Company has
delivered to Parent complete and accurate copies of each of the Leases,
and none of the Leases has been modified in any respect, except to the
extent that such modifications are disclosed by the copies delivered to
Parent. The Company is not in default, and to the knowledge of the
Company no circumstances exist which, if unremedied, would, either with
or without notice or the passage of time or both, result in such
default under any of the Leases; nor to the knowledge of the Company is
any other party to any of the Leases in default.
(c) The Company owns good and marketable title to each of the
tangible properties and tangible assets reflected on the Latest Balance
Sheet or acquired since the date thereof, free and clear of all liens
and encumbrances, except for (i) liens for current taxes not yet due
and payable, (ii) liens set forth in the Disclosure Schedule, (iii) the
properties subject to the Leases, (iv) assets disposed of since the
date of the Latest Balance Sheet in the ordinary course of business,
(v) liens imposed by law and incurred in the ordinary course of
business for obligations not yet due to carriers, warehousemen,
laborers and materialmen and (vi) liens in respect of pledges or
deposits under workers' compensation laws, all of which liens aggregate
less than $25,000.
(d) All of the buildings, machinery, equipment and other
tangible assets necessary for the conduct of the business of the
Company are in good condition and repair, ordinary wear and tear
excepted, and are usable in the ordinary course of business. There are
no defects in such assets or other conditions relating thereto which,
individually or in the aggregate, materially adversely affect the
operation or value of such assets. The Company owns or leases under
valid leases, all buildings, machinery, equipment and other tangible
assets necessary for the conduct of its business as presently
conducted.
(e) The Company is not in violation of any applicable zoning
ordinance or other law, regulation or requirement relating to the
operation of any properties used in the operation of its business, and
the Company has not received any notice of any such violation, or the
existence of any condemnation proceeding with respect to any of the
Real Property, except, in each case, with respect to violations the
potential consequences of which do not or will not have a material
adverse effect on the Company.
(f) The Company has no knowledge of improvements made or
contemplated to be made by any public or private authority, the costs
of which are to be assessed as special taxes or charges against any of
the Real Property, and there are no present assessments.
3.13 ACCOUNTS RECEIVABLE. The accounts receivable reflected on the
Latest Balance Sheet are valid receivables, are not subject to valid
counterclaims or set-offs, and will be collected in accordance with their terms,
except to the extent set forth on the Disclosure Schedule. The accounts
receivable reflected on the Company's books and records arising after the date
of the Latest Balance Sheet and prior to the Effective Time are valid
receivables, are not subject to valid counterclaims or set-offs, and are
collectible in a manner consistent with past practices in accordance with the
Company's standard terms and conditions of sale.
3.14 INVENTORY. The inventory of raw materials, work in process and
finished goods of the Company consists of items of a quality and quantity usable
and, with respect to finished goods only, salable in the ordinary course of the
business of the Company. The inventory of finished goods of the Company is not
slow-moving as determined in accordance with past practices, obsolete or damaged
and is merchantable and fit for its particular use. The Company has on hand or
has ordered and expects timely delivery of such quantities of raw materials, and
has on hand such quantities of work in process and finished goods, in each case
as are reasonably required timely to fill current orders on hand which require
delivery within sixty (60) days and to maintain the manufacture and shipment of
products at its normal level of operations. As of the date of the Latest Balance
Sheet, the values at which such inventory is carried on the Latest Balance Sheet
are in accordance with generally accepted accounting principles. The Disclosure
Schedule contains a materially complete and accurate summary of the Company's
inventory of raw materials, work in progress and finished goods as of March 31,
1997.
3.15 TAX MATTERS.
(a) Each of the Company and any affiliated, combined or
unitary group of which the Company is or was a member, any predecessor
of the Company and any "Plans" (as defined in Section 3.21 hereof), as
the case may be (each, a "Tax Affiliate" and, collectively, the "Tax
Affiliates"), has: (i) timely filed (after taking into account any
properly applicable extension of the due date of such Returns) all
returns, declarations, reports, estimates, information returns, and
statements ("Returns") required to be filed or sent by it in respect of
any "Taxes" (as defined in subsection (p) below) or required to be
filed or sent by it by any taxing authority having jurisdiction and all
such Returns are true and correct in all material respects; (ii) timely
and properly paid (or has had paid on its behalf) all Taxes due and
payable with respect to the periods covered by such Returns; (iii)
established on its Latest Balance Sheet, in accordance with generally
accepted accounting principles, reserves that are adequate for the
payment of any Taxes for all Tax periods or portions thereof ending on,
prior to or including the Closing Date, the amount of which as of the
date of the Latest Balance Sheet is set forth in the Disclosure
Schedule; (iv) complied with all applicable laws, rules, and
regulations relating to the withholding of Taxes and the payment
thereof (including, without limitation, withholding of Taxes under
Sections 1441 and 1442 of the Code, or similar provisions under any
foreign laws), and timely and properly withheld from individual
employee wages and paid over to the proper governmental authorities all
amounts required to be so withheld and paid over under all applicable
laws. True and correct copies of any and all Returns filed by any Tax
Affiliate have been provided to Parent.
(b) There are no liens for Taxes upon any assets of the
Company or of any Tax Affiliate, except liens for Taxes not yet due.
The Company is not a party to any tax sharing agreement or other
arrangement for the payment or reimbursement of Taxes.
(c) No deficiency for any Taxes has been proposed, asserted or
assessed against the Company or the Tax Affiliates that has not been
resolved and paid in full. No waiver, extension or comparable consent
given by the Company or the Tax Affiliates regarding the application of
the statute of limitations with respect to any Taxes or Returns is
outstanding, nor is any request for any such waiver or consent pending.
There has been no Tax audit or other administrative proceeding or court
proceeding with regard to any Taxes or Returns, nor is any such Tax
audit or other proceeding pending, nor has there been any notice to the
Company by any Taxing authority regarding any such Tax, audit or other
proceeding, or, to the knowledge of the Company, is any such Tax audit
or other proceeding threatened with regard to any Taxes or Returns. The
Company does not expect the assessment of any additional Taxes of the
Company or the Tax Affiliates and is not aware of any unresolved
questions, claims or disputes concerning the liability for Taxes of the
Company or the Tax Affiliates which would exceed the estimated reserves
established on its books and records.
(d) Neither the Company nor any Tax Affiliate is a party to
any agreement, contract or arrangement that would result, separately or
in the aggregate, in the payment of any "excess parachute payments"
within the meaning of Section 280G of the Code and the consummation of
the transactions contemplated by this Agreement will not be a factor
causing payments to be made by the Company or any Tax Affiliate that
are not deductible (in whole or in part) under Section 280G of the
Code.
(e) Except as set forth on the Disclosure Schedule, neither
the Company nor any Tax Affiliate has requested any extension of time
within which to file any Return, which Return has not since been filed.
(f) No property of the Company or any Tax Affiliate is
property that the Company or any Tax Affiliates is or will be required
to treat as being owned by another person under the provisions of
Section 168(f)(8) of the Code (as in effect prior to amendment by the
Tax Reform Act of 1986) or is "tax-exempt use property" within the
meaning of Section 168 of the Code.
(g) Neither the Company nor any Tax Affiliate is required to
include in income any adjustment under Section 481(a) of the Code by
reason of a voluntary change in accounting method initiated by the
Company or any Tax Affiliate as a result of the Tax Reform Act of 1986
and neither the Company nor any Tax Affiliate has knowledge that the
Internal Revenue Service has proposed any such adjustment or change in
accounting method.
(h) All transactions that could give rise to an understatement
of federal income tax (within the meaning of Section 6661 of the Code
as it applied prior to repeal) or an underpayment of tax (within the
meaning of Section 6662 of the Code) were reported in a manner for
which there is substantial authority or were adequately disclosed (or,
with respect to Returns filed before the Closing Date, will be reported
in such a manner or adequately disclosed) on the Returns required in
accordance with Sections 6661(b)(2)(B) and 6662(d)(2)(B) of the Code.
(i) Except as set forth on the Disclosure Schedule, neither
the Company nor any Tax Affiliate has engaged in any transaction that
would result in a deemed election under Section 338(e) of the Code, and
neither the Company nor any Tax Affiliate will engage in any such
transaction within any applicable "consistency period" (as such term is
defined in Section 338 of the Code).
(j) Neither the Company nor any Tax Affiliate has filed any
consent under Section 341(f) of the Code.
(k) The Company and the Tax Affiliates have evidence of
payment for all taxes, charges, fees, levies, or other assessments of a
foreign country paid or accrued from the date of the formation of each
of them, respectively.
(l) Neither the Company nor any Tax Affiliate, to the extent
they are "controlled foreign corporations" within the meaning of
Section 957 of the Code, have now or have had at any time in the past
"subpart F income" within the meaning of Section 952 of the Code.
(m) The Company and the Tax Affiliates are, and at all times
have been, corporations or associations taxable as corporations for
United States income tax purposes.
(n) Any "FSC" (within the meaning of Section 922 of the Code)
has been properly operated in accordance with the provisions of
Sections 921-927 of the Code.
(o) All deductions claimed or reported on all Returns of the
Company and any Tax Affiliate on account of royalties or similar fees
payable with respect to any intellectual property of the Company or any
other party are allowable in full, except where the failure to be so
allowable will not result in any Tax liability to the Company.
(p) The Disclosure Schedule sets forth (i) all issuances of
capital stock of the Company and the value received therefor, (ii) all
issuances of options, warrants or other rights to purchase capital
stock of the Company and the value received therefor, (iii) all
issuances of securities exchangeable for or convertible into capital
stock of the Company and the value received therefor and (iv) to the
Company's knowledge, all transfers of the foregoing, in each case since
June 15, 1997.
(q) For purposes of this Agreement, the term "Taxes" means all
taxes, charges, fees, levies, or other assessments, including, without
limitation, all net income, gross income, gross receipts, sales, use,
ad valorem, transfer, franchise, profits, license, withholding,
payroll, employment, social security, unemployment, excise, estimated,
severance, stamp, occupation, property, or other taxes, customs duties,
fees, assessments, or charges of any kind whatsoever, including,
without limitation, all interest and penalties thereon, and additions
to tax or additional amounts imposed by any taxing authority, domestic
or foreign, upon the Company or any Tax Affiliate.
3.16 CONTRACTS AND COMMITMENTS.
(a) The Disclosure Schedule lists the following agreements,
whether oral or written, to which the Company is a party, which are
currently in effect, and which relate to the operation of the business
of the Company: (i) collective bargaining agreement or contract with
any labor union; (ii) bonus, pension, profit sharing, retirement or
other form of deferred compensation plan, other than as described in
the Disclosure Schedule; (iii) hospitalization insurance or other
welfare benefit plan or practice, whether formal or informal; (iv)
stock purchase or stock option plan; (v) contract for the employment of
any officer, individual employee or other person on a full-time or
consulting basis making in excess of $75,000 per year or relating to
severance pay for any such person; (vi) confidentiality agreement with
employees and with consultants, vendors, customers or other third
parties (other than the Company's standard Secrecy Agreements with its
employees); (vii) contract, agreement or understanding relating to the
voting of the Company's capital stock or the election of directors of
the Company; (viii) agreement or indenture relating to the borrowing of
money or to mortgaging, pledging or otherwise placing a lien on any of
the assets of the Company; (ix) guaranty of any obligation for borrowed
money or otherwise; (x) lease or agreement under which it is lessee of,
or holds or operates any property, real or personal, owned by any other
party for which the annual rental exceeds $25,000; (xi) lease or
agreement under which it is lessor of, or permits any third party to
hold or operate, any property, real or personal, for which the annual
rental exceeds $10,000; (xii) contract or group of related contracts
with the same party (other than any contract or group of related
contracts for the purchase or sale of products or services) continuing
over a period of more than six months from the date or dates thereof,
not terminable by it on 30 days' or less notice without penalty and
involving more than $25,000; (xiii) contract which prohibits the
Company from freely engaging in business anywhere in the world; (xiv)
contract for the distribution of the products of the Company (including
any distributor, sales and original equipment manufacturer contract);
(xv) franchise agreement; (xvi) license agreement or agreement
providing for the payment or receipt of royalties or other compensation
by the Company in connection with the intellectual property rights
listed in the Disclosure Schedule (other than shrink-wrap break-seal,
click-on or other similar licenses not executed by end-users); (xvii)
contract or commitment for capital expenditures in excess of $20,000,
except any contract or commitment for a single capital expenditure or
commitment in the ordinary course of business consistent with past
practice not in excess of $50,000; (xviii) agreement for the sale of
any capital asset; (xix) contract with any affiliate which in any way
relates to the Company (other than for employment on customary terms);
or (xx) other agreement which is either material to the business of the
Company or was not entered into in the ordinary course of business
involving obligations to or from the Company in excess of $25,000
(other than agreements required by Section 3.16(b) to be listed on the
Disclosure Schedule).
(b) The Disclosure Schedule lists the following agreements,
whether oral or written, to which the Company is a party, which are
currently in effect, and which relate to the operation of the business
of the Company: (i) contract or group of related contracts with the
same party for the purchase of products or services by the Company
under which the undelivered balance of such products or services is in
excess of $50,000; (ii) contract or group of related contracts with the
same party for the sale of products or services by the Company under
which the undelivered balance of such products or services (including,
without limitation, any free upgrades or ongoing services) has a sales
price in excess of $10,000; and (iii) sales agreement or other customer
commitment (other than the standard form of purchase order) which
entitles any purchaser to a rebate or right of set-off, to return any
product of the Company after acceptance thereof or to receive future
services, upgrades or enhancements without full payment of the
Company's standard charges therefor, if the amount of such rebate,
right of set-off, product return or payment shortfall is in excess of
$50,000.
(c) The Company has performed all material obligations
required to be performed through the date hereof by it in connection
with the contracts or commitments required to be disclosed in the
Disclosure Schedule and is not in receipt of any claim of default under
any contract or commitment required to be disclosed under such caption;
the Company has no present intention of not performing any material
obligation pursuant to any contract or commitment required to be
disclosed under such caption; and the Company has no knowledge of any
breach or anticipated breach by any other party to any contract or
commitment required to be disclosed under such caption.
(d) Prior to the date of this Agreement, Parent has been
supplied with a true and correct copy of each written contract or
commitment referred to in the Disclosure Schedule, together with all
amendments, waivers or other changes thereto, subject in each case to
applicable confidentiality provisions of which Parent has been
notified.
3.17 INTELLECTUAL PROPERTY RIGHTS.
(a) As used in this Agreement, the term "Intellectual Property
Rights" means patents, patent applications, trademarks, trademark
applications, service marks, trade names, corporate names, copyrights,
mask works, trade secrets or other intellectual property rights owned
by, licensed to or otherwise controlled by the Company or used in,
developed for use in or necessary to the conduct of the business of the
Company as now conducted or relating to products, product development
tools or services presently under research and/or development in their
current state of development. The Disclosure Schedule describes all
patents, patent applications, trademarks, trademark applications,
service marks, trade names, corporate names, registered copyrights and
mask works owned by, licensed to (other than by means of shrink-wrap,
break-seal, click-on or other similar agreements not executed by
end-users) or otherwise controlled by the Company or used in, developed
for use in or necessary to the conduct of the business of the Company
as now conducted or relating to products, product development tools or
services presently under research and/or development in their current
state of development.
The Company owns and possesses all right, title and interest,
or holds a valid license, in and to the rights set forth on the
Disclosure Schedule. The Disclosure Schedule describes all software
products marketed or that have been marketed by the Company within the
past two years and identifies the method of intellectual property
protection utilized by the Company with respect to such products. The
Disclosure Schedule describes all Intellectual Property Rights which
have been licensed to third parties and those Intellectual Property
Rights which are licensed from third parties (in either case, other
than by means of shrink-wrap, break-seal, click-on or other similar
agreements not executed by end-users). Except as disclosed in the
Disclosure Schedule, all of the Intellectual Property Rights may be
assumed by, and will become the property of, the Surviving Corporation
in the Merger, without the requirement that any consent to assignment
be obtained or any payment be made.
(b) All employees, contract workers, consultants and other
agents of the Company or any predecessor company have executed
agreements sufficient to vest in the Company ownership or the right to
use the Intellectual Property Rights on which they have performed
services in the business of the Company as currently conducted without
the payment of royalties or penalties to such individuals. None of the
software products marketed or under research and/or development by the
Company or any predecessor company has entered the public domain by
disclosure of its source code or other documentation that would
disclose the source code, detailed design or internal functionality of
the software products. Except as set forth on the Disclosure Schedule,
(i) the Company has not received any notice of, nor are there any facts
known to the Company which indicate a likelihood of, any infringement
or misappropriation by, or conflict from, any third party with respect
to the Intellectual Property Rights (provided, that, for purposes of
the representation and warranty in the foregoing clause of this Section
3.17(b)(i) only, Intellectual Property Rights shall not include rights
relating to products, product development tools or services which are
under research and not yet marketed or under commercial development);
no claim by any third party contesting the validity of any Intellectual
Property Rights has been made, is currently outstanding or, to the
knowledge of the Company, is threatened in writing (or verbally to
Terry Ross, Jean-Luc Chatelain or Jeremy Rubin); (ii) the Company has
not received any notice of any infringement, misappropriation or
violation of any intellectual property rights of any third parties and,
to its knowledge, the Company has not infringed, misappropriated or
otherwise violated any such intellectual property rights; and (iii) to
the knowledge of the Company, no infringement, illicit copying,
misappropriation or violation has occurred or will occur with respect
to products currently being sold by the Company or with respect to the
products currently under development (in their present state of
development) or with respect to the conduct of the business of the
Company as now conducted. The Company has not entered into any
agreement restricting the Company from selling, licensing or otherwise
distributing any of its current products or products under development
to any class of customers, in any geographic area, during any time
period or in any segment of the market.
3.18 LITIGATION. There are no actions, suits, proceedings, orders or
investigations pending or, to the knowledge of the Company, threatened against
the Company, at law or in equity, or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, nor, to the knowledge of the Company, is
there any basis therefor.
3.19 WARRANTIES; PRODUCTS.
(a) The Disclosure Schedule lists all claims outstanding,
pending or, to the knowledge of the Company, threatened in writing (or
verbally to Terry Ross, Jean-Luc Chatelain or Jeremy Rubin) for breach
of any warranty relating to any products sold by the Company prior to
the date hereof. The description of the product warranties and other
material terms of sale of the Company set forth under the caption
referencing this Section 3.19 is correct and complete in all material
respects. The reserves for warranty claims on the Latest Balance Sheet
are consistent with the Company's prior practices and are fully
adequate to cover all warranty claims made or to be made against any
products of the Company sold prior to the date thereof.
(b) To the Company's knowledge, the Company's AutoRad 3.0 and
Archive Manager 2.0 products currently under development are expected
to perform, when such development is completed, substantially in
accordance with the Company's current technical specifications
applicable to such products. The foregoing representation and warranty
(i) is contingent upon proper use of such products in the applications
for which they were intended as indicated in the Company's current
documentation for such products; (ii) applies only to reproducible
defects; (iii) does not apply to any third party hardware or software;
(iv) applies only to such products generally as a class and does not
apply to any particular unit of product; (v) assumes that such products
have been updated with all error corrections and other updates
developed by the Company; and (vi) does not apply to software defects,
bugs, or non-operable features which do not materially impair the
operation of such product as a whole.
3.20 EMPLOYEES. (a) To the knowledge of the Company, no executive
employee of the Company and no group of the employees of the Company has any
plans to terminate his, her or their employment; (b) the Company has complied
with all laws relating to the employment of labor, including provisions thereof
relating to wages, hours, equal opportunity, collective bargaining and the
payment of social security and other taxes; (c) the Company has no labor
relations problem; (d) there are no workers' compensation claims pending against
the Company nor is the Company aware of any facts that would give rise to such a
claim; (e) to the knowledge of the Company, no employee of the Company is
subject to any secrecy or noncompetition agreement or any other agreement or
restriction of any kind that would impede in any way the ability of such
employee to carry out fully all activities of such employee in furtherance of
the business of the Company; and (f) no employee or former employee of the
Company, or any predecessor has any claim with respect to any Intellectual
Property Rights and which might have a material adverse effect on the Company's
business, financial conditions or results of operations. The Disclosure Schedule
lists, as of the date set forth in the Disclosure Schedule, each employee of the
Company. The Disclosure Schedule also states the position, title, remuneration
(including any scheduled salary or remuneration increases), date of employment
and accrued vacation pay of each such employee.
3.21 EMPLOYEE BENEFIT PLANS.
(a) Definitions. For the purposes of this Section 3.21, unless
the context clearly requires otherwise, the term "Plan" or "Plans"
includes all employee benefit plans as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and all other benefit arrangements (including, without limitation, any
employment agreement or any program, agreement, policy or commitment
providing for insurance coverage of employees, workers' compensation,
disability benefits, supplemental unemployment benefits, vacation
benefits, retirement benefits, life, health, disability or accidental
benefits) applicable to the employees of the Company, to which the
Company contributes, or which the Company has committed to implement
for its employees prior to the date of this Agreement. Unless the
context clearly requires otherwise, "Plan" or "Plans" shall also
include any similar program or arrangement maintained by any
organization affiliated by ownership with the Company for which the
Company is or could be completely or partially liable for the funding
or the administration either as a matter of law or by agreement.
(b) Except as disclosed on the Disclosure Schedule:
(i) Full Disclosure of All Plans. With respect to all
employees and former employees of the Company (and all
dependents and beneficiaries of such employees and former
employees):
(A) The Company does not maintain or
contribute to any nonqualified deferred compensation
or retirement plans, contracts or arrangements;
(B) The Company does not maintain or
contribute to any qualified defined contribution
plans (as defined in Section 3(34) of ERISA or
Section 414(i) of the Code);
(C) The Company does not maintain or
contribute to any qualified defined benefit plans (as
defined in Section 3(35) of ERISA or Section 414(j)
of the Code) ("Defined Benefit Plans"); and
(D) The Company does not maintain or
contribute to any employee welfare benefit plans (as
defined in Section 3(1) of ERISA).
(ii) Funding. With respect to the Plans, (A) all
required contributions which are due have either been made or
properly accrued and (B) the Company is not liable for any
"accumulated funding deficiency" as that term is defined in
Section 412 of the Code or any penalty or excise tax in
connection therewith.
(iii) Plan Documents. With respect to all Plans
sponsored or administered by the Company and with respect to
any other Plan if available to the Company, the Company has
furnished Parent with true and complete copies of (A) the most
recent determination letter, if any, received by the Company
from the Internal Revenue Service regarding each qualified
Plan, (B) the Form 5500 and all Schedules and accompanying
financial statements, if any, for each Plan for which such
form is required to be filed for the three most recent fiscal
Plan years, (C) the most recently prepared actuarial valuation
report, if any, for each Plan, and (D) copies of the current
Plan documents, trust agreements, insurance contracts and all
related contracts and documents (including any material
employee communications) with respect to each Plan.
(iv) Defined Benefit Plans. Neither the Company nor
any affiliate of the Company maintains or has maintained any
Defined Benefit Plans for which the Company or Parent have or
will have any liability or, which if terminated, could result
in any liability to the Company or Parent under Title IV of
ERISA. There are no unfunded vested liabilities (determined
using the assumptions used by the Plan for funding and without
regard to future salary increases) with respect to Defined
Benefit Plans sponsored by the Company. There have been no
reportable events under Section 4043 of ERISA (with respect to
which the 30-day notice requirement has not been waived by
regulation) with respect to any Defined Benefit Plan
maintained by the Company. No Defined Benefit Plan has been
terminated that will result in a material liability by the
Company to the Pension Benefit Guaranty Corporation.
(v) Multiemployer Plans. The Company has no actual or
potential liabilities under Sections 4201 or 4205 of ERISA for
any complete or partial withdrawal from any multiemployer
plan.
(vi) Fiduciary Breach; Claims. Neither the Company
nor any of its directors, officers, employees or other
"fiduciaries" (as such term is defined in Section 3(21) of
ERISA) has committed any breach of fiduciary duty imposed by
ERISA or any other applicable law with respect to the Plans
which would subject the Company, directly or indirectly, to
any liability under ERISA or any applicable law. There are no
actions, suits or claims pending against the Company relating
to benefits other than routine, uncontested claims for
benefits.
(vii) Prohibited Transaction. Neither the Company nor
any officer, director, employee, agent or fiduciary of any
Plan has incurred any liability for any civil penalty imposed
by Section 4975 of the Code or Section 502(i) of ERISA.
(viii) Material Compliance With Law. All Plans have
been consistently administered in accordance with their terms.
To the extent required either as a matter of law or to obtain
the intended tax treatment and tax benefits, all Plans comply
with the requirements of ERISA and the Code. All Tax
information returns or reports and all other required filings,
disclosures and contributions have been made with respect to
all Plans. No condition exists that limits the right of the
Company to amend or terminate any such Plan (except as
provided in such Plans or limited under ERISA or the Code).
(ix) VEBA Funding. No Plan is funded in whole or in
part through a voluntary employees' beneficiary association
exempt from tax under Section 501(c)(9) of the Code. The
limitations under Sections 419 and 419A of the Code have been
computed, all unrelated business income tax returns have been
filed and appropriate adjustments have been made on all other
Tax returns.
(x) Retirement and COBRA Benefits. The Company has no
actual or potential liability under current law for benefits
after separation from employment other than (i) benefits under
Plans described in clauses (A), (B) or (C) of Section
3.18(b)(i), and (ii) health care continuation benefits
described in Section 4980B of the Code or Part G of Subtitle B
of Title I of ERISA or any comparable provisions under the
laws of any state.
(xi) Collective Bargaining. No Plan is maintained in
whole or in part pursuant to collective bargaining.
(xii) Parachute Payments. No Plan requires or would
result, separately or in the aggregate, in the payment of any
"excess parachute payments" within the meaning of Section 280G
of the Code, and the consummation of the transactions
contemplated by this Agreement will not be a factor in causing
payments to be made by Patent or the Company that are not
deductible (in whole or in part) under Section 280G of the
Code.
3.22 INSURANCE. The Disclosure Schedule lists and briefly describes
each material insurance policy maintained by the Company with respect to the
properties, assets and operations of the Company and sets forth the date of
expiration of each such insurance policy. All of such insurance policies are in
full force and effect and are issued by insurers of recognized responsibility.
The Company is not in default with respect to its obligations under any of such
insurance policies.
3.23 AFFILIATE TRANSACTIONS. Other than pursuant to this Agreement, to
the knowledge of the Company, no officer, director or employee of the Company or
any member of the immediate family of any such officer, director or employee, or
any entity in which any of such persons owns any beneficial interest (other than
any publicly-held corporation whose stock is traded on a national securities
exchange or in the over-the-counter market and less than one percent of the
stock of which is beneficially owned by any of such persons) (collectively
"insiders"), has any agreement with the Company (other than normal employment
arrangements) or any interest in any property, real, personal or mixed, tangible
or intangible, used in or pertaining to the business of the Company (other than
ownership of capital stock of the Company). To the knowledge of the Company,
none of the insiders has any direct or indirect interest (other than beneficial
ownership of less than one percent of the stock of a publicly-held corporation
whose stock is traded on a national securities exchange or in the
over-the-counter market) in any competitor, supplier or customer of the Company
or in any person, firm or entity from whom or to whom the Company leases any
material property, or in any other person, firm or entity with whom the Company
transacts material business of any nature. For purposes of this Section 3.23,
the members of the immediate family of an officer, director or employee shall
consist of the spouse, parents, children, siblings, mothers- and fathers-in-law,
sons- and daughters-in-law, and brothers- and sisters-in-law of such officer,
director or employee. All agreements and transactions between the Company and
any insider identified in the Disclosure Schedule were made for bona fide
business purposes on terms no less favorable than could be obtained from an
unaffiliated third party.
3.24 CUSTOMERS AND SUPPLIERS. The Disclosure Schedule lists the 50
largest customers and the 50 largest suppliers of the Company for the
twelve-month period ended December 31, 1996, and sets forth opposite the name of
each such customer or supplier the approximate amount of net sales or purchases
by the Company attributable to such customer or supplier for such period. Since
the Balance Sheet Date, no customer or supplier listed on the Disclosure
Schedule has indicated in writing (or verbally to Terry Ross, Jean-Luc Chatelain
or Jeremy Rubin) that it will stop or materially decrease the rate of business
done with the Company.
3.25 OFFICERS AND DIRECTORS; BANK ACCOUNTS. The Disclosure Schedule
lists all officers and directors of the Company and all of the bank accounts of
the Company (designating each authorized signer).
3.26 COMPLIANCE WITH LAWS; PERMITS.
(a) The Company, its predecessors and their respective
officers, directors, agents and employees have complied in all material
respects with all applicable laws, regulations and other requirements,
including, but not limited to, federal, state, local and foreign laws,
ordinances, rules, regulations and other requirements pertaining to
product labeling, consumer products safety, equal employment
opportunity, employee retirement, affirmative action and other hiring
practices, occupational safety and health, workers' compensation,
unemployment and building and zoning codes, which materially affect the
business of the Company or the Real Property and to which the Company
or its predecessors may be subject, and no claims have been filed
against the Company alleging a violation of any such laws, regulations
or other requirements. The Company has no knowledge of any action,
pending or threatened, to change the zoning or building ordinances or
any other laws, rules, regulations or ordinances affecting the Real
Property. The Company is not relying on any exemption from or deferral
of any such applicable law, regulation or other requirement that, to
the knowledge of the Company, would not be available to the Surviving
Corporation after the Effective Time.
(b) The Company has, in full force and effect, all licenses,
permits and certificates, from federal, state, local and foreign
authorities (including, without limitation, federal and state agencies
regulating occupational health and safety) necessary to conduct its
business as presently conducted and own and operate its properties
(other than Environmental Permits, as such term is defined in Section
3.27(c) hereof) (collectively, the "Permits"). The Company has
conducted its business in compliance with all material terms and
conditions of the Permits.
(c) The Company has not made or agreed to make gifts of money,
other property or similar benefits (other than incidental gifts of
articles of nominal value) to any actual or potential customer,
supplier, governmental employee or any other person in a position to
assist or hinder the Company in connection with any actual or proposed
transaction.
3.27 ENVIRONMENTAL MATTERS.
(a) As used in this Section 3.27, the following terms shall
have the following meanings:
(i) "Hazardous Materials" means any dangerous, toxic or
hazardous pollutant, contaminant, chemical, waste, material or
substance as defined in or governed by any federal, state or
local law, statute, code, ordinance, regulation, rule or other
requirement relating to such substance or otherwise relating
to the environment or human health or safety, including
without limitation any waste, material, substance, pollutant
or contaminant that has been designated by any governmental
authority as capable of endangering or posing a risk of injury
to or an adverse effect on human health or safety, property or
the environment.
(ii) "Environmental Laws" means all applicable federal,
state, local and foreign laws, rules, regulations, codes,
ordinances, orders, decrees, directives, permits, licenses and
judgments relating to pollution, contamination or protection
of the environment (including, without limitation, all
applicable federal, state, local and foreign laws, rules,
regulations, codes, ordinances, orders, decrees, directives,
permits, licenses and judgments relating to Hazardous
Materials in effect as of the date of this Agreement).
(iii) "Release" shall mean the spilling, leaking,
disposing, discharging, emitting, depositing, ejecting,
leaching, escaping or any other release or threatened release,
however defined, whether intentional or unintentional, of any
Hazardous Material.
(b) The Company and the Company's activities at the Real
Property are in material compliance with all applicable Environmental
Laws, and to the Company's knowledge, the Real Property is in material
compliance with all applicable Environmental Laws to the extent such
compliance is the obligation of the Company.
(c) The Company has obtained, and maintained in full force and
effect, all environmental permits, licenses, certificates of
compliance, approvals and other authorizations necessary to conduct its
business on the Real Property as presently conducted (collectively, the
"Environmental Permits"). A true and correct copy of each such
Environmental Permit shall be provided by the Company to Parent at
least fourteen (14) days prior to the Closing. The Company has
conducted its business in compliance with all terms and conditions of
the Environmental Permits. The Company has filed all reports and
notifications required to be filed under and pursuant to all applicable
Environmental Laws.
(d) (i) No Hazardous Materials have been generated, treated,
contained, handled, located, used, manufactured, processed, buried,
incinerated, deposited, stored, or Released in violation of any
Environmental Law on, under or about any part of the Real Property by
the Company or its agents during the period the Company was in
possession thereof, (ii) to the knowledge of the Company, the Real
Property and any improvements thereon, contain no asbestos, urea,
formaldehyde, radon at levels above natural background, polychlorinated
biphenyls (PCBs) or pesticides except to the extent that the Company
has no liability with respect to the foregoing, and (iii) to the
knowledge of the Company, no above-ground or underground storage tanks
are located on, under or about the Real Property except to the extent
that the Company has no liability with respect to the foregoing.
(e) The Company has not received any notice alleging in any
manner that any of them is, or might be potentially responsible for any
Release of Hazardous Materials, or any costs arising under or violation
of Environmental Laws.
(f) To the knowledge of the Company, no expenditure by the
Company will be required in order for Parent, Merger Subsidiary or the
Surviving Corporation to comply with any Environmental Laws in effect
at the time of the Closing in connection with the operation or
continued operation of the business of the Company or the Real Property
in a manner consistent with the current operation thereof by the
Company.
(g) To the knowledge of the Company, the Company and the Real
Property are not and have not been listed on the United States
Environmental Protection Agency National Priorities List of Hazardous
Waste Sites, or any other list, schedule, law, inventory or record of
hazardous or solid waste sites maintained by any federal, state or
local agency except to the extent the Company has no liability in
connection with such listing of the Real Property.
(h) The Company has disclosed and delivered to Parent all
environmental reports and investigations which the Company has obtained
or ordered with respect to the business of the Company and the Real
Property.
(i) To the knowledge of the Company, no part of the business
of the Company, or the Real Property has been used as a landfill, dump
or other disposal, storage, transfer, handling or treatment area for
Hazardous Materials, or as a gasoline service station or a facility for
selling, dispensing, storing, transferring, disposing or handling
petroleum and/or petroleum products except to the extent that the
Company has no liability for such use of the Real Property.
(j) To the knowledge of the Company, no lien has been attached
or filed against the Company or the Real Property in favor of any
governmental or private entity for (i) any liability or imposition of
costs under or violation of any applicable Environmental Law; or (ii)
any Release of Hazardous Materials, except to the extent the Company
has no liability for such lien, liability, imposition or Release with
respect to the Real Property.
(k) The storage, transportation, handling, use or disposal, if
any, by the Company of Hazardous Materials on or under the Real
Property and/or disposal elsewhere by the Company, if any, of Hazardous
Materials generated on or from the Real Property is currently, and at
all times has been, in compliance in all materials respects with all
applicable Environmental Laws. To the knowledge of the Company, the
Company has not transported or arranged for the transportation of any
Hazardous Materials or other material or substances to any location
which is: (i) listed on the National Priorities List; or (ii) listed
for possible inclusion on the National Priorities List, in CERCLA or on
any similar state list.
(l) For purposes of the representations and warranties
provided in Sections 3.27(d), (f), (g), (h), (i), (j) and (k) , the
term "Real Property" shall include all real property used or occupied
by the Company currently or previously used or occupied by the Company
and its predecessors.
3.28 BROKERAGE. No third party shall be entitled to receive any
brokerage commissions, finder's fees, fees for financial advisory services or
similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of the
Company.
3.29 DISCLOSURE. Neither this Agreement nor any of the exhibits hereto
nor any of the documents delivered by or on behalf of the Company pursuant to
Article VII hereof, the Disclosure Schedule or any of the financial statements
referred to in Section 3.08 hereof contains any untrue statement of a material
fact regarding the Company or any of the other matters dealt with in this
Article III relating to the Company or the transactions contemplated by this
Agreement. This Agreement, the exhibits hereto, the documents delivered to
Parent by or on behalf of the Company pursuant to Article VII hereof, the
Disclosure Schedule and the financial statements referred to in Section 3.08
hereof do not omit any material fact necessary to make the statements contained
herein or therein, in light of the circumstances in which they were made, not
misleading, and there is no fact which has not been disclosed to Parent of which
the Company or any officer of the Company is aware which materially affects
adversely the assets, financial condition, relations with key management
employees or key OEM's, operating results or business condition of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY
Parent and Merger Subsidiary, jointly and severally, hereby represent
and warrant to the Company that:
4.01 INCORPORATION AND CORPORATE POWER. Each of Parent and Merger
Subsidiary is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with the requisite corporate
power and authority to execute and deliver this Agreement and the agreements
identified in Article XI to which it is a party (the "Ancillary Agreements") and
perform its obligations hereunder and thereunder. The Merger Subsidiary has the
requisite corporate power and authority to execute and deliver the Certificate
of Merger and perform its obligations thereunder.
4.02 EXECUTION, DELIVERY; VALID AND BINDING AGREEMENT. The execution,
delivery and performance of this Agreement and the Ancillary Agreements by
Parent and Merger Subsidiary, and the Certificate of Merger by Merger
Subsidiary, and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all requisite corporate action,
and no other corporate proceedings on their part are necessary to authorize the
execution, delivery or performance of this Agreement, the Certificate of Merger
or the Ancillary Agreements. This Agreement and the Ancillary Agreements have
been duly executed and delivered by Parent and Merger Subsidiary and constitute
the valid and binding obligation of Parent and Merger Subsidiary, enforceable in
accordance with their terms, and the Certificate of Merger, when executed and
delivered by Merger Subsidiary, will constitute the valid and binding obligation
of Merger Subsidiary, enforceable in accordance with its terms.
4.03 NO BREACH. The execution, delivery and performance of this
Agreement and the Ancillary Agreements by Parent and Merger Subsidiary, and the
Certificate of Merger by Merger Subsidiary, and the consummation by Parent and
Merger Subsidiary of the transactions contemplated hereby and thereby do not
conflict with or result in any breach of any of the provisions of, constitute a
default under, result in a violation of, result in the creation of a right of
termination or acceleration or any lien, security interest, charge or
encumbrance upon any assets of Parent or Merger Subsidiary, or require any
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under the provisions of the Certificate of
Incorporation or Bylaws of either Parent or Merger Subsidiary or any indenture,
mortgage, lease, loan agreement or other agreement or instrument by which either
Parent or Merger Subsidiary is bound or affected, or any law, statute, rule or
regulation or order, judgment or decree to which either Parent or Merger
Subsidiary is subject.
4.04 MERGER SUBSIDIARY. All of the outstanding capital stock of Merger
Subsidiary is owned by Parent free and clear of any lien, claim or encumbrance
or any agreement with respect thereto. Since the date of its incorporation,
Merger Subsidiary has not engaged in any activity of any nature except in
connection with or as contemplated by this Agreement, the Certificate of Merger
or the Ancillary Agreements.
4.05 GOVERNMENTAL AUTHORITIES; CONSENTS. Except for the applicable
requirements of the HSR Act, except for the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware, and except for consents,
waivers, approvals, orders, authorizations, registrations, declarations and
filings as may be required under applicable state and federal securities laws
and the laws of any foreign country, (a) neither Parent or Merger Subsidiary is
required to submit any notice, report or other filing with any governmental
authority in connection with the execution or delivery by it of this Agreement,
the Certificate of Merger or the Key Management Agreements or the consummation
of the transactions contemplated hereby or thereby, and (b) no consent, approval
or authorization of any governmental or regulatory authority or any other party
or person is required to be obtained by either Parent or Merger Subsidiary in
connection with its execution, delivery and performance of this Agreement, the
Certificate of Merger or the Ancillary Agreements or the transactions
contemplated hereby or thereby.
4.06 BROKERAGE. Except for fees and compensation to Goldman Sachs & Co.
(which shall be paid in full by Parent), no third party shall be entitled to
receive any brokerage commissions, finder's fees, fees for financial advisory
services or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by or
on behalf of Parent or Merger Subsidiary.
ARTICLE V
COVENANTS OF THE COMPANY
5.01 CONDUCT OF THE BUSINESS. The Company shall observe each term set
forth in this Section 5.01 and agrees that, from the date hereof until the
Effective Time, unless otherwise consented to by Parent or Merger Subsidiary in
writing, except for Permitted Transactions (as defined in Section 5.01(i)):
(a) The business of the Company shall be conducted only in,
and the Company shall not take any action except in, the ordinary
course of the Company's business, on an arm's-length basis and in
accordance in all material respects with all applicable laws, rules and
regulations and the Company's past custom and practice;
(b) The Company shall not, directly or indirectly, do or
permit to occur any of the following: (i) issue or sell any additional
shares of capital stock, or any options, warrants, conversion
privileges or rights of any kind to acquire any shares of, any of its
capital stock (except (A) the Picker Shares and Warrants, (B) upon
exercise of currently outstanding options and warrants set forth in the
Disclosure Schedule); and (C) the granting of options to purchase not
more than 60,000 shares of Company Common Stock (when added to the
number of shares of Company Common Stock subject to other options
granted by the Company since March 12, 1997) to employees below the
level of Vice President in accordance with the terms and conditions of
the Cemax-Icon, Inc. 1996 Stock Option Plan, which options shall have
an exercise price of not less than fair market value on the date of
grant; (ii) sell, pledge, dispose of or encumber any of its assets,
except in the ordinary course of business; (iii) amend or propose to
amend its Certificate of Incorporation or Bylaws; (iv) split, combine
or reclassify any outstanding shares of capital stock, or declare, set
aside or pay any dividend or other distribution payable in cash, stock,
property or otherwise with respect to shares of Capital Stock; (v)
redeem, purchase or acquire or offer to acquire any shares of capital
stock or other securities (except for the purchase of the Restricted
Common Stock as provided by Section 7.01(p) hereof); (vi) acquire (by
merger, exchange, consolidation, acquisition of stock or assets or
otherwise) any corporation, partnership, joint venture or other
business organization or division or material assets thereof; (vii)
incur any indebtedness for borrowed money or issue any debt securities
except the borrowing of working capital in the ordinary course of
business and consistent with past practice; (viii) accelerate or defer
the payment of undisputed accounts payable or other accrued expenses
owned to trade creditors or other third parties having business
relationships with the Company; (ix) accelerate, beyond the normal
collection cycle, or defer collection of manufacturers' rebates,
promotional allowances and other accounts receivable; (x) enter into or
propose to enter into, or modify or propose to modify, any Lease or
agreement or arrangement to use or occupy real property or exercise or
waive any option, or consent to any modification, act or omission by
any landlord requiring tenant's consent under any Lease (except, with
the prior consent of Parent (which shall not be unreasonably withheld),
office leases in Seattle and Atlanta as previously discussed with
Parent); (xi) enter into or propose to enter into or modify or propose
to modify any agreement, arrangement or understanding with respect to
any of the matters set forth in this Section 5.01(b) in any material
respect; (xii) purchase inventories or supplies for its business in a
manner outside the ordinary course of business, inconsistent in amount,
nature or composition with prior practice; (xiii) sell, lease, license
or otherwise dispose of any material assets or properties, other than
in the ordinary course of business; (xiv) accelerate or defer the
construction or improvements at any of the locations of its business;
or (xv) accelerate or defer the purchase of material fixtures,
equipment, leasehold improvements, vehicles, other items of machinery
and equipment and other capital expenditures;
(c) The Company shall not, directly or indirectly, (i) enter
into or modify any employment, severance or similar agreements or
arrangements with, or grant any bonuses, salary increases, severance or
termination pay to, any officers or directors or consultants; or (ii)
in the case of employees, officers or consultants who earn in excess of
$75,000 per year, take any action with respect to the grant of any
bonuses, salary increases, severance or termination pay or with respect
to any increase of benefits payable in effect on the date hereof;
(d) Except as set forth on the Disclosure Schedule, the
Company shall not adopt or amend any bonus, profit sharing,
compensation, stock option, pension, retirement, deferred compensation,
employment or other employee benefit plan, trust, fund or group
arrangement for the benefit or welfare of any employees or any bonus,
profit sharing, compensation, stock option, pension, retirement,
deferred compensation, employment or other employee benefit plan,
agreement, trust, fund or arrangements for the benefit or welfare of
any director;
(e) The Company shall not cancel or terminate its current
insurance policies or cause any of the coverage thereunder to lapse,
unless simultaneously with such termination, cancellation or lapse,
replacement policies providing coverage equal to or greater than the
coverage under the canceled, terminated or lapsed policies for
substantially similar premiums are in full force and effect;
(f) The Company shall (i) use commercially reasonable efforts
to preserve intact its business organization and goodwill, keep
available the services of its officers and employees as a group and
maintain satisfactory relationships with suppliers, distributors,
customers and others with which it has business relationships; (ii)
confer on a regular and frequent basis with representatives of Parent
to report operational matters and the general status of ongoing
operations; (iii) not intentionally take any action which would render,
or which reasonably may be expected to render, any representation or
warranty made by it in this Agreement untrue at the Closing; (iv)
notify Parent of any emergency or other change in the normal course of
its business or in the operation of its properties and of any
governmental or third party complaints, investigations or hearings (or
communications indicating that the same may be contemplated) if such
emergency, change, complaint, investigation or hearing would be
material, individually or in the aggregate, to the business, operations
or financial condition of the Company or to the Company's, Parent's or
Merger Subsidiary's ability to consummate the transactions contemplated
by this Agreement; and (v) promptly notify Parent and Merger Subsidiary
in writing if the Company shall discover that any representation or
warranty made by it in this Agreement was when made, or has
subsequently become, untrue in any material respect;
(g) Except as set forth in the Disclosure Schedule, the
Company shall (i) file any Tax returns, elections or information
statements with respect to any liabilities for Taxes of the Company or
other matters relating to Taxes of the Company which pursuant to
applicable law must be filed (after taking into account any properly
applicable extensions of the due date of such returns, elections or
information statements) prior to the Closing; provided, however, that
the Company shall not file any such Tax returns, or other returns,
elections, claims for refund or information statements with respect to
any liabilities for Taxes (other than federal, state or local sales,
use, withholding or employment tax returns or statements) for any Tax
period, or consent to any adjustment or otherwise compromise or settle
any matters with respect to Taxes, without prior consultation with and
consent of Parent (which consent shall not be unreasonably withheld);
(ii) promptly upon filing provide copies of any such Tax returns,
elections or information statements to Parent and Merger Subsidiary;
(iii) make or rescind any such Tax elections or other discretionary
positions with respect to Taxes taken by or affecting the Company only
upon prior consultation with and consent of Parent (which consent shall
not be unreasonably withheld); (iv) not amend any Return; and (v) not
increase the rate or policy for any accrual or reserve for Taxes or
otherwise accrue therefor in a manner inconsistent with its practices
for previous periods as reflected in the Latest Financial Statements;
and (vi) not change any of its methods of reporting income or
deductions for federal income Tax purposes from those employed in the
preparation of the federal income Tax returns for the taxable year
ended December 31, 1995;
(h) The Company shall not perform any act referenced by (or
omit to perform any act which omission is referenced by) the terms of
Section 3.11; and
(i) For purposes of this Section 5.01, "Permitted
Transactions" include (i) the port to NT of the AccuRad product, (ii)
the pursuit of the U.S. government DIN-PACS contract, (iii) the
issuance to Picker, Inc. of up to 85,000 shares of Company Common
Stock, at a price of at least $12.00 per share, and warrants to
purchase up to 85,000 shares of Company Common Stock, with an exercise
price of at least $17.00 per share (collectively, the "Picker Shares
and Warrants"), in the event Picker, Inc. enters into an OEM agreement
with Cemax-Icon (assignable by operation of law without modification of
terms) with a first-year commitment of at least $2.5 million in
purchases of the Company's products and containing terms and conditions
no less favorable than terms and conditions previously discussed with
Parent, and (iv) the execution of an OEM agreement with Fuji containing
terms and conditions no less favorable than terms and conditions
previously discussed with Parent; provided, that, the aggregate
expenditures incurred or expected to be incurred by the Company in
connection with the Permitted Transactions described in clauses (i) and
(ii) of this Section 5.01(i) shall not exceed $2,000,000.
5.02 ACCESS TO BOOKS AND RECORDS. Between the date hereof and the
Closing Date, the Company shall afford to Parent and authorized representatives
(the "Parent's Representatives") full access at all reasonable times and upon
reasonable notice to the offices, properties, books, records, officers,
employees and other items of the Company, and the work papers of Ernst & Young
LLP and Mohler, Nixon and Williams LLP, the Company's independent accountants,
relating to work done by Ernst & Young LLP and Mohler, Nixon and Williams LLP
and otherwise provide such assistance as is reasonably requested by Parent and
Merger Subsidiary in order that Parent and Merger Subsidiary may have a full
opportunity to make such investigation and evaluation as it shall reasonably
desire to make of the business and affairs of the Company. In addition, the
Company, and its officers and directors shall cooperate fully (including
providing introductions, where necessary) with Parent and Merger Subsidiary and
to enable Parent, with prior written notice to the Company, to contact such
third parties, including customers, prospective customers, specifying agencies,
vendors, or suppliers of the Company as Parent and Merger Subsidiary deems
reasonably necessary to complete its due diligence.
5.03 MEETING OF STOCKHOLDERS. The Company shall cause to be duly called
and held, not later than 30 days following the effective date of the
Registration Statement (as defined in Section 6.03), a meeting of its
stockholders and will direct that this Agreement be submitted to a vote at such
meeting. Parent will (a) cause proper notice of such meeting to be given to its
stockholders in compliance with the Delaware Act, other applicable laws and
regulations and the Company's Certificate of Incorporation and Bylaws; (b)
recommend by the affirmative vote of all members of its Board of Directors a
vote in favor of approval of this Agreement; and (c) use its best efforts to
solicit from its stockholders proxies in favor thereof.
5.04 REGULATORY FILINGS. The Company shall, as promptly as practicable
after the execution of this Agreement, make or cause to be made all filings and
submissions under the HSR Act and any other laws or regulations applicable to
the Company for the consummation of the transactions contemplated herein. The
Company will coordinate and cooperate with Parent and Merger Subsidiary in
exchanging such information, will not make any such filing without providing to
Parent and Merger Subsidiary a final copy thereof for their review and consent
at least two full business days in advance of the proposed filing and will
provide such reasonable assistance as Parent and Merger Subsidiary may request
in connection with all of the foregoing.
5.05 REGISTRATION STATEMENT. The Company will furnish, or cause to be
furnished, to Parent all the information concerning the Company and its
subsidiaries required for inclusion in the Registration Statement and the
Prospectus-Proxy Statement (as defined in Section 6.03) or any statement or
application made by Parent to any governmental body in connection with the
transactions contemplated by this Agreement. Any financial statement for any
fiscal year provided under this paragraph must include the audit opinion and the
consent of Ernest & Young LLP, as independent accounts to the Company, to use
such opinion in such Registration Statement. None of the information regarding
the Company supplied or to be supplied by the Company for inclusion in the
Registration Statement and any other documents to be filed with the SEC or any
regulatory authority in connection with the transactions contemplated hereby
will, at the respective times the Registration Statement, Prospectus-Proxy
Statement and other documents are filed with the SEC or any regulatory authority
and, in the case of the Registration Statement, when it becomes effective and,
with respect to the Prospectus-Proxy Statement, when mailed, and, in the case of
the Prospectus-Proxy Statement or any amendment thereof or supplement thereto,
at the time of the meeting of stockholders referred to in Section 5.03 hereof
and at the Effective Time, 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 contained therein, in light of the circumstances under which they
were made, not misleading. All documents which the Company is responsible for
filing with the SEC and any other regulatory authority in connection with the
Merger will comply as to form in all material respects with the provisions of
applicable law.
5.06 FINANCIAL STATEMENTS. The Company shall have prepared and
delivered to Parent all quarterly and monthly financial statements for any
periods ending after the date of the Latest Balance Sheet and at least 30 days
prior to the Closing Date.
5.07 CONDITIONS. The Company shall take all commercially reasonable
actions necessary or desirable to cause the conditions set forth in Section 7.01
to be satisfied on or prior to June 30, 1997, if possible, but not later than
August 31, 1997, and to consummate the transactions contemplated herein as soon
as reasonably possible after the satisfaction thereof. Without limiting the
generality of the foregoing, the Company shall obtain, prior to the Closing
Date, all consents or waivers to the transactions contemplated by this Agreement
that may be required under any of the agreements or commitments of the Company
that are material to the business of the Company.
5.08 NO NEGOTIATIONS. Except in connection with the issuance of the
Picker Shares and Warrants (which discussions, proposals, offers and issuances
shall be limited to the Picker Shares and Warrants), the Company shall not,
directly or indirectly, through any officer, director, stockholder, agent or
otherwise, solicit, initiate or encourage submission of any proposal or offer
from any person or entity (including any of its or their officers, stockholders
or employees) relating to any liquidation, dissolution, recapitalization,
merger, consolidation or acquisition or purchase of all or a material portion of
the assets of, or any equity interest in, the Company or other similar
transaction or business combination involving the Company, or participate in any
negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in anyway with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other person or entity to
do or seek any of the foregoing. The Company shall promptly notify Parent if any
such proposal or offer, or any inquiry from or contact with any person with
respect thereto, is made and shall promptly provide Parent with such information
regarding such proposal, offer, inquiry or contact as Parent may request.
5.09 SUBSTITUTE OPTIONS AND WARRANTS. At the time of the distribution
of the Prospectus-Proxy Statement, the Company will distribute the
Prospectus-Proxy Statement to each holder of an Outstanding Stock Option or
Outstanding Stock Warrant. The Prospectus-Proxy Statement will indicate that (a)
each holder of an Outstanding Stock Option or Outstanding Stock Warrant has the
right to exercise such Outstanding Stock Option or Outstanding Stock Warrant to
the extent exercisable at the Effective Time, and (b) if not exercised to the
extent of the full number of shares subject thereto prior to the Effective Time,
each Outstanding Stock Option or Outstanding Stock Warrant will be converted
into a Substitute Option or Substitute Warrant, as the case may be, in
accordance with Section 2.01.
ARTICLE VI
COVENANTS OF PARENT AND MERGER SUBSIDIARY
Parent and Merger Subsidiary covenant and agree with the Company as
follows:
6.01 REGULATORY FILINGS. Parent or Merger Subsidiary shall, as promptly
as practicable after the execution of the Agreement, make or cause to be made
all filings and submissions under the HSR Act and any other laws or regulations
applicable to Parent and Merger Subsidiary for the consummation of the
transactions contemplated herein. Parent and Merger Subsidiary will coordinate
and cooperate with the Company in exchanging such information, will not make any
such filing without providing to the Company a final copy thereof for its review
and consent at least two full business days in advance of the proposed filing
and will provide such reasonable assistance as the Company may request in
connection with all of the foregoing.
6.02 CONDITIONS. Parent or Merger Subsidiary shall take all
commercially reasonable actions necessary or desirable to cause the conditions
set forth in Section 7.02 to be satisfied on or prior to June 30, 1997, if
possible, but not later than August 31, 1997, and to consummate the transactions
contemplated herein as soon as reasonably possible after the satisfaction
thereof (but in any event within three business days after such date).
6.03 REGISTRATION STATEMENT. As promptly as practicable after the
execution of this Agreement, Parent will file with the SEC a registration
statement on Form S-4 under the Securities Act relating to the Contingent
Payment Rights and the shares of Parent Common Stock which may be delivered to
the Company's stockholders pursuant to the Contingent Payment Rights (the
"Registration Statement"), and any other applicable documents, which will
include a prospectus and proxy statement (as amended or supplemented by any
amendment or supplement filed by Parent, the "Prospectus-Proxy Statement"), and
will use its best efforts to cause the Registration Statement to become
effective. At the time the Registration Statement becomes effective, the
Registration Statement will comply in all material respects with the provisions
of the Securities Act and the published rules and regulations thereunder, and
will 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 not false or misleading, and at the time of mailing thereof to the
stockholders of the Company, at the time of the stockholders' meeting referred
to in Section 5.03 hereof and at the Effective Time, the Prospectus-Proxy
Statement will not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, however,
that none of the provisions of this subparagraph shall apply to statements in or
omissions from the Registration Statement or the Prospectus-Proxy Statement made
in reliance upon and in conformity with information furnished by the Company for
use in the Registration Statement or the Prospectus-Proxy Statement. Parent
shall bear the costs of SEC filing fees with respect to the Registration
Statement, the costs of printing the Prospectus-Proxy Statement, and the costs
of qualifying the shares of Parent Common Stock under state securities laws as
necessary.
6.04 STOCK EXCHANGE LISTINGS. Prior to issuance, Parent will file all
documents required to be filed to list the Parent Common Stock to be issued
pursuant to the Contingent Payment Rights on the New York Stock Exchange and use
its best efforts to effect said listings.
6.05 DUE AUTHORIZATION, ETC. OF STOCK ISSUED IN MERGER. Any shares of
Parent Common Stock issued by Parent to the Company Stockholders pursuant to the
Contingent Payment Rights will, upon such issuance and delivery in accordance
with the terms of the Contingent Payment Rights, be duly authorized, validly
issued, fully paid and nonassessable and free of any preemptive rights or other
rights to purchase securities of Parent and will be issued in full compliance
with applicable securities laws.
6.06 BLUE SKY APPROVALS. Parent will file all documents required to
obtain, prior to the Effective Time, all necessary approvals under state
securities laws, if any, required to carry out the transactions contemplated by
this Agreement, will pay all expenses incident thereto and will use its best
efforts to obtain such approvals.
6.07 SUBSTITUTE OPTIONS REGISTRATION STATEMENT. Parent shall take all
corporate action necessary to reserve for issuance a sufficient number of shares
of Parent Common Stock for delivery upon exercise of Substitute Options and
Substitute Warrants. As soon as practicable after the Effective Time, Parent
shall file a registration statement on Form S-8 (or any successor or other
appropriate forms) with respect to shares of Parent Common Stock subject to
Substitute Options, and shall use its best efforts to maintain effectiveness of
such registration statement for so long as the Substitute Options remain
outstanding.
6.08 OPERATION OF THE BUSINESS. Parent shall be solely responsible for
determining the appropriate technical, engineering, quality assurance and sales
and marketing resources necessary to achieve its Image Management Systems
business objectives after the Effective Time. Notwithstanding the foregoing,
Parent shall spend, on a consolidated basis, in connection with these objectives
at least $14,000,000 between July 1, 1997 and June 30, 1998, and at least
$20,000,000 between July 1, 1998 and June 30, 1999, including expenditures
related to sales representatives, sales management, advertising, promotions,
product service, product engineering, research and development, and quality
assurance.
6.09 EMPLOYEE BENEFIT PLANS. The employee benefit plans of the Company
identified on the attached Schedule 6.09 shall become the employee benefit plans
of the Surviving Corporation at the Effective Time, subject to the modifications
identified on the attached Schedule 6.09. Notwithstanding the foregoing, (a) the
Surviving Corporation and the Parent shall have the right to modify, amend, or
terminate the employee benefit plans of the Surviving Corporation from time to
time, and (b) nothing in this Section 6.09, whether express or implied, shall
confer upon any employee of the Company or the Surviving Corporation, or any
other person, any rights or remedies, including, without limitation, (i) any
right to employment or recall, (ii) any right to continued employment for any
specified period, or (iii) any right to claim any particular compensation,
benefit or aggregation of benefits, of any kind or nature whatsoever, or any
right to receive any severance pay or benefits as a result of this Section 6.09.
ARTICLE VII
CONDITIONS TO CLOSING
7.01 CONDITIONS TO PARENT'S AND MERGER SUBSIDIARY'S OBLIGATIONS. The
obligation of Parent and Merger Subsidiary to consummate the transactions
contemplated by this Agreement is subject to the satisfaction of the following
conditions at or before the Effective Time:
(a) The representations and warranties set forth in Article
III hereof shall be true and correct in all material respects at and as
of the Effective Time as though then made and as though the Effective
Time had been substituted for the date of this Agreement throughout
such representations and warranties (without taking into account any
disclosures by the Company of discoveries, events or occurrences
arising on or after the date hereof);
(b) The Company shall have performed in all material respects
all of the covenants and agreements required to be performed and
complied with by it under this Agreement prior to the Effective Time;
(c) The Company shall have obtained, or caused to be obtained,
each consent (including, without limitation, any consent to assignment
of any Intellectual Property Right) and approval necessary in order
that the transactions contemplated herein not constitute a breach or
violation of, or result in a right of termination or acceleration of,
or creation of any encumbrance on any of the Company's assets pursuant
to the provisions of, any agreement, arrangement or undertaking of or
affecting the Company or any license, franchise or permit of or
affecting the Company which could be reasonably expected to result in a
material adverse change in the assets, financial condition, relations
with key management employees or key OEM's, operating results or
business condition of the Company;
(d) This Agreement, the Certificate of Merger and the Merger
shall have been duly and validly authorized by the Company's Board of
Directors and this Agreement shall have been duly and validly approved
by the stockholders of the Company, and the Company shall have
delivered to Parent evidence, in form satisfactory to Parent's counsel,
of such authorization and approval, and the Certificate of Merger shall
have been duly executed by the Company;
(e) The applicable waiting periods under the HSR Act shall
have expired or been terminated, and all other material governmental
filings, authorizations and approvals that are required for the
consummation of the transactions contemplated by this Agreement or the
Certificate of Merger will have been duly made and obtained;
(f) There shall not be threatened, instituted or pending any
action or proceeding, before any court or governmental authority or
agency, domestic or foreign, (i) challenging or seeking to make
illegal, or to delay or otherwise directly or indirectly restrain or
prohibit, the consummation of the transactions contemplated hereby or
seeking to obtain material damages in connection with such
transactions, (ii) seeking to prohibit direct or indirect ownership or
operation by Parent or Merger Subsidiary of all or a material portion
of the business or assets of the Company, or to cause Parent or Merger
Subsidiary or any of their subsidiaries or the Company to dispose of or
to hold separately all or a material portion of the business or assets
of Parent or Merger Subsidiary and their subsidiaries or of the
Company, as a result of the transactions contemplated hereby, (iii)
seeking to require direct or indirect transfer or sale by Parent or
Merger Subsidiary of any of the shares of Company Common Stock, (iv)
seeking to invalidate or render unenforceable any material provision of
this Agreement or the Certificate of Merger or any of the other
agreements attached as exhibits hereto (collectively, the "Related
Agreements"), or (v) otherwise relating to and materially adversely
affecting the transactions contemplated hereby;
(g) There shall not be any action taken, or any statute, rule,
regulation, judgment, order or injunction enacted, entered, enforced,
promulgated, issued or deemed applicable to the transactions
contemplated hereby by any federal, state or foreign court, government
or governmental authority or agency, which would reasonably be expected
to result, directly or indirectly, in any of the consequences referred
to in Section 7.01(f) hereof;
(h) Parent or Merger Subsidiary shall not have discovered any
fact existing as of the date of this Agreement which has not been
disclosed to Parent and Merger Subsidiary as of the date of this
Agreement regarding the Company which, individually or in the aggregate
with other such facts, would result in a material adverse change in the
assets, properties, financial condition, operating results or business
condition of the Company;
(i) There shall have been no damage, destruction or loss of or
to any property or properties owned or used by the Company, whether or
not covered by insurance, which, in the aggregate, has, or would be
reasonably likely to have, a material adverse effect on the Company;
(j) Parent shall have received from counsel for the Company a
written opinion, dated the date of the Effective Time, addressed to
Parent, in form and substance substantially as set forth in Exhibit
7.01(j);
(k) Not more than seven percent (7%) of the outstanding shares
of Company Common Stock shall be qualified to be Dissenting Shares as
of the Effective Time;
(l) The Registration Statement (as amended or supplemented)
shall have become effective under the Securities Act and shall not be
subject to any stop order, and no action, suit, proceeding or
investigation by the SEC to suspend the effectiveness of the
Registration Statement shall have been initiated and be continuing, or
have been threatened or be unresolved. Parent shall have received all
state securities law authorizations necessary to carry out the
transactions contemplated by this Agreement;
(m) Parent shall have received from Ernst & Young LLP, acting
in their capacity as independent public accountants to the Company, a
"comfort" letter, dated as of the effective date of the Registration
Statement and updated through the Effective Time, in form and substance
satisfactory to Parent and reasonably customary in scope and substance
for letters delivered by independent public accountants in connection
with registration statements similar to the Registration Statement and
transactions such as those contemplated by this Agreement;
(n) Prior to the Effective Time, the Company shall have
delivered to Parent all of the following:
(i) certificates of the identity of appropriate
officers of the Company or other persons satisfactory to
Parent dated as of the date of the Effective Time, stating
that the conditions precedent set forth in subsections (a) and
(b) above have been satisfied;
(ii) copies of the third party and governmental
consents and approvals and of the authorizations referred to
in subsections (c), (d) and (e) above;
(iii) the minute books, stock transfer records,
corporate seal and other materials related to the corporate
administration of the Company;
(iv) resignations (effective as of the Effective
Time) from such of the Company's officers and directors as
Parent shall have requested prior to the Effective Time;
(v) a copy of the Certificate of Incorporation of the
Company, certified by the Secretary of State of the State of
Delaware, and Certificates of Good Standing from the
Secretaries of States of the States of Delaware and California
evidencing the good standing of the Company in such states;
(vi) a copy of each of (X) the text of the
resolutions adopted by the board of directors of the Company
authorizing the execution, delivery and performance of this
Agreement and the Certificate of Merger and the consummation
of all of the transactions contemplated by this Agreement and
the Certificate of Merger and (Y) the bylaws of the Company;
along with certificates executed on behalf of the Company by
its corporate secretary certifying to Parent that such copies
are true, correct and complete copies of such resolutions and
bylaws, respectively, and that such resolutions and bylaws
were duly adopted and have not been amended or rescinded;
(vii) incumbency certificates executed on behalf of
the Company by its corporate secretary certifying the
signature and office of each officer executing this Agreement
and the Certificate of Merger and the Related Agreements
executed by the Company;
(viii) an executed copy of each of the Related
Agreements; and
(ix) such other certificates, documents and
instruments as Parent reasonably requests related to the
transactions contemplated hereby.
(o) The Company's employees shall have entered into Parent's
form of Employee Agreement (relating to confidentiality, inventions and
competition) attached hereto as Exhibit 7.01(o).
(p) Each of the Company's employees identified on the attached
Schedule 7.01(p) shall have agreed (i) to repay to the Company, within
five business days after payment to such employee of the 1997 Cash
Consideration to which such employee is entitled as a stockholder of
the Company hereunder, all interest and principal outstanding under the
promissory note set forth next to such employee's name on the attached
Schedule 7.01(p), or (ii) to permit the Company to deduct the amount of
such interest and principal from the payment of 1997 Cash Consideration
to such employee. The Company shall have completed the repurchase from
each such employee of the number of shares of Restricted Common Stock
set forth next to such employee's name on, and for the price set forth
on, the attached Schedule 7.01(p).
7.02 CONDITIONS TO THE COMPANY'S AND THE STOCKHOLDERS' OBLIGATIONS. The
obligations of the Company to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of the following conditions at or
before the Effective Time:
(a) The representations and warranties set forth in Article IV
hereof will be true and correct in all material respects at and as of
the Effective Time as though then made and as though the Effective Time
had been substituted for the date of this Agreement throughout such
representations and warranties;
(b) Parent and Merger Subsidiary shall have performed in all
material respects all the covenants and agreements required to be
performed by them under this Agreement and the Certificate of Merger
prior to the Effective Time, and Merger Subsidiary shall have executed
the Certificate of Merger;
(c) The applicable waiting periods under the HSR Act shall
have expired or been terminated and all other material governmental
filings, authorizations and approvals that are required for the
consummation of the transactions contemplated hereby will have been
duly made and obtained;
(d) There shall not be threatened, instituted or pending any
action or proceeding, before any court or governmental authority or
agency, domestic or foreign, (i) challenging or seeking to make
illegal, or to delay or otherwise directly or indirectly restrain or
prohibit, the consummation of the transactions contemplated by this
Agreement or the Certificate of Merger or seeking to obtain material
damages in connection with such transactions, (ii) seeking to
invalidate or render unenforceable any material provision of this
Agreement, the Certificate of Merger or any of the Related Agreements,
or (iii) otherwise relating to and materially adversely affecting the
transactions contemplated hereby or thereby;
(e) There shall not be any action taken, or any statute, rule,
regulation, judgment, order or injunction, enacted, entered, enforced,
promulgated, issued or deemed applicable to the transactions
contemplated by this Agreement or the Certificate of Merger by any
federal, state or foreign court, government or governmental authority
or agency, which would reasonably be expected to result, directly or
indirectly, in any of the consequences referred to in Section 7.02(d)
hereof;
(f) The Registration Statement (as amended or supplemented)
shall have become effective under the Securities Act and shall not be
subject to any order, and no action, suit, proceeding or investigation
by the SEC to suspend the effectiveness of the Registration Statement
shall have been initiated and be continuing, or have been threatened
and be unresolved. Parent shall have received all state securities law
or state securities laws authorizations and the consent or approval of
any exchange on which shares of Parent Common Stock are traded, in each
case to the extent necessary to carry out the transactions contemplated
by this Agreement; and
(g) The Company shall have received from counsel for Parent a
written opinion, dated the date of the Effective Time, addressed to the
Company, in form and substance as set forth in Exhibit 7.02(g).
(h) Prior to the Effective Time, each of Parent and Merger
Subsidiary shall have delivered to the Company all of the following:
(i) certificates of the appropriate officers of
Parent and Merger Subsidiary dated as of the date of the
Effective Time, stating that the conditions precedent set
forth in subsections (a) and (b) above have been satisfied;
(ii) a copy of the Certificate of Incorporation of
each of the Parent and the Merger Subsidiary, certified by the
Secretary of State of the State of Delaware, and certificates
of Good Standing from the Secretary of State of the State of
Delaware evidencing the good standing of each of Parent and
the Merger Subsidiary in the State of Delaware.
(iii) a copy of each of (X) the text of the
resolutions adopted by the board of directors of each of
Parent and Merger Subsidiary authorizing the execution,
delivery and performance of this Agreement and the Certificate
of Merger and the consummation of all of the transactions
contemplated by this Agreement and the Certificate of Merger
and (Y) the bylaws of Parent and Merger Subsidiary; along with
certificates executed on behalf of Parent and Merger
Subsidiary by their corporate secretaries certifying to the
Company that such copies are true, correct and complete copies
of such resolutions and bylaws, respectively, and that such
resolutions and bylaws were duly adopted and have not been
amended or rescinded;
(iv) incumbency certificates executed on behalf of
Parent and Merger Subsidiary by their corporate secretaries
certifying the signature and office of each officer executing
this Agreement and the Certificate of Merger and the Related
Agreements executed by Parent and Merger Subsidiary;
(v) an executed copy of each of the Related
Agreements; and
(vi) such other certificates, documents and
instruments as the Company reasonably requests related to the
transactions contemplated hereby.
(i) The Company shall have received from Parent
evidence of transfer to the Transfer Agent of cash in the
amount of the aggregate 1997 Cash Consideration, along with an
executed letter of instruction to pay such funds to the
Company Stockholders.
ARTICLE VIII
TERMINATION
8.01 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) by the mutual consent of Parent, Merger Subsidiary and the
Company;
(b) by either Parent or Merger Subsidiary, on the one hand, or
the Company, on the other, if there has been a material
misrepresentation, breach of warranty or breach of covenant on the part
of the other in the representations, warranties and covenants set forth
in this Agreement; provided, that, in the event of a curable breach,
the non-breaching party may terminate this Agreement only after the
breaching party has had a reasonable time, not to exceed 30 days, to
cure such breach after written notice of breach from the non-breaching
party;
(c) by either Parent or Merger Subsidiary, on the one hand, or
the Company, on the other, if there shall be a final nonappealable
order of a federal or state court in effect preventing consummation of
the Merger, or there shall be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable
to the Merger by any governmental authority or agency, foreign or
domestic, which would make the consummation of the Merger illegal;
(d) by either Parent or Merger Subsidiary, on the one hand, or
the Company, on the other, if there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or
deemed applicable to the Merger by any governmental authority of
agency, which would (i) prohibit the Company's or Parent's ownership or
operation of all or a portion of the Company's business, or (ii) compel
Parent or the Company to dispose of or hold separate all or a portion
of the business or assets of the Company or Parent as a result of the
Merger;
(e) by Parent if more than seven percent (7%) of the
outstanding shares of Company Common Stock shall be qualified to be
Dissenting Shares after the first meeting of the Company's stockholders
to approve this Agreement and the Merger;
(f) by either Parent or Merger Subsidiary, on the one hand, or
the Company, on the other, if the transactions contemplated by this
Agreement or the Certificate of Merger have not been consummated on or
before August 31, 1997; provided that, neither will be entitled to
terminate this Agreement pursuant to this Section 8.01(f) if such
party's willful breach of this Agreement has prevented the consummation
of the transactions contemplated by this Agreement or the Certificate
of Merger; or
(g) by Parent or Merger Subsidiary if, after the date hereof,
there shall have been a material adverse change in the assets,
properties, financial condition, operating results or business
condition of the Company which shall continue to constitute such a
material adverse change on or after July 31, 1997.
8.02 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Parent or Merger Subsidiary, on the one hand, or the
Company, on the other, as provided in Section 8.01, all provisions of this
Agreement shall terminate, except Sections 8.03 (Termination Fees), Sections
12.01 (press releases and announcements), 12.02 (expenses), 12.09 (governing
law) and 12.10 (confidentiality) hereof shall survive indefinitely.
8.03 TERMINATION FEES.
(a) In the event that this Agreement terminates as a result
of:
(i) The failure of a party to proceed with the Merger
even though all of the conditions of such party's obligations
to consummate the transactions contemplated by this Agreement
have been satisfied; or
(ii) A material misrepresentation, breach of warranty
or breach of covenant on the part of a party in the
representations, warranties and covenants set forth in this
Agreement, where such misrepresentation or breach results or
arises from the intentional, willful or grossly negligent acts
or omissions of such party, from information or circumstances
known by such party as of the date of this Agreement, or from
information or circumstances not known by such party as of the
date of this Agreement as a result of the intentional or
willful disregard or the gross negligence of such party.
then the breaching party shall promptly reimburse the non-breaching party for
out-of-pocket fees and expenses (in an amount not to exceed One Million Dollars
($1,000,000)) incurred by the non-breaching party in connection with the
transactions contemplated by this Agreement (which reimbursable fees and
expenses shall not include salaries paid to employees of Parent or the Company
and payments to financial advisors other than for out-of-pocket fees and
expenses of such advisors) (collectively, "Reimbursable Fees and Expenses").
In the event of such termination of this Agreement by Parent,
the Company may, at its option, make such payment by delivering to Parent that
number of shares of Company Common Stock equal to the Reimbursable Fees and
Expenses divided by Ten Dollars ($10.00) (subject to appropriate adjustment to
reflect stock splits, stock dividends, reorganizations, consolidations and
similar changes to the Company's capital stock hereafter effected).
(b) In the event that:
(i) Parent terminates this Agreement as a result of
a material misrepresentation, material breach of warranty or
material breach of covenant on the part of the Company in the
representations, warranties and covenants set forth in this
Agreement (whether pursuant to Section 8.03(a) or otherwise),
and
(ii) The Company engages in, becomes subject to, or
enters into an agreement or understanding with respect to, a
Control Transaction (as defined below) with a party other than
Parent prior to December 31, 1997,
then the Company shall promptly pay to Parent Three Million Dollars ($3,000,000)
(in addition to any amounts previously paid or required to be paid pursuant to
Section 8.03(a)).
For the purposes of this Agreement, a "Control Transaction"
means (i) any acquisition of effective control of the Company, whether by
merger, purchase of all or substantially all of the assets of the Company,
purchase of a majority of the equity of the Company or otherwise, or (ii) any
issuance by the Company, in a single or series of transactions, of shares of
capital stock, or rights to purchase shares of capital stock, representing equal
to or greater than twenty percent (20%) of the outstanding capital stock of the
Company. Notwithstanding the foregoing, a Control Transaction shall not include
the issuance by the Company of more than twenty percent (20%) of the outstanding
capital stock of the Company (A) pursuant to an initial public offering of the
Company's equity securities under Section 5 of the Securities Act, or (B)
pursuant to a pro rata or substantially pro rata offering of the Company's
securities to the Company's current stockholders entitled to participate in such
offering pursuant to applicable securities laws, provided, that, in either case,
after such offering,
(1) none of the Company's current stockholders is the
beneficial owner of more than forty percent (40%) of the
outstanding capital stock of the Company (computed as if all
securities beneficially owned by such stockholder which are
convertible into capital stock of the Company had been
converted), and
(2) none of Parent's competitors previously disclosed
to the Company is the beneficial owner of more than forty
percent (40%) of the outstanding capital stock of the Company
(computed as if all securities beneficially owned by such
competitor which are convertible into capital stock of the
Company have been converted).
(c) The termination fees under this Section 8.03 shall be
cumulative and in addition to any other right, power or remedy
available to the parties, whether conferred hereunder, under the Option
Agreement or now or hereafter available at law or in equity or by
statute or otherwise.
ARTICLE IX
THE STOCKHOLDERS' REPRESENTATIVE
9.01 APPOINTMENT. As used in this Agreement, the "Stockholders'
Representatives" shall mean Michael O'Donnell and David Titus or any person
appointed as a successor Stockholders' Representative pursuant to Section 9.02
hereof.
9.02 ELECTION AND REPLACEMENT. During the period ending upon the date
when all obligations under this Agreement have been discharged (including all
indemnification obligations pursuant to Section 10.02 hereof), the Company's
stockholders who, immediately prior to the Effective Time, held Company Common
Stock representing a majority of the aggregate number of shares of Company
Common Stock outstanding immediately prior to the Effective Time (a "Majority"),
may, from time to time upon written notice to the Stockholders' Representatives
and Parent, remove any of the Stockholders' Representatives or appoint one or
more new Stockholders' Representatives to fill any vacancy created by the death,
incapacitation, resignation or removal of one or more Stockholders'
Representatives. Furthermore, if a Stockholders' Representative dies, becomes
incapacitated, resigns or is removed by a Majority, the Majority shall appoint a
successor Stockholders' Representative to fill the vacancy so created. If the
Majority is required to appoint, but has-not appointed, a successor
Stockholders' Representative within 30 business days from a request by Parent to
appoint a successor Stockholders' Representative, Parent shall have the right to
appoint a Stockholders' Representative to fill any vacancy so created, and shall
advise all those who were holders of Company Common Stock immediately prior to
the Effective Time of such appointment by written notice. A copy of any
appointment by the Majority of any successor Stockholders' Representative shall
be provided to Parent promptly after it shall have been effected.
9.03 AUTHORITY. The Stockholders' Representatives shall be authorized
to take action by majority vote and to make and deliver any certificate, notice,
consent or instrument required or permitted to be made or delivered under this
Agreement or under the documents referred to in this Agreement (including,
without limitation, any such actions with respect to the Contingent Payment
Rights) (an "Instrument") which the Stockholders' Representatives determine in
their discretion to be necessary, appropriate or desirable, and, in connection
therewith, to hire or retain, at the sole expense of the Company's stockholders,
such counsel, investment bankers, accountants, representatives and other
professional advisors as they determine in their sole and absolute discretion to
be necessary, advisable or appropriate in order to carry out and perform their
rights and obligations hereunder. Any party receiving an Instrument from the
Stockholders' Representative shall have the right to rely in good faith upon
such certification, and to act in accordance with the Instrument without
independent investigation.
9.04 NO LIABILITY OF PARENT. Parent (and the Surviving Corporation)
shall have no liability to any stockholder of the Company or otherwise arising
out of the acts or omissions of the Stockholders' Representatives or any
disputes among the stockholders of the Company or among the Stockholders'
Representatives. Parent shall have no direct liability to the stockholders of
the Company under this Agreement or the other agreements referred to herein for
any action taken through agreement with the Stockholders' Representatives and
may rely entirely on its dealings with, and notices to and from, the
Stockholders' Representatives with respect to any obligations it might have
under this Agreement, any agreement referred to herein or otherwise to the
stockholders of the Company. Without limiting the foregoing, delivery to the
Stockholders' Representatives of cash or certificates for shares of Parent
Common Stock with respect to the Contingent Payment Rights shall extinguish any
obligations of Parent to the Company Stockholders with respect to such
Contingent Payment Rights, and Parent shall have no liability for subsequent
misdelivery to any Company Stockholder or any other act or omission of the
Stockholders' Representatives with respect to such cash or certificates.
ARTICLE X
SURVIVAL AND OFFSET
10.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding any
investigation made by or on behalf of any of the parties hereto or the results
of any such investigation and notwithstanding the participation of such party in
the Closing, the representations and warranties contained in this Agreement
shall survive the Closing until 30 days after the Determination Date for the
Second Earn-Out Year as defined under the Contingent Payment Rights (the "Offset
Period"), and shall have no further force or effect thereafter.
10.02 RIGHT OF OFFSET.
(a) Subject to Section 10.02(f) hereof, Parent shall have a
right to offset (the "Offset Right"), from time to time, its "Losses"
(as hereinafter defined) against payments to be made by Parent relating
to the Contingent Payment Rights, in accordance with the terms of this
Section 10.02. Parent shall be entitled to exercise its Offset Right,
from time to time, against payments to be made by Parent relating to
the Contingent Payment Rights, with respect to any loss, liability,
deficiency, damage, expense or cost (including reasonable legal
expenses), whether or not actually incurred or paid during the Offset
Period and after taking into effect the Tax effects of such items and
any use of the Offset Right hereunder (collectively, the "Losses"),
which Parent, the Surviving Corporation or (but only in connection with
any Losses incurred by, or Claims against, Parent or the Surviving
Corporation) any of their respective affiliates, officers, directors,
employees or agents (the "Protected Parties") may suffer, sustain or
become subject to, as a result of:
(i) Any misrepresentation in any of the
representations and warranties of the Company contained (1) in
this Agreement or (2) in any of the exhibits, schedules,
certificates and other documents delivered or to be delivered
by or on behalf of the Company pursuant to this Agreement or
otherwise referenced or incorporated in this Agreement
(collectively, the "Related Documents");
(ii) Any breach of, or failure to perform, any
agreement or covenant of the Company contained in this
Agreement or any of the Related Documents;
(iii) Any "Claim" (as defined in Section 10.04(c)) or
threatened Claim against the Protected Parties arising out of
actions or inactions of the Company with respect to the
Company's business or the Real Property prior to the Effective
Time.
(b) Parent may exercise its Offset Right, from time to time,
in accordance with the procedures set forth in paragraphs (c) and (d)
of this Section 10.02, against any payment or payments due or to become
due under the Contingent Payment Rights. Each time, if any, that Parent
exercises its Offset Right against payments due or to become due under
the Contingent Payment Rights, Parent shall promptly deliver to
Stockholders' Representatives a schedule signed by an officer of Parent
reflecting the revised payments due or to become due under the
Contingent Payment Rights after giving effect to such exercise of its
Offset Right. In the event Parent exercises its Offset Right, such
offset shall be applied first, to the payment to be made in 1998 under
the Contingent Payment Rights, and second, to the payment being made in
1999 under the Contingent Payment Rights.
(c) In the event any of the Protected Parties becomes involved
in any legal, governmental or administrative proceeding which may
result in Losses subject to Parent's Offset Right hereunder, or if any
such proceeding is threatened or asserted (any such third party action
or proceeding being referred to herein as a "Claim"), Parent shall
promptly notify the Stockholders' Representatives in writing of the
nature of any such Claim and Parent's estimate of the Losses arising
therefrom.
(i) The Stockholders Representatives shall be
entitled to contest and defend such Claim; provided, that the
Stockholders Representatives have a reasonable basis for
concluding such defense may be successful and diligently
contests and defends such Claim. Notice of the intention so to
contest and defend shall be given by the Stockholders'
Representatives to Parent within 20 days after Parent provides
notice of such Claim (but, in all events, at least five
business days prior to the date that an answer to such Claim
is due to be filed). Such contest and defense shall be
conducted by reputable attorneys employed by Stockholders'
Representatives. Parent shall be entitled at any time, at its
own cost and expense (which expense shall not constitute a
Loss unless Seller is not adequately representing or, because
of a conflict of interest, may not adequately represent, any
interests of the Protected Parties, and only to the extent
that such expenses are reasonable), to participate in such
contest and defense and to be represented by attorneys of its
own choosing. If Parent elects to participate in such defense,
Parent shall cooperate with Stockholders' Representatives in
the conduct of such defense. Neither Parent nor Stockholders'
Representatives may concede, settle or compromise any Claim
without the consent of the other, which consent shall not be
unreasonably withheld; provided, that Stockholders'
Representatives may, without the consent of Parent, settle any
Claim which is solely for money damages if Stockholders'
Representatives acknowledge that such Claim gives rise to a
Loss that is subject to Parent's Offset Right hereunder and if
the entire amount of the settlement amount may be recovered by
Parent by means of Parent's Offset Rights hereunder.
(ii) Notwithstanding the foregoing, if: (X) a Claim
seeks equitable relief against any of the Protected Parties,
(Y) the subject matter of a Claim relates to the ongoing
business of Parent (other than as it relates to the Surviving
Corporation), which Claim, if decided against a Protected
Party, would materially adversely affect the ongoing business
or reputation of Parent (other than as it relates to the
Surviving Corporation), or (Z) the estimated Losses of the
Protected Parties related to the Claim exceed the amount
Parent may recover using its Offset Right hereunder, then, in
each such case, Parent alone may (but shall not be required
to) contest, defend and settle such Claim in the first
instance and, if Parent does not contest, defend or settle
such Claim, Stockholders' Representatives shall have the right
to contest and defend (but not settle) such Claim; provided,
however, that no such settlement shall be made without the
consent of the Stockholders' Representatives (which consent
shall not be unreasonably withheld, delayed or denied) unless
in connection with such settlement, Parent and the Surviving
Corporation shall waive all Offset Rights and any other
indemnification claims related to such Claim.
(d) In the event Parent (on behalf of itself or any Protected
Party) should have a claim giving rise to an Offset Right that does not
involve a Claim, Parent shall deliver a notice (the "Offset Notice") of
such claim with reasonable promptness to Stockholders' Representatives.
The Offset Notice shall include a good faith estimate of Parent's
Losses relating to such claim and sufficient detail with regard to the
nature of the facts underlying such Claim to enable Stockholders'
Representatives to analyze such Claim. If the Stockholders'
Representatives notify Parent that the Stockholders' Representatives do
not dispute the claim described in the Offset Notice, or if the
Stockholders' Representatives fail to notify Parent within 30 days
after delivery of the Offset Notice of any such dispute with respect to
such claim, the Losses in the amount specified in the Offset Notice
will be conclusively deemed Losses and Parent may exercise its Offset
Right with respect to such amount in accordance with the Offset Notice.
If the Stockholders' Representatives have timely disputed such claim,
representatives of Parent and Stockholders' Representatives will
proceed in good faith to negotiate a resolution of such dispute, and if
not resolved through the negotiations of such representatives within 60
days after the date of the Offset Notice of such claim, such dispute
shall be resolved fully and finally in the jurisdiction of the
principal office of Parent by an arbitration governed by the Center for
Public Resources Rules for Non-Administered Arbitration of Business
Disputes, provided that a sole arbitrator shall be employed. The
arbitration shall be governed by the state equivalent of the Federal
Arbitration Act, 9 U.S.C. ss. 1-16, and judgment upon the award
rendered by the arbitrator may be entered by any court having
jurisdiction thereof. The parties shall have 10 days from the end of
the discussion among the Stockholders' Representatives and Parent to
agree upon a mutually acceptable person to act as arbitrator. The
arbitrator shall be a neutral person (i.e., a person not affiliated
with either of the parties). If no arbitrator has been selected within
such time, the Stockholders' Representatives and Parent shall jointly
request the Center for Public Resources or another mutually agreed upon
organization to supply within 10 business days of such request 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 Stockholders' Representatives and Parent shall independently rank
the proposed candidates, shall simultaneously exchange rankings, and
shall be deemed to have selected as the arbitrator the individual
receiving the highest combined ranking who is available to serve. If
there is a tie, then the tie shall be broken by putting the names on
slips of paper, mixing them up and having one party draw one slip of
paper. If either the Stockholders' Representatives or Parent shall not
cooperate in the selection of the arbitrator, the other may solely
select the arbitrator utilizing the procedures set forth in this
Section 10.02. The costs of arbitration shall be apportioned between
the Stockholders' Representatives and Parent as determined by the
arbitrator in such manner as the arbitrator deems reasonable taking
into account the circumstances of the case, the conduct of the parties
during the proceeding, and the result of the arbitration. Any
arbitration proceeding shall be concluded in a maximum of one (1) year
from the date of the Offset Notice. All negotiations pursuant to this
Section 10.02 shall be treated as compromise and settlement
negotiations for purposes of Rule 408 of the Federal Rules of Evidence
and comparable state Rules of Evidence. All negotiation and arbitration
proceedings under this Section 10.02 shall be treated as confidential
information in accordance with the provisions of the Confidentiality
Agreement. Any arbitrator shall be bound by an agreement containing
confidentiality provisions at least as restrictive as those contained
in the Confidentiality Agreement. Nothing herein shall preclude (i)
Parent from seeking equitable relief to prevent any immediate,
irreparable harm to its interest, including multiple breaches of this
Agreement or the Related Documents, or (ii) the Stockholders'
Representatives from commencing litigation to enforce payment of the
Contingent Payment Rights not subject to Offset as provided herein.
Otherwise, these procedures are exclusive and shall be fully exhausted
prior to the initiation of any litigation. Either party may seek
specific enforcement of any arbitrator's decision under this Article
IX. The other party's only defense to such a request for specific
enforcement shall be fraud by or on the arbitrator.
(e) In the event of a Claim under Section 10.02(c) or a
dispute relating to the Offset Notice under Section 10.02(d), and if
such Claim or Offset Notice would, if determined to be valid, result in
the an offset against amounts due under the Contingent Payment Rights,
Parent may exercise its Offset Right to the extent of the estimated
Losses of the Protected Parties until the resolution of such Claim or
dispute; provided, that prior to the time of such resolution, if
payment of the Contingent Payment Right against which Parent is seeking
to enforce its Offset Right would otherwise be due and payable, Parent
shall instead pay the amount of such Offset Right into an escrow
account with a third-party escrow agent mutually acceptable to the
Parent and the Stockholders' Representatives pursuant to an escrow
agreement. Such funds shall be held in such escrow until the time of
resolution of such Claim (even if such Claim or dispute is not resolved
until after the end of the Offset Period) and thereafter returned to
the Parent to the extent that such Offset Right is allowed and
otherwise paid to the Stockholders's Representative, the Company
Stockholders or a paying agent under the Contingent Payment Rights, as
may be appropriate. The portion of any Contingent Payment
Rights,payments suspended pursuant to the terms of this Section
10.02(e) which are not subject to the exercise of the Offset Right in
dispute and which, by their terms, have become due, shall be delivered
to the Stockholders's Representative, the Company Stockholders or a
paying agent under the Contingent Payment Rights, as may be
appropriate.
(f) Notwithstanding anything contained in this Agreement to
the contrary, the right of Parent to exercise its Offset Right
hereunder shall be subject to the following limitations:
(i) Parent shall not be entitled to exercise its
Offset Right with respect to any Losses, until the aggregate
amount of all Losses hereunder exceeds Two Hundred Fifty
Thousand Dollars ($250,000); provided that, once the aggregate
amount of all Losses hereunder exceeds Two Hundred Fifty
Thousand Dollars ($250,000), Parent shall be entitled to
exercise its Offset Right with respect to all Losses,
including, without limitation, the initial Two Hundred Fifty
Thousand Dollars ($250,000) in Losses hereunder.
(ii) Parent shall not be entitled to exercise its
Offset Right with respect to any Losses unless Parent delivers
to Stockholders' Representatives an Offset Notice under
Section 10.02(d) or notice of a Claim under Section 10.02(c):
(A) prior to the end of the Offset Period
with respect to Losses as a result of any
misrepresentation in any of the representations and
warranties of the Company contained in Section 3.07
(Capital Stock), Section 3.15 (Tax Matters), Section
3.17 (Intellectual Property Rights), Section 3.20
(Employees), Section 3.21 (Employee Benefit Plans),
or Section 3.27 (Environmental Matters).
(B) prior to the one-year anniversary of the
Effective Time with respect to all Losses not
described in Section 10.02(f)(ii)(A).
(iii) Parent shall not be entitled to exercise its
Offset Right with respect to any Losses to the extent that
such Losses result from or arise out of the gross negligence
or willful misconduct of any Protected Party.
(iv) Parent shall be entitled to exercise its Offset
Right only for Losses in an aggregate amount not exceeding
$9,650,979.
(v) The Offset Right shall be Parent's sole and
exclusive remedy with respect to any Losses that any Protected
Party may suffer, sustain or become subject to pursuant to the
terms of this Agreement, and Parent agrees that it shall not,
and hereby waives all rights to, institute or maintain any
suit, proceeding or action against the Company's stockholders
or Stockholders' Representatives or utilize or exercise any
other legal or equitable remedy for the purpose of recovering
damages or other relief with respect to any Losses (including,
without limitation, an action seeking to recover any portion
of the purchase price previously paid to the Company's
stockholders) except for suits, proceedings or actions
necessary to enforce or implement the Offset Right; provided
that, (i) nothing herein shall prevent a party from bringing
an action based upon allegations of fraud or other intentional
misconduct with respect to another party hereto in connection
with this Agreement, and (ii) nothing herein shall limit in
any manner any other legal rights or remedies which any
Protected Party which is a party to an agreement identified
under Article XI has against another party to such agreement
in accordance with the terms and conditions provided therein.
ARTICLE XI
ANCILLARY AGREEMENTS
11.01 OPTION AGREEMENT. Simultaneous with the execution and delivery of
this Agreement, Parent, Merger Subsidiary and the Company will enter into an
option agreement identical in form to Exhibit 11.01 (the "Option Agreement").
11.02 STOCKHOLDER AGREEMENTS. Simultaneous with the execution and
delivery of this Agreement, Parent, Merger Subsidiary, the Company and each
stockholder of the Company identified on Schedule 11.02 will enter into a
stockholder agreement identical in form to Exhibit 11.02 (the "Stockholder
Agreement").
11.03 AFFILIATE AGREEMENTS. Simultaneous with the execution and
delivery of this Agreement, Parent and each stockholder of the Company
identified on Schedule 11.03 will enter into an affiliate agreement identical in
form to Exhibit 11.03 (the "Affiliate Agreement").
11.04 KEY MANAGEMENT AGREEMENTS. Simultaneous with the execution and
delivery of this Agreement, the Company, Parent and each employee identified on
Schedule 11.04 will enter into a Key Management Agreement in the form of Exhibit
11.04 (the "Key Management Agreements").
11.05 NONCOMPETITION AGREEMENTS. Simultaneous with the execution and
delivery of this Agreement, the Company, Parent and each stockholder of the
Company identified on Schedule 11.04 will enter into a noncompetition agreement
identical in form to Exhibit 11.05 (the "Noncompetition Agreements").
ARTICLE XII
MISCELLANEOUS
12.01 PRESS RELEASES AND ANNOUNCEMENTS. Prior to the Effective Time, no
party hereto shall issue any press release (or make any other public
announcement) related to this Agreement or the transactions contemplated hereby
or make any announcement to the employees, customers or suppliers of the Company
without prior written approval of the other party hereto, except that Parent may
issue any such release (or other announcement) as it determines, in its sole
discretion, as may be necessary to comply with the requirements of this
Agreement or applicable law or by obligations pursuant to any listing agreement
with any national securities exchange. If Parent determines any such press
release or public announcement is so required, Parent shall use reasonable
efforts to consult in good faith with the Company (but shall not be required to
obtain the Company's consent) prior to issuing such press release or making such
announcement.
12.02 EXPENSES. Except as otherwise expressly provided for herein, the
Company, the Stockholders' Representatives, Parent and Merger Subsidiary will
each pay all of their own expenses (including attorneys' and accountants' fees)
in connection with the negotiation of this Agreement, the performance of their
respective obligations under this Agreement and the Certificate of Merger and
the consummation of the transactions contemplated hereby and thereby (whether
consummated or not). The attorney's fees of Wilson Sonsini Goodrich & Rosati,
legal counsel to the Company, shall be paid in full at the Closing.
12.03 AMENDMENT AND WAIVER. This Agreement may not be amended or waived
except in a writing executed by the party against which such amendment or waiver
is sought to be enforced; provided, however, that after the approval of this
Agreement by the stockholders of the Company, no amendment may be made which
reduces the Merger Consideration or which effects any changes which would
materially adversely affect the stockholders of the Company without the further
approval of the stockholders of the Company. No course of dealing between or
among any persons having any interest in this Agreement will be deemed effective
to modify or amend any part of this Agreement or any rights or obligations of
any person under or by reason of this Agreement.
12.04 NOTICES. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when personally delivered or
three days after being mailed, if mailed by first class mail, return receipt
requested, or when receipt is acknowledged, if sent by facsimile, telecopy or
other electronic transmission device. Notices, demands and communications to
Parent, Merger Subsidiary, the Company and the Stockholders' Representatives
will, unless another address is specified in writing, be sent to the address
indicated below:
Notices to Parent or Merger Subsidiary: with a copy to:
- --------------------------------------- ---------------
Imation Corp. Dorsey & Whitney LLP
Legal Affairs 220 South Sixth Street
Imation Corp. Minneapolis, MN 55402
One Imation Place Attention: Gary L. Tygesson
Oakdale, MN 55128-3414 Telecopy: (612) 340-8753
Attn: Susan Laine
Imation Corp.
One Imation Place
Oakdale, MN 55128-3414
Attn: Brad T. Sauer
Notices to the Company: with a copy to:
- ----------------------- ---------------
Cemax-Icon, Inc. Wilson, Sonsini, Goodrich &
47281 Mission Falls Court Rosati, P.C.
Fremont, California 94539 650 Page Mill Road
Attn: Terry Ross Palo Alto, California 94304-1050
Attn: Michael J. O'Donnell
Telecopy: (415) 496-4092
Notices to Stockholders' Representatives with a copy to:
- ---------------------------------------- ---------------
Wilson, Sonsini, Goodrich & Rosati, P.C. David Titus
650 Page Mill Road Windward Ventures
Palo Alto, California 94304-1050 221 Ocean Drive
Attn: Michael J. O'Donnell Coronado, California 92118
Telecopy: (415) 496-4092
12.05 ASSIGNMENT. This Agreement and all of the provisions hereof will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by any
party hereto without the prior written consent of the other parties hereto.
12.06 SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
12.07 COMPLETE AGREEMENT. This Agreement, the Certificate of Merger and
the Related Agreements and other exhibits hereto, the Disclosure Schedule and
the other documents referred to herein contain the complete agreement between
the parties and supersede any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way; provided, that the
Confidentiality Agreement, dated October 4, 1996, as amended November 14, 1996,
between Parent and the Company (the "Confidentiality Agreement") shall remain in
force and effect without modification thereof.
12.08 COUNTERPARTS. This Agreement may be execute in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument. Any such counterpart may be delivered by facsimile. Any party
delivering a counterpart by facsimile shall deliver an original copy within 48
hours, provided that the failure to so deliver an original shall not effect the
enforceability of this agreement against such party.
12.09 GOVERNING LAW. The internal law, without regard for conflicts of
laws principles, of the State of Delaware will govern all questions concerning
the construction, validity and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement.
12.10 KNOWLEDGE. With respect to the knowledge of the Company, such
term shall mean the actual knowledge of the Company after reasonable inquiry and
review of the representations and warranties of the Company set forth in this
Agreement and the Disclosure Schedule.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
IMATION CORP.
By /s/ C.T. Pinder
-----------------------
Its Vice President
-----------------------
CI ACQUISITION CORP.
By /s/ C.T. Pinder
-----------------------
Its President
-----------------------
CEMAX-ICON, INC.
By /s/ Terry Ross
-----------------------
Its President and C.E.O.
-----------------------
EXHIBIT B
SECTION 262 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
ss. 262 APPRAISAL RIGHTS. (a) Any stockholder of a corporation of this
State who holds shares of stock on the date of the making of a demand pursuant
to subsection (d) of this section with respect to such shares, who continuously
holds such shares through the effective date of the merger or consolidation, who
has otherwise complied with subsection (d) of this section and who has neither
voted in favor of the merger or consolidation nor consented thereto in writing
pursuant to ss. 228 of this title shall be entitled to an appraisal by the Court
of Chancery of the fair value of the stockholder's shares of stock under the
circumstances described in subsections (b) and (c) of this section. As used in
this section, the word "stockholder" means a holder of record of stock in a
stock corporation and also a member of record of a nonstock corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a nonstock
corporation; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to ss.251 (other than a merger effected pursuant to ss.251(g)
of this title), ss.252, ss.254, ss.257, ss.258, ss.263 or ss.264 of this title:
(1) Provided, however, that no appraisal rights under this section
shall be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to determine
the stockholders entitled to receive notice of and to vote at the meeting of
stockholders to act upon the agreement of merger or consolidation, were either
(i) listed on a national securities exchange or designated as a national market
system security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000 holders;
and further provided that no appraisal rights shall be available for any shares
of stock of the constituent corporation surviving a merger if the merger did not
require for its approval the vote of the stockholders of the surviving
corporation as provided in subsection (f) of ss.251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series of
stock of a constituent corporation if the holders thereof are required by the
terms of an agreement of merger or consolidation pursuant to ss.ss.251, 252,
254, 257, 258, 263 and 264 of this title to accept for such stock anything
except:
a. Shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or depository receipts in
respect thereof, which shares of stock or depository receipts at the effective
date of the merger or consolidation will be either listed on a national
securities exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities Dealers,
Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a. and b. of this paragraph; or
d. Any combination of the shares of stock, depository receipts and cash
in lieu of fractional shares or fractional depository receipts described in the
foregoing subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under ss.253 of this title is not owned by the parent
corporation immediately prior to the merger, appraisal rights shall be available
for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation
that appraisal rights under this section shall be available for the shares of
any class or series of its stock as a result of an amendment to its certificate
of incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights
are provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting, shall
notify each of its stockholders who was such on the record date for such meeting
with respect to shares for which appraisal rights are available pursuant to
subsections (b) or (c) hereof that appraisal rights are available for any or all
of the shares of the constituent corporations, and shall include in such notice
a copy of this section. Each stockholder electing to demand the appraisal of his
shares shall deliver to the corporation, before the taking of the vote on the
merger or consolidation, a written demand for appraisal of his shares. Such
demand will be sufficient if it reasonably informs the corporation of the
identity of the stockholder and that the stockholder intends thereby to demand
the appraisal of his shares. A proxy or vote against the merger or consolidation
shall not constitute such a demand. A stockholder electing to take such action
must do so by a separate written demand as herein provided. Within 10 days after
the effective date of such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent corporation who
has complied with this subsection and has not voted in favor of or consented to
the merger or consolidation of the date that the merger or consolidation has
become effective; or
(2) If the merger or consolidation was approved pursuant to ss.228 or
ss.253 of this title, each constituent corporation, either before the effective
date of the merger or consolidation or within ten days thereafter, shall notify
each of the holders of any class or series of stock of such constituent
corporation who are entitled to appraisal rights of the approval of the merger
or consolidation and that appraisal rights are available for any or all shares
of such class or series of stock of such constituent corporation, and shall
include in such notice a copy of this section; provided that, if the notice is
given on or after the effective date of the merger or consolidation, such notice
shall be given by the surviving or resulting corporation to all such holders of
any class or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective date
of the merger or consolidation, shall, also notify such stockholders of the
effective date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such notice,
demand in writing from the surviving or resulting corporation the appraisal of
such holder's shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the stockholder
intends thereby to demand the appraisal of such holder's shares. If such notice
did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send a second
notice before the effective date of the merger or consolidation notifying each
of the holders of any class or series of stock of such constituent corporation
that are entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send such a
second notice to all such holders on or within 10 days after such effective
date; provided, however, that if such second notice is sent more than 20 days
following the sending of the first notice, such second notice need only be sent
to each stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection. An
affidavit of the secretary or assistant secretary or of the transfer agent of
the corporation that is required to give either notice that such notice has been
given shall, in the absence of fraud, be prima facie evidence of the facts
stated therein. For purposes of determining the stockholders entitled to receive
either notice, each constituent corporation may fix, in advance, a record date
that shall be not more than 10 days prior to the date the notice is given;
provided, that if the notice is given on or after the effective date of the
merger or consolidation, the record date shall be such effective date. If no
record date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the day on
which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not voted
in favor of the merger or consolidation and with respect to which demands for
appraisal have been received and the aggregate number of holders of such shares.
Such written statement shall be mailed to the stockholder within 10 days after
his written request for such a statement is received by the surviving or
resulting corporation or within 10 days after expiration of the period for
delivery of demands for appraisal under subsection (d) hereof, whichever is
later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the
Court shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and
taxed upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation,
no stockholder who has demanded his appraisal rights as provided in subsection
(d) of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of his demand for
an appraisal and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery
shall be dismissed as to any stockholder without the approval of the Court, and
such approval may be conditioned upon such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
EXHIBIT C
TERMS OF CONTINGENT PAYMENT RIGHTS
A. General. Each Contingent Payment Right shall represent only a right
to receive a cash or stock payment (the "Earn-Out") from Parent, subject to the
terms set forth herein, payable no later than 30 days after the Determination
Date (as defined below) for each Earn-Out Year (as defined below). Contingent
Payment Rights shall not possess any attributes of common stock and shall not
entitle the holders of the Contingent Payment Rights to any rights of any kind
other than as specifically set forth herein.
B. Definitions.
1. Earn-Out Year. The term "Earn-Out Year" shall refer to each
of the following twelve-month periods: (a) the period from July 1, 1997 through
June 30, 1998 (the "First Earn-Out Year"), and (b) the period from July 1, 1998
through June 30, 1999 (the "Second Earn-Out Year").
2. Determination Date. The term "Determination Date" shall
mean the date of final determination of Gross Revenues (as defined below) for an
Earn-Out Year pursuant to Section D below.
C. Earn-Out Payments.
1. First Earn-Out Year.
a. The Earn-Out in the First Earn-Out Year will be $2.50 in
cash (the "1998 Payment"), in the event that Gross Revenues during the First
Earn-Out Year ("1998 Gross Revenues"), equal or exceed $45,000,000. In the event
that 1998 Gross Revenues are less than $45,000,000, the 1998 Payment will be
reduced as follows:
1998 Gross Revenues
-------------------
Adjusted Amount
Equal or Greater of
Than Less Than 1998 Payment
---------------- ------------- ------------
$0 $35 million $0.00
$35 million $36 million $1.25
$36 million $37 million $1.45
$37 million $38 million $1.65
$38 million $39 million $1.85
$39 million $40 million $2.05
$40 million $45 million Pro rata portion
of $2.50
b. Any 1998 Payment, as adjusted if appropriate, may be paid,
at the election of the holders of the Contingent Payment Rights ("Holders"), in
whole shares of Parent Common Stock equal to the quotient of (i) the 1998
Payment, as adjusted if appropriate, and (ii) the average closing price per
share of Parent Common Stock on the New York Stock Exchange -- Composite
Transactions, as reported in The Wall Street Journal, for each of the 10
consecutive trading days ending on the third business day prior to June 30,
1998. To facilitate such election, Parent shall provide written notice to the
Holders (the "1998 Earn-Out Notice"), together with such updated disclosure
concerning Parent as Parent, in its sole discretion, deems necessary or
appropriate, within 15 days after the Determination Date for 1998 Gross
Revenues, which notice shall specify the amount of the 1998 Payment and the
amount of Parent Common Stock receivable in lieu of cash in connection with the
1998 Payment. Each Holder may elect to receive Parent Common Stock in lieu of
all (but not less than all) of the cash otherwise payable in connection with the
1998 Payment by providing written notice of such election to Parent within 15
days after receiving the 1998 Earn-Out Notice. Any Holder which does not provide
such written notice shall receive solely cash in connection with the 1998
Payment.
c. In the event that 1998 Gross Revenues exceed $45,000,000,
any such excess up to $5,000,000 will be carried forward and counted as part of
1999 Gross Revenues (as defined below).
2. Second Earn-Out Year.
a. Subject to the last sentence of this Section 2(a), the
Earn-Out in the Second Earn-Out Year will be $6.00 in cash (the "1999 Payment"),
in the event that Gross Revenues during the twelve-month period from July 1,
1998 through June 30, 1999, plus any amount of 1998 Gross Revenues carried
forward pursuant to paragraph 1(c) above ("1999 Gross Revenues"), equal or
exceed $60,000,000. In the event that 1999 Gross Revenues are less than
$60,000,000, the 1999 Payment will be reduced as follows:
1999 Gross Revenues
-------------------
Adjusted Amount
Equal or Greater of
Than Less Than 1999 Payment
---------------- ------------- ------------
$0 $50 million $0.00
$50 million $51 million $3.00
$51 million $52 million $3.50
$52 million $53 million $4.00
$53 million $54 million $4.50
$54 million $55 million $5.00
$55 million $60 million Pro rata portion
of $6.00
In the event that 1998 Gross Revenues are less than $45,000,000 and 1999 Gross
Revenues exceed $60,000,000, the amount of 1999 Gross Revenues in excess of
$60,000,000, up to $5,000,000, will be treated as 1998 Gross Revenues and the
1999 Payment shall be increased above $6.00 by an amount equal to the difference
between (i) the amount of the 1998 Payment computed after including such excess
1999 Gross Revenues and (ii) the amount of the 1998 Payment.
b. Any 1999 Payment, as adjusted if appropriate, may be paid,
at the election of the Holders, in whole shares of Parent Common Stock equal to
the product of (i) the 1999 Payment, as adjusted if appropriate, divided by
$6.00 and (ii) 0.17. To facilitate such election, Parent shall provide written
notice to the Holders (the "1999 Earn-Out Notice"), together with such updated
disclosure concerning Parent as Parent, in its sole discretion, deems necessary
or appropriate, within 15 days after the Determination Date for 1999 Gross
Revenues, which notice shall specify the amount of the 1999 Payment and the
amount of Parent Common Stock receivable in lieu of cash in connection with the
1999 Payment. Each Holder may elect to receive Parent Common Stock in lieu of
all (but not less than all) of the cash otherwise payable in connection with the
1999 Payment by providing written notice of such election to Parent within 15
days after receiving the 1999 Earn-Out Notice. Any Holder which does not provide
such written notice shall receive solely cash in connection with the 1999
Payment.
D. Calculation of Gross Revenues.
1. Definition The term "Gross Revenues" shall mean gross
revenues of the Image Management Systems Business (as defined below) of Parent,
the Surviving Corporation and their affiliated companies, reduced only by
customer trade discounts actually given in good faith and actual returns, and
determined in accordance with generally accepted accounting principles
consistent with past practices of the Company and the Annual Financial
Statements; provided that the Surviving Corporation shall receive credit for the
full commercial value (as represented by standard sales prices) of any product
(a) provided by the Surviving Corporation to any other business division of
Parent for resale, or (b) given or sold by the Surviving Corporation at the
direction of Parent or one of its affiliated companies (other than the Surviving
Corporation) to customers at a discount to induce the purchase of products or
services (other than products or services of the Image Management Systems
Business) of Parent or its affiliated companies. Gross Revenues shall not
include revenues of the Image Management Systems Business of Parent, the
Surviving Corporation or their affiliated companies attributable to the
acquisition (by purchase, license or other means) of any related businesses,
products or services in a single transaction or series of transactions after the
Effective Time.
The term "Image Management Systems Business" shall mean (i) products
currently sold by the Company or under research and/or development by the
Company and any natural extensions thereof, and (ii) services related to such
products provided by the Company, Parent or their affiliated companies.
2. Calculation. Within 15 days after the end of each Earn-Out
Year, Parent shall prepare and deliver to the Stockholders' Representatives a
statement (an "Earn-Out Statement"), certified as being true and correct in all
material respects by an officer of Parent, which shall identify the Gross
Revenues for such Earn-Out Year in reasonable detail and the Earn-Out resulting
from such Gross Revenues.
The Earn-Out Statement shall be subject to review and
verification by the Stockholders' Representatives or, at their option and
expense (unless such accounting firm shall discover a discrepancy of at least
ten percent, in which case the fees of such accounting firm shall be paid by
Parent), by an independent public accounting firm of their choice. Parent shall
permit the Stockholders' Representatives and their representatives to have
reasonable access to the data and information on which the Earn-Out Statement
was prepared and to Parent's employees and/or representatives who assisted in
its preparation to the extent necessary to verify such information.
The Stockholders' Representatives shall be deemed to have
accepted the Earn-Out Statement and the Earn-Out indicated therein, on behalf of
the Holders, unless within 20 days after the date of delivery of the Earn-Out
Statement, the Stockholders' Representatives give written notice to Parent of
objection to any item thereon, which notice shall specify in reasonable detail
the basis for such objection. If the Stockholders' Representatives give such
notice of objection, Parent and the Stockholders' Representatives shall attempt
in good faith to resolve the dispute as promptly as possible.
If Parent and the Stockholders' Representatives have not been
able to agree upon a resolution of the dispute within 30 days after the date
Stockholders' Representatives gave such notice of objection (the "Objection
Notice"), such dispute shall be resolved fully and finally in the jurisdiction
of the principal office of Parent by an arbitration governed by the Center for
Public Resources Rules for Non-Administered Arbitration of Business Disputes,
provided that a sole arbitrator shall be employed. The arbitration shall be
governed by the state equivalent of the Federal Arbitration Act, 9 U.S.C. ss.
1-16, and judgment upon the award rendered by the arbitrator may be entered by
any court having jurisdiction thereof. The parties shall have 10 days from the
end of the discussion among the Stockholders' Representatives and Parent to
agree upon a mutually acceptable person to act as arbitrator. The arbitrator
shall be a neutral person (i.e., a person not affiliated with either of the
parties). If no arbitrator has been selected within such time, the Stockholders'
Representatives and Parent shall jointly request the Center for Public Resources
or another mutually agreed upon organization to supply within 10 days of such
request 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
Stockholders' Representatives and Parent shall independently rank the proposed
candidates, shall simultaneously exchange rankings, and shall be deemed to have
selected as the arbitrator the individual receiving the highest combined ranking
who is available to serve. If there is a tie, then the tie shall be broken by
putting the names on slips of paper, mixing them up and having one party draw
one slip of paper. If either the Stockholders' Representatives or Parent shall
not cooperate in the selection of the arbitrator, the other may solely select
the arbitrator utilizing the procedures set forth herein The costs of
arbitration shall be apportioned between the Stockholders' Representatives and
Parent as determined by the arbitrator in such manner as the arbitrator deems
reasonable taking into account the circumstances of the case, the conduct of the
parties during the proceeding, and the result of the arbitration. Any
arbitration proceeding shall be concluded in a maximum of six months from the
date of the Objection Notice. All negotiations pursuant to this section shall be
treated as compromise and settlement negotiations for purposes of Rule 408 of
the Federal Rules of Evidence and comparable state Rules of Evidence. All
negotiation and arbitration proceedings under this section shall be treated as
confidential information in accordance with the provisions of the
Confidentiality Agreement. Any arbitrator shall be bound by an agreement
containing confidentiality provisions at least as restrictive as those contained
in the Confidentiality Agreement. Nothing herein shall preclude Parent from
seeking equitable relief to prevent any immediate, irreparable harm to its
interest, including multiple breaches of this Agreement or the Related
Documents. Otherwise, these procedures are exclusive and shall be fully
exhausted prior to the initiation of any litigation. Either party may seek
specific enforcement of any arbitrator's decision under this section. The other
party's only defense to such a request for specific enforcement shall be fraud
by or on the arbitrator.
Notwithstanding any of the foregoing, any amount which is due
and payable and not in dispute shall immediately be paid to the Company or the
Stockholders' Representatives. Any disputed amount shall be deposited into
escrow on terms as set forth in Section 10.02(e) of the Agreement. Nothing
contained herein shall act to prevent the Company or the Stockholders'
Representatives from commencing litigation to compel payment of any due and
payable amounts not in dispute hereunder.
E. Interest. The Earn-Out payments, if any, shall not include any
interest computed from the Effective Time of the Merger to the date of each such
payment.
F. Transfer. The Contingent Payment Rights are personal to each initial
holder thereof and are and shall remain nontransferable for any reason other
than by operation of law or by will or the laws of descent and distribution. Any
attempted transfer of a Contingent Payment Right by any holder thereof (other
than as set forth in the preceding sentence) shall be null and void.
G. Payment. Payment of the Earn-Out shall be made by the Company to the
Paying Agent together with a letter of instructions for payment no later than 30
days after Determination Date for each Earn-Out Year, for distribution by the
Paying Agent as promptly as practicable thereafter, after taking such action as
is necessary to assure that all applicable federal or state payroll, income
withholding and any other taxes are withheld, to the accounts of the Holders in
accordance with their respective ownership interests as of the Effective Time.
H. Offset. Parent shall have the right to offset the amount of each
Earn-Out by Losses in accordance with Section 10.02 of this Agreement, but shall
have no other right to reduce or offset the amount of each Earn Out.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") provides, in summary, that the directors and officers of the
registrant may, under certain circumstances, be indemnified by the registrant
against all expenses incurred by or imposed upon them as a result of actions,
suits or proceedings brought against them as such directors and officers, or as
directors or officers of any other organization at the request of the
registrant, if they act in good faith and in a manner they reasonably believe to
be in or not opposed to the best interests of the registrant, and with respect
to any criminal action or proceeding, have no reasonable cause to believe their
conduct was unlawful, except that no indemnification shall be made against
expenses in respect of any claim, issue or matters to which they shall have been
adjudged to be liable to the registrant unless and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, they are fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper. Section 145 of the DGCL also
provides that directors and officers of the registrant are entitled to such
indemnification by the registrant to the extent that such persons are successful
on the merits or otherwise in defending any such action, suit or proceeding.
Article Fourteenth of Imation's Restated Certificate of Incorporation
provides that the liability of a director to Imation or its stockholders for
monetary damages for a breach of fiduciary duty as a director shall be
eliminated to the fullest extent permitted under the DGCL, as amended from time
to time.
The Bylaws of Imation provided that the officers and directors of
Imation shall be indemnified to the full extent authorized or permitted by the
DGCL, as amended from time to time. Expenses incurred by officers and directors
in defending actions, suits, or proceedings may be paid by Imation in advance of
any final disposition if such officer or director agrees to repay such amounts
if it is ultimately determined that he or she is not entitled to be indemnified
under Delaware law.
Imation has entered into individual Indemnity Agreements with each of
its directors pursuant to which Imation has agreed to indemnify each of its
directors for expenses and damages in connection with claims against each
director in connection with the director's service to Imation to the full extent
authorized or permitted by the DGCL, as amended from time to time.
Imation maintains a standard policy of officers' and directors'
liability insurance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
2 Agreement and Plan of Merger, dated as of May 13,
1997 by and among Cemax-Icon, Merger Subsidiary and
Imation, as amended (included as Exhibit A to the
Proxy Statement/Prospectus that forms a part of this
Registration Statement on Form S-4 (certain exhibits
and schedules omitted--the Registrant agrees to
furnish a copy of any exhibit or schedule to the
Commission upon request)).
3.1 Restated Certificate of Incorporation of Imation
(incorporated by reference to Exhibit 3.1 to
Amendment No. 3 to Imation's Registration Statement
on Form 10/A dated June 12, 1996, File No. 1-14310).
3.2 Amended and Restated Bylaws of Imation (incorporated
by reference to Exhibit 3.2 to Amendment No. 3 to
Imation's Registration Statement on Form 10/A dated
June 12, 1996, File No. 1-14310).
4.1 Rights Agreement, dated as of June 18, 1996 between
Imation and Norwest Bank Minnesota, N.A., as Rights
Agent (incorporated by reference to Exhibit 4.1 to
Amendment No. 3 to Imation's Registration Statement
on Form 10/A, dated June 12, 1996, File No. 1-14310).
4.2 Form of Certificate of Designations, Preferences and
Rights of Series A Junior Participating Preferred
Stock of Imation (incorporated by reference to
Exhibit 4.2 to Amendment No. 3 to Imation's
Registration Statement on Form 10/A, dated June 12,
1996, File No. 1-14310).
4.3 Terms of Contingent Payment Rights (included as
Exhibit C to the Proxy Statement/Prospectus that
forms a part of this Registration Statement on Form
S-4).
5* Opinion of Dorsey & Whitney LLP regarding validity of
securities.
8 Opinion of Dorsey & Whitney LLP regarding tax
matters.
10.1* Option Agreement, dated as of May 13, 1997 by and
among Cemax-Icon, Merger Subsidiary and Imation.
10.2* Form of Stockholder Agreements, dated as of May 13,
1997 by and among Cemax-Icon, Merger Subsidiary,
Imation and certain stockholders of Cemax-Icon.
10.3* Form of Affiliate Agreements, dated as of May 13,
1997 by and among Imation and certain stockholders of
Cemax-Icon.
10.4* Form of Key Management Agreements, dated as of May
13, 1997 by and among Cemax-Icon and certain
employees of Cemax-Icon.
10.5* Form of Noncompetition Agreements, dated as of May
13, 1997 by and among Cemax-Icon and certain
stockholders of Cemax-Icon.
10.6 Transfer and Distribution Agreement, dated as of July
1, 1996, between 3M and the Registrant (incorporated
by reference to Exhibit 2.1 to Registration Statement
on Form 10, File No. 1-14310).
10.7 Tax Sharing and Indemnification Agreement, dated as
of July 1, 1996, between 3M and the Registrant
(incorporated by reference to Exhibit 10.1 to
Registration statement on Form 10, File No. 1-14310).
10.8 Corporate Services Transition Agreement, dated as of
July 1, 1996, between 3M and the Registrant
(incorporated by reference to Exhibit 10.2 to
Registration Statement on Form 10, File No. 1-14310).
10.9 Environmental Matters Agreement, dated as of July 1,
1996, between 3M and the Registrant (incorporated by
reference to Exhibit 10.3 to Registration Statement
on Form 10, File No. 1-14310).
10.10 Intellectual Property Rights Agreement, dated as of
July 1, 1996, between 3M and the Registrant
(incorporated by reference to Exhibit 10.4 to
Registration Statement on Form 10, File No. 1-14310).
10.11 Supply Agreement, dated as of July 1, 1996, between
3M and the Registrant (incorporated by reference to
Exhibit 10.5 to Registration Statement on Form 10,
File No. 1-14310).
10.12 Lease Agreement, dated as of July 1, 1996, between 3M
and the Registrant (incorporated by reference to
Exhibit 10.6 to Registration Statement on Form 10,
File No. 1-14310).
10.13+ Employment Agreement, dated as of July 1, 1996,
between William T. Monahan and the Registrant
(incorporated by reference to Exhibit 10.7 to
Registration Statement on Form 10, File No. 1-14310).
10.14+ Imation 1996 Employee Stock Incentive Program
(incorporated by reference to Exhibit 10.8 to
Registration Statement on Form 10, File No. 1-14310).
10.15+ Imation Excess Benefit Plan (incorporated by
reference to Exhibit 10.10 to Registration Statement
on Form 10, File No. 1-14310).
10.16+ Imation 1996 Retirement Investment Plan (incorporated
by reference to Exhibit 10.11 to Registration
Statement on Form 10, File No. 1-14310).
10.17+ Imation 1996 Directors Stock Compensation Program, as
Amended (incorporated by reference to Exhibit 10.12
of Imation's Form 10-K for the year ended December
31, 1996, File No. 1-14310).
10.18+ Form of Indemnity Agreement between the Company and
each of its directors (incorporated by reference to
Exhibit 10.13 on Imation's Form 10-K for the year
ended December 31, 1996, File No. 1-14310).
15 Awareness Letter from Coopers & Lybrand L.L.P.
regarding unaudited interim financial statements.
21 Subsidiaries of Imation (incorporated by reference to
Exhibit 21 of Imation's Form 10-K for the year ended
December 31, 1996, File No. 1-14310).
23.1 Consent of Coopers & Lybrand L.L.P. with respect to
financial statements of Imation.
23.2 Consent of Ernst & Young LLP with respect to
financial statements of Cemax-Icon.
23.3 Consent of Dorsey & Whitney LLP (included in Exhibits
5 and 8).
24* Power of Attorney.
99.1* Form of Proxy Card for the Special Meeting.
99.2 Form of Letter of Transmittal.
- --------------------
* Previously filed.
+ Items that are management contracts or compensatory plans
or arrangements required to be filed as an exhibit
pursuant to Item 14(c) of Imation's Form 10-K.
(b) Financial Statement Schedules
Not applicable.
ITEM 22. UNDERTAKINGS. The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) To respond to requests for information that is incorporated by
reference into the Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
Registration Statement through the date of responding to the request.
(d) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Oakdale, State of
Minnesota, on July 18, 1997.
IMATION CORP.
By /s/William T. Monahan
-----------------------
William T. Monahan
Chief Executive Officer,
President and Director
Pursuant to the requirements of the Securities Act of 1933, this
amendment has been signed by the following persons in the capacities indicated
on July 18, 1997.
NAME TITLE
---- -----
By /s/ William T. Monahan Chief Executive Officer, President,
----------------------------- Chairman and Director
William T. Monahan (principal executive officer)
By /s/ Jill D. Burchill Chief Financial Officer
----------------------------- (principal financial officer)
Jill D. Burchill
By /s/ James R. Stewart Corporate Controller
----------------------------- (principal accounting officer)
James R. Stewart
By * Director
-----------------------------
Lawrence E. Eaton
By * Director
-----------------------------
Linda W. Hart
By * Director
-----------------------------
William W. George
By * Director
-----------------------------
Ronald T. LeMay
By * Director
-----------------------------
Marvin L. Mann
By * Director
-----------------------------
Mark A. Pulido
By * Director
-----------------------------
Daryl J. White
*By /s/Jill D. Burchill
-----------------------------
Jill D. Burchill
As Attorney-In-Fact
EXHIBIT INDEX
Exhibit
Number Description
2 Agreement and Plan of Merger, dated as of May 13, 1997 by and
among Cemax-Icon, Merger Subsidiary and Imation, as amended
(included as Exhibit A to the Proxy Statement/Prospectus that
forms a part of this Registration Statement on Form S-4
(certain exhibits and schedules omitted--the Registrant agrees
to furnish a copy of any exhibit or schedule to the Commission
upon request)).
3.1 Restated Certificate of Incorporation of Imation (incorporated
by reference to Exhibit 3.1 to Amendment No. 3 to Imation's
Registration Statement on Form 10/A dated June 12, 1996, File
No. 1-14310).
3.2 Amended and Restated Bylaws of Imation (incorporated by
reference to Exhibit 3.2 to Amendment No. 3 to Imation's
Registration Statement on Form 10/A dated June 12, 1996, File
No. 1-14310).
4.1 Rights Agreement, dated as of June 18, 1996 between Imation
and Norwest Bank Minnesota, N.A., as Rights Agent
(incorporated by reference to Exhibit 4.1 to Amendment No. 3
to Imation's Registration Statement on Form 10/A, dated June
12, 1996, File No. 1-14310).
4.2 Form of Certificate of Designations, Preferences and Rights of
Series A Junior Participating Preferred Stock of Imation
(incorporated by reference to Exhibit 4.2 to Amendment No. 3
to Imation's Registration Statement on Form 10/A, dated June
12, 1996, File No. 1-14310).
4.3 Terms of Contingent Payment Rights (included as Exhibit C to
the Proxy Statement/Prospectus that forms a part of this
Registration Statement on Form S-4).
5* Opinion of Dorsey & Whitney LLP regarding validity of
securities.
8 Opinion of Dorsey & Whitney LLP regarding tax matters.
10.1* Option Agreement, dated as of May 13, 1997 by and among
Cemax-Icon, Merger Subsidiary and Imation.
10.2* Form of Stockholder Agreements, dated as of May 13, 1997 by
and among Cemax-Icon, Merger Subsidiary, Imation and certain
stockholders of Cemax-Icon.
10.3* Form of Affiliate Agreements, dated as of May 13, 1997 by and
among Imation and certain stockholders of Cemax-Icon.
10.4* Form of Key Management Agreements, dated as of May 13, 1997 by
and among Cemax-Icon and certain employees of Cemax-Icon.
10.5* Form of Noncompetition Agreements, dated as of May 13, 1997 by
and among Cemax-Icon and certain stockholders of Cemax-Icon.
10.6 Transfer and Distribution Agreement, dated as of July 1, 1996,
between 3M and the Registrant (incorporated by reference to
Exhibit 2.1 to Registration Statement on Form 10, File No.
1-14310).
10.7 Tax Sharing and Indemnification Agreement, dated as of July 1,
1996, between 3M and the Registrant (incorporated by reference
to Exhibit 10.1 to Registration statement on Form 10, File No.
1-14310).
10.8 Corporate Services Transition Agreement, dated as of July 1,
1996, between 3M and the Registrant (incorporated by reference
to Exhibit 10.2 to Registration Statement on Form 10, File No.
1-14310).
10.9 Environmental Matters Agreement, dated as of July 1, 1996,
between 3M and the Registrant (incorporated by reference to
Exhibit 10.3 to Registration Statement on Form 10, File No.
1-14310).
10.10 Intellectual Property Rights Agreement, dated as of July 1,
1996, between 3M and the Registrant (incorporated by reference
to Exhibit 10.4 to Registration Statement on Form 10, File No.
1-14310).
10.11 Supply Agreement, dated as of July 1, 1996, between 3M and the
Registrant (incorporated by reference to Exhibit 10.5 to
Registration Statement on Form 10, File No. 1-14310).
10.12 Lease Agreement, dated as of July 1, 1996, between 3M and the
Registrant (incorporated by reference to Exhibit 10.6 to
Registration Statement on Form 10, File No. 1-14310).
10.13 Employment Agreement, dated as of July 1, 1996, between
William T. Monahan and the Registrant (incorporated by
reference to Exhibit 10.7 to Registration Statement on Form
10, File No. 1-14310).
10.14 Imation 1996 Employee Stock Incentive Program (incorporated by
reference to Exhibit 10.8 to Registration Statement on Form
10, File No. 1-14310).
10.15 Imation Excess Benefit Plan (incorporated by reference to
Exhibit 10.10 to Registration Statement on Form 10, File No.
1-14310).
10.16 Imation 1996 Retirement Investment Plan (incorporated by
reference to Exhibit 10.11 to Registration Statement on Form
10, File No. 1-14310).
10.17 Imation 1996 Directors Stock Compensation Program, as Amended
(incorporated by reference to Exhibit 10.12 of Imation's Form
10-K for the year ended December 31, 1996, File No. 1-14310).
10.18 Form of Indemnity Agreement between the Company and each of
its directors (incorporated by reference to Exhibit 10.13 on
Imation's Form 10-K for the year ended December 31, 1996, File
No. 1-14310).
15 Awareness Letter from Coopers & Lybrand L.L.P. regarding
unaudited interim financial statements.
21 Subsidiaries of Imation (incorporated by reference to Exhibit
21 of Imation's Form 10-K for the year ended December 31,
1996, File No. 1-14310).
23.1 Consent of Coopers & Lybrand L.L.P. with respect to financial
statements of Imation.
23.2 Consent of Ernst & Young LLP with respect to financial
statements of Cemax-Icon.
23.3 Consent of Dorsey & Whitney LLP (included in Exhibits 5 and
8).
24* Power of Attorney.
99.1* Form of Proxy Card for the Special Meeting.
99.2 Form of Letter of Transmittal.
- --------------------
* Previously filed.
Exhibit 8
[Dorsey & Whitney LLP Letterhead]
July 18, 1997
Imation Corp.
1 Imation Place
Oakdale, Minnesota 55128
Dear Ladies and Gentlemen:
We have acted as your counsel in connection with the
Registration Statement on Form S-4 filed on June 9, 1997, and Amendment No. 1
thereto filed on the date hereof (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"). The Registration Statement relates to the proposed
merger of a wholly owned subsidiary of Imation Corp. with and into Cemax-Icon,
Inc. This opinion is delivered in accordance with the requirements of Item
601(b)(8) of the Regulation S-K under the Securities Act.
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of the Registration Statement, as amended, the Proxy
Statement/Prospectus included therein (the "Proxy Statement/Prospectus") and
such other documents as we have deemed necessary or appropriate.
We hereby confirm that the discussions in the Proxy
Statement/Prospectus under the captions "SUMMARY--Certain Federal Income Tax
Consequences" and "THE MERGER--Certain Federal Income Tax Consequences" are a
fair and accurate summary of the matters addressed therein, based upon current
law and the facts and assumptions stated or referred to therein. There can be no
assurance that contrary positions may not be taken by the Internal Revenue
Service.
We hereby consent to the filing of this opinion as Exhibit 8
to the Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act.
Very truly yours,
/s/ Dorsey & Whitney LLP
BJS
Exhibit 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Imation Corp.
Registration on Form S-4
We are aware that our report dated April 30, 1997, on our reviews of
the interim consolidated information of Imation Corp. (the Company) for the
three month periods ended March 31,1997 and 1996, and included in the Company's
quarterly report on Form 10-Q for the quarter ended March 31, 1997, is included
in this Registration Statement. Pursuant to Rule 436(c) under the Securities Act
of 1933, this report should not be considered a part of the Registration
Statement prepared or certified by us within the meaning of Sections 7 and 11 of
that Act.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
July 18, 1997
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Registration Statement of Imation
Corp. on Form S-4 of our report dated February 14, 1997, on our audits of the
consolidated financial statements of Imation Corp. and subsidiaries as of
December 31, 1996 and 1995, and for each of the three years in the period ended
December 31, 1996. We also consent to the references to our firm under the
caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
July 18, 1997
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and
to the use of our reports dated March 12, 1997, with respect to the financial
statements and schedules of Cemax-Icon, Inc. included in the Registration
Statement (Form S-4) and related Prospectus of Imation Corp. for the
registration of contingent payment rights and common stock.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Palo Alto, California
July 18, 1997
Exhibit 99.2
August __, 1997
Dear Former Shareholder
of Cemax-Icon, Inc.:
Effective today, Cemax-Icon, Inc. (the "Company") was merged with CI
Acquisition Corp. ("Merger Sub"), a wholly owned subsidiary of Imation Corp.
("Imation"). As a result, your shares of Company common stock ("Common Stock")
were converted into the right to receive $5.25 per share and Contingent Payment
Rights in accordance with the terms of the Agreement and Plan of Merger, dated
May 13, 1997, by and among Imation, Merger Sub and the Company.
To receive your cash and Contingent Payment Rights, you must properly
complete and sign the enclosed Letter of Transmittal and return it, together
with the certificate or certificates representing your shares of Common Stock,
to the exchange agent, First Trust Company (the "Exchange Agent"), at the
address and in accordance with the instructions included with the Letter of
Transmittal.
To ensure prompt action, we suggest that you arrange for registered or
certified U.S. Mail delivery, or for insured, private overnight delivery, with
return receipt, of the Letter(s) of Transmittal and your stock certificates. You
bear the risk of safe delivery of these materials to the Exchange Agent. The
Exchange Agent will send you your cash and register your eligibility for your
Contingent Payment Rights promptly after receiving your properly completed
Letter(s) of Transmittal and Company stock certificates.
If you have any questions, please call the Exchange Agent at
(612)__________ .
Sincerely,
CEMAX-ICON, INC.
Terry Ross
President and Chief Executive Officer
FORM OF
LETTER OF TRANSMITTAL
To Accompany Certificates Representing Shares of Common Stock of
Cemax-Icon, Inc.
To be Exchanged for Cash and Contingent Payment Rights
BY MAIL OR HAND DELIVERY TO:
First Trust Company ("Exchange Agent")
[ADDRESS]
TO CALL FOR ADDITIONAL INFORMATION:
[(612) OR 1-800- - ]
In connection with the merger of Cemax-Icon, Inc. with a wholly owned subsidiary
of Imation Corp. effective as of August __, 1997, the undersigned, as registered
holder of the stock certificate(s), hereby surrenders the attached
certificate(s) in exchange for cash in the amount of $5.25 and a Contingent
Payment Right for each share of Common Stock of Cemax-Icon, Inc.
ALL HOLDERS MUST COMPLETE BOXES A AND D, SIGN THIS TRANSMITTAL LETTER
AND ENCLOSE STOCK CERTIFICATES.
<TABLE>
<CAPTION>
BOX A COMMON STOCK
<S> <C> <C>
Name & Address of Registered Holder(s):
(Please fill in if blank)
Certificate(s) Surrendered
Certificate Number(s) Number of Shares
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
_____________________ _____________________
Total
_____________________ _____________________
</TABLE>
BOX B BOX C
NAME OTHER THAN REGISTERED HOLDER SPECIAL DELIVERY INSTRUCTIONS To be
(see instruction 2) To be completed completed ONLY if the payment
ONLY if the payment check(s) for check(s) in the name of the
the initial cash payment is (are) registered holder is (are) to be
to be issued in the name of and sent to the registered holder at an
sent to someone other than the address other than the address
registered holder. By completion shown on the stock records or to
hereof, the registered holder someone other than the registered
authorizes the Exchange Agent to holder. By completion hereof, the
issue payment check(s) in the registered holder authorizes the
name(s) of: Exchange Agent to mail payment
check(s) to:
NAME NAME
___________________________________ ___________________________________
ADDRESS ADDRESS
___________________________________ ___________________________________
TIN# ZIP CODE
___________________________________ ___________________________________
GUARANTEE OF SIGNATURE (see
instruction 2)
NAME OF FIRM
___________________________________
AUTHORIZED
SIGNATURE
___________________________________
DATE
___________________________________
IMPORTANT TAX INFORMATION
PLEASE PROVIDE YOUR SOCIAL SECURITY OR OTHER TAX IDENTIFICATION NUMBER ON THIS
SUBSTITUTE FORM W-9 AND CERTIFY THEREIN THAT YOU ARE NOT SUBJECT TO BACKUP
WITHHOLDING. FAILURE TO DO SO WILL SUBJECT YOU TO 31% FEDERAL INCOME TAX
WITHHOLDING FROM YOUR PAYMENT CHECK.
BOX D SUBSTITUTE FORM W-9
Please provide the Taxpayer Identification Number ("TIN") of the person
submitting this Letter of Transmittal in the box at right and certify by signing
and dating below.
CERTIFICATION - Under penalties of perjury the undersigned hereby certifies the
following: (1) The TIN shown above is the correct TIN to be issued, and (2) The
person who is submitting this Letter of Transmittal and who is required by law
to provide such TIN is not subject to backup withholding because such person has
not been notified by the Internal Revenue Service ("IRS") that such person is
subject to backup withholding, or because the IRS has notified such person that
he or she is no longer subject to backup withholding, or because such person is
an exempt payee.
Date:___________________________________________________________________________
SIGN HERE_______________________________________________________________________
Signature of Owner
________________________________________________________________________________
Signature of Co-Owner, if any
Telephone Number________________________________________________________________
INSTRUCTIONS FOR LETTER OF TRANSMITTAL
1. GENERAL
The Letter of Transmittal must be properly filled in, dated and signed by
the owner(s) of the shares which are surrendered for exchange, and
delivered or mailed with the stock certificate(s) for said shares to First
Trust Company (the "Exchange Agent"). THE METHOD OF DELIVERY IS AT YOUR
OPTION AND RISK, BUT IF SENT BY MAIL, WE SUGGEST INSURED, REGISTERED MAIL,
WITH RETURN RECEIPT.
2. CHECK ISSUANCES
NO ENDORSEMENT OR TRANSFER TAX STAMPS ARE REQUIRED ON CERTIFICATES
SURRENDERED IF THE CHECK IS TO BE ISSUED IN THE SAME NAME AS THAT OF THE
REGISTERED HOLDER. If the check is to be issued in a name other than that
of the registered holder of the shares surrendered, the surrendered
certificate(s) must be endorsed or accompanied by an endorsed stock power
and the signature thereon guaranteed by a commercial bank or trust company
located in the United States or by a member firm of a national securities
exchange or a member of the National Association of Securities Dealers,
Inc. A VERIFICATION BY A NOTARY PUBLIC IS NOT ACCEPTABLE.
3. TAXPAYER IDENTIFICATION NUMBER CERTIFICATION
You are required to provide the Exchange Agent with a correct Taxpayer
Identification Number (TIN) and certification thereof, a form of which is
provided on the preceding page hereof. FAILURE TO PROVIDE THE TIN
INFORMATION MAY SUBJECT YOU TO A 31% FEDERAL INCOME TAX WITHHOLDING ON ANY
CASH PAYMENT MADE TO YOU HEREUNDER.
4. LOST CERTIFICATES
If any of your stock certificates are lost, please send the Letter of
Transmittal only (without certificates) to the Exchange Agent, indicating
which certificate(s) you have, if any. You will need to complete an
Affidavit of Loss (provided by the Exchange Agent) and may be required to
pay an indemnity bond premium fee in order to receive your payment
hereunder.
QUESTIONS
PLEASE CALL FIRST TRUST COMPANY, AT (612) _________.
