<PAGE> 1
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant To Section 14(a) of
The Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss. 240.14a-11(c) or ss. 240.14a-12
TRIAD PARK, LLC
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required.
[X] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
membership interests, no par value
2) Aggregate number of securities to which transaction applies:
19,705,623 shares
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined): $1.90
per share purchased ($37,440,684)
4) Proposed maximum aggregate value of transaction: $37,440,684
5) Total fee paid: $7,488
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
<PAGE> 2
TRIAD PARK, LLC
3055 TRIAD DRIVE
LIVERMORE, CA 94550
MAY , 1998
DEAR SHAREHOLDER:
You are cordially invited to attend a special meeting of shareholders of
Triad Park, LLC (the "Company") to be held at the offices of the Company, 3055
Triad Drive, Livermore, California, on May , 1998 at 10:00 a.m.
local time (the "Special Meeting"). A Notice of the Special Meeting, a Proxy
Statement, related information about the Company and a proxy card are enclosed.
All holders of the Company's outstanding membership interests (the "Shares") as
of May , 1998 are entitled to notice of and to vote at the Special Meeting.
At the Special Meeting, you will be asked to consider and to vote upon a
proposal to approve an Agreement and Plan of Merger, dated April 24, 1998 (the
"Merger Agreement"), by and among the Company, The Kontrabecki Group, Inc., a
California corporation ("TKG"), and TKG Acquisition Company, LLC, a Delaware
limited liability company whose sole and managing member is TKG ("Acquisition
LLC"), pursuant to which the Acquisition LLC will be merged into the Company
(the "Merger"). If the Merger Agreement is approved and the Merger becomes
effective, each outstanding Share will be converted into the right to receive
$1.90 in cash, subject in certain cases to an increase of one-half of one cent
($0.005) per Share for each week (or portion of a week) that the closing of the
Merger is deferred or extended past June 15, 1998. Approval of the Merger
requires the affirmative vote of the holders of a majority of the voting power
of all outstanding Shares. Details of the proposed Merger and other important
information are set forth in the accompanying Proxy Statement, which you are
urged to read carefully.
YOUR ADVISORY BOARD HAS APPROVED THE MERGER AND RECOMMENDS THAT YOU VOTE
FOR APPROVAL AND ADOPTION OF THE MERGER AGREEMENT. EVERY VOTE IS IMPORTANT.
FAILURE TO VOTE IS EQUIVALENT TO A VOTE AGAINST THE MERGER. 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 postage 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.
Thank you for your interest and participation.
Sincerely,
LOGO
James R. Porter
Vice President, 3055 Management Corp.,
Manager of the Company
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF
SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED
IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
<PAGE> 3
TRIAD PARK, LLC
3055 TRIAD DRIVE
LIVERMORE, CALIFORNIA 94550
------------------------
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON , MAY , 1998
------------------------
To Shareholders of Triad Park, LLC:
The Advisory Board has called a special meeting of the shareholders of
Triad Park, LLC, a Delaware limited liability company (the "Company"), to be
held at the offices of the Company, 3055 Triad Drive, Livermore, California, on
, May , 1998 at 10:00 a.m. local time, including any adjournments or
postponements (the "Special Meeting"), to consider and act upon the following
matters:
1. To consider and vote upon a proposal to approve an Agreement and
Plan of Merger, dated April 24, 1998 (the "Merger Agreement"), by and among
the Company, The Kontrabecki Group, Inc., a California corporation ("TKG"),
and TKG Acquisition Company, LLC, a Delaware limited liability company
whose sole and managing member is TKG ("Acquisition LLC"), pursuant to
which, among other things, (i) Acquisition LLC will be merged into the
Company (the "Merger"), and (ii) each outstanding membership interest of
the Company (the "Shares") will be converted into the right to receive
$1.90 in cash, subject in certain cases to an increase of one-half of one
cent ($0.005) per Share for each week (or portion of a week) that the
closing date of the Merger is deferred or extended past June 15, 1998 (the
"Merger Consideration"). A copy of the Merger Agreement is attached as
Exhibit A to the accompanying Proxy Statement.
2. To consider and vote upon a proposal to allow the Advisory Board,
in its sole discretion, to adjourn the Special Meeting to such date as the
Advisory Board of the Company may fix to permit further solicitation of
proxies in the event there are not sufficient votes at the time of the
Special Meeting to approve and adopt the Merger Agreement.
3. To transact such other business as may properly come before the
Special Meeting.
Only holders of record of the Shares at the close of business on May 4,
1998 are entitled to notice of and to vote at the Special Meeting. TKG, which
beneficially holds 2,500 Shares (representing less than 0.02% of the voting
power of the Shares) has notified the Company that it intends to vote its Shares
in favor of the Merger.
No appraisal or dissenters' rights are provided for the Company
shareholders under applicable law, nor will the Company or TKG be voluntarily
providing appraisal rights to the Company shareholders who object to the
transactions contemplated by the Merger Agreement. Therefore, if the Merger is
approved, shareholders who voted against the Merger will be required to accept
the Merger Consideration in exchange for their interests in the Company. See
"RIGHTS OF DISSENTING SHAREHOLDERS."
Your attention is directed to the Proxy Statement and its Exhibits and the
other materials relating to the Company that have been included in this mailing
for more complete information regarding the Merger Agreement and the Company.
THE ADVISORY BOARD RECOMMENDS A VOTE FOR APPROVAL OF THE MERGER AGREEMENT. EVERY
VOTE IS IMPORTANT. FAILURE TO VOTE IS EQUIVALENT TO A VOTE AGAINST THE MERGER.
By Order of the Advisory Board
LOGO
James R. Porter
Vice President, 3055 Management Corp.,
Manager of the Company
Livermore, California
May , 1998
YOUR VOTE IS IMPORTANT. ALL SHAREHOLDERS ARE CORDIALLY INVITED TO ATTEND
THE SPECIAL MEETING. WHETHER OR NOT YOU PLAN TO ATTEND, PLEASE MARK, SIGN AND
DATE THE ENCLOSED PROXY AND RETURN IT PROMPTLY IN THE ENCLOSED ENVELOPE. YOU MAY
NEVERTHELESS VOTE IN PERSON IF YOU ATTEND THE SPECIAL MEETING.
<PAGE> 4
TRIAD PARK, LLC
------------------------
PROXY STATEMENT
------------------------
SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON , MAY , 1998
------------------------
This Proxy Statement is being furnished to the shareholders of Triad Park,
LLC, a Delaware limited liability company (the "Company"), in connection with
the solicitation by the Advisory Board of the Company of proxies to be voted at
a special meeting of shareholders of the Company to be held at the offices of
the Company, 3055 Triad Drive, Livermore, California, on , May ,
1998 at 10:00 a.m. local time, including any adjournments or postponements (the
"Special Meeting"). At the Special Meeting, the shareholders of the Company will
consider and vote upon a proposal to approve an Agreement and Plan of Merger,
dated April 24, 1998 (the "Merger Agreement"), by and among the Company, The
Kontrabecki Group, Inc., a California corporation ("TKG"), and TKG Acquisition
Company, LLC, a Delaware limited liability company whose sole and managing
member is TKG ("Acquisition LLC"), pursuant to which, among other things, (i)
Acquisition LLC will be merged into the Company (the "Merger"), with the result
that the Company will become an affiliate of TKG, and (ii) each membership
interest of the Company which is outstanding as of the Effective Time of the
Merger (the "Shares"), will be converted into the right to receive $1.90 in
cash, subject in certain cases to an increase of one-half of one cent ($0.005)
per Share for each week (or portion of a week) that the closing of the Merger is
deferred or extended past June 15, 1998 (the "Merger Consideration"). See "The
Merger Agreement -- Consideration To Be Received by Shareholders."
This Proxy Statement includes a copy of the Company's financial statements
for recent years. These materials are included to aid shareholders in their
consideration of the Merger.
Only holders of record of the Shares at the close of business on May 4,
1998 are entitled to notice of and to vote at the Special Meeting. This Proxy
Statement is first being sent to shareholders on or about May , 1998.
------------------------
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF
SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED
IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SUMMARY..................................................... 1
Date, Time and Place of Special Meeting................... 1
Record Date; Shareholders Entitled to Vote; Quorum........ 1
Proxy Solicitation........................................ 1
Purpose of the Special Meeting............................ 1
The Merger................................................ 2
Effective Time of the Merger.............................. 2
Certain Factors........................................... 3
Payment for Shares........................................ 3
Dissenters' Rights........................................ 3
Regulatory Approvals...................................... 3
The Company............................................... 4
TKG....................................................... 4
Acquisition LLC........................................... 4
Market Price and Dividend Data............................ 5
THE COMPANY................................................. 6
History................................................... 6
Business of the Company................................... 6
Properties of the Company................................. 6
THE SPECIAL MEETING......................................... 9
General................................................... 9
Proposal to be Considered at the Special Meeting.......... 9
Record Date; Shareholder Approval......................... 9
Proxies................................................... 9
THE MERGER.................................................. 10
Background of the Merger.................................. 10
Contacts and Negotiations with TKG........................ 11
Purpose and Structure of the Merger....................... 15
Recommendation of the Company's Advisory Board............ 16
Sedway Report............................................. 17
Plans for the Company After the Merger.................... 18
Certain Effects of the Merger............................. 18
Relationship Between the Company and TKG.................. 18
Interests of Certain Persons in the Merger................ 19
Sources and Uses of Funds................................. 19
Certain Federal Income Tax Consequences................... 19
Redemptions of Shares..................................... 21
Regulatory Approvals...................................... 21
THE MERGER AGREEMENT........................................ 22
General................................................... 22
Effective Time............................................ 22
Consideration To Be Received by Shareholders.............. 22
Amendment................................................. 22
Payment for Shares........................................ 22
Operations of the Company Prior to the Merger............. 23
</TABLE>
i
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Conditions to Consummation of the Merger.................. 24
Termination............................................... 24
Termination Fee........................................... 25
Settlement and Full and Mutual Release.................... 26
Accounting Treatment...................................... 26
RIGHTS OF DISSENTING SHAREHOLDERS........................... 26
SHARE OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL
OWNERS.................................................... 27
Share Ownership........................................... 27
Transactions by Certain Persons in the Shares............. 28
MANAGEMENT OF THE COMPANY, TKG AND ACQUISITION LLC.......... 29
The Company............................................... 29
TKG....................................................... 29
SHAREHOLDER PROPOSALS....................................... 30
INDEPENDENT PUBLIC ACCOUNTANTS.............................. 30
AVAILABLE INFORMATION....................................... 30
EXHIBIT A -- Agreement and Plan of Merger................... A-1
EXHIBIT B -- Financial Statements........................... B-1
</TABLE>
ii
<PAGE> 7
SUMMARY
The following is a summary of certain information contained elsewhere in
this Proxy Statement. The following summary is not intended to be complete and
is qualified in its entirety by reference to the more detailed information
contained in this Proxy Statement and in the materials accompanying this Proxy
Statement. All information in this Proxy Statement concerning TKG, Acquisition
LLC, Lehman Brothers Holdings Inc. ("Lehman Brothers") or their affiliates, or
actions or events with respect to them, was provided or reviewed by TKG. Lehman
Brothers has not participated in the preparation of these proxy materials and
has no responsibility for the accuracy or completeness of these proxy materials.
Shareholders are urged to review the entire Proxy Statement and accompanying
materials carefully.
DATE, TIME AND PLACE OF SPECIAL MEETING
A Special Meeting of Shareholders of Triad Park, LLC will be held on
, May , 1998 at 10:00 a.m. local time at the offices of the Company,
3055 Triad Drive, Livermore, California.
RECORD DATE; SHAREHOLDERS ENTITLED TO VOTE; QUORUM; VOTE REQUIRED
Only holders of record of the Shares at the close of business on May 4,
1998 (the "Record Date") are entitled to notice of and to vote at the Special
Meeting. On that date, there were approximately 19,708,123 Shares outstanding,
held of record by approximately 1,326 shareholders. Each holder of Shares is
entitled to one vote per Share on the matters to be voted upon at the Special
Meeting. See "THE SPECIAL MEETING -- Record Date; Shareholder Approval." The
presence, in person or by proxy, at the Special Meeting of the holders of a
majority of the voting power of the outstanding Shares is necessary to
constitute a quorum at the Special Meeting. Approval of the Merger requires the
affirmative vote of the holders of a majority of the voting power of all
outstanding Shares. See "THE SPECIAL MEETING -- Record Date; Shareholder
Approval."
PROXY SOLICITATION
The Company and TKG will be soliciting the proxies and pursuant to Section
11.3 of the Merger Agreement each party will pay its own costs and expenses
incurred in connection with the Merger Agreement and the transactions
contemplated thereunder. TKG has retained MacKenzie Partners, Inc., a proxy
solicitation firm, to aid in the solicitation of proxies. MacKenzie Partners,
Inc.'s fee for solicitation of the proxies is estimated to be $10,000 plus
reimbursement for out-of-pocket costs and expenses. Due to this arrangement, TKG
may be deemed to be a participant in the solicitation. In addition to soliciting
proxies by mail, directors, officers and employees of TKG and the Company,
without receiving additional compensation therefor, may solicit proxies by
telephone, by telegram, or in person. Arrangements will also be made with
brokerage firms and other custodians, nominees and fiduciaries to forward
solicitation materials to the beneficial owners of Shares held of record by such
persons, and the Company will, upon request, reimburse such brokerage firms,
custodians, nominees and fiduciaries for reasonable out-of-pocket expenses
incurred by them in connection therewith.
PURPOSE OF THE SPECIAL MEETING
At the Special Meeting, shareholders will consider and vote upon a proposal
to approve the Merger Agreement, a copy of which is attached as Exhibit A to
this Proxy Statement. See "THE SPECIAL MEETING -- Proposal To Be Considered at
the Special Meeting." The Merger Agreement provides for the merger of
Acquisition LLC into the Company. As a result of the Merger, the Company will
become an affiliate of TKG and each Share outstanding as of the Effective Time
of the Merger will be converted into the right to receive $1.90 in cash, subject
in certain cases to an increase of one-half of one cent ($0.005) per Share for
each week (or portion of a week) that the closing of the Merger (the "Closing")
is deferred or extended past June 15, 1998.
1
<PAGE> 8
THE MERGER
Pursuant to the Merger Agreement, Acquisition LLC will merge into the
Company, with the result that the Company, as the surviving company (the
"Surviving Company"), will become an affiliate of TKG. All of the Company's
liabilities, including contingent, environmental, tax and any other liabilities,
will become liabilities of the Surviving Company by operation of law. There are
no contractual arrangements which would cause the shareholders to have
post-closing exposure to these liabilities. See "THE MERGER
AGREEMENT -- General." Each outstanding Share will be converted into the right
to receive from Acquisition LLC or TKG $1.90 in cash, without interest. Subject
to certain limited conditions, in the event the Closing is deferred or extended
past June 15, 1998 due to specified unanticipated and unavoidable delays, the
Merger Consideration shall be increased by one-half of one cent ($0.005) per
Share for each week (or portion of a week) that the Closing is deferred or
extended, but in no event shall the Closing be extended beyond July 31, 1998
unless mutually agreed by all parties to the Merger Agreement. See "THE MERGER
AGREEMENT -- Consideration To Be Received by Shareholders" and "-- Termination."
The following table illustrates the Merger Consideration to be received by
Shareholders for each outstanding Share assuming approval of the Merger.
<TABLE>
<CAPTION>
PER SHARE MERGER
DATE OF CLOSING CONSIDERATION
--------------- ----------------
<S> <C>
On or before June 15, 1998 $1.90
June 16 - 22 $1.905
June 23 - 29 $1.91
June 30 - July 6 $1.915
July 7 - 13 $1.92
July 14 - 20 $1.925
July 21 - 27 $1.93
July 28 - 31 $1.935
</TABLE>
Immediately after the Merger, TKG and Lehman Brothers will own, either
directly or indirectly through one or more affiliates, all of the outstanding
membership interests of the Surviving Company. The Shares will no longer be
traded on the open market and the registration of the Shares under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), will be
terminated. See "THE MERGER -- Certain Effects of the Merger."
The Merger is subject to various closing conditions and the absence of any
event that would have a material adverse effect on the assets, properties,
liabilities, obligations, financial condition, results of operations or business
of the Company. See "THE MERGER AGREEMENT -- Conditions to Consummation of the
Merger."
The Merger Agreement may, under specified circumstances, be terminated and
the Merger abandoned at any time prior to the filing of a Certificate of Merger
with the Delaware Secretary of State, notwithstanding approval of the Merger
Agreement by the shareholders of the Company. Subject to certain limited
exceptions, the Merger Agreement requires the Company to pay Acquisition LLC a
termination fee of $1.2 million if the Merger is not consummated and certain
actions are taken with respect to any other proposal to acquire the assets or
securities of the Company on or prior to the expiration of November 1, 1998. See
"THE MERGER AGREEMENT -- Termination" and "-- Termination Fee."
EFFECTIVE TIME OF THE MERGER
Unless otherwise agreed by the parties to the Merger Agreement or otherwise
provided by law, the Merger will become effective upon the filing of the
Certificate of Merger by the Delaware Secretary of State (the "Effective Time").
Subject to approval of the Merger at the Special Meeting and the satisfaction or
waiver of the terms and conditions in the Merger Agreement, the Effective Time
is expected to occur as soon as practicable after the Special Meeting. See "THE
MERGER AGREEMENT -- Effective Time."
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CERTAIN FACTORS
In determining whether to vote in favor of the Merger, shareholders of the
Company should consider the following factors, as well as the other factors
discussed elsewhere in this Proxy Statement under the caption "THE MERGER":
PURPOSE AND STRUCTURE OF THE MERGER. The purpose of the Merger is to effect
the sale of the Company to TKG in a transaction that will provide the Company
shareholders cash for their Shares at a price that the Advisory Board of the
Company believes to be fair. The Advisory Board believes the Merger is the most
effective means of achieving the purpose of liquidating the shareholders'
investment in a reasonable time at a reasonable price. See "THE
MERGER -- Purpose and Structure of the Merger."
RECOMMENDATION OF THE COMPANY'S ADVISORY BOARD. The Advisory Board of the
Company has determined that the Merger is fair from a financial point of view to
and in the best interests of the Company's shareholders (other than TKG). The
Advisory Board has approved the Merger Agreement and recommends that the
Company's shareholders vote in favor of the proposal to approve and adopt the
Merger Agreement. See "THE MERGER -- Recommendation of the Company's Advisory
Board."
NO FAIRNESS OPINION. The Company has not received or requested an opinion
from an independent financial advisor regarding the fairness of the
consideration to be received by shareholders of the Company. See "THE
MERGER -- Recommendation of the Company's Advisory Board."
SEDWAY REPORT. On July 22, 1997, Sedway Group, a real estate and urban
economics firm ("Sedway Group") delivered a written report to the Company's
Advisory Board recommending a disposition strategy for maximization of the
Company's real estate assets. Sedway Group's report forecasted proceeds with a
net present value of $25.6 million if its disposition strategy was followed. See
"THE MERGER -- Sedway Report."
INTERESTS OF CERTAIN PERSONS IN THE MERGER. In considering the
recommendation of the Advisory Board of the Company with respect to the Merger
Agreement and the transactions contemplated thereby, shareholders should be
aware that certain officers and Advisory Board members of the Company have
interests in connection with the consummation of the Merger that may conflict
with the interests of the Company's shareholders. See "THE MERGER -- Interests
of Certain Persons in the Merger."
FEDERAL INCOME TAX CONSEQUENCES. For federal income tax purposes, the
Merger will be treated as a taxable sale or exchange of Shares for cash by each
holder of the Shares. The amount of gain or loss to be recognized by each
shareholder will be measured by the difference between the amount of cash
received by such shareholder in connection with the Merger plus such
shareholder's share of the Company's liabilities less such shareholder's tax
basis in the Shares at the Effective Time. See "THE MERGER -- Certain Federal
Income Tax Consequences."
PAYMENT FOR SHARES
As promptly as possible after the Effective Time, instructions will be
furnished to holders of Shares regarding procedures to be followed to surrender
their certificates and receive payment for their Shares. See "THE MERGER
AGREEMENT -- Payment for Shares."
DISSENTERS' RIGHTS
No appraisal or dissenters' rights are provided for the Company
shareholders under the Delaware limited liability company act or under the
Company's limited liability company agreement, nor will the Company or TKG be
voluntarily providing appraisal rights to the Company shareholders who object to
the transactions contemplated by the Merger Agreement. Therefore, if the Merger
is approved, shareholders who voted against the Merger will be required to
accept the Merger Consideration in exchange for their interests in the Company.
See "RIGHTS OF DISSENTING SHAREHOLDERS."
REGULATORY APPROVALS
No regulatory approval is required in connection with the proposed Merger.
State Attorneys General and private parties may bring legal actions under the
federal or state antitrust laws under certain circumstances;
3
<PAGE> 10
however, neither the Company nor TKG believes that any ground for such an action
exists. See "THE MERGER -- Regulatory Approvals."
THE COMPANY
The Company was formed on February 10, 1997. The Company's manager is 3055
Management Corp., a California corporation ("Management Corp."). The Company's
primary assets consist of three buildings and improvements (comprising 220,000
square feet) situated on approximately 15 acres of land in Triad Park,
Livermore, California (the "Headquarters") and 292 acres (as of December 31,
1997) of undeveloped land located in Triad Park (the "Land", the Land and the
Headquarters, collectively the "Property"). The Company was formed to liquidate
its investment in the Property. In the absence of any liquidation, the Company's
principal business has been to own, operate, improve and maintain the Property.
The principal executive office of the Company is located at 3055 Triad
Drive, Livermore, California 94550, and the Company's telephone number is (510)
449-0606.
TKG
TKG is a commercial real estate investment and development company. Founded
in 1983, TKG and its predecessors have created over 1,500,000 square feet of
commercial property. TKG specializes in the acquisition, development, and
management of office, research and development, light manufacturing, and
warehouse buildings. TKG has experience in site identification, project
development, construction management, leasing, and property management. Clients
include publicly traded corporations, including Varian Associates, Maxell, SDL,
KLA Instruments, Robert Half International, Bristol-Myers Squibb, Michelin,
Whirlpool, Anixter, and Newark Electronics.
TKG has since its inception enjoyed the capital backing of Wells Fargo
Bank, one of the largest real estate development lenders in the United States.
Venture relationships have also been established with Heitman Financial,
Mitsubishi Corporation, Advent International, Copernicus Capital Management,
Japan International Development Organization, the European Bank for
Reconstruction and Development, and major life insurance companies in the United
States and Canada. In addition, Lehman Brothers or its affiliates is providing
financing in connection with a number of transactions involving TKG or its
affiliates.
TKG began doing business as TKG International in 1995 to reflect the growth
of its business activities in Central Europe. Outside the United States, TKG is
midway through the development of the first Western-style planned industrial
park in Central Europe. The park is located in Poland near Warsaw's Okecie
International Airport. Development is underway and construction of 300,000
square feet is completed in a 600,000 square foot masterplanned industrial park
to furnish multi-national firms with offices, warehousing and manufacturing
facilities. Additionally, in January 1998, TKG announced a second industrial
park project in Warsaw with over 700,000 square feet to be developed over the
next two years. The financing for this project has already been arranged.
The principal executive office of TKG is located at 2755 Campus Drive,
Suite 100, San Mateo, California 94403, and its telephone number is (650)
372-1222.
ACQUISITION LLC
Acquisition LLC is a Delaware limited liability company. As of the date of
this Proxy Statement, Acquisition LLC's sole and managing member is TKG.
The principal executive office of Acquisition LLC is located at 2755 Campus
Drive, Suite 100, San Mateo, California 94403, and its telephone number is (650)
372-1222.
4
<PAGE> 11
MARKET PRICE AND DIVIDEND DATA
The Shares are publicly traded, although the Shares are not registered for
trading on any exchange. The Company is aware that bid and asked prices have
been quoted over the Internet under the symbol "TDPK." The following table sets
forth the range of high and low bid quotations per Share as quoted on the OTC
Bulletin Board. The quotations reflect inter-dealer prices, without retail
mark-up, mark-down or commission and may not represent actual transactions.
<TABLE>
<CAPTION>
BID QUOTATIONS
--------------
HIGH LOW
----- -----
<S> <C> <C>
1997
Third Quarter (July 31 through September 30).............. $1.26 $0.75
Fourth Quarter............................................ $1.30 $1.25
1998
First Quarter............................................. $1.74 $1.23
Second Quarter (through May )........................... $1.85 $1.74
</TABLE>
On April 24, 1998, the last full day of trading prior to the announcement
of execution of the Merger Agreement, such reported high and low bid quotations
per Share were $1.82 and $1.78, respectively. On May , 1998, the last full day
of trading prior to the printing of this Proxy Statement, the reported high and
low bid quotations per Share were $ and $ , respectively. SHAREHOLDERS
ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THEIR SHARES.
The Company has never paid a cash distribution on the Shares and does not
anticipate paying any such distribution in the foreseeable future.
5
<PAGE> 12
THE COMPANY
HISTORY
Prior to the Company's formation, the real estate assets now owned by the
Company were owned by Triad Systems Corporation, a Delaware corporation
("Triad") and its wholly-owned subsidiary, 3055 Triad Dr. Corp., a California
corporation ("3055 Triad Dr. Corp."). 3055 Triad Dr. Corp. was the owner of the
Headquarters as well as a certain portion of the Land, and Triad was the owner
of the remainder of the Land.
On October 23, 1996, Cooperative Computing, Inc., a Texas corporation
("CCI"), through a wholly owned subsidiary, commenced a tender offer (the
"Offer") to purchase all of the outstanding shares of common stock of Triad. The
Offer contemplated that, among other things, certain real property assets of
Triad and 3055 Triad Dr. Corp. would be spun off to the shareholders of Triad in
a dividend to be declared prior to the consummation of the Offer. The dividend
was declared on February 26, 1997.
The Company was organized under the laws of the State of Delaware as a
limited liability company on February 10, 1997 as a spin-off of Triad. At the
time of the formation of the Company, 3055 Triad Dr. Corp., the owner of the
Headquarters, was merged with and into Triad, with Triad being the surviving
corporation. On February 27, 1997, the Offer was consummated, CCI merged with
Triad, and Triad became known as Cooperative Computing, Inc., a Delaware
corporation, aka CCI/Triad ("CCI/Triad").
BUSINESS OF THE COMPANY
The Company's Shares are owned 99% by the former shareholders of Triad and
1% by Management Corp. The Management Corp. is the exclusive operator of the
Company's business except that certain actions require the approval of its
Advisory Board (the "Advisory Board"). The Advisory Board was responsible for
considering, reviewing and analyzing the Merger Agreement and the other
competing offers. The members of the Company's Advisory Board are Stanley F.
Marquis, James R. Porter, William W. Stevens and Martin W. Inderbitzen.
Information regarding each member may be found under the caption "MANAGEMENT OF
THE COMPANY, TKG AND ACQUISITION LLC -- The Company."
The Company's main objective is to liquidate its investment in the
Property. In the meantime, the Company will own, operate, improve and maintain
the Property. The Company may enter into joint ventures with third parties for
the purpose of disposing of the Property if the Advisory Board determines that
such arrangements are appropriate to the purposes of the Company.
There can be no assurance that the Company will be successful in its
efforts to dispose of the Property or that the Company will realize a profit
from its activities. The Company will be subject to all of the market forces
which impact the ownership and operation of real property, including market
supply and demand, interest rates, local, regional and national economic
conditions, local land use policies and restrictions, construction costs,
competition from other sellers and landlords, and the effects of inflation. The
Company is unable to predict the amount of time it will take to completely
dispose of the Property and wind up the Company.
PROPERTIES OF THE COMPANY
Pursuant to that certain Real Estate Distribution Agreement dated as of
February 26, 1997 between Triad, 3055 Triad Dr. Corp., Management Corp. and the
Company (the "Distribution Agreement"), Triad contributed to the Company certain
of its real estate assets located in Livermore, California, consisting primarily
of the Headquarters, subject to the existing first deed of trust, and the Land,
subject to existing assessment bonds, and the right to certain refunds for
infrastructure expenditures from the City of Livermore (the "Contribution").
In conjunction with the Contribution, the Company agreed in the
Distribution Agreement to indemnify CCI/Triad against any claims relating to
"Environmental Costs and Liabilities" associated with the Land or the
Headquarters prior to the Contribution. These "Environmental Costs and
Liabilities" include all costs, liabilities, losses, claims and expenses arising
from or under any "environmental law." The term "environmen-
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<PAGE> 13
tal law" is defined to include any applicable law regulating or prohibiting
releases into any part of the natural environment, or pertaining to the
protection of natural resources, the environment and public and employee health
and safety including, among other law, the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), the Hazardous Materials Transportation
Act, the Resource Conservation and Recovery Act (RCRA), the Clean Water Act, the
Clean Air Act, the Toxic Substances Control Act, and the Occupational Safety and
Health Act, and any applicable state or local statutes.
Subject to certain limitations, the Company also agreed in the Distribution
Agreement to indemnify CCI/Triad against certain taxes arising from, or relating
to, among other things, any sale of the Property after October 17, 1996, the
Company, the formation of the Company, the transfer by Triad or any affiliate of
Triad of the Property to the Company, the assumption or refinancing of any
liabilities with respect to the Property and the sale, exchange or distribution
of interests in the Company by CCI/Triad.
As of December 31, 1997, the Property consisted of approximately 292 acres
of unimproved land and the 220,000 (approximate) square feet of office contained
in three separate buildings situated on 15 acres of land occupied by CCI/Triad.
The Property is located on the north side of Interstate 580 in the City of
Livermore, California. The City of Livermore is located approximately 40 miles
southeast of San Francisco.
All of the buildings are of concrete tilt-up construction and were built in
1987. Building G is a two story office building containing approximately 70,986
square feet. Building K is a 74,064 square foot single story research and
development building and Building F is a single story industrial flex building
of 74,768 square feet. The office build-out in Buildings K and F is 90 percent
and 40 percent, respectively. The Company's management believes that the
Headquarters is adequately insured. There are 689 parking spaces associated with
the Headquarters. The parking area is landscaped and the areas between the
buildings are improved as open courtyards, fenced with iron gates for controlled
access. Although the buildings were primarily designed for owner-occupancy, they
were also designed to be flexible to allow multi-tenant occupancy.
The 292 acres of vacant land is divided into land use categories of
residential, industrial/office flex, retail and open space. The residential
portion consists of three lots comprising approximately 28.1 useable acres. The
industrial/office flex portion is divided into eight lots and contains
approximately 103.7 acres. The retail/commercial portion is divided into ten
lots and contains approximately 35.9 useable acres. The total useable area for
these lots is approximately 141 acres. In addition, there are two lots, one of
approximately 112 acres designated for open space or agricultural use and one
lot of 4.54 acres dedicated for transportation improvements. Finally,
approximately 7.8 acres are to be developed as public roadways. Approximately
half the required offsite improvements are in place, funded through a
combination of assessment bonds and community facility bonds. The construction
of the remaining offsite improvements are expected to be funded through
additional community facility bonds, as further described below in the final
paragraph of this section. Several of the vacant land sites are in escrow and
most of the remaining sites are subject to a first right of refusal contract.
One retail/commercial lot, comprising 0.9 acres, is in escrow to be sold to
a single purchaser for a total price of $130,000. The transaction is scheduled
to close when the parcel map processing is complete.
One residential lot, comprising 15.4 acres, is in escrow to be sold to a
single purchaser for a total price of $1,662,000 (to be paid in two phases) plus
current and future assessments on this lot and an adjacent lot. In addition, the
purchaser must pay for certain off-site improvements, with the Company's
obligations to pay for these improvements capped at $1,500,000. This transaction
is subject to the satisfaction of several material conditions, and the closing
is not assured.
One 19.3 acre lot is subject to a seven day right of first offer held by
Lincoln Property Co., starting at $3.99 per square foot and increasing 5% per
year, plus assessments. In addition, Lincoln Property Co. has the right of first
offer on 8 lots plus the above mentioned lot.
The Livermore City Council by resolution has accepted the offer to dedicate
the 4.54 acre parcel for transportation improvements. Thus, once the dedication
is complete the Company will own approximately 287.5 acres of unimproved land.
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<PAGE> 14
The Property is partially improved with infrastructure improvements,
including curbs, gutters, storm drains and typical utilities. A community
facilities bond issue was completed on March 24, 1997, the proceeds of which
funded the reimbursement to the Company of $1,485,000 for completed
infrastructure, created a $600,000 security fund for future infrastructure
obligations, and will fund $3,700,000 for in-progress
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<PAGE> 15
infrastructure improvements, for which the Company has received to date
$1,123,000 in reimbursements. In addition, there are $7,000,000 of new bonds
which are planned to be sold in the future to fund the remaining improvements
required for completion of Triad Park. The current cost estimates for the
required improvements indicate that the community facilities bond funding limits
should be adequate to cover the expenses of the remaining items of improvement.
However, design and engineering is not complete and there is a significant
possibility that the actual cost of the improvements may be greater than
estimated and may exceed the bond funding limit. Any shortfall in the bond
funding will be borne by the Company or by purchasers of lots, which may have an
adverse impact on the value of the Land. The remaining required improvements are
scheduled to be completed by 2000.
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<PAGE> 16
THE SPECIAL MEETING
GENERAL
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Advisory Board of the Company for a Special Meeting of
Shareholders to be held on May , 1998 at 10:00 a.m. local time at the offices
of the Company, 3055 Triad Drive, Livermore, California, and as may be adjourned
to a later date. Shares represented by properly executed proxies received by the
Company will be voted at the Special Meeting in accordance with the terms of the
proxies, unless the proxies are revoked. See "-- Proxies" below.
PROPOSALS TO BE CONSIDERED AT THE SPECIAL MEETING
At the Special Meeting, the shareholders of the Company will consider and
vote upon a proposal to approve and adopt the Merger Agreement. Pursuant to the
Merger Agreement, Acquisition LLC will merge with and into the Company, the
separate corporate existence of Acquisition LLC will cease, and the Company will
be the Surviving Company. At the Effective Time, each outstanding Share will be
converted into the right to receive $1.90 in cash, subject in certain cases to
an increase of one-half of one cent ($0.005) per Share for each week (or portion
of a week) that the Closing is deferred or extended past June 15, 1998. A copy
of the Merger Agreement is attached as Exhibit A to this Proxy Statement.
In addition to approval of the Merger Agreement and the Merger,
shareholders of the Company will consider and vote upon a proposal to allow the
Advisory Board, in its sole discretion, to adjourn the Special Meeting to permit
further solicitation of proxies in the event there are not sufficient votes at
the time of the Special Meeting to approve and adopt the Merger Agreement. It is
not anticipated that any other matters will be brought before the Special
Meeting. However, if other matters should come before the Special Meeting, it is
intended that the holders of proxies will vote upon them in their discretion,
unless that authority is withheld in the proxy.
RECORD DATE; SHAREHOLDER APPROVAL
Only holders of record of the Shares at the close of business on May 4,
1998 are entitled to notice of and to vote at the Special Meeting. On that date,
there were 19,708,123 Shares outstanding, which were held of record by
approximately 1,326 shareholders. Each Share entitles its holder to one vote
concerning all matters properly coming before the Special Meeting. A majority of
the voting power of the Shares entitled to vote, represented in person or by
proxy, will constitute a quorum. Abstentions and broker non-votes (i.e. Shares
held by brokers in street name, voting on certain matters due to discretionary
authority or instructions from the beneficial owner but not voting on other
matters due to lack of authority to vote on those matters without instructions
from the beneficial owner) are counted for the purpose of establishing a quorum
and will have the same effect as a vote against the approval of the Merger. The
Merger must be approved by the holders of at least a majority of the voting
power of all outstanding Shares. TKG, which beneficially owns 2,500 Shares
(representing less than 0.02% of the voting power of the Shares), has notified
the Company that it intends to vote its Shares in favor of the Merger. Because
TKG is entitled to vote substantially less than 50.0% of the voting power of all
outstanding Shares, approval of the Merger is not assured as a result of the
voting power held by TKG.
Although they have not specifically agreed to do so, the Company believes
that each of the Advisory Board members and executive officers of the Company
will vote the Shares with respect to which he has voting power in favor of the
Merger. Such Shares represent less than 8% of the Shares entitled to vote at the
Special Meeting. See "SHARE OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL
OWNERS."
PROXIES
Any Company shareholder entitled to vote at the Special Meeting may vote
either in person or by duly authorized proxy. All Shares represented by properly
executed proxies received prior to or at the Special Meeting and not revoked
will be voted in accordance with the instructions indicated in the proxies. IF
NO
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INSTRUCTIONS ARE INDICATED, THE PROXIES WILL BE VOTED FOR THE PROPOSAL TO
APPROVE AND ADOPT THE MERGER AGREEMENT, FOR THE PROPOSAL TO ALLOW THE ADVISORY
BOARD, IN ITS SOLE DISCRETION, TO ADJOURN THE SPECIAL MEETING TO PERMIT FURTHER
SOLICITATION OF PROXIES IN THE EVENT THERE ARE NOT SUFFICIENT VOTES AT THE TIME
OF THE SPECIAL MEETING TO APPROVE AND ADOPT THE MERGER AGREEMENT AND, IN THE
DISCRETION OF THE PERSONS NAMED IN THE PROXY, ON SUCH OTHER MATTERS AS MAY
PROPERLY BE PRESENTED AT THE SPECIAL MEETING.
A shareholder may revoke his or her proxy at any time prior to its use by
delivering to the President of the Company a signed notice of revocation or a
later dated and signed proxy or by attending the Special Meeting and voting in
person. Attendance at the Special Meeting will not in itself constitute the
revocation of a proxy.
The Company and TKG will be soliciting the proxies and pursuant to Section
11.3 of the Merger Agreement each party will pay its own costs and expenses
incurred in connection with the Merger Agreement and the transactions
contemplated thereunder. TKG has retained MacKenzie Partners, Inc., a proxy
solicitation firm, to aid in the solicitation of proxies. MacKenzie Partners,
Inc.'s fee for solicitation of the proxies is estimated to be $10,000 plus
reimbursement for out-of-pocket costs and expenses. Due to this arrangement, TKG
may be deemed to be a participant in the solicitation. In addition to soliciting
proxies by mail, directors, officers and employees of TKG and the Company,
without receiving additional compensation therefor, may solicit proxies by
telephone, by telegram, or in person. Arrangements will also be made with
brokerage firms and other custodians, nominees and fiduciaries to forward
solicitation materials to the beneficial owners of Shares held of record by such
persons, and the Company will, upon request, reimburse such brokerage firms,
custodians, nominees and fiduciaries for reasonable out-of-pocket expenses
incurred by them in connection therewith.
THE MERGER
BACKGROUND OF THE MERGER
HISTORY OF THE COMPANY AND THE MANAGEMENT CORP. The Company was formed in
1997 as a spin-off of Triad.
When Management Corp. was formed in February, 1997, all of the outstanding
stock was issued in equal amounts to Richard C. Blum ("Mr. Blum"), William W.
Stevens ("Mr. Stevens") and James R. Porter ("Mr. Porter"), three former
directors of Triad. Mr. Blum was also a vice president and director of
Management Corp. On August 8, 1997, Mr. Blum resigned from the Board of
Directors and also resigned as vice president of Management Corp. On September
5, 1997, Mr. Blum assigned his shares in Management Corp. over to Mr. Stevens
and Mr. Porter. Mr. Blum was never a member of the Advisory Board.
REAL ESTATE LISTING AGENT. On June 1, 1997, the Company engaged the real
estate firm of Grubb & Ellis, the same real estate firm that had been previously
engaged by Triad to represent it in certain real estate matters, to act as its
exclusive listing agent in connection with the potential sale of the Property.
From time to time, representatives of Grubb & Ellis have had discussions with
senior management of the Company and the Company's Advisory Board concerning the
Company's potential strategic alternatives with respect to the sale of the
Property. Such discussions have been general in nature and did not result in any
formal actions by the Company's Advisory Board.
CONTACTS AND NEGOTIATIONS WITH RCBA. Prior to entering into the Merger
Agreement, the Company negotiated with a number of parties regarding their
potential interest in acquiring the Company or its assets and in September 1997
entered into a merger agreement with Richard C. Blum & Associates, L.P. ("RCBA")
which was later terminated by the Company on February 1, 1998. The sole general
partner of RCBA is Richard C. Blum & Associates, Inc., the majority shareholder
of which is Mr. Blum. In August 1997, RCBA initially offered to purchase all of
the outstanding Shares of the Company at a price of $1.20 per
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<PAGE> 18
Share, inclusive of the debt on the Property. The Company informed RCBA that
such an offer was inadequate but that the Company would be interested in
continuing discussions regarding a potential acquisition.
During the negotiation process with RCBA, several other parties submitted
offers for the acquisition of the Company's assets or the Shares. These other
offers were ultimately rejected because they were either lower in price and/or
did not contemplate assumption of the Company's contingent liabilities (as RCBA
had agreed to do). After several weeks of negotiations, RCBA and the Company
agreed that RCBA and its affiliate, TPL Acquisition, LLC ("TPL"), would acquire
all of the outstanding Shares of the Company at a price of $1.32 per Share. The
parties then executed an Agreement of Merger dated September 9, 1997 (the "RCBA
Merger Agreement"), which was ultimately terminated by the Company in accordance
with its terms on February 1, 1998.
CONTACTS AND NEGOTIATIONS WITH TKG
On November 7, 1997, after the Company had entered into the RCBA Merger
Agreement, the Company received a preliminary proposal from TKG dated November
6, 1997 at a price of $28.5 million or approximately $1.45 per Share ($0.13 per
Share in excess of the price in the RCBA Merger Agreement) without giving effect
to any termination fee to RCBA, or $1.38 per Share after payment of the RCBA
termination fee ($0.06 per Share in excess of the price in the RCBA Merger
Agreement). The Company entered into a confidentiality agreement with TKG on
November 25, 1997 and provided TKG detailed due diligence information regarding
the Company and its properties.
During the fall of 1997, the Company and RCBA prepared and filed a joint
Schedule 13E-3 Transaction Statement with the Commission in connection with the
proposed acquisition of the Company by RCBA.
On December 16, 1997 the Company received a revised proposal letter from
TKG with substantially different conditions. This revised proposal was
accompanied by a draft definitive merger agreement under separate cover. The
revised proposal remained subject to a condition precedent based upon further
satisfactory due diligence and one based upon the continued availability of
financing which TKG orally claimed to be available. The revised proposal
contained an additional condition that the proposal would cease to be effective
if the termination fee to RCBA under the RCBA Merger Agreement were triggered or
paid.
On December 29, 1997 the Company received another letter from TKG dated
December 26 which stated it was intended to clarify the December 16, 1997
letter. The December 26 letter expressed an expectation of the finalization of
all due diligence and financing arrangements prior to any meeting of the
shareholders. It also stated that if the RCBA Merger Agreement were terminated
without the Company paying or incurring any obligation to pay a termination fee,
TKG's financing and due diligence conditions would be automatically waived and
TKG's offer would be irrevocable. Upon acceptance by the Company, TKG would be
contractually bound, subject to an affirmative vote of the shareholders, to
acquire the Company by merger under the terms of its offer. The TKG proposal
continued the condition that it would cease to be effective if a termination fee
to RCBA was triggered or paid.
From November 1997 through early January 1998, the Company and RCBA
received and attempted to respond to comments and questions from the Securities
and Exchange Commission (the "Commission"). Ultimately, due in large part to the
changing circumstances surrounding the proposed transactions, the parties were
unable to resolve these comments and questions in time to finalize and mail
proxy materials to the Company's shareholders and to hold a meeting of the
Company's shareholders on or before January 31, 1998. On January 6, 1998, the
Commission notified the Company and RCBA by letter that the current draft of
their joint Schedule 13E-3 Transaction Statement (which was filed with the
Commission on December 30, 1997) required further disclosure regarding TKG and
its proposals before the proxy statement regarding the RCBA Merger Agreement
could be mailed to the Company shareholders. Because of certain notice and
advance mailing requirements, it became apparent that the required revisions
could not be made, and the proxy statement could not and would not be completed
and mailed in time for the merger contemplated by the RCBA Merger Agreement to
occur by January 31, 1998. The RCBA Merger Agreement contained a provision that
allowed either party to terminate the RCBA Merger Agreement if the merger
contemplated therein was not consummated by January 31, 1998, provided that the
party seeking to terminate pursuant to
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<PAGE> 19
this provision had not failed to perform in any material respect any covenant
under the RCBA Merger Agreement which has been the cause of or resulted in the
failure of the merger to be consummated before such date. The Company believes
it has performed in all material respects the covenants of the RCBA Merger
Agreement.
Between January 6 and January 30, 1998, representatives of TKG visited the
Company's headquarters several times and conducted due diligence on the Company.
During the afternoon of Friday, January 30, 1998, RCBA advised the Company that
it planned to increase its offer to $1.47 per Share or approximately $0.02 more
than TKG's offer as then in effect. Representatives of the Company advised TKG
of RCBA's proposed increase. During the afternoon of January 30, shortly before
a scheduled meeting of the Company's Advisory Board, TKG transmitted a letter to
the Advisory Board stating that TKG would deliver a topping offer to the Company
following the expiration of the January 31 "drop dead" date under the RCBA
Merger Agreement. Following receipt of TKG's letter, representatives of the
Company and the Advisory Board held a telephonic discussion with representatives
of TKG to clarify TKG's offer. During that discussion, TKG advised the Company
that it was raising its offer to $1.50 per Share.
The Advisory Board discussed the new offers at its meeting and thereafter
advised TKG and RCBA of the level of the two sides' bids. On the morning of
Saturday, January 31, RCBA advised the Company by telephone that it would be
unable to respond to TKG's $1.50 per Share bid over the weekend. Later the same
day, RCBA advised the Company that it would be prepared to deliver a topping bid
to the Company on Sunday morning, February 1, 1998 and asked the Company to
provide assurance that it would not terminate the RCBA Merger Agreement. The
Company declined to provide the assurances requested by RCBA.
On the morning of February 1, 1998, the Company, with approval of the
Advisory Board, notified RCBA that it was terminating the RCBA Merger Agreement
pursuant to the above-referenced provision of the RCBA Merger Agreement. At 8
a.m. on February 1, representatives of RCBA and TKG met with representatives of
the Company and the Company's outside legal counsel in the offices of the
Company's outside legal counsel. The Company initiated a bidding process during
which both parties submitted bids for the Company's outstanding Shares. RCBA
initially bid $1.55 per Share, $0.05 more than TKG's previous bid. TKG advised
the Company that it was prepared to top RCBA's $1.55 bid. RCBA then increased
its bid to $1.60 per Share, or $0.10 more than TKG's last bid. TKG then advised
the Company that it was prepared to submit a bid in excess of $1.60 per Share,
but only on a "best and final" "blind-bid" basis. In addition, both RCBA and TKG
made a number of modifications in the terms and, in the case of TKG, the amount
of their proposed termination fees and "drop dead" dates, as a condition of
their higher bids. Both parties agreed to conclude the bidding process by
submitting "best and final" sealed bids. After reviewing both bids, the Company
and its legal counsel concluded that TKG's offer represented superior value to
the Company's shareholders. Representatives of the Company and TKG then
negotiated the final terms of the Agreement of Merger, dated February 1, 1998
(as thereafter amended as of February 12, 1998, the "Previous Merger
Agreement"). The Advisory Board unanimously approved the Previous Merger
Agreement and the transactions contemplated thereby.
On February 2, 1998, RCBA amended its Schedule 13D to indicate that the
RCBA Merger Agreement had been terminated by the Company and that RCBA was
deciding what further action, if any, it planned to take. In addition, on March
6, 1998, the Company and RCBA filed a similar amendment to their Joint Schedule
13E-3 Transaction Statement.
Between February 2 and March 11, 1998, representatives of the Company and
TKG prepared, filed and cleared with the SEC, and printed a proxy statement (the
"March Proxy Statement") relating to the shareholder meeting scheduled for March
25, 1998 (the "March Special Meeting"). The March Proxy Statement was mailed to
shareholders on or about March 10, 1998.
On March 11, 1998, RCBA wrote a letter to the Company submitting another
offer. Pursuant to this letter, RCBA offered to cause TPL to acquire all of the
outstanding shares of the Company for $1.70 per Share, including assumption of
liabilities. On March 12, 1998, TKG wrote a letter to the Company explaining why
TKG believed the offer was not a "Superior Proposal" as that term was defined
under the Previous
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<PAGE> 20
Merger Agreement. If such offer were a "Superior Proposal," the Company would
have been entitled to terminate the Previous Merger Agreement (subject to the
payment to TKG of a termination fee).
After analyzing RCBA's offer, the Company informed RCBA that the Advisory
Board was not inclined to declare the March 11 bid by RCBA a Superior Proposal.
On March 13, 1998, RCBA withdrew its March 11, 1998 merger offer and
submitted a new merger offer at $1.74 per Share, plus $1.2 million to cover any
termination fee that might become payable to TKG, if one arose. RCBA also
proposed a new termination fee and expense reimbursement provision in favor of
RCBA of up to $1.75 million.
Later in the day on March 13, 1998, in response to comments from the
Company, RCBA sent a subsequent letter to the Company withdrawing its earlier
March 13th letter, modifying its proposed termination fee and otherwise offering
$1.74 per Share, plus $1.2 million to cover any termination fee of TKG, if one
arose.
On March 14, 1998, TKG sent a letter to the Company objecting to RCBA's
offer on various grounds.
On March 14, 1998, the Advisory Board declared RCBA's March 13th merger
offer a "Superior Proposal" and the Company sent a Superior Proposal Notice to
TKG pursuant to the Previous Merger Agreement.
On March 16, 1998, TKG commenced a lawsuit against the Company in Delaware
Chancery Court seeking a temporary restraining order enjoining the Company from
taking any action to terminate the Previous Merger Agreement and mandating that
the Company hold the approaching March Special Meeting (then scheduled for March
25, 1998) at which time the shareholders would vote on the Previous Merger
Agreement (the "Delaware Action").
In its complaint, TKG alleged that a breach by the Company of the Previous
Merger Agreement was imminent. The Company had notified TKG that it had received
a "Superior Proposal" (as defined in the Previous Merger Agreement) from RCBA.
Under the Previous Merger Agreement, the receipt of a "Superior Proposal" could,
in certain circumstances, give the Company the right to terminate the agreement.
TKG alleged that RCBA's bid was not a "Superior Proposal" because of
uncertainties with regard to financing and timing of payments and for other
reasons. In addition, TKG alleged that, even if RCBA's bid were a "Superior
Proposal," the Company could not properly terminate the Previous Merger
Agreement since it did not have the funds necessary to pay the related
termination fee and had not made "irrevocable arrangements" to assure such
payment, as required by the Previous Merger Agreement.
On March 17, 1998, the Court orally granted the requested preliminary
injunction (the "Delaware Order"). In its written order dated March 19, 1998,
the Court ordered the Company, its Advisory Board members, directors, officers,
agents, employees and attorneys to "facilitate a decision by share holders of
[the Company] to approve or reject" the Previous Merger Agreement and enjoined
such persons (and any persons in active concert or participating with the
Company) from canceling the impending shareholders' meeting or postponing it
beyond March 28, 1998. The Court also enjoined such persons from taking any
steps to terminate the Previous Merger Agreement based on the relevant proposals
received by the Company from RCBA and ordered the Company to inform its
shareholders of the Court's ruling and of certain correspondence that had
occurred between each of RCBA and TKG and the Company.
Pursuant to the Delaware Order, the Company sent revised proxy materials to
shareholders on March 20, 1998 and held the March Special Meeting on March 28,
1998, at which a majority of the shareholders of the Company voted against the
Previous Merger Agreement. The parties have agreed to settle the Delaware
Action. See "THE MERGER AGREEMENT -- Settlement and Full and Mutual Release."
On March 17, 1998, TKG sued Mr. Blum, RCBA, RCBA, Inc. and TPL in the
United States District Court for the Northern District of California. TKG's
complaint claimed that the defendants had violated the federal securities laws
by failing to disclose certain information concerning the offer made to the
Company's Advisory Board on March 13, 1998. Shortly after filing the complaint,
TKG moved for a temporary restraining order, for an order to show cause why a
preliminary injunction should not issue pending trial, and for
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<PAGE> 21
permission to conduct expedited discovery. On March 26, 1998, the United States
District Court granted in part TKG's request for a temporary restraining order
and denied all other requests made by TKG. The United States District Court
ordered the defendants to make certain information available no later than March
27, 1998. In response to the Court order, the defendants issued a press release
on March 26 and took other actions required by the Court. The defendants have
also answered TKG's complaint, denying all material allegations of wrong-doing.
It is unknown at this time whether TKG will continue to pursue this lawsuit.
On March 26, 1998, RCBA withdrew its March 13th merger offer and announced
that it intended to commence a tender offer for all of the outstanding shares of
the Company at $1.74 per Share (the "Tender Offer").
On March 27, 1998, TKG issued a press release stating that it had entered
into discussions with Lehman Brothers for financing to increase its bid to $1.74
per Share to match that of RCBA. Later the same day, TKG issued a press release
announcing that it would pay $1.74 per Share to complete its acquisition of the
Company. RCBA then issued a press release increasing the price of its tender
offer to $1.80 per Share. Also on March 27, 1998, the Company issued a press
release stating: (i) that a special shareholders meeting was scheduled for 4:00
p.m. on March 28, 1998 to consider a merger agreement with TKG at $1.65125 a
Share, and (ii) that the meeting's agenda would not include a tender offer of
RCBA, or the discussions of TKG with respect to an offer at $1.74 a Share. Later
that same day, TKG delivered to the Company a letter asserting that TKG and
Acquisition LLC were waiving the provisions of the Previous Merger Agreement
relating to the maximum merger consideration to the extent necessary to provide
for a per Share merger consideration of $1.74. In addition, TKG issued a press
release reiterating its commitment to pay shareholders $1.74 per Share for their
Shares.
Still later that same day, RCBA issued a press release stating that it was
increasing the price of the Tender Offer to $1.80 per Share.
On March 28, 1998, the Company held a shareholders' meeting. The
shareholders were asked to vote upon a proposal to approve the Previous Merger
Agreement. With 81.5% of the Company's outstanding Shares voting, the final
results certified by the independent inspector of elections were, approximately
60% against approval of the proposal, and 21% in favor of approving the
proposal, with the remainder being abstentions. The rejection of the Previous
Merger Agreement by the Company's shareholders did not automatically terminate
the Previous Merger Agreement. By the terms of the Previous Merger Agreement,
either TKG, Acquisition LLC or the Company was entitled to terminate the
Previous Merger Agreement in the event that the requisite approval of Company
shareholders was not obtained at the meeting called for the purpose of voting on
the Previous Merger Agreement.
On April 1, 1998, TPL commenced the Tender Offer to purchase all
outstanding Shares at a price of $1.80 per Share.
At a meeting on April 1, 1998, the Advisory Board met to consider the
Tender Offer and the other transactions contemplated by the Tender Offer. In
such meeting, the Advisory Board unanimously agreed to express no opinion and
remain neutral toward the Tender Offer and the other transactions contemplated
by the Tender Offer.
On April 4, 1998, the Company, with approval of the Advisory Board,
notified TKG that it was terminating the Previous Merger Agreement. In a letter
to the Company dated April 6, 1998, TKG disputed the Company's ability to
terminate the Previous Merger Agreement and questioned the validity of the votes
against the Previous Merger Agreement.
Between April 6 and April 16, 1998, TKG and the Company held intermittent
discussions relating to the possibility of a new merger agreement and a
settlement of outstanding disputes and claims. In the course of these
discussions, TKG indicated that it was prepared to enter into a merger agreement
at a price of $1.83 per Share, if certain other terms were accepted by the
Company. No agreement was reached.
On April 16, 1998, TPL increased the price of the Tender Offer to $1.84 per
Share.
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TKG thereafter asserted that the Company had violated its obligations under
a confidentiality agreement signed by TKG and the Company in November 1997. The
Company denied that the confidentiality agreement was applicable. On Friday,
April 24, 1998, TKG and the Company executed a new confidentiality agreement,
expiring at 5 p.m. on Sunday, pursuant to which TKG presented a new merger
proposal at $1.90 per Share, with a $1.2 million termination fee and mutual
releases of claims. The Advisory Board evaluated the terms of TKG's offer and
negotiated a number of improvements in TKG's offer. After further deliberation,
the Advisory Board voted unanimously to accept TKG's offer, subject to
documentation of the offer and satisfactory resolution of a number of drafting
issues. Final documentation was prepared on Friday evening, April 24 and
Saturday, April 25, and the Merger Agreement was signed on Saturday, April 25.
On April 29, 1998, TPL issued a press release announcing that it was
withdrawing the Tender Offer.
PURPOSE AND STRUCTURE OF THE MERGER
The primary benefit of the Merger to the Company's shareholders is the
opportunity to sell all of their Shares at a price which represents a
substantial premium over trading prices in effect immediately prior to
announcement of the execution of the Merger Agreement. The structure of the
transaction as a cash merger provides a cash payment at a premium price to all
holders of outstanding Shares and ensures the acquisition of all the outstanding
Shares of the Company.
The primary reason for the Company entering into the Merger Agreement is
the Advisory Board's belief that the Merger is the most effective means of
achieving the purpose of liquidating the shareholders' investment in a
reasonable time at a reasonable price. The Advisory Board also believes that
since the contingent liabilities of the Company will remain with the Surviving
Company, the Merger is the most advantageous transaction for the Company's
shareholders, as opposed to an asset sale. The Company is obligated to indemnify
CCI/Triad for certain taxes arising from, among other things, any transfer of
the Property to the Company (see "THE COMPANY -- Properties of the Company").
Due to this indemnification obligation, the Company ordinarily would not be able
to make final distributions to shareholders until after CCI/Triad's audit was
complete, a process that could last up to three years after the date of its
filing of a tax return, not including extensions. Instead, the Surviving Company
will retain all liabilities, contingent or otherwise, of the Company in
conjunction with the Merger. As a result, the Company's shareholders will
receive their proceeds shortly after the consummation of the Merger without any
requirement to hold back contingency reserves.
In addition, the Company is currently obligated to undertake approximately
an additional $7,000,000 in improvements on the Property. The City of Livermore
has indicated that it is willing to reimburse the Company for improvements
undertaken and paid for by the Company by means of bond financings.
Historically, the City of Livermore has fulfilled such reimbursement commitments
to Triad. However, if the City of Livermore is unsuccessful in completing a bond
offering, the Company would not receive any reimbursement for such improvements.
Further, there is a significant chance the cost of the improvements undertaken
by the Company will exceed the amount of the bond financings and the Company
would be responsible for paying any such cost overruns. Again, the Surviving
Company will retain this potential liability of the Company in conjunction with
the Merger, so the Company's shareholders will receive their full proceeds
shortly after the consummation of the Merger.
The Advisory Board also believes it significant that by entering into the
Merger at this time shareholders of the Company avoid ongoing operating expenses
of the Company such as taxes (which are currently in excess of $1 million
annually) and the costs of ongoing reporting requirements, including those
related to filings with the Commission under federal securities laws.
The Advisory Board believes that the Merger is the best available
opportunity to maximize shareholder value at the present time. The $1.90 per
Share price to be received by the Company's shareholders represents a premium of
approximately 46% over the value estimated by Sedway Group without considering
the impact of contingent liabilities.
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<PAGE> 23
TKG's purpose and reasons for engaging in the transaction contemplated by
the Merger Agreement is to obtain ownership (together with Lehman Brothers
and/or one or more entities affiliated with Lehman Brothers) of the Company,
thereby becoming entitled to the benefits of ownership including management and
investment discretion with regard to the future of the real estate assets of the
Company. This includes execution of a business plan that combines strategic
undeveloped lots dispositions and developments of other lots for the Company's
own account or for third parties, depending on market conditions. TKG and Lehman
Brothers will receive the benefits, if any, of their decisions and will also
bear the risk of loss.
RECOMMENDATION OF THE COMPANY'S ADVISORY BOARD
On April 24, 1998, the Company's Advisory Board, by unanimous vote, at a
special board meeting held on that date, determined that the transactions
contemplated by the Merger are fair from a financial point of view to and in the
best interests of the shareholders of the Company other than (i) affiliates of
the Company and (ii) TKG and its affiliates (the "Unaffiliated Shareholders"),
approved the Merger Agreement and resolved to recommend that the Company's
shareholders approve the Merger Agreement.
In determining to approve and adopt the Merger Agreement, and in
determining the fairness of the terms of the Merger to the Unaffiliated
Shareholders, the Advisory Board considered the following factors, each of
which, in the view of the Advisory Board, supported the determination to
recommend the Merger:
(i) the fact that the $1.90 per Share being offered by TKG constitutes
an increase of $0.06 per Share over the $1.84 per Share that was being
offered by RCBA in the Tender Offer;
(ii) the view of the Advisory Board that the size of the Termination
Fee contained in the Merger Agreement does not preclude a new bid or offer
from RCBA or any other potential acquiror;
(iii) the fact that under the Merger Agreement the Merger
Consideration will in certain instances increase by one-half of one cent
($0.005) per Share for every week that the Closing is deferred or extended
past June 15, 1998, thereby protecting shareholder value in the unlikely
event that the Closing occurs later than expected;
(iv) the net book value of the Company (based upon the financial
statements contained in its Form 10-KSB for the year ended December 31,
1997), which on a per Share basis is calculated at [$1.22] per Share,
significantly less than the $1.90 per Share being offered by TKG;
(v) the liquidation value of the Company (based upon the cost basis
for the Distribution as determined by Triad Systems Corporation), which on
a per Share basis is calculated at $0.72 per Share, significantly less than
the $1.90 per Share being offered by TKG;
(vi) the fact that, as discussed below in "-- Redemption of Shares,"
when the Company redeemed Shares from Mr. Porter and Mr. Stevens, the
redemption price was $0.72 per Share, and that the $1.90 per Share being
offered by TKG constitutes a significant premium over the redemption price;
(vii) the historical market prices of the Shares, particularly the
fact that the Merger will enable the shareholders of the Company to realize
a significant premium over the prices at which the Shares traded prior to
the announcement of execution of the Merger Agreement;
(viii) the conclusion contained in the Sedway Report that following a
three-and-one-half year disposition strategy could result in proceeds with
a net present value of $25.6 million and the fact that the Merger would
result in proceeds of over $37.4 million (inclusive of Shares beneficially
held by TKG);
(ix) the terms and conditions of the Merger Agreement, including the
provision negotiated by the Company which allowed the Company to consider
and respond to unsolicited offers after the date of the Merger Agreement;
the fact that the Company may terminate the Merger Agreement in certain
circumstances; the circumstances under which the termination fee is
payable; and the relatively few substantive closing conditions;
(x) the fact that, as discussed above in "-- Purpose and Structure of
the Merger," the Surviving Company will retain all contingent liabilities
of the Company (as would have been the case if the Tender
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<PAGE> 24
Offer were successfully completed), including those related to tax matters
and construction of improvements on the Property and those relating to the
potential obligation to indemnify CCI/Triad against any claims relating to
environmental costs and liabilities associated with the Land or the
Headquarters prior to the Contribution (as discussed above in "THE
COMPANY -- Properties of the Company"); and
(xi) the fact that the offer from TKG, when considered on a net basis,
was higher than the firm offers received from the other potential
acquirors.
Management Corp., with the advice and consent of the Advisory Board,
determined that the transactions contemplated by the Merger are fair from a
financial point of view to and in the best interests of all shareholders
including the Unaffiliated Shareholders and recommends that the Company
shareholders approve the Merger Agreement. In determining to approve and adopt
the Merger Agreement, and in determining the fairness of the terms of the Merger
to the Unaffiliated Shareholders, Management Corp. adopted the analysis
undertaken by the Advisory Board in the preceding paragraphs.
The executive officers of the Company have made no recommendation with
respect to the Merger.
The Company has not received or requested an opinion from an independent
financial advisor regarding the fairness of the consideration to be received by
the Unaffiliated Shareholders in the Merger. It has compared the financial
results of the Merger with those projected as feasible from the continued
operation of the Company by an independent real estate and urban economics
advisor (see "-- Sedway Report" below).
If the Merger is not approved by the Company's shareholders and the Merger
does not occur, the Company will continue its current operations as an
independent company. However, for the reasons discussed above, it is possible
that the Company would seek a business combination with another company.
SEDWAY REPORT
SUMMARY. Shortly after its formation, the Company began considering various
methods in order to effectuate an orderly disposition of the Property.
Accordingly, on May 22, 1997, the Company's Advisory Board authorized Martin W.
Inderbitzen, a member of the Advisory Board, and Larry D. McReynolds, President
of the Company, to engage Sedway Group or a comparable firm for the purpose of
preparing a report exploring various disposition strategies. On July 22, 1997,
Sedway Group delivered its written report to the Company's Advisory Board (the
"Sedway Report").
THE SEDWAY REPORT DOES NOT RELATE TO THE MERGER CONSIDERATION OR THE
FAIRNESS OF THE MERGER CONSIDERATION, OR THE FAIRNESS OF THE MERGER TO THE
COMPANY, TKG OR SHAREHOLDERS WHO ARE NOT AFFILIATES. HOWEVER, THE SEDWAY REPORT
DOES RELATE TO THE VALUE OF THE COMPANY'S REAL ESTATE ASSETS IN A LIQUIDATION
SITUATION, AND AS SUCH, WAS GIVEN CONSIDERATION BY THE COMPANY'S ADVISORY BOARD
DURING ITS DECISION MAKING PROCESS.
In preparing its report, Sedway Group met with Company management and
reviewed the current status of Triad Park, inspected Triad Park and its
environs, read various documents related to Triad Park, including the listing
agreement with Grubb & Ellis and the lease pertaining to the Triad Park building
complex, held telephone interviews with members of the Company's Advisory Board,
held telephone discussions with brokers, developers, and land owners active in
the Livermore area and reviewed market information provided by Grubb & Ellis.
Sedway Group was asked to provide a strategy to maximize the value of the
Company's real estate assets.
The Sedway Report contains a history of Triad Park and a summary of the
current situation at Triad Park. The Sedway Report also contains a market
overview, including current market conditions for retail, office and R&D
properties. The Sedway Report recommends an "aggressive but orderly real estate
disposition program" including certain improvements to the Triad Park area and a
multi-faceted marketing program. According to the Sedway Report, the proposed
strategy should "result in proceeds with a net present value of $25.6 million."
The Sedway Report also includes a presentation of the financial analysis of the
disposition strategy and assumptions and limiting conditions.
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<PAGE> 25
GENERAL. Although the Company believes all material analyses performed by
and conclusions of Sedway Group are disclosed in the summary set forth above,
the summary does not purport to be a complete description of the analyses
performed by Sedway Group. The preparation of a report similar to the Sedway
Report involves various determinations and assumptions and therefore is not
readily susceptible to summary description. Accordingly, Sedway Group believes
that its report must be considered as a whole and that selected portions of its
report and the factors considered by it, without considering all analyses and
factors, could create an incomplete view of the evaluation process underlying
its report. In preparing its report, Sedway Group made numerous assumptions with
respect to industry performance, general business and economic conditions and
other matters, many of which are beyond the control of the Company.
Sedway Group is a nationally recognized full-service real estate and urban
economics consulting firm engaged, among other things, in market research and
analysis, real estate strategy and asset management (including acquisition and
disposition strategies), financial analysis and valuation services. Sedway Group
has substantial experience in major land uses (residential, retail, office,
industrial, hotel and mixed use) and in specialized areas such as entertainment
retail, public/private transactions and economic revitalization.
It was the opinion of the Advisory Board that Sedway Group was very
familiar and experienced with economic analysis in the Tri-Valley region of
Northern California. At the time that the Advisory Board was seeking a firm to
undertake the analysis, Sedway Group was conducting similar analyses in the City
of Livermore and in the Tri-Valley area. Members of the Advisory Board were also
personally familiar with Sedway Group, and all agreed that Sedway Group had a
positive business reputation in the community. All of these factors were
considered by the Advisory Board when it chose Sedway Group to prepare the
economic report.
The Company has paid Sedway Group approximately $15,000 for preparing the
Sedway Report. No portion of the fee payable to Sedway Group is contingent upon
consummation of the Merger or similar type of transaction.
PLANS FOR THE COMPANY AFTER THE MERGER
Effective upon consummation of the Merger, the manager of Acquisition LLC
will be the initial manager of the Surviving Company. The Surviving Company will
not have an Advisory Board.
Following the Merger, it is expected that the Surviving Company will pursue
the completion of the development of Triad Park. The Surviving Company's first
actions are expected to be directed toward completing the infrastructure
improvements for the Property. It is anticipated that the Surviving Company will
initiate a new marketing campaign that will promote the sale of individual lots,
the development of buildings for companies on a build-to-suit basis, and the
development of buildings without advance leasing to tenants on a speculative
basis. TKG presently expects that the sale of lots and the development of
buildings will be completed in approximately four years.
CERTAIN EFFECTS OF THE MERGER
As a result of the Merger, the entire equity interest of the Company will
be owned, directly or indirectly, by TKG and Lehman Brothers and one or more of
their respective affiliates, and the current shareholders will have no
continuing interest in the Company. Therefore, following the Merger, the
shareholders of the Company other than TKG will no longer benefit from any
increases in the value of the Company and will no longer bear the risk of any
decreases in the value of the Company. Following the Merger, TKG and Lehman
Brothers, directly or indirectly, will own 100% of the Company and will have
complete control over the management and conduct of the Company's business, all
income generated by the Company and any future increase in the Company's value.
Similarly, TKG and Lehman Brothers, directly or indirectly, will also bear the
risk of any losses incurred in the operation of the Company and any decrease in
the value of the Company.
RELATIONSHIP BETWEEN THE COMPANY AND TKG
NO INTERCOMPANY BUSINESS RELATIONSHIP. Apart from the Merger Agreement, the
transactions contemplated thereby, or as otherwise disclosed in this Proxy
Statement, there have been no business relationships between the Company and
either TKG or Acquisition LLC.
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INTERESTS OF CERTAIN PERSONS IN THE MERGER
In considering the recommendation of the Advisory Board of the Company with
respect to the Merger Agreement and the transactions contemplated thereby,
shareholders should be aware that certain members of the Advisory Board and
management of the Company have certain interests in the Merger in addition to
the interests of shareholders of the Company generally. In connection with the
Advisory Board's determination that the Merger is fair to the Company's
shareholders (excluding TKG and its affiliates), the Advisory Board carefully
considered conflict of interest issues relating to the matters described below.
INDEPENDENT CONTRACTOR SERVICES AGREEMENT. Larry D. McReynolds, President
of the Company, has an Independent Contractor Services Agreement with the
Company, under which he is currently paid an annual base salary of approximately
$113,000, of which the Company is responsible for 50%. Mr. McReynold's
independent contractor agreement provides for bonus compensation in the event of
certain "changes in control" of the Company, including a merger involving the
Company. Upon consummation of the Merger, Mr. McReynolds is entitled to receive
a bonus of less than 1% of the net value paid to the Company's shareholders,
which is estimated to be approximately $285,000.
INDEMNIFICATION OF OFFICERS AND DIRECTORS. The Merger Agreement provides
that, for a period of not less than six years following the Effective Time, the
Surviving Company will maintain in effect all rights of indemnification of the
officers, directors or employees of the Company provided in its limited
liability company agreement or bylaws. TKG has also agreed to allow the Company
to purchase prior to the Effective Time additional policies of directors' and
officers' liability insurance of at least the same coverage as currently
maintained by the Company, such policies to be pre-paid and in effect for a
period of six years from the Effective Time.
SOURCES AND USES OF FUNDS
MERGER CONSIDERATION, FEES AND EXPENSES. TKG estimates that the total
consideration payable to shareholders other than TKG and its affiliates upon
consummation of the Merger will be approximately $37,440,684. The estimated fees
and expenses incurred or to be incurred by TKG in connection with the Merger are
not expected to exceed $1.5 million.
Certain of the Company's officers will receive certain payments if the
Merger is consummated. See "-- Interest of Certain Persons in the Merger."
SOURCES OF FUNDS. To complete the acquisition of the Company (including
$1.5 million in estimated fees and expenses), TKG will contribute $2.5 million
in equity and Lehman Brothers or its affiliates will contribute approximately
$34 million in debt and $2.5 million in senior equity (the "Financing"). TKG's
equity contribution will be made from available cash and working capital of TKG.
The Financing will be subject to the satisfaction of closing conditions under
the Merger Agreement (including the accuracy of the Company's representations
and warranties in all material respects) and customary closing requirements in
accordance with the definitive financing documents.
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 Company shareholder who is a citizen or resident of
the United States. 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 taxpayers subject to special treatment
under the federal income tax laws, such as insurance companies, tax-exempt
organizations, regulated investment companies, S corporations and taxpayers
subject to the alternative minimum tax. Neither the Company nor TKG has
requested either the Internal Revenue Service or counsel to rule or issue an
opinion on the federal income tax consequences of the Merger. ALL SHAREHOLDERS
ARE URGED TO CONSULT THEIR
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OWN TAX ADVISORS REGARDING THE FEDERAL, FOREIGN, STATE AND LOCAL TAX
CONSEQUENCES OF THE DISPOSITION OF THEIR SHARES IN THE MERGER.
Merger as Sale of Shares
Although the transaction will be in the form of the merger of the Company
with Acquisition LLC, for federal income tax purposes it is anticipated that the
Merger will be treated as a taxable sale of Shares by each holder of Shares.
Accordingly, each holder of Shares will recognize gain or loss by reason of the
consummation of the Merger.
Measure of Gain or Loss
A shareholder's gain or loss in the Merger will be equal to the difference
between the consideration received in the Merger and the shareholder's adjusted
basis in the shareholder's Shares. The consideration received will be equal to
the sum of the cash received plus the shareholder's allocable share of the
Company's liabilities.
A shareholder's initial basis in the Shares will be the cost of the Shares
plus the shareholder's allocable share of the Company's liabilities. For shares
received in the distribution from Triad, the shareholder's "cost" of the Shares
will be the fair market value of the Shares at the time of the distribution. The
basis of the Shares will be increased by the shareholder's share of Company
income and by any increases in the shareholder's share of Company liabilities.
The basis will be reduced (but not below zero) by distributions from the
Company, by the shareholder's share of Company losses, by decreases in the
shareholder's share of Company liabilities and by the shareholder's share of
expenditures of the Company that are neither deductible in computing taxable
income nor required to be capitalized.
It will not be possible to determine the precise amount of gain or loss on
the sale of the Shares until after the Effective Time, because the calculation
of gain or loss requires a determination of the Company's liabilities as of the
Effective Time and the shareholder's share of the Company's income, gain, loss
and deduction for the taxable year in which the Merger occurs. Following the
Effective Time, the Company's books will be closed and the shareholders will
receive the information they require to determine the adjusted basis of their
Shares and the consideration received in the Merger.
Character of Gain or Loss
The Shares represent interests in the Company, which is taxed as a
partnership for federal income tax purposes. Generally, gain or loss on the sale
of a partnership interest is capital gain or loss under Section 741 of the Code.
An exception to this general rule is provided in Section 751 of the Code, which
treats as ordinary income or ordinary loss any gain or loss on unrealized
receivables or inventory items (including real property held for sale to
customers).
A substantial portion of the Property is land held by the Company for sale
to customers and any gain or loss attributable to such land will be ordinary
income or loss to the shareholders in the Merger. The precise amount cannot be
calculated until after the Effective Time because the activities of the Company
will affect the amount of such ordinary income. Following the Effective Time,
the shareholders will receive the information they require to determine the
ordinary income from the sale of the Shares. The balance of gain, if any, will
be capital gain.
If a shareholder who is an individual (and any individual who is a partner
in a partnership that is a shareholder) has held the Shares for more than 12
months but less than 18 months as of the Effective Time, any capital gain will
be long term capital gain and will be subject to federal tax at not more than a
28% tax rate. If the Shares have been held for more than 18 months as of the
Effective Time, any capital gain will be subject to federal tax at not more than
a 20% tax rate. Any capital gain on Shares held for 12 months or less will be
short term capital gain and will be subject to tax at the rates applicable to
ordinary income.
Company Income or Loss Prior to the Merger
Each shareholder will receive an allocation of the shareholder's share of
the Company's income or loss for the periods prior to the Merger. Shareholders
should review the discussion in the Company's Information
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<PAGE> 28
Statement mailed to shareholders on or about August 21, 1997 under "Tax
Considerations" for a summary of the federal income tax consequences of the
Company's operations. If the Company has taxable income during the periods prior
to the Merger, it is not anticipated that the Company will make any
distributions to shareholders and shareholders may be required to pay federal
income taxes on Company income.
Reporting and Withholding
Cash payments made pursuant to the Merger will be reported to the extent
required by the Code to shareholders of the Company and the Internal Revenue
Service. The payments will ordinarily not be subject to withholding of federal
income tax. However, backup withholding of such tax at a rate of 31% may apply
to certain shareholders by reason of the events specified in Section 3406 of the
Code and related Treasury Regulations, which include failure of a shareholder to
supply the Company or its agent with the shareholder's taxpayer identification
number. Accordingly, each Company shareholder will be asked to provide the
shareholder's correct taxpayer identification number on a Substitute Form W-9
which is to be included in the letter of transmittal to be sent to shareholders
relating to their Shares. Withholding may also apply to Company shareholders who
are otherwise exempt from such withholding, such as a foreign person, if that
person fails to properly document its status as an exempt recipient.
REDEMPTIONS OF SHARES
In August, 1997, as part of the consummation of a transaction completed as
a part of the formation of the Company, the Management Corp. paid its promissory
note due the Company in full, Messrs. Porter and Stevens paid their respective
promissory notes due the Management Corp. in full, and the Company redeemed
99,536 Shares from each of Mr. Porter and Mr. Stevens at a price of $0.72 per
Share. The net effect of the transaction was to reduce the outstanding Shares of
the Company to 19,708,123, the same as the number of Triad Systems Corporation
shares which existed immediately prior to formation of the Company and to reduce
the number of Shares beneficially owned by Mr. Stevens and Mr. Porter to the
same number of Shares they owned in Triad Systems Corporation immediately prior
to formation of the Company.
REGULATORY APPROVALS
No regulatory approval is required in connection with the proposed Merger.
State Attorneys General and private parties may bring legal actions under the
federal or state antitrust laws under certain circumstances; however, neither
the Company nor TKG believes that any ground for such an action exists.
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THE MERGER AGREEMENT
The information in this summary is qualified in its entirety by reference
to the full text of the Merger Agreement, a copy of which is attached as Exhibit
A to this Proxy Statement.
GENERAL
The Company, Acquisition LLC and TKG entered into the Merger Agreement
effective April 24, 1998. If the shareholders of the Company approve the Merger
Agreement, Acquisition LLC will be merged with and into the Company, with the
result that the separate corporate existence of Acquisition LLC will then cease.
The Company will be the Surviving Company and will be an affiliate of TKG. All
of the Company's liabilities, including contingent, environmental, tax and any
other liabilities, will become liabilities of the Surviving Company by operation
of law. There are no contractual arrangements which would cause the shareholders
to have post-closing exposure to these liabilities. At the Effective Time, the
Shares will be converted automatically into the right to receive cash, as
described below. See "-- Consideration to be Received by Shareholders." The
Shares will no longer be listed or traded in any public market, and the
registration of the Shares under the Exchange Act will be terminated.
EFFECTIVE TIME
If the Merger Agreement is approved by the Company's shareholders, the
Merger will be consummated and become effective upon the filing of the
Certificate of Merger by the Delaware Secretary of State on a date as soon as
practicable after conditions to the Merger are satisfied (or waived to the
extent permitted), or such other date agreed on by the parties. It is currently
contemplated that the Effective Time will occur on or before June 15, 1998.
There can be no assurance that all conditions to the Merger will be satisfied.
See "-- Conditions to Consummation of the Merger."
CONSIDERATION TO BE RECEIVED BY SHAREHOLDERS
In connection with the Merger, each Share outstanding immediately prior to
the Effective Time will be converted into the right to receive $1.90 in cash,
without interest, subject in certain cases to an increase of one-half of one
cent ($0.005) per Share for each week (or portion of a week) that the Closing is
deferred or extended past June 15, 1998 due to specified unanticipated and
unavoidable delays. See "-- Termination."
AMENDMENT
The Merger Agreement may be amended by written agreement signed by each of
the parties at any time before or after shareholder approval. No amendment may
be entered into by the parties after shareholder approval is received that
reduces the amount or changes the form of Merger Consideration or which in any
way materially adversely affects the rights of shareholders without further
shareholder approval. However, TKG and Acquisition LLC may, in their sole
discretion, increase the amount of the Merger Consideration by written notice to
the Company signed by or on behalf of TKG or Acquisition LLC, and such notice
shall be immediately effective in accordance with its terms, without action by
the Company.
PAYMENT FOR SHARES
Payment for Shares. TKG will engage IBJ Schroder Bank & Trust Company (the
"Disbursing Agent") to act as the paying agent for payment of the Merger
Consideration to the holders of the Shares. Instructions with regard to the
surrender of certificates formerly representing Shares, together with the letter
of transmittal to be used for that purpose, will be mailed to shareholders as
soon as practicable after the Effective Time. As soon as practicable following
receipt from the shareholder of a duly executed letter of transmittal, together
with certificates formerly representing Shares and any other items specified by
the letter of transmittal, the Disbursing Agent will pay the Merger
Consideration to the shareholder, by check or draft.
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After the Effective Time, the holder of a certificate formerly representing
Shares will cease to have any rights as a shareholder of the Company, and the
holder's sole right will be to receive the Merger Consideration with respect to
the Shares. If payment is to be made to a person other than the person in whose
name the surrendered certificate is registered, it will be a condition of
payment that the certificates so surrendered be properly endorsed or otherwise
in proper form for transfer and that the person requesting the payment shall pay
any transfer or other taxes required by reason of the payment or establish to
the satisfaction of the Surviving Company that the taxes have been paid or are
not applicable. No transfer of Shares outstanding immediately prior to the
Effective Time will be made on the stock transfer books of the Surviving Company
after the Effective Time.
To the extent permitted by law, the appointment of the Disbursing Agent may
be terminated at any time by TKG upon notice to the Disbursing Agent, or by the
Disbursing Agent upon 30 days notice to TKG. Any portion of the Merger
Consideration remaining undistributed one year after the Effective Time will be
returned to the Surviving Company, and any holders of unsurrendered Share
certificates may surrender them to the Surviving Company and (subject to
abandoned property, escheat or similar laws) receive the Merger Consideration to
which they are entitled.
SHAREHOLDERS OF THE COMPANY SHOULD NOT FORWARD THEIR SHARE CERTIFICATES TO
THE DISBURSING AGENT WITHOUT A LETTER OF TRANSMITTAL, AND SHOULD NOT RETURN
THEIR SHARE CERTIFICATES WITH THE ENCLOSED PROXY.
No Interest on Payment Amounts. In no event will holders of Shares be
entitled to receive payment of any interest on the Merger Consideration.
OPERATIONS OF THE COMPANY PRIOR TO THE MERGER
The Company has agreed that, prior to the Effective Time, the business of
the Company will be conducted in accordance with certain restrictions set forth
in the Merger Agreement. Among other things, the Company has agreed that, except
as the Company and the Acquisition LLC may otherwise agree, the Company will
operate only in the ordinary course of business, and the Company will not do any
of the following: (a) take any action which would or could reasonably be
expected to jeopardize any of its material contracts or its good standing with
any applicable governmental agency with jurisdiction over the Company, or (b)
declare, set aside or pay any dividend or other distribution in respect of its
membership interests, whether in securities, cash, or other property, redeem,
repurchase or otherwise acquire any of its outstanding Shares, or issue any
membership interests or any right to acquire or convert into membership
interests.
In addition, the Company has agreed that until the earlier of the
termination of the Merger Agreement or the Effective Time, neither the Company
nor any of its employees or representatives will take any action to solicit,
initiate or encourage the submission of any Acquisition Proposal (as defined
below) or enter into any agreement for or relating to any Acquisition Proposal
(an "Acquisition Agreement"). Notwithstanding the foregoing, at any time prior
to obtaining the approval of the Company shareholders to the Merger, the Company
may, in response to an unsolicited written request for information made by a
third party to the Company, provide information to or have discussions or
negotiations with the third party if the Advisory Board of the Company, after
having considered the advice of outside counsel, has determined in good faith
that it is the fiduciary duty under applicable law of such Advisory Board
members to do so.
An Acquisition Proposal is defined in the Merger Agreement as a proposal
for any (i) merger, consolidation or similar transaction involving the Company,
(ii) sale, lease or other disposition directly or indirectly by merger,
consolidation, share exchange or otherwise of either (a) assets of the Company
representing 75% or more of the consolidated assets of the Company in one
transaction or series of related transactions with a single purchaser or
affiliated purchasers, or (b) all or substantially all of the undeveloped
Property in one transaction or series of related transactions with a single
purchaser or affiliated purchasers (but not including solicitation of sales of
individual parcels of the undeveloped Property), (iii) issuance, or other
acquisition or disposition of (including by way of merger, consolidation, share
exchange or any similar transaction) securities (or options, rights or warrants
to purchase, or securities convertible into, such securities) representing 20%
or more of the voting power of the Company, or (iv) transaction or series of
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<PAGE> 31
transactions in which any person or group of persons would acquire beneficial
ownership or the right to acquire beneficial ownership, or any group shall have
been formed which beneficially owns or would own or would have the right to
acquire beneficial ownership of 20% or more of the outstanding Shares, other
than transactions contemplated by the Merger Agreement.
CONDITIONS TO CONSUMMATION OF THE MERGER
The Merger will occur only if the Merger Agreement is approved and adopted
by the holders of the Shares. Consummation of the Merger also is subject to the
satisfaction of the following conditions specified in the Merger Agreement,
unless the conditions are waived (to the extent waiver is permitted by law). The
failure of any of these conditions to be satisfied, if not waived, would prevent
consummation of the Merger.
The obligations of Acquisition LLC to consummate the Merger are subject to
satisfaction of the following conditions: (i) the Merger shall have been
approved by the requisite vote of the shareholders of the Company, (ii) no
temporary restraining order, preliminary or permanent injunction or other order
of any court or other judicial or administrative body of competent jurisdiction
(each, an "Injunction") which prohibits or prevents the consummation of the
Merger shall have been issued and remain in effect, (iii) the Company shall have
performed in all material respects its agreements contained in the Merger
Agreement required to be performed on or prior to the Effective Time, (iv) each
of the representations and warranties of the Company contained in the Merger
Agreement shall be true in all material respects when made on and as of the
Effective Time, and (v) the Company shall have obtained all consents, appeals,
releases or authorizations from, and shall have made all filings and
registrations to or with, any person necessary to be obtained or made in order
to consummate the transactions contemplated by the Merger Agreement.
The obligations of the Company to consummate the Merger are subject to
satisfaction of the following conditions: (i) the Merger shall have been
approved by the requisite vote of the shareholders of the Company, (ii) no
Injunction which prohibits or prevents the consummation of the Merger shall have
been issued and remain in effect, (iii) Acquisition LLC shall have performed in
all material respects its agreements contained in the Merger Agreement required
to be performed on or prior to the Effective Time, (iv) each of the
representations and warranties of Acquisition LLC contained in the Merger
Agreement shall be true in all material respects when made on and as of the
Effective Time, and (v) the Merger Consideration shall have been deposited with
the Disbursing Agent with irrevocable instructions to exchange the Shares for
the Merger Consideration in accordance with the terms of the Merger Agreement
immediately upon notification by the Company and Acquisition LLC of the
Effective Time.
TERMINATION
The Merger Agreement may be terminated and the Merger abandoned at any time
prior to the filing of Certificate of Merger with the Delaware Secretary of
State whether before or after action by the Company's shareholders and without
further approval by the Company's shareholders under any of the following
circumstances: (i) by mutual consent of the Board of Directors of Acquisition
LLC and the Company's Advisory Board; (ii) by either Acquisition LLC or the
Company, if the Merger shall not have been consummated on or before June 15,
1998; provided that either TKG or the Company may extend the effectiveness of
the Merger Agreement for up to 46 days (but in no event beyond July 31, 1998) by
notice to the other party certifying the extending party's good faith belief
that the Special Meeting can be held and the Merger can be consummated before
the expiration of such extension, and provided further that this particular
right to terminate or extend shall not be available to any party whose failure
to perform in any material respect any covenant or obligation under the Merger
Agreement has been the cause of or resulted in whole or in part in the failure
of the Merger to be consummated before June 15, 1998; (iii) by either
Acquisition LLC or the Company, if there shall be any restraining order,
permanent injunction or other order by any court which is final and
nonappealable preventing the consummation of the Merger; (iv) by either
Acquisition LLC or the Company if the Company shareholders do not approve the
Merger Agreement and the transactions contemplated thereby; (v) by Acquisition
LLC if the Merger Agreement and the transactions contemplated thereby shall not
have been submitted for approval by the Company's shareholders by June 15, 1998
unless the meeting is held later solely due to delays in obtaining clearance of
the proxy statement by the Commission,
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<PAGE> 32
in which case Acquisition LLC's right to terminate may be deferred for not more
than 46 days beyond June 15, 1998 (but in no event beyond July 31, 1998) upon
notice by the Company to Acquisition LLC certifying the Company's good faith
belief that the Special Meeting can be held and the Merger can be consummated
before the expiration of such deferral period; (vi) by Acquisition LLC, if the
Advisory Board withdraws, modifies in a manner adverse to Acquisition LLC, or
refrains from making its recommendation concerning the Merger, or the Advisory
Board shall have recommended to the Company shareholders, or taken no position
with respect to, any third party proposal regarding a merger, consolidation,
sale of assets, issuance or other acquisition of securities or similar
transaction involving the Company (an "Acquisition Proposal") or the Company
shall have entered into any agreement or understanding (written or otherwise)
related to any Acquisition Proposal, or, other than in connection with the
Company's delivery of a Superior Proposal Notice (as defined below), the
Advisory Board shall have resolved to do any of the foregoing; or (vii) by the
Company, if by a good faith vote, with the advice of outside legal counsel, in
order to avoid breaching its fiduciary duties to Company shareholders under
applicable law, (a) the Advisory Board has delivered to Acquisition LLC a
Superior Proposal Notice and five business days have passed since Acquisition
LLC received the Superior Proposal Notice and (b) the Company has paid or
simultaneously pays the Termination Fee (as defined below).
A "Superior Proposal Notice" is written notice advising Acquisition LLC
that the Advisory Board has received a Superior Proposal (as defined below)
which the Advisory Board has authorized and intends to effect, specifying the
material terms and conditions of such Superior Proposal and identifying the
person making the Superior Proposal. A "Superior Proposal" is a definitive
unconditioned agreement with a third party, with all due diligence
investigations completed, to acquire, directly or indirectly, more than 50% of
the membership interests of the Company, assets of the Company representing 75%
or more of the real estate assets of the Company in one transaction or series of
related transactions with a single purchaser or affiliated purchasers (but not
solicitation of sales of individual parcels of the Property) or all or
substantially all of the undeveloped Property in one transaction or series of
related transactions with a single purchaser or affiliated purchasers (but not
solicitation of sales of individual parcels of the undeveloped Property), and
otherwise on terms which the Advisory Board determines in its good faith
judgment to be more favorable from a financial point of view to the Company
shareholders than the Merger Agreement, the Merger and the transactions
contemplated thereby and for which either (i) all required funds are irrevocably
on deposit with a disbursing agent or depositary and are immediately payable to
shareholders upon consummation of the transaction contemplated by the Superior
Proposal or are secured by an irrevocable letter of credit deposited with the
Company for the benefit of shareholders or (ii) all debt or equity financing, to
the extent required, is then committed pursuant to fully negotiated definitive
agreements, containing only customary closing requirements for institutional
investors, signed by all parties thereto and deposited into escrow with an
independent escrow agent or title insurance company.
TERMINATION FEE
The Merger Agreement requires the Company to pay Acquisition LLC a
termination fee of $1.2 million (the "Termination Fee") if the Board of
Directors of the Company takes the action described in clause (vii) above under
the caption "-- Termination," (but only if the Company executes the agreement
contemplating the Superior Proposal within five business days after the receipt
by Acquisition LLC of the Superior Proposal Notice) or the Merger Agreement is
terminated by Acquisition LLC for any of the reasons set forth in clauses (v) or
(vi) above under such caption. In addition, the Company is required to pay
Acquisition LLC the Termination Fee if, as long as Acquisition LLC has not
materially defaulted under Sections 1, 3 and 10 of the Merger Agreement, on or
prior to November 1, 1998 (A) the Company (directly or indirectly through the
Company Manager or the Advisory Board) accepts, recommends (or takes no position
with respect to or otherwise does not recommend against), consummates, or enters
into or announces any agreement with respect to, an Acquisition Proposal, or
amends or otherwise takes action under the Company's rights agreement (the
"Rights Agreement") rendering the Rights Agreement inapplicable to an
Acquisition Proposal or redeems the rights under the Rights Agreement after an
Acquisition Proposal has been made, disclosed or announced, or has taken (or has
resolved or publicly disclosed an intention to take) any of the foregoing
actions in this clause (A), or (B) an Acquisition Proposal is consummated.
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<PAGE> 33
The Company's obligation to pay TKG or Acquisition LLC the Termination Fee
is secured by a deed of trust encumbering a parcel of real estate owned by the
Company free and clear of all liens (the "Deed of Trust"). The Deed of Trust has
been recorded in the official records of Alameda County, California. TKG shall
cause the Deed of Trust to be promptly re-conveyed upon: (i) payment of the
Termination Fee to TKG or Acquisition LLC or (ii) the expiration of November 1,
1998 without the Company having incurred an obligation to pay the Termination
Fee to TKG or Acquisition LLC.
SETTLEMENT AND FULL AND MUTUAL RELEASE
Upon execution and delivery of the Merger Agreement by the Company, TKG and
Acquisition LLC released the Company, its Advisory Board, its manager, and their
respective officers, directors, agents, employees, successors and assigns (the
"Company Releasees"), from any and all claims, demands, causes of action,
awards, judgments, orders, damages or liabilities which TKG or Acquisition LLC
(or any of them) may have (or may have the right to recover, as the case may be)
against the Company, whether known or unknown, asserted or unasserted, which
arise out of TKG's or Acquisition LLC's dealings with the Company, including but
not limited to any and all claims and obligations arising out of the Previous
Merger Agreement, the Confidentiality Agreement between TKG and Triad Park dated
as of November 25, 1997 (the "Confidentiality Agreement"), the March Special
Meeting, the matters alleged in the Delaware Action, the Delaware Order, and the
conduct of the Company Releasees leading up to and following the March Special
Meeting.
Upon the execution and delivery of the Merger Agreement by TKG and
Acquisition LLC, the Company, on behalf of itself, its Advisory Board, its
manager, and their respective officers, directors, agents, employees, successors
and assigns, and anyone claiming by or through them, released TKG and
Acquisition LLC and their respective partners, lenders, officers, directors,
heirs, administrators, agents, employees, successors and assigns (the "TKG
Releasees"), from any and all claims, demands, causes of action, awards,
judgments, damages or liabilities which they may have (or may have the right to
recover, as the case may be) against them or any of them, whether known or
unknown, asserted or unasserted, which arise in connection with the Company's
dealings with TKG or Acquisition LLC including but not limited to any and all
claims and obligations arising out of the Previous Merger Agreement, the
Confidentiality Agreement, the March Special Meeting, the filing of or matters
alleged in the Delaware Action, the Delaware Order, and the conduct of the TKG
Releasees leading up to and following the March Special Meeting.
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 Company's consolidated assets and liabilities based on the fair
values of the assets acquired and liabilities assumed.
RIGHTS OF DISSENTING SHAREHOLDERS
No appraisal rights are provided for the Company shareholders under the
Delaware limited liability company act or under the Company's limited liability
company agreement. Neither the Company, TKG or Acquisition LLC will be
voluntarily providing appraisal rights to the Company shareholders who object to
the transactions contemplated by the Merger Agreement. Neither the Company nor
TKG is aware of any appraisal rights available to objecting shareholders under
applicable law.
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<PAGE> 34
SHARE OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS
SHARE OWNERSHIP
The following table sets forth certain information, as of March 31, 1998,
with respect to the beneficial ownership of Shares by (i) all persons known by
the Company to beneficially own more than 5% of the outstanding Shares, (ii)
each Advisory Board member of the Company, (iii) each executive officer of the
Company, and (iv) all executive officers and directors of the Company as a
group. For purposes of this table, beneficial ownership of securities is defined
in accordance with the rules of the Commission and means generally the power to
vote or dispose of securities, regardless of any economic interest therein.
Except as otherwise indicated, the shareholders listed in the table have sole
voting and investment power with respect to the Shares indicated.
<TABLE>
<CAPTION>
AMOUNT AND NATURE OF
NAME AND ADDRESS OF BENEFICIAL OWNERSHIP
BENEFICIAL OWNER OF SHARES PERCENT OF CLASS(1)
------------------- -------------------- -------------------
<S> <C> <C>
Richard C. Blum......................................... 2,012,158(2) 10.2%
909 Montgomery Street, Suite 400
San Francisco, CA 94133
Manchester Securities Corp.............................. 1,914,760(3) 9.7%
712 Fifth Avenue
New York, NY 10019
Farallon Capital Management, L.L.C...................... 1,569,900(4) 8.0%
One Maritime Plaza, Suite 1325
San Francisco, CA 94111
Mentor Partners, L.P.................................... 1,384,563(5) 7.0%
500 Park Avenue
New York, NY 10022
Pioneering Management Corporation....................... 1,237,950 6.3%
60 State Street
Boston, MA 02109
M.H. Davidson & Co...................................... 1,153,300(6) 5.9%
885 Third Avenue
New York, NY 10022
Gabelli Funds, Inc...................................... 1,031,200(7) 5.2%
One Corporate Center
Rye, New York 10580-1434
James R. Porter......................................... 828,664 4.2%
3055 Triad Drive
Livermore, CA 94550
William W. Stevens...................................... 324,154(8) 1.6%
3055 Triad Drive
Livermore, CA 94550
3055 Management Corp.................................... 199,072(9) 1.0%
3055 Triad Drive
Livermore, CA 94550
Stanley F. Marquis...................................... 136,824 0.7%
3055 Triad Drive
Livermore, CA 94550
Larry D. McReynolds..................................... 19,317 0.1%
3055 Triad Drive
Livermore, CA 94550
Martin W. Inderbitzen................................... 0 0%
3055 Triad Drive
Livermore, CA 94550
All Executive Officers and Advisory Board Members as a
Group................................................. 1,508,031 7.7%
</TABLE>
- - - ---------------
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<PAGE> 35
(1) Except as indicated in the footnotes to this table, the persons named in the
table have sole voting and investment power with respect to all Shares shown
as beneficially owned by them, subject to community property laws, where
applicable.
(2) Richard C. Blum ("Mr. Blum") is a controlling person and Chairman of Richard
C. Blum & Associates Inc. ("Inc."), which is the general partner of Richard
C. Blum & Associates LP ("LP"). These Shares are directly owned by three
limited partnerships for which LP is the general partner (BK Capital
Partners II, 111,111 Shares; BK Capital Partners III, 500,000 Shares; and BK
Capital Partners IV, 1,387,047 Shares). Mr. Blum disclaims beneficial
ownership of these securities except to the extent of his pecuniary interest
thereof.
(3) Manchester Securities Corp. is wholly-owned by Elliott Associates, L.P.
("Elliott"). Paul E. Singer ("Singer") and Braxton Associates, L.P., a New
Jersey limited partnership, which is controlled by Singer, are the general
partners of Elliott.
(4) Includes 1,363,200 Shares held by Farallon Capital Partners, L.P. ("FCP")
and 206,700 Shares held by Tinicum Partners, L.P. ("Tinicum"). Farallon
Partners, L.L.C. ("FPLLC") is the General Partner of FCP and Tinicum. Thomas
F. Steyer is the senior managing member of FPLLC.
(5) Mentor Partners, L.P. is a limited partnership whose general partner is WTG
& Co., L.P. (the "General Partner"). The general partner of the General
Partner is D. Tisch & Co., Inc., all of the common stock of which is owned
by Daniel R. Tisch.
(6) The Shares are held as part of a group that includes Davidson Kempner
Advisers, Inc. ("DKAI"), Davidson Kempner Endowment Partners ("DKEP"),
Davidson Kempner Institutional Partners, L.P. ("DKIP"), Davidson Kempner
International Advisors, L.L.C. ("DKIA"), Davidson Kempner International
("DKIL"), Davidson Kempner Partners ("DKP"), M.H. Davidson & Co. ("MHD
Co."), MHD Management Co. ("MHD"), Marvin H. Davidson, Michael J. Leffell,
Scott E. Davidson, Stephen M. Dowicz and Thomas L. Kempner, Jr. MHD is the
general partner of DKEP and DKP; Messers. Davidson, Leffell, Davidson,
Dowicz and Kempner are the general partners of MHD and MHD Co. DKAI is the
general partner of DKIP; Messers. Davidson, Leffell, Davidson, Dowicz and
Kempner are the sole shareholders of DKAI. DKIA is the investment manager
for DKIL.
(7) Includes 205,000 Shares held by GAMCO Investors, Inc., 169,900 Shares held
by Gabelli Performance Partnership L.P. and 656,300 Shares held by Gabelli
Associates Fund. Mario J. Gabelli is the Chairman, Chief Executive Officer
and Chief Investment Officer of Gabelli Funds, Inc.
(8) Includes 324,154 Shares held as tenant-in-common with Virda J. Stevens.
(9) In addition to the totals shown in the above table, Messrs. Porter and
Stevens are deemed to be the beneficial owners of 199,072 Shares by virtue
of their respective 50% equity ownership in 3055 Management Corp.
TRANSACTIONS BY CERTAIN PERSONS IN THE SHARES
No transactions in the Company's Shares were effected by any Advisory Board
member or executive officer of the Company during the 60 day period preceding
the date of this Proxy Statement.
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<PAGE> 36
MANAGEMENT OF THE COMPANY, TKG
AND ACQUISITION LLC
Certain information concerning the directors and executive officers of the
Company, TKG and Acquisition LLC, is set forth below. Unless otherwise
indicated, each such person is a citizen of the United States and the address of
each such person is that of the Company, TKG or the Acquisition LLC, as the case
may be. Such addresses are set forth under the caption "SUMMARY -- The Company,"
"-- TKG" and "-- Acquisition LLC".
THE COMPANY
The names, ages, principal occupations and employment history for the past
five years of the members of the Advisory Board and executive officers of the
Company, and the Board of Directors and executive officers of the Management
Corp. are set forth below.
James R. Porter, 61, has been a member of the Company's Advisory Board
since the Company's inception in February, 1997, and has been a director and
Vice President of the Management Corp. since its inception in February, 1997. He
is Chairman of the Board of CCI/Triad. He was President and Chief Executive
Officer of Triad from September, 1985 until its merger with Cooperative
Computing, Inc. in February, 1997. He is also a director of Silicon Valley Bank,
Brock International, Inc. and Cellular Technical Services, Inc.
William W. Stevens, 65, has been a member of the Company's Advisory Board
since the Company's inception in February, 1997, and has been a director and
Chairman of the Management Corp. since its inception in February, 1997. He was
Chairman of the Board of Triad from 1972 until its merger with Cooperative
Computing, Inc. in February, 1997. He is the founder of Triad and was its
President and Chief Executive Officer from its inception until September, 1985.
Stanley F. Marquis, 54, has been a member of the Company's Advisory Board
since the Company's inception in February, 1997. He is also Secretary of the
Company and Vice President of Management Corp. He was President of Triad Systems
Financial Corporation from August, 1983 until June 30, 1997. Mr. Marquis was
also Treasurer of Triad from September, 1987 until June 30, 1997, and was its
Vice President, Finance from December, 1994 until March, 1997.
Martin W. Inderbitzen, 45, has been a member of the Company's Advisory
Board since March, 1997. He has been a member of the State Bar of California
since 1976, maintaining a private general civil law practice since that time.
His practice has emphasized land use entitlement and zoning work almost
exclusively for the past ten years.
Larry D. McReynolds, 52, has been the President of the Company since its
inception in February, 1997. He joined Triad in September, 1984 as its Manager,
Facilities and became Manager, Real Estate and Facilities in June, 1992. In
July, 1994 he also assumed responsibility for Triad's Office Services. He is
currently employed in similar capacities for CCI/Triad.
TKG
The names, principal occupations and employment history for the past five
years of the directors and executive officers of TKG are set forth below.
John T. Kontrabecki, 46, has been President and Chairman of the Board of
TKG since its inception in 1983. He is also the President and Chairman of the
Board of the Central European Industrial Development Company. Before this he was
the Chief Financial Officer of Berg & Berg Developers in Cupertino, California
and held executive positions with Richard Ellis, Inc. and Wells Fargo Bank in
San Francisco, California. He has been a member of the State Bar of California
since 1980.
Brian R. Burrough, 36 has been Vice President and Director of Development
for TKG since July 1995. Before this, he was with Paragon Group, Inc. for eight
years in Los Angeles and Orange County, California and in Dallas, Texas.
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<PAGE> 37
Steven Moriarty, 30, has been Vice President for Asset Management for TKG
since January 1995. Before this, he held a similar position with TransAmerica
Realty Corporation and Cushman & Wakefield in San Francisco and San Jose,
California.
Stephanie Hahn, 36, has been Vice President Marketing for TKG since July
1992. Before this, she was Director of Marketing for Northern California with R
& B Properties, Inc.
ACQUISITION LLC. TKG is the Managing Member of Acquisition LLC. All
information regarding the directors and executive officers of TKG may be found
above under the heading "-- TKG.".
SHAREHOLDER PROPOSALS
In the event the Merger is not consummated for any reason, proposals of
shareholders intended to be presented at the 1998 annual meeting of shareholders
must be received by the Company at its principal executive offices not later
than June 30, 1998 for inclusion in the Company's proxy statement and form of
proxy relating to that meeting. Shareholders should mail any proposals by
certified mail return receipt requested.
INDEPENDENT PUBLIC ACCOUNTANTS
The financial statements of the Company as of December 31, 1997, contained
in Exhibit B and incorporated by reference in this Proxy Statement, have been
audited by Coopers & Lybrand LLP, independent public accountants.
A representative of Coopers & Lybrand LLP will be at the Special Meeting to
answer questions by shareholders and will have the opportunity to make a
statement if so desired.
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of the
Exchange Act and, in accordance therewith, files reports, proxy statements and
other information with the Commission. Such reports, proxy statements and other
information can be inspected and copies made at the public reference facilities
of the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and the Commission's regional offices at Seven World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material can also be obtained from
the Public Reference Section of the Commission at its Washington, D.C. address
at prescribed rates. The Commission also maintains a Web site address,
http://www.sec.gov.
Copies of all documents filed by the Company pursuant to sections 13(a),
13(c), 14 or 15(d) or the Exchange Act after the date of this Proxy Statement
and prior to the date of the Special Meeting are available without charge upon
written or oral request from Larry D. McReynolds, President, Triad Park, LLC,
3055 Triad Drive, Livermore, California 94550 (telephone (510) 449-0606).
By Order of the Advisory Board
LOGO
James R. Porter
Vice President, 3055 Management Corp.,
Manager of the Company
Livermore, California
May , 1998
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<PAGE> 38
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
THE KONTRABECKI GROUP, INC.
TKG ACQUISITION COMPANY, LLC
AND
TRIAD PARK, LLC
DATED AS OF APRIL 24, 1998
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of April 24, 1998 (this "Merger
Agreement") by and among THE KONTRABECKI GROUP, INC. (d/b/a/ TKG INTERNATIONAL),
a California corporation ("TKG"), TKG ACQUISITION COMPANY, LLC, a Delaware
limited liability company ("Acquisition"), and TRIAD PARK, LLC, a Delaware
limited liability company (the "Company").
WITNESSETH:
WHEREAS, Section 18-209 of the Delaware Limited Liability Company Act (the
"LLCA") authorizes the merger of one Delaware limited liability company with and
into another Delaware limited liability company;
WHEREAS, TKG, which is the manager of Acquisition (the "Acquisition
Manager"), has determined, and the holders of membership interests in
Acquisition (together with their successors and assigns, the "Acquisition Share
Holders") have determined that it is advisable and in the best interests of
Acquisition and the Acquisition Share Holders, for Acquisition to merge with and
into the Company with the result that the Acquisition Share Holders shall
acquire all of the membership interests in the Company (the "Company Shares");
WHEREAS, in furtherance of such acquisition, TKG has approved a merger (the
"Merger") of Acquisition with and into the Company in accordance with the LLCA
upon the terms and subject to the conditions set forth herein, and the manager
(the "Company Manager") and advisory board (the "Advisory Board") of the Company
have approved the Merger in accordance with the LLCA, upon the terms and subject
to the conditions set forth herein, and recommend that the Merger be accepted by
the holders of the Company Shares (the "Company Share Holders");
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties and agreements contained herein, the parties hereto
agree as follows:
SECTION 1. Merger
1.1. Merger. Upon the terms and subject to the conditions hereof, at the
Effective Time (as defined below in Section 1.2), Acquisition shall be merged
into the Company and the separate existence of Acquisition shall thereupon
cease, and the name of the Company, as the limited liability company surviving
in the Merger (the "Surviving LLC"), shall by virtue of the Merger remain "Triad
Park, LLC."
1.2. Effective Time of the Merger. The Merger shall become effective when a
properly executed Certificate of Merger is duly filed with the Secretary of
State of the State of Delaware, or at such later date and time as may be
specified therein, which filing shall be made contemporaneously with (or as soon
as practicable after) the closing of the transactions contemplated by this
Merger Agreement in accordance with Section 3.6. When used in this Merger
Agreement, the term "Effective Time" shall mean the date and time at which such
filing shall have been made or such later date and time as may be specified in
such filing.
1.3. Effects of the Merger. The Merger shall have the effects set forth in
the applicable provisions of the LLCA. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, except as
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otherwise provided herein, all of the property, rights, privileges, powers and
franchises of Acquisition and the Company shall vest in the Surviving LLC, and
all debts, liabilities and duties of Acquisition and the Company shall become
the debts, liabilities and duties of the Surviving LLC.
SECTION 2. The Surviving LLC
2.1. Limited Liability Company Agreement. The limited liability company
agreement of Acquisition as in effect immediately prior to the Effective Time
shall be the limited liability company agreement of the Surviving LLC after the
Effective Time except that Section 1.2 thereof shall be amended to state that
the name of the company is Triad Park, LLC, and subject to Section 7.4(c),
thereafter may be amended in accordance with its terms and as provided by law
and this Merger Agreement.
2.2. By-Laws. The by-laws of Acquisition as in effect on the Effective Time
shall be the by-laws of the Surviving LLC.
2.3. Manager; Advisory Board. The Acquisition Manager immediately prior to
the Effective Time shall be the manager of the Surviving LLC until after the
Effective Time a successor manager is designated in accordance with the limited
liability company agreement of the Surviving LLC and the LLCA. The Surviving LLC
shall not have an advisory board.
SECTION 3. Conversion of Securities
3.1. Conversion. As of the Effective Time, by virtue of the Merger and
without any action on the part of any Company Share Holder:
(a) All Company Shares that are held by the Company shall be canceled.
(b) Each remaining Company Share issued and outstanding immediately
prior to the Effective Time shall be converted into the right to receive a
cash amount equal to the quotient obtained by dividing $37,445,433.70 by
the sum of (i) the total number of Company Shares issued and outstanding as
of the Effective Time (other than Company Shares to be canceled pursuant to
this Agreement) and (ii) the total number of Company Shares issuable
pursuant to all options, warrants, rights, convertible debt instruments and
securities, and other equity or debt securities or obligations outstanding
as of the Effective Time, whether vested or unvested, which are
exerciseable for or convertible into Company Shares (hereafter referred to
as the "Merger Consideration" whether on a per share or per Share Holder
basis or in the aggregate, as the context may require). In the event that
the Closing Date is deferred or extended past June 15, 1998 pursuant to
Section 9.1(b) or 9.1(e), the Merger Consideration shall be increased by
one-half of one cent ($0.005) per share for each week (or portion of a
week) that the Closing Date is so deferred or extended. Except for the
payment of such additional Merger Consideration in the event of such a
deferral or extension, in no event shall the Merger Consideration payable
by TKG and Acquisition for the total equity interest of the Company exceed
$37,445,433.70.
(c) Each issued and outstanding membership interest in Acquisition
("Acquisition Share") shall be converted into and become one membership
interest in the Surviving LLC.
3.2. Disbursement of Merger Consideration.
(a) Pursuant to an irrevocable agreement to be entered into on or before
the Effective Time between Acquisition and a disbursing agent (the "Disbursing
Agent") for the benefit of the Company Share Holders (which shall be a
commercial bank or trust company with capital of at least $200,000,000 or
otherwise reasonably satisfactory to the Company and Acquisition), Acquisition
or the Surviving LLC shall deposit or cause to be deposited with the Disbursing
Agent, in trust for the benefit of the Company's Share Holders, at the Closing,
the Merger Consideration consisting of the cash (in immediately available funds)
to which the Company Share Holders shall be entitled pursuant to Section 3.1(b).
Pending any payments of cash pursuant to Section 3.1(b) of this Merger
Agreement, such funds shall be held and invested by the Disbursing Agent in
interest bearing investments with minimal or no risk to capital as directed by
the Surviving LLC, and any earnings with respect to such funds shall be paid to
the Surviving LLC when requested by the Surviving LLC.
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Any funds remaining with the Disbursing Agent one year after the Effective Time
shall be released by the Disbursing Agent to the Surviving LLC after which time
persons entitled thereto may look, subject to applicable escheat and other
similar laws, only to the Surviving LLC for delivery thereof.
(b) Promptly upon the Effective Time the Surviving LLC shall notify the
Disbursing Agent of the effectiveness of the Merger and shall cause the
Disbursing Agent, pursuant to the irrevocable instructions, to mail to each
person who was, immediately prior to the Effective Time, a record holder of an
outstanding certificate or certificates which prior thereto represented Company
Shares ("Certificates") a notice and transmittal form advising such holder of
the effectiveness of the Merger and the procedure for surrendering to the
Disbursing Agent Certificates for exchange for the Merger Consideration. Each
holder of Certificates, upon proper surrender thereof to the Disbursing Agent
together with such transmittal form, duly completed and validly executed in
accordance with the instructions thereto, shall be entitled to receive the
Merger Consideration evidenced by such Certificates, without any interest
thereon, in exchange for such Certificates and such Certificates shall forthwith
be canceled. Until properly surrendered and exchanged, Certificates shall, from
and after the Effective Time, be deemed for all purposes to evidence only the
right to receive the Merger Consideration. Notwithstanding the foregoing,
neither the Disbursing Agent nor any party hereto shall be liable to a holder of
Certificates for any amount which may be required to be paid to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(c) If delivery of the Merger Consideration in respect of canceled Company
Shares is to be made to a person other than the person in whose name a
surrendered Certificate is registered, it shall be a condition to such delivery
or payment that the Certificate so surrendered shall be properly endorsed or
shall be otherwise in proper form for transfer and that the person requesting
such a delivery or payment shall have paid any transfer and other taxes required
by reason of such delivery or payment in a name other than that of the
registered holder of the Certificate surrendered or shall have established to
the satisfaction of the Surviving LLC and the Disbursing Agent that such tax
either has been paid or is not payable.
3.3. Company Share Holders' Meeting. Unless this Merger Agreement has been
terminated pursuant to Section 9.1, the Company shall take all action necessary,
in accordance with applicable law and its limited liability company agreement
and by-laws, to convene a special meeting of the Company Share Holders entitled
to vote thereat as promptly as practicable for the purpose of considering and
voting on the approval and adoption of this Merger Agreement (the "Company
Meeting"). Subject to Section 7.6(d), the Company Manager and Advisory Board
will recommend that Company Share Holders entitled to vote thereon vote in favor
of and approve the Merger and the approval and adoption of this Merger Agreement
at the Company Meeting. At the Company Meeting, all of the Company Shares then
owned by Acquisition, or with respect to which Acquisition holds the power to
direct the voting, shall be voted in favor of approval of the Merger and
approval and adoption of this Merger Agreement.
3.4. Closing of the Company's Transfer Books. At the close of business on
the Effective Time, the Company Share transfer books shall be closed and no
transfer of any Company Shares shall be made thereafter. In the event that,
after the Effective Time, Certificates are presented to the Surviving LLC, they
shall be canceled and exchanged for the Merger Consideration as provided in
Sections 3.1(b) and 3.2(b).
3.5. Assistance in Consummation of the Merger. Each of Acquisition and the
Company shall provide all reasonable assistance to, and shall cooperate with,
each other to bring about the consummation of the Merger as soon as possible in
accordance with the terms and conditions of this Merger Agreement.
3.6. Closing. The closing of the transactions contemplated by this Merger
Agreement (the "Closing") shall take place (i) at the offices of The Kontrabecki
Group, Inc., 2755 Campus Drive, Suite 100, San Mateo, CA 94403 at 10:00 A.M.
local time or as soon as practicable (but in any event within three business
days) after the day on which the last of the conditions set forth in Section 8
is fulfilled or waived, but in no event later than June 15, 1998, unless
extended by mutual agreement or otherwise pursuant to Section 9.1(b) or 9.1(e),
or (ii) at such other time and place as Acquisition and the Company shall agree
in writing. At the Closing: (i) the Company and Acquisition shall execute a
Certificate of Merger for the Merger for filing with the Delaware Secretary of
State; (ii) TKG and Acquisition shall then cause the Merger Consideration to be
transferred by wire transfer to the Disbursing Agent to be held by the
Disbursing Agent in escrow pending and
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subject to the filing of the Certificate of Merger for the Merger; (iii) upon
confirmation of the initiation of the wire transfer of the Merger Consideration
to the Disbursing Agent, the Company and Acquisition shall cause the Certificate
of Merger (or a facsimile thereof) to be filed with the Delaware Secretary of
State; and (iv) upon confirmation that the Certificate of Merger for the Merger
has been filed, the Merger Consideration shall be released from escrow for
distribution by the Disbursing Agent to the Company Share Holders in accordance
with Section 3.2.
SECTION 4. Representations and Warranties of Acquisition & TKG
Acquisition and TKG represent and warrant to the Company as follows:
4.1. Existence; Good Standing; Authority. Acquisition is (or will prior to
the Effective Time be) a limited liability company organized, validly existing
and in good standing under the laws of the State of Delaware, and will be, by
the Effective Time, duly licensed or qualified to do business as a foreign
limited liability company in, and in good standing under the laws of, the State
of California if and to the extent so required by the nature of its business.
Nothing herein shall be deemed to be an admission that such qualification is
necessary and nothing herein shall require Acquisition to so qualify, unless the
failure to be so qualified would materially and adversely affect the ability of
Acquisition to consummate the transactions contemplated by this Merger
Agreement. TKG is a corporation organized, validly existing and in good standing
under the laws of the State of California, and is in good standing under the
laws of California. Acquisition and TKG have all requisite power and authority
to own, operate and lease their respective properties and carry on their
respective business as and where conducted at the respective time of its
execution of this Merger Agreement. The copies of the limited liability company
agreement and by-laws of Acquisition to be delivered to the Company prior to the
Effective Time will be true and correct and are in full force and effect, and
there will not be any amendments or alterations to such documents.
4.2. Authorization, Validity and Effect of Agreements. TKG and Aquisition
have the requisite power and authority to execute and deliver this Merger
Agreement and to perform their respective obligations hereunder. The execution
and delivery of this Merger Agreement by Acquisition and TKG, and consummation
by Acquisition of the transactions contemplated hereby, have been duly
authorized by all requisite action under Acquisition's limited liability company
agreement, TKG's articles of incorporation, their respective by-laws and
applicable law. The Acquisition Manager is authorized as it deems appropriate to
execute, acknowledge, verify, deliver, file and record, for and in the name of
Acquisition, the Certificate of Merger and any and all other documents and
instruments required to consummate the transactions contemplated hereunder. This
Merger Agreement constitutes a valid and binding obligation of Acquisition and
TKG enforceable against Acquisition and TKG in accordance with its terms. No
other proceedings on the part of TKG or Acquisition are necessary to authorize
this Merger Agreement and the transactions contemplated hereby.
4.3. Proxy Statement. None of the information supplied in writing by
Acquisition and its affiliates specifically for inclusion in the proxy statement
of the Company (the "Proxy Statement") required to be mailed to the Company
Share Holders in connection with the Merger shall, at the time the Proxy
Statement is mailed, at the time of the Company Meeting or at the Effective
Time, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
4.4. Consents and Approvals; no Violation. Neither the execution and
delivery of this Merger Agreement by Acquisition nor the consummation of the
transactions contemplated hereby will (i) conflict with or result in any breach
of any provision of the limited liability company agreement, articles of
incorporation or the respective by-laws of Acquisition or TKG, (ii) require any
consent, approval, authorization or permit of, or filing with or notification
to, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (each a "Governmental
Entity"), except (A) pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (B) the filing of the Certificate of Merger pursuant to
the LLCA or (C) where the failure to obtain such consent, approval,
authorization or permit, or to make such filing or notification, would not
prevent or delay consummation of the
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Merger or would not otherwise prevent Acquisition from performing its
obligations under this Merger Agreement; (iii) result in a default (or give rise
to any right of termination, cancellation or acceleration) under any of the
terms, conditions or provisions of any note, license, agreement or other
instrument or obligation to which Acquisition is a party or by which it or any
of its assets may be bound, except for such defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents have
been obtained or which, in the aggregate, would not materially and adversely
affect the ability of Acquisition to consummate the transactions contemplated by
this Merger Agreement; or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Acquisition, or any of its assets,
except for violations which would not materially and adversely affect the
ability of Acquisition to consummate the transactions contemplated by this
Merger Agreement.
4.5. Financing. Acquisition at the Effective Time will have or will have
deposited (or caused to be deposited) with the Disbursing Agent (as appropriate)
the funds necessary to consummate the Merger and the transactions contemplated
hereby, and to pay related fees and expenses (the "Funds").
SECTION 5. Representations and Warranties of the Company
Except as provided to the contrary in the disclosure schedule provided in
connection with the Previous Merger Agreement (as defined in Section 12.1) and
in written information (or, in the case of Section 5.21, written agreements)
provided by the Company to TKG or Acquisition since February 1, 1998
(collectively the "Disclosure Schedule") and the specific Schedules referenced
in this Section 5, the Company makes the representations and warranties to
Acquisition in the following subsections of this Section. For purposes of this
Section 5, "to the best of the Company's knowledge" or "known to the Company" or
the like shall mean the actual knowledge (without any obligation of further
investigation and without any personal liability) of James R. Porter, Stanley F.
Marquis, Larry D. McReynolds and Patrick J. Kernan.
5.1. Existence; Good Standing; Authority. The Company is a limited
liability company organized, validly existing and in good standing under the
laws of the State of Delaware, and is duly licensed or qualified to do business
as a foreign limited liability company in, and is or will be in good standing
under the laws of California which constitute all of the jurisdictions in which
the character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so qualified would not have a Material Adverse Effect (as defined
below). The Company has all requisite power and authority to own, operate and
lease its properties and carry on its business as and where now conducted. The
copies of the limited liability company agreement and by-laws of the Company
delivered to Acquisition are true and correct and are in full force and effect,
and there have not been any amendments or alterations to such documents. As used
in this Merger Agreement, "Material Adverse Effect" shall mean a material
adverse effect on the business, assets, liabilities, condition (financial or
otherwise), prospects or results of operations of the Company.
5.2. Authorization, Validity and Effect of Agreements. The Company has the
requisite power and authority to execute and deliver this Merger Agreement and
to perform its obligations hereunder. The execution and delivery of this Merger
Agreement by the Company, and consummation by the Company of the transactions
contemplated hereby, have been duly authorized by all requisite action under the
Company's limited liability company agreement, by-laws and the LLCA, subject
only, in the case of this Merger Agreement, to the requisite approval of this
Merger Agreement by the holders of a majority of the Company Shares. The Company
Manager is authorized as it deems appropriate to execute, acknowledge, verify,
deliver, file and record, for and in the name of the Company, the Certificate of
Merger and any and all other documents and instruments required to consummate
the transactions contemplated hereunder. This Merger Agreement constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms. Except for the requisite approval by the holders of
Company Shares, no other proceedings on the part of the Company are necessary to
authorize this Merger Agreement and the transactions contemplated hereby.
5.3. Consents and Approvals; no Violation. Neither the execution and
delivery of this Merger Agreement by the Company nor the consummation of the
transactions contemplated hereby will (i) conflict
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with or result in any breach of any provision of the limited liability company
agreement or by-laws of the Company, (ii) require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity, except (A) pursuant to the Exchange Act, (B) the filing of the
Certificate of Merger pursuant to the LLCA or (C) where the failure to obtain
such consent, approval, authorization or permit, or to make such filing or
notification, would not cause a Material Adverse Effect; (iii) result in a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, license, agreement
or other instrument or obligation to which the Company is a party or by which it
or any of its assets may be bound, except for such defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained or which, in the aggregate, would not materially and
adversely affect the ability of the Company to consummate the transactions
contemplated by this Merger Agreement; or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company or any
of its assets, except for violations which would not cause a Material Adverse
Effect.
5.4. Capitalization. As of the date hereof, 19,708,123 Company Shares were
validly issued and outstanding. As of the date hereof, there are no bonds,
debentures, notes, other indebtedness or any other interest having the right to
vote on any matters on which the Company's Share Holders may vote issued or
outstanding. As of the date hereof, there are no options, warrants, calls or
other rights, agreements or commitments presently outstanding obligating the
Company to issue, deliver or sell Company Shares or debt securities, or
obligating the Company to grant, extend or enter into any such option, warrant,
call or other such right, agreement or commitment, other than pursuant to the
Rights Agreement ("Rights Agreement") dated as of April 28, 1997, between the
Company and GEMISYS Corporation, as Rights Agent. The Merger contemplated by
this Agreement is (or will at the Effective Time be) a Permitted Offer within
the meaning of the Rights Agreement.
5.5. No Subsidiaries. The Company does not directly or indirectly own any
securities of or any other interest in any other corporation, partnership, joint
venture or other business association or entity.
5.6. Reports and Financial Statements. The Company has previously furnished
Acquisition with true and complete copies of (i) its Registration Statement on
Form 10-SB, as filed with the Commission, (ii) its Quarterly Reports on Form
10-QSB for the quarters ended June 30, 1997 and September 30, 1997 and its
Annual Report on Form 10-KSB for the year ended December 31, 1997, as filed with
the Commission and (iii) all other reports or registration statements filed by
the Company with the Commission that the Company was required to file with the
Commission (the documents listed in clauses (i) through (iii) being referred to
herein collectively as the "Company SEC Reports"). As of their respective dates,
the Company SEC Reports complied in all material respects with the requirements
of the Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the Commission thereunder applicable to such Company SEC Reports.
As of their respective dates, the Company SEC Reports did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim financial statements of
the Company included in the Company SEC Reports comply as to form in all
material respects with applicable accounting requirements and with the published
rules and regulations of the Commission with respect thereto, and the financial
statements included in the Company SEC Reports have been prepared in accordance
with generally accepted accounting principles ("GAAP") applied on a consistent
basis (except as may be indicated therein or in the notes thereto) and fairly
present in all material respects the financial position of the Company at the
dates thereof and the results of its operations and changes in financial
position for the periods then ended, subject, in the case of the unaudited
interim financial statements, to normal year-end audit adjustments and any other
adjustments described therein.
5.7. Absence of Certain Changes or Events. Except as disclosed in the
Company SEC Reports filed prior to the date hereof or in the Disclosure
Schedule, since February 10, 1997, the date the Company was organized, there has
not been (i) any transaction, commitment, dispute or other event or condition
(financial or otherwise) of any character (whether or not in the ordinary course
of business), individually or in the aggregate, having a Material Adverse
Effect; (ii) any damage, destruction or loss, whether or not covered by
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insurance, which, insofar as reasonably can be foreseen, in the future would be
likely to have a Material Adverse Effect; (iii) any declaration, setting aside
or payment of any dividend or other distribution (whether in cash, stock or
property) with respect to the Company Shares; (iv) any material increase in the
benefits under, or the establishment or amendment of, any bonus, insurance,
severance, deferred compensation, pension, retirement, profit sharing,
performance awards, Company Share purchase or other employee benefit plan, or
any increase in the compensation payable or to become payable to any of the
employees of the Company, except for increases in salaries or wages payable or
to become payable in the ordinary course of business and consistent with past
practice; (v) any change by the Company in its significant accounting policies;
or (vi) any entry into any commitment or transaction material to the Company
(including, without limitation, any borrowing or sale of assets) except in the
ordinary course of business consistent with past practice.
5.8. Properties.
(a) The title reports identified in the Disclosure Schedule list all real
property owned (the "Owned Property") or leased as lessor or lessee (the "Leased
Property" and collectively with the Owned Property, the "Property") by the
Company.
(b) Except as stated in the Disclosure Schedule, none of the Property is
subject to any purchase options, rights of first refusal or other preferential
purchase rights.
(c) The Leased Property has been leased by the Company on the terms and
conditions stated in the lease and amendments identified in the Disclosure
Schedule. All obligations towards the lessors arising from the lease agreements
referred to before have been complied with in all material respects. There are
no disputes regarding those agreements pending or, to the knowledge of the
Company, threatened.
(d) To the best of the Company's knowledge, except as set forth on the
Disclosure Schedule, no adjacent buildings or improvements extend across the
boundaries of the Owned Property and no buildings or improvements forming part
of the Owned Property extend onto any adjacent sites.
(e) Other than properties in the Triad Business Park which have been sold,
the Company has not owned or leased any property except the Property.
(f) The Disclosure Schedule contains a true, correct and complete list of
all leases, subleases, tenancies, licenses and other rights of occupancy or use
for all or any portion of any Property, and all guarantees and other agreements
in respect thereof, all as amended, renewed and extended to the date thereof,
whether oral or written (the "Leases").
(g) The Company has heretofore delivered to Acquisition a true, correct and
complete copy of each Lease (or written summary thereof in the case of oral
Leases).
(h) Each current tenant (the "Tenant") is in actual possession of its
leased premises. No Rents violate any applicable law. For purposes of this
Section 5, the term "Rents" is defined to mean the basic, and additional and
percentage rents, all pass-throughs of taxes, expenses or other items, and all
other sums payable by the Tenant to the lessor (including, without limitation,
utility charges) during the original and any renewal terms thereof.
(i) The following is true with respect to each Lease:
(1) the Lease is valid and subsisting and in full force and effect
strictly in accordance with its terms and has not been modified, in writing
or otherwise, except as set forth on the Disclosure Schedule;
(2) no Lease contains any purchase or similar option;
(3) all obligations of the lessor thereunder which accrue prior to the
Effective Time shall have been performed and paid for in full by the
Company;
(4) to the best of the Company's knowledge, there has been no default
or event which, with the giving of notice or the lapse of time, or both,
would constitute a default, on the part of the Tenant or the
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lessor thereunder, and the Tenant has not asserted and has no defense to,
offset or claim against, its Rent or the performance of its other
obligations under the Lease;
(5) the Tenant has not prepaid any Rent; and the Rents have been
assigned to the Company's lender as additional security.
There are no material construction, management, leasing, service,
equipment, supply, maintenance or concession agreements (oral or written, formal
or informal) with respect to or affecting all or any portion of the Property
except as set forth on Schedule 5.21 (the "Property Contracts"). A current,
complete and correct copy of each Property Contract has been delivered to
Acquisition. Each Property Contract is valid and subsisting and all amounts due
thereunder have been paid. Except as set out in the Disclosure Schedule, neither
the Company nor any of its agents is in default under any Property Contract or,
to the best of the Company's knowledge, has received any notice from any party
to any Contract claiming the existence of any default or breach hereunder and no
event or omission has occurred which, with the giving of notice or the lapse of
time would constitute a default. Except as set out in the Disclosure Schedule,
all Property Contracts are terminable without cause on thirty (30) days' notice
or less without payment of any penalty or termination payment.
(j) To the best of the Company's knowledge, the continued maintenance,
operation and use of any buildings, structures or other improvements on each
Property for their respective present purposes will not violate any federal,
state, county or municipal laws, ordinances, orders, codes, regulations or
requirements in certificates of occupancy relating to housing, building, safety,
health, fire or zoning (together "Applicable Laws") affecting all or any portion
of each improved Property.
(k) To the best of the Company's knowledge, no written or oral notice has
been given to the Company by any holder of any mortgage or deed of trust on any
Property, by any insurance company which has issued a policy with respect to any
of any Property, or by any board of fire underwriters (or other body exercising
similar functions), any of which notices claim any defect or deficiency or
request the performance of any repairs, alterations or other work to any
Property.
(l) All state, township, county, school district and other taxes levied or
assessed against any Property and any penalties or interest due and payable
thereon prior to the Effective Time, and all assessments of any kind levied
prior to the Effective Time, if any, will have been paid in full by the Company
and all appropriate tax returns relating to the same have been filed with the
proper authorities.
(m) The Company has no notice of any proposed increase in the assessed
valuation. To the best of the Company's knowledge, there is no proceeding
pending for the reduction of the assessed valuation of all or any portion of any
Property.
(n) The Company has not received any written or oral notice for assessments
for public improvements against any Property which remain unpaid, and to the
best of the Company's knowledge, no such assessment has been proposed.
5.9. Condemnation. There is no pending condemnation, expropriation, eminent
domain or similar proceeding affecting all or any portion of any Property and,
to the best of the Company's knowledge, no such proceeding is contemplated.
5.10. Environmental Matters. For the purposes of this Merger Agreement:
"Environmental Matters" means any matter arising out of, relating to or
resulting from pollution, protection of the environment and human health or
safety, health or safety of the public or employees, sanitation, and any matters
relating to emissions, discharges, Releases or threatened Releases of
Environmentally Relevant Materials or otherwise arising out of, resulting from
or relating to the presence, manufacture, packaging, labeling, processing,
distribution, use, generation, treatment, storage, disposal, transport or
handling of or exposure to Environmentally Relevant Materials or arising out of,
resulting from, or relating to compliance with Environmental Laws.
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"Environmental Costs" means, without limitation, any costs of
investigation, remediation, removal, or other response actions, losses,
liabilities, obligations, payments, damages (including, but not limited to,
bodily injury, death or property damage), civil or criminal fines or penalties,
costs of shutdown, diminution in operations, product withdrawals or
discontinuance of distribution of products (including, but not limited to,
direct or indirect damages), judgments, settlements, interest, costs and
expenses (including attorney's fees and costs) arising out of, relating to or
resulting from any Environmental Matter.
"Environmental Laws" means, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Sections 9601 et seq., the Emergency Planning and Community Right-to-Know Act of
1986, 42 U.S.C. Sections 11001 et seq., the Resource Conservation and Recovery
Act, 42 U.S.C. Sections 6901 et seq., the Toxic Substances Control Act, 15
U.S.C. Sections 2601 et seq., the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. Sections 136 et seq., the Clean Air Act, 42 U.S.C.,
Sections 7401 et seq., the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. Sections 1251 et seq., the Safe Drinking Water Act, 42 U.S.C.
Sections 300f et seq., the Occupational Safety and Health Act, 29 U.S.C.,
Sections 641 et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801 et seq., as any of the above statutes have been or may be amended
from time to time, all rules and regulations promulgated pursuant to any of the
above statutes, and any other federal, state or local law, statute, ordinance,
rule or regulation governing Environmental Matters, as the same have been or may
be amended from time to time, including any common law cause of action providing
any right or remedy with respect to Environmental Matters, and all applicable
judicial and administrative decisions, orders, and decrees relating to
Environmental Matters.
"Environmentally Relevant Materials" means any pollutants, contaminants, or
hazardous or toxic substances, materials, wastes, residual materials,
constituents or chemicals that are regulated by, or form the basis for liability
under any Environmental Laws, including but not limited to petroleum products,
asbestos and radioactive materials.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, injecting, discharging, escaping, leaching, dumping or disposing (or
threat of the same occurring) into the environment.
(a) To the best of the Company's knowledge, the Company is in material
compliance with all applicable Environmental Laws. There are no claims, notices,
civil, criminal or administrative actions, suits, hearings, investigations,
penalty assessments, inquiries or proceedings pending, asserted or, to the
knowledge of the Company, threatened by any governmental or other entity that
are based on or related to any Environmental Matters including, without
limitation, the violation of any Environmental Laws or the violation of or the
failure to have any required permits, licenses, authorizations, certificates,
registrations and other governmental consents and approvals related to the
handling, storage or disposal of Environmentally Relevant Materials
("Environmental Permits"). There are presently no outstanding judgments, decrees
or orders of any court or governmental or administrative agency against or
affecting the Company or Property arising from, relating to or resulting from
Environmental Matters.
(b) To the best of the Company's knowledge, the Company has obtained and is
in material compliance with all Environmental Permits required to be obtained by
it under applicable Environmental Laws in order for the Company to conduct its
business and operations, except where the failure to obtain any Environmental
Permit would not cause a Material Adverse Effect. All such Environmental Permits
are owned by or in the name of the Company, are in full force and effect and the
Company has made in a timely manner all appropriate filings for issuance or
renewal of such Environmental Permits. No application, action or proceeding is
pending for the renewal or modification of any Environmental Permit; and no
claim, application, complaint, action or proceeding is pending, asserted or, to
the knowledge of the Company, threatened that may result in the denial of an
application for renewal or transfer or the revocation, modification,
non-renewal, restriction, or suspension of any Environmental Permit. The
continued validity and existence of each of the Environmental Permits is only
subject to the conditions set forth in each such Environmental Permit, and no
additional expenditures are required to be made by the Company or any third
party to maintain or comply with such Environmental Permits (except as
specifically disclosed in such Environmental Permits and except for changes in
applicable Environmental Laws after Closing). The continued validity of such
Environmental
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Permits is not related to the continued association of one or more individuals
or corporations or other entities with the Company.
(c) To the best of the Company's knowledge, no Environmentally Relevant
Materials have been Released or are present in connection with, arising from or
relating to any of the Company's operations or businesses or at, on, about or
under any Property either (a) in violation of applicable Environmental Law or
(b) which require or would require investigation, remediation or other response
action under applicable Environmental Law. No Property is listed or, to the best
of the Company's knowledge, proposed for listing (for which any of the Company
or the Company Manager has received notice of such listing or such listing is
otherwise publicly disseminated or a matter of public record) on the National
Priority List (the "NPL") pursuant to CERCLA CERCLIS or any similar foreign,
federal or state list of sites requiring investigation, remediation or other
response action. To the best of the Company's knowledge, there are no
underground storage tanks, polychlorinated biphenyls, asbestos-containing
materials or surface impoundments at, on, under or within any Property, and
there have been no underground storage tanks removed from or closed in place at
any Property. The Company has not used any treatment, storage or disposal site
for Environmentally Relevant Materials, or otherwise treated, stored, disposed
of, transported, or arranged for the treatment, storage or disposal of any
Environmentally Relevant Materials used, generated, handled, or managed by or on
behalf of the Company or in connection with the business or Property to any
place or location which (a) is listed or, to the best of the Company's
knowledge, proposed for listing on the NPL, CERCLIS or any similar foreign,
federal or state list; (b) to the best of the Company's knowledge, is in
violation of any Environmental Laws; or (c) is the subject of enforcement action
or other investigations which could lead to Environmental Costs to be incurred
by any of the Company or the Surviving LLC. The Company has not, nor, to the
best of the Company's knowledge has any other person, reported or received any
oral or written notice of a Release of any Environmentally Relevant Material
used, generated or handled by or for the Company or in connection with the
business or Property. Neither the Company, nor, to the best of the Company's
knowledge, any other person, has received any notice, demand, claim or request
for information asserting that the Company is or may be a potentially
responsible party at any location used for the storage, treatment or disposal of
Environmentally Relevant Materials or where there has been a Release of any
Environmentally Relevant Materials.
(d) Except as listed in the Disclosure Schedule, there have been no
investigations, reports, studies, inspections, audits, tests, reviews or other
analyses conducted by the Company, the Company Manager, their respective
employees or outside contractors at the direction of any such person in relation
to the following matters: (i) Environmental Matters, including without
limitation potential or actual soil or groundwater conditions at any Property or
business now or previously owned, operated or leased by the Company; or (ii) the
compliance of the Company's business or Property with applicable Environmental
Laws ("Environmental Reports").
(e) To the best of the Company's knowledge, the Company is not aware of any
facts or circumstances related to Environmental Matters concerning the Company,
the business or operations of the Company or the Property which could reasonably
be expected to cause the Surviving LLC or the Company to incur Environmental
Costs.
5.11. Litigation. Except as listed in the Disclosure Schedule, there is no
suit, action or proceeding pending or, to the best of the Company's knowledge,
threatened against or affecting the Company which, either alone or in the
aggregate, is likely to have a Material Adverse Effect, nor is there any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against the Company having, or which, in the future is likely to have, either
alone or in the aggregate, any Material Adverse Effect.
5.12. Information in Disclosure Documents. None of the information supplied
or to be supplied by the Company for inclusion or incorporation by reference in
the Proxy Statement or any amendments or supplements thereto, at the time of the
mailing of the Proxy Statement and any amendments or supplements thereto and at
the time of the Company Meeting, will contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in
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light of the circumstances under which they were made, not misleading. The Proxy
Statement will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder.
5.13. Labor Matters. No labor organization or group of employees of the
Company has made a pending demand for recognition or certification, and there
are no representation or certification proceedings or petitions seeking a
representation proceeding presently pending or threatened to be brought or
filed, with the National Labor Relations Board or any other labor relations
tribunal or authority. There are no organizing activities, strikes, work
stoppages, slowdowns, lockouts, material arbitrations or material grievances, or
other material labor disputes pending or threatened against or involving the
Company.
5.14. Employee Benefit Plans; ERISA. There are no employee benefit plans,
programs, policies, practices, and other arrangements providing benefits to any
employee or former employee (or beneficiary or dependent thereof) sponsored or
maintained by the Company to which the Company contributes or is obligated to
contribute ("Company Plans").
5.15. Company Action. The Company Manager and the Company Advisory Board
(at a meeting duly called and held) has by the requisite vote (i) determined
that the Merger is advisable and fair and in the best interests of the Company
and its Share Holders, (ii) approved the Merger in accordance with the
provisions of Section 18-209 of the LLCA, (iii) recommended the approval of this
Merger Agreement and the Merger by the Company Share Holders and directed that
the Merger be submitted for consideration by the Company's Share Holders
entitled to vote thereon at the Company Meeting and (iv) adopted any necessary
resolution having the effect of causing the Company not to be subject, to the
extent permitted by applicable law, to any state anti-takeover law that may
purport to be applicable to the Merger and the transactions contemplated by this
Merger Agreement.
5.16. No Fairness Opinion. The Company has not received an opinion of any
financial advisors to the Company to the effect that the consideration to be
received by the Company's Share Holders in the Merger is fair to the Share
Holders of the Company.
5.17. Financial Advisor. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
Merger or the transactions contemplated by this Merger Agreement based upon
arrangements made by or on behalf of the Company.
5.18. Compliance with Applicable Laws. To the best of the Company's
knowledge, the Company holds all permits, licenses, variances, exemptions,
orders and approvals of all Governmental Entities for the Properties in their
current condition (the "Company Permits"). However the real property development
business involves a continuous governmental permitting process and the Company
makes no representation or warranty that the Company holds all permits of
Governmental Entities (including discretionary permits and ministerial permits
such as building permits) that (a) are additional, supplemental, or ancillary to
approval that the Company currently holds for real property being developed and
that would ordinarily be required or obtained only from time to time as such
development proceeds or (b) would be required for the development of parts of
the Property not yet being developed. The Company is in compliance with the
terms of the Company Permits, except for such failures to comply which, singly
or in the aggregate, would not have a Material Adverse Effect. To the best of
the Company's knowledge, the businesses of the Company are not being, and have
not been, conducted in violation of any law, ordinance or regulation of any
Governmental Entity, except for possible violations which, individually or in
the aggregate, do not and would not have a Material Adverse Effect. To the best
of the Company's knowledge, no investigation or review by any Governmental
Entity with respect to the Company is pending or threatened, nor has any
Governmental Entity indicated an intention to conduct the same, other than those
the outcome of which would not have a Material Adverse Effect.
5.19. Liabilities. Except as set forth in the Disclosure Schedule, as of
September 30, 1997, the Company did not have any liability or obligation
(absolute, accrued, contingent or otherwise, in contract, tort or otherwise and
whether or not required by GAAP to be reflected in the Company's balance sheet
or other books and records) (a "Liability"), other than such Liabilities which,
individually or in the aggregate, would
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not have a Material Adverse Effect. From and after September 30, 1997, the
Company has not incurred, suffered, permitted to exist or otherwise become
subject to any Liability, other than Liabilities incurred in the ordinary course
of business in accordance with past practice which, individually or in the
aggregate, would not have a Material Adverse Effect.
5.20. Taxes. The Company has filed all material tax returns, declarations
and reports required to be filed by any of them (taking into account all valid
extensions of filing dates) and has paid, or has set up an adequate liability
reserve in accordance with GAAP for the payment of, all taxes required to be
paid in respect of the periods covered by such returns, declarations and
reports. The information contained in such tax returns, declarations and reports
is true, complete and accurate in all material respects. The Company is not
delinquent in the payment of any tax, assessment or governmental charge, except
where such delinquency has not had or would not reasonably be expected to have,
a Material Adverse Effect. No material deficiencies for any taxes have been
proposed, asserted or assessed against the Company that have not been finally
settled or paid in full and no requests for waivers of the time to assess any
such tax are pending. No tax return, declaration or report is currently under
audit by any taxing authority, and as of the date hereof no written notice of
any such audit has been received. For the purposes of this Merger Agreement, the
term "tax" shall include all federal, state, local and foreign income, profits,
franchise, gross receipts, payroll, sales, employment, use, property,
withholding, excise and other taxes, duties and assessments of any nature
whatsoever together with all interest, penalties and additions imposed with
respect to such amounts.
5.21. Certain Agreements. Except as set forth on Schedule 5.21 to the
Previous Merger Agreement (as defined in Section 12.1) and in written agreements
provided to TKG or Acquisition since February 1, 1998, the Company is not a
party or subject to any oral or written (i) agreement, contract, indenture or
other instrument relating to Indebtedness (as defined below) in an amount
exceeding $100,000; (ii) joint venture agreement or arrangement or any other
agreement which has involved or is expected to involve a sharing of revenues;
(iii) lease for real or personal property in which the amounts of payments which
the Company or any subsidiary is required to make on an annual basis exceeds
$25,000; (iv) agreement, contract, policy, license, document, instrument,
arrangement or commitment that limits in any material respect the freedom of the
Company to compete in any line of business or with any person or in any
geographical area or which would so limit the freedom of the Company after the
Effective Time; (v) employment, consulting, severance, termination, or
indemnification agreement, contract or arrangement providing for future payments
with any current or former officer, consultant or employee which (A) exceeds
$10,000 per annum or (B) requires aggregate annual payments or total payments
over the life of such agreement, contract or arrangement to such current or
former officer, consultant or employee in excess of $10,000 or $25,000,
respectively, and is not terminable before and after the Merger by it on 30
days' notice or less without penalty or obligation to make payments related to
such termination; (vi) agreement, contract, arrangement, commitment or
obligation with or in favor of (or calling for any payment to) any member, Share
Holder, officer, manager, Advisory Board member or affiliate of the Company or
the manager thereof; or (vii) other agreement, contract, policy, license,
document, instrument, arrangement or commitment not made in the ordinary course
of business that is material to the Company. "Indebtedness' means any liability
in respect of (A) borrowed money, (B) capitalized lease obligations, (C) the
deferred purchase price of property or services (other than trade payables in
the ordinary course of business) and (D) guarantees of any of the foregoing. The
Company is not in default (or would be in default with notice or lapse of time,
or both) under any indenture, note, credit agreement, loan document, lease,
contract, policy, license, document, instrument, arrangement or commitment (a
"Contract") whether or not such default has been waived, which default, alone or
in the aggregate with other such defaults, would have a Material Adverse Effect.
The Company is not a party to or bound by any Contract which upon execution of
this Merger Agreement or consummation of the transactions contemplated hereby
will (either alone or upon the occurrence of additional acts or events) result
in the loss of any material benefit, the termination thereof or any payment
becoming accelerated or due from the Company or the Surviving LLC which loss,
termination or acceleration would have a Material Adverse Effect.
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SECTION 6. Conduct of Business Pending the Merger
6.1. Conduct of Business by the Company Pending the Merger. Prior to the
Effective Time, unless Acquisition shall otherwise agree in writing:
(a) the Company shall carry on its business in the usual, regular and
ordinary course in substantially the same manner as heretofore conducted,
and shall use its diligent efforts to preserve intact its present business
organizations, keep available the services of its present officers and
employees and preserve their relationships with customers, suppliers and
others having business dealings with them to the end that their goodwill
and ongoing businesses shall be unimpaired at the Effective Time. The
Company shall (A) maintain insurance coverages and its books, accounts and
records in the usual manner consistent with prior practices; (B) comply in
all material respects with all laws, ordinances and regulations of
Governmental Entities applicable to the Company; (C) maintain and keep its
properties and equipment in good repair, working order and condition,
ordinary wear and tear excepted; and (D) perform in all material respects
its obligations under all contracts and commitments to which it is a party
or by which it is bound, in each case other than where the failure to so
maintain, comply or perform, either individually or in the aggregate, would
not result in a Material Adverse Effect;
(b) except as required by this Merger Agreement, the Company shall not
and shall not propose to (A) sell or pledge or agree to sell or pledge any
membership interest; (B) amend its limited liability company agreement or
by-laws; (C) split, combine or reclassify its outstanding membership
interests or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of
membership interests of the Company, or declare, set aside or pay any
dividend or other distribution payable in cash, securities or other
property; or (D) directly or indirectly redeem, purchase or otherwise
acquire or agree to redeem, purchase or otherwise acquire any Company
Shares;
(c) the Company shall not (A) except as contemplated by this Merger
Agreement, issue, deliver or sell or agree to issue, deliver or sell any
additional shares of, or rights of any kind to acquire any shares of, its
membership interest of any class, any Indebtedness or any options, rights
or warrants to acquire, or securities convertible into membership
interests; (B) acquire, lease or dispose of, or agree to acquire, lease or
dispose of, any capital assets or any other assets other than in the
ordinary course of business; (C) incur additional Indebtedness or encumber
or grant a security interest in any asset or enter into any other material
transaction other than in each case in the ordinary course of business
(other than as set forth in Schedule 6.1); (D) acquire or agree to acquire
by merging or consolidating with, or by purchasing a substantial equity
interest in, or by any other manner, any business or any corporation,
partnership, association or other business organization or division
thereof, in each case in this clause (D) which are material, individually
or in the aggregate, to the Company; or (E) enter into any contract,
agreement, commitment or arrangement with respect to any of the foregoing;
(d) the Company shall not, except as required to comply with
applicable law, (A) adopt, enter into, terminate or amend any bonus, profit
sharing, compensation, severance, termination, stock option, pension,
retirement, deferred compensation, employment or other Company Plan,
agreement, trust, fund or other arrangement for the benefit or welfare of
any current or former officer, employee or independent contractor; (B)
other than as set forth in Schedule 6.1, increase in any manner the
compensation or fringe benefit of any officer, employee or independent
contractor; (C) other than as set forth in Schedule 6.1, pay any benefit
not provided under any existing plan or arrangement; (D) other than as set
forth in Schedule 6.1, grant any awards under any bonus, incentive,
performance or other compensation plan or arrangement or Company Plan
(including, without limitation, the grant of equity based or related
awards, performance units or restricted equity, or the removal of existing
restrictions or the acceleration of exerciseability in any Company Plan or
agreements or awards made thereunder); (E) take any action to fund or in
any other way secure the payment of compensation or benefits under any
employee plan, agreement, contract or arrangement or Company Plan; or (F)
adopt, enter into, amend or terminate any contract, agreement, commitment
or arrangement to do any of the foregoing;
(e) the Company shall not make any investments in non-investment grade
securities; and
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(f) the Company shall not, except as required by law or GAAP, change
any of its significant accounting policies or make or rescind any express
or deemed election relating to taxes, settle or compromise any claim,
action, suit, litigation, proceeding, arbitration, investigation, audit or
controversy relating to taxes, or 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 last taxable
year.
6.2. Notice of Certain Matters. Each party shall promptly give written
notice to the other party upon becoming aware of the occurrence or, to its
knowledge, impending or threatened occurrence, of any event which would cause or
constitute a breach of any of its representations, warranties or covenants
contained or referenced in this Merger Agreement and will use its best efforts
to prevent or promptly remedy the same. Any such notification shall not be
deemed an amendment of any Schedule (including the Disclosure Schedule) hereto.
The Company shall promptly give written notice, and shall furnish a copy, to TKG
and Acquisition of any written claims, demands or threats of litigation against
the Company or the Company Manager, the Advisory Board or any of its members in
their capacities as such.
SECTION 7. Additional Agreements
7.1. Access and Information. Subject to the limitations imposed by third
party confidentiality agreements, the Company shall afford to Acquisition and
its accountants, counsel and other representatives full access during normal
business hours (and at such other times as the parties may mutually agree)
throughout the period prior to the Effective Time to all of its properties,
books, contracts, commitments, records and personnel and, during such period,
the Company shall furnish promptly to Acquisition (i) a copy of each report,
schedule and other document filed or received by it pursuant to the requirements
of federal or state securities laws, and (ii) all other information concerning
its business, properties and personnel as Acquisition may reasonably request.
Except as provided in Section 7.6(b), the Company and Acquisition shall hold,
and shall cause its employees and agents to hold, in confidence all such
information which is not otherwise publicly available. Acquisition shall
indemnify and hold the Company harmless from any and all claims, liens, losses
or damage, including attorneys' fees, arising out of the physical presence of
employees, agents or contractors of Acquisition or TKG at the Company and out of
any tests or inspections of the Company's Property by or on behalf of
Acquisition or TKG.
7.2. Proxy Statement.
(a) As promptly as practicable after the execution of this Merger
Agreement, Acquisition and the Company, in consultation with TKG, shall prepare,
and the Company shall file and promptly disseminate to Share Holders, a proxy
statement or a supplement or amendment to the definitive Proxy Statement filed
with the Commission on March 11, 1998, in such form as shall permit a Company
Meeting (the "New Proxy Materials"). In the event that comments are received
from the Commission with respect to the New Proxy Materials, the Company shall,
as promptly as practicable after such comments are received, respond to such
comments, and after the furnishing by the Company and Acquisition of all
information required to be contained therein, file with the Commission and
promptly disseminate to Share Holders the New Proxy Materials.
(b) Acquisition and the Company shall make all necessary filings with
respect to the Merger under the Securities Act and the Exchange Act and the
rules and regulations thereunder and under applicable blue sky or similar
securities laws and shall use all reasonable efforts to obtain required
approvals and clearances with respect thereto.
7.3. Meeting. As promptly as possible, the Company shall notice the Company
Meeting for the purpose of voting on the approval and adoption of the Merger
Agreement. The Company shall solicit management proxies to vote in favor of the
Merger in connection with the Company Meeting.
7.4. Indemnification.
(a) All rights to indemnification existing in favor of the current or
former officers or employees of the Company as provided in the limited liability
company agreement or by-laws, as in effect as of the date hereof,
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with respect to matters occurring through the Effective Time, shall survive the
Merger and shall continue in full force and effect for a period of not less than
six years from the Effective Time, provided, however, that, prior to the
Effective Time, the Company may purchase additional policies of directors' and
officers' liability insurance of at least the same coverage as currently
maintained by the Company, such policies to be pre-paid and in effect for a
period of six years from the Effective Time.
(b) In the event that any action, suit, proceeding or investigation
relating hereto or to the transactions contemplated by this Merger Agreement is
commenced, whether before or after the Effective Time, the parties hereto agree
to cooperate and use their respective reasonable efforts to vigorously defend
against and respond thereto.
(c) The provisions of the limited liability company agreement and by-laws
of the Surviving LLC pertaining to indemnification of current and former
directors, officers and employees shall not be amended, repealed or otherwise
modified for a period of six years after the Effective Time (or, in the case of
matters which are pending but which have not been resolved prior to the sixth
anniversary of the Effective Time, until such matters are finally resolved), in
any manner that would adversely affect the rights thereunder of individuals who
at any time on or prior to the Effective Time were directors, officers or
employees of the Company in respect of actions or omissions occurring on or
prior to the Effective Time (including, without limitation, the transactions
contemplated by this Merger Agreement).
7.5. Additional Agreements.
(a) Subject to the terms and conditions herein provided, each of the
parties hereto agrees to use their best efforts to take, or cause to be taken,
all actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws, regulations and third-party agreements to
consummate and make effective the transactions contemplated by this Merger
Agreement, including using their best efforts to obtain all necessary waivers,
consents and approvals, to effect all necessary registrations and filings
(including, but not limited to, filings with all applicable Governmental
Entities) and to lift any injunction or other legal bar to the consummation of
the Merger, it being understood that such consummation may continue to be
subject to the appropriate vote of the Share Holders. Notwithstanding the
foregoing, Acquisition shall not be required to take any action, and without
Acquisition's prior written consent the Company shall agree not to take any
action, that would in any way restrict or limit the conduct of business from and
after the Effective Time by the Surviving LLC of either (including, without
limitation, any divestiture of any business, product line or asset).
(b) In case at any time after the Effective Time any further action is
necessary or desirable to carry out the purposes of this Merger Agreement, the
proper officers and/or directors of the Surviving LLC shall take all such
necessary action.
(c) The Company shall be responsible for, and shall use its best efforts to
obtain all third-party consents and approvals required for the conditions to the
obligations of Acquisition set forth in Section 8.3(c) to be timely satisfied,
including without limitation the consent of American General and its affiliates
to the Merger.
7.6. No Solicitation.
(a) As used herein, the term "Acquisition Proposal" means any proposed (i)
merger, consolidation or similar transaction involving the Company, (ii) sale,
lease or other disposition directly or indirectly by merger, consolidation,
share exchange or otherwise of either (A) assets of the Company representing 75%
or more of the consolidated assets of the Company (based upon the valuations
contained in the confidential report of the Sedway Group dated July 22, 1997
(the "Sedway Report")) in one transaction or series of related transactions with
a single purchaser or affiliated purchasers (but not solicitation of unrelated
sales of individual parcels of the Property which are not material in amount
either individually or in the aggregate), or (B) all or substantially all of the
undeveloped Property in one transaction or series of related transactions with a
single purchaser or affiliated purchasers (but not solicitation of unrelated
sales of individual parcels of the undeveloped Property which are not material
in amount either individually or in the aggregate), or (C) any other material
amount of assets or Property of the Company, (iii) issue, or other acquisition
or disposition of (including by way of merger, consolidation, share exchange or
any similar transaction) securities (or options, rights or warrants to purchase,
or securities convertible into, such securities) representing 20% or more of the
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voting power of the Company or (iv) transaction or series of transactions in
which any person shall or would acquire beneficial ownership (as such term is
defined in Rule 13d-3 under the Exchange Act), or the right to acquire
beneficial ownership, or any "group" (as such term is defined under the Exchange
Act) shall have been formed which beneficially owns or would own or has or would
have the right to acquire beneficial ownership, of 20% or more of the
outstanding Company Shares, other than transactions contemplated by this Merger
Agreement.
(b) The Company shall not, nor shall the Company authorize or permit its
officers, employees, representatives, investment bankers, attorneys, accountants
or other agents or affiliates to, take any action to solicit, initiate or
encourage the submission of any Acquisition Proposal; provided, however, that
if, at any time prior to the obtaining of Company Share Holder approval of the
Merger, the Advisory Board determines in good faith by a majority vote, with the
advice of outside counsel, that it is necessary to do so to avoid a breach of
its fiduciary duties to Share Holders under applicable law, the Company may, in
response to a written request for information, furnish information with respect
to the Company to any person pursuant to a customary confidentiality agreement
containing terms at least as favorable to the Company as those contained in the
confidentiality agreement formerly in effect between the Company and TKG. The
Company may discuss and negotiate terms with parties making unsolicited
Acquisition Proposals.
(c) The Company may continue marketing parcels of the Property as part of
its normal business operations. The Company shall provide Acquisition with a
copy of any proposed agreement for any sale, exchange or other disposition of
any part of the Property and consult with Acquisition before entering into any
binding agreement. After the approval of this Agreement by the Advisory Board of
the Company and except as provided in Section 7.6(d), the Company will not,
without the express written consent of Acquisition, enter into any agreement for
the disposition of any part of the Property.
(d) Except as expressly permitted by this Section 7.6, neither the Advisory
Board nor the Company Manager shall (i) withdraw or modify, or propose publicly
to withdraw or modify, in a manner adverse to Acquisition, its approval or
recommendation of the adoption and approval of the matters to be considered at
the Company Meeting, (ii) approve or recommend, or propose publicly to approve
or recommend, any Acquisition Proposal, or (iii) cause the Company to enter into
any letter of intent, agreement in principle, acquisition agreement or other
similar agreement or understanding (written or otherwise) related to any
Acquisition Proposal (each, an "Acquisition Agreement"). Notwithstanding the
foregoing, in the event that prior to the obtaining of Company Share Holder
approval of the Merger, there exists a Superior Proposal (as defined herein),
the Advisory Board may, if it determines in good faith by a majority vote, with
the advice of outside counsel, that it is necessary to do so to avoid a breach
of its fiduciary duties to Company Share Holders under applicable law, approve
or recommend such Superior Proposal and terminate this Merger Agreement,
provided (x) the Company shall have given Acquisition written notice (a
"Superior Proposal Notice") at least five business days prior to such
termination advising Acquisition that the Advisory Board has received a Superior
Proposal which the Advisory Board has authorized and intends to effect,
specifying the material terms and conditions of such Superior Proposal and
identifying the person making such Superior Proposal, and (y) the Company, prior
to terminating this Merger Agreement, makes irrevocable arrangements for TKG or
Acquisition to be paid the Termination Fee in accordance with Section 9.2. For
purposes of this Merger Agreement, a "Superior Proposal" means a definitive
unconditioned agreement with a third party, with all due diligence
investigations completed, to acquire, directly or indirectly, more than 50% of
the membership interests of the Company, assets of the Company representing 75%
or more of the real estate assets of the Company (based upon the valuations
contained in the Sedway Report) in one transaction or series of related
transactions with a single purchaser or affiliated purchasers (but not
solicitation of sales of individual parcels of the Property) or all or
substantially all of the undeveloped Property in one transaction or series of
related transactions with a single purchaser or affiliated purchasers (but not
solicitation of sales of individual parcels of the undeveloped Property), and
otherwise on terms which the Advisory Board determines in its good faith
judgment to be more favorable from a financial point of view to the Company
Share Holders than this Merger Agreement, the Merger and the transactions
contemplated hereby and for which either (i) all required funds are irrevocably
on deposit with a Disbursing Agent or Depositary and are immediately payable to
Share Holders upon consummation of the transaction contemplated by the Superior
Proposal or are
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<PAGE> 54
secured by an irrevocable letter of credit deposited with the Company for the
benefit of its Share Holders or (ii) all debt or equity financing, to the extent
required, is then committed pursuant to fully negotiated definitive agreements,
containing only customary closing requirements for institutional investors,
signed by all parties thereto and deposited into escrow with an independent
escrow agent or title insurance company.
(e) In addition to the obligations set forth in paragraphs (b) and (d) of
this Section 7.6, the Company will promptly communicate to Acquisition a copy of
any requests for information or proposals, including the identity of the person
and its affiliates making the same, that it may receive.
(f) Nothing contained in this Section 7.6 shall prohibit the Company from
taking and disclosing to the Company Share Holders a position contemplated by
Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure
to the Company Share Holders if, in the good faith judgment of the Advisory
Board, with the advice of outside counsel, failure so to disclose would result
in a violation of applicable law; provided, however, that neither the Company,
the Company Manager nor the Advisory Board shall withdraw or modify, or propose
publicly to withdraw or modify, its position with respect to the matters to be
considered at the Company Meeting, or approve or recommend, or propose publicly
to approve or recommend an Acquisition Proposal, except as provided in Section
7.6(d).
7.7. Redemption of Rights. The Company shall, effective immediately prior
to the Effective Time, amend or take other action under the Rights Agreement so
as to render the Rights Agreement inapplicable to the transactions contemplated
by this Agreement or to cause such transactions to be treated as a Permitted
Offer thereunder. The Company shall not amend or take any other action with
respect to the Rights Agreement (including without limitation action to redeem
the rights thereunder) in any manner that has the effect of rendering the Rights
Agreement inapplicable, in whole or in part, to any third party, and shall not
redeem the rights under the Rights Agreement unless, prior to or concurrently
with such amendment, other action or redemption, the Company shall have (i) paid
to TKG or Acquisition, as the case may be, the Termination Fee and (ii) released
TKG and Acquisition from any limitations or restrictions, that prevent TKG and
Acquisition from purchasing Company Shares to the same extent and upon
substantially equivalent terms as such third party. Except as set forth in this
Section 7.7 and except as required for the representation and warranty set forth
in the last sentence of Section 5.4 to be true, the Company shall have sole and
unfettered discretion to amend or take other action under the Rights Agreement
and to redeem the rights thereunder.
SECTION 8. Conditions Precedent
8.1. Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Time of the following conditions:
(a) This Merger Agreement and the transactions contemplated hereby
shall have been approved and adopted by the requisite vote of the Company
Share Holders.
(b) No temporary restraining order, preliminary or permanent
injunction or other order by any court or other judicial or administrative
body of competent jurisdiction (each, an "Injunction") which prohibits or
prevents the consummation of the Merger shall have been issued and remain
in effect (each party agreeing to use its best efforts to have any such
Injunction lifted), and there shall not be any action taken, or any
statute, rule, regulation or order (whether temporary, preliminary or
permanent) enacted, entered or enforced which makes the consummation of the
Merger illegal or prevents or prohibits the Merger.
8.2. Conditions to Obligation of the Company to Effect the Merger. The
obligation of the Company to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time of the additional following
conditions, unless waived by the Company:
(a) Acquisition shall have performed in all material respects its
agreements contained in this Merger Agreement required to be performed on
or prior to the Effective Time and the representations and warranties of
Acquisition contained in this Merger Agreement shall be true in all
material respects
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when made and on and as of the Effective Time as if made on and as of such
date, except for representations and warranties that are by their express
provisions made as of a specific date or dates, which were or will be true
in all material respects at such time or times as stated therein, and the
Company shall have received a certificate of the Acquisition Manager to
that effect.
(b) Intentionally Omitted.
(c) The Merger Consideration shall have been deposited with the
Disbursing Agent with irrevocable instructions to exchange the Company
Shares for the Merger Consideration in accordance with Section 3.2(b)
immediately upon notification by the Company and Acquisition of the
Effective Time.
8.3. Conditions to Obligations of Acquisition to Effect the Merger. The
obligation of Acquisition to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time of the additional following
conditions, unless waived by Acquisition:
(a) The Company shall have performed in all material respects its
agreements contained in this Merger Agreement required to be performed on
or prior to the Effective Time and the representations and warranties of
the Company contained in this Merger Agreement shall be true in all
material respects (except for any such representations or warranties which
are qualified as to Material Adverse Effect, which shall be true and
correct in all respects) when made and on and as of the Effective Time as
if made on and as of such date, except for representations and warranties
that are by their express provisions made as of a specific date or dates
which were or will be true in all material respects (except for any such
representations or warranties which are qualified as to Material Adverse
Effect, which were or will be true and correct in all respects) at such
date or dates, and Acquisition shall have received a certificate of the
Company Manager to that effect. For the purposes of this Section 8.3(a), in
determining whether the Company's representations and warranties in Section
5.7(i) or (vi), 5.11, 5.15, 5.18 or 5.19 are true and correct, no
consideration shall be given to any claim, demand or litigation asserted,
instituted or threatened against the Company, the Manager, the Advisory
Board or their agents, by the Blum Parties (as hereinafter defined in
Section 12.3) in connection with this Merger Agreement, the Previous Merger
Agreement (as hereinafter defined in Section 12.1), the Agreement of Merger
between the Company and certain of the Blum Parties dated as of September
9, 1997, or the Blum Parties' efforts to acquire the Company, and neither
TKG nor Acquisition shall take the position that a Material Adverse Effect
has occurred with respect to the Company based on the assertion,
institution or threat of any such claim, demand or litigation against the
Company, the Manager, the Advisory Board or their agents by the Blum
Parties; provided, in each case, that the Company, the Manager, the
Advisory Board and their agents, as the case may be, shall not have
admitted, confessed judgment or defaulted in responding to any such claim,
demand or litigation.
(b) Intentionally Omitted.
(c) The Company shall have obtained all consents, appeals, releases or
authorizations from, and shall have made all filings and registrations to
or with, any person, including but not limited to any Governmental Entity,
necessary to be obtained or made in order to consummate the transactions
contemplated by this Merger Agreement, including without limitation the
consent of American General and its affiliates to the Merger.
SECTION 9. Termination, Amendment and Waiver
9.1. Termination. This Merger Agreement may be terminated at any time prior
to the Effective Time, whether before or after approval by the Company Share
Holders:
(a) by mutual consent of the Board of Directors of Acquisition and the
Advisory Board;
(b) by either Acquisition or the Company, if the Merger shall not have
been consummated on or before June 15, 1998; provided that either TKG or
the Company may extend the effectiveness of this Agreement for up to 46
days thereafter (but in no event beyond July 31, 1998) by notice to the
other party certifying the extending party's good faith belief that the
Company Meeting can be held and the
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<PAGE> 56
Merger can be consummated before the expiration of such extension, and
provided further that the right to terminate or extend this Agreement
pursuant to this Section 9.1(b) shall not be available to any party whose
failure to perform in any material respect any covenant or obligation under
this Merger Agreement has been the cause of or resulted in whole or in part
in the failure of the Merger to be consummated before such date;
(c) by either Acquisition or the Company, if there shall be any Order
which is final and nonappealable preventing the consummation of the Merger;
(d) by either Acquisition or the Company, if this Merger Agreement and
the transactions contemplated hereby shall fail to receive the requisite
vote for approval and adoption by the Company Share Holders at the Company
Meeting;
(e) by Acquisition if this Merger Agreement and the transactions
contemplated hereby shall not have been submitted for approval and adoption
by the Company Share Holders at the Company Meeting prior to June 15, 1998
unless the Company Meeting is held later solely due to delays in obtaining
clearance of the Proxy Statement by the Commission, in which case
Acquisition's right to terminate the Agreement pursuant to this Section
9.1(e) may be deferred for not more than 46 days beyond June 15, 1998 (but
in no event beyond July 31, 1998) upon notice by the Company to Acquisition
certifying the Company's good faith belief that the Company Meeting can be
held and the Merger can be consummated before the expiration of such
deferral period;
(f) by Acquisition, if the Advisory Board withdraws, modifies in a
manner adverse to Acquisition, or refrains from making its recommendation
concerning the Merger referred to in Section 3.3, or the Advisory Board
shall have recommended to the Company Share Holders, or taken no position
with respect to, any Acquisition Proposal or the Company shall have entered
into an Acquisition Agreement, or, other than in connection with the
Company's delivery of a Superior Proposal Notice, the Advisory Board shall
have resolved to do any of the foregoing; or
(g) by the Company, if, pursuant to Section 7.6(d), (A) the Advisory
Board has delivered to Acquisition a Superior Proposal Notice and five
business days have passed since Acquisition received the Superior Proposal
Notice and (B) the Company has paid or simultaneously pays the Termination
Fee (as defined in Section 9.2).
9.2. Effect of Termination; Fees.
(a) In the event of termination of this Merger Agreement by either
Acquisition or the Company, as provided above, this Merger Agreement shall
forthwith become void and (except for the willful breach of this Merger
Agreement by any party hereto) there shall be no liability on the part of any
party to this Merger Agreement or their respective directors, managers, officers
or employees; provided that the last sentence of Section 7.1 and all of Sections
9.2, 11.3 and 11.7 shall survive the termination.
(b) The Company shall pay to TKG or Acquisition (as TKG shall direct) a
Termination Fee (as defined below) if: (i) Acquisition terminates this Merger
Agreement pursuant to Section 9.1(e) or (f); or (ii) more than five business
days after the receipt by Acquisition of the Superior Proposal Notice, the
Company terminates this Merger Agreement pursuant to Section 9.1(g); or (iii) so
long as Acquisition or TKG has not materially defaulted under Sections 1, 3 and
10 of this Agreement, on or prior to November 1, 1998 (A) the Company (directly
or indirectly through the Company Manager or the Advisory Board) accepts,
recommends (or takes no position with respect to or otherwise does not recommend
against), consummates, or enters into or announces any agreement with respect
to, an Acquisition Proposal, or amends or otherwise takes action under the
Rights Agreement rendering the Rights Agreement inapplicable to an Acquisition
Proposal or redeems the rights under the Rights Agreement after an Acquisition
Proposal has been made, disclosed or announced, or has taken (or has resolved or
publicly disclosed an intention to take) any of the foregoing actions in this
clause (A), or (B) an Acquisition Proposal is consummated.
(c) The Termination Fee shall be equal to one million two hundred thousand
dollars ($1,200,000). The Termination Fee shall be paid as promptly as
practicable and in no event later than (A) in the event of
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<PAGE> 57
termination by the Company as described in clause (ii) of Section 9.2(b),
immediately prior to or simultaneously with termination of the Merger Agreement;
or (B) in the event of termination by Acquisition as described in clause (i) of
Section 9.2(b), two (2) business days following such termination; or (C) in the
event of any of the actions or events described in clause (iii) of Section
9.2(b), upon and (unless otherwise due pursuant to clause (A) or clause (B) of
this Section 9.2(c)) immediately prior to consummation of the transaction
contemplated by the Acquisition Proposal or the consummation of any other
transaction or series of transactions which result (or which, if completed, will
result) in the acquisition of control of the Company by a person or persons who
participated in such Acquisition Proposal (or by any of their affiliates),
either alone or in conjunction with any other person, regardless of whether such
other person participated in such Acquisition Proposal.
(d) The Company's obligations pursuant to this Sections 9.2(b) and 9.2(c)
shall be secured by a deed of trust in the form attached as Exhibit A to this
Agreement (the "Deed of Trust") encumbering Lot 17, Parcel Map 3994, filed
December 9, 1985, in Book 157, Page 79, of Maps, Alameda County Records and a
portion of Lot 6, Parcel Map 5196, filed September 29, 1987, in Book 172, Page
9, of Maps, Alameda County Records, as created in that certain lot line
adjustment #103-89, Certificate of Compliance recorded December 17, 1990, Series
No. 90-328807, Official Records (the "Security Parcel") owned by the Company
free and clear of liens but with title otherwise as shown in the Disclosure
Schedule. The Deed of Trust shall be recorded promptly following the execution
of this Agreement and prior to any termination of this Agreement by the Company
pursuant to Section 9.1(g) or any action by the Company which would give rise to
a right on the part of Acquisition to terminate this Agreement pursuant to
Section 9.1(e) or 9.1(f) (and in any event on or before the third business day
after the date hereof) in the official records of Alameda County, California.
TKG shall cause the Deed of Trust to be promptly reconveyed upon; (i) payment of
the Termination Fee to TKG or Acquisition or (ii) the attainment of November 1,
1998 without the Company having incurred an obligation to pay the Termination
Fee to TKG or Acquisition under Section 9.2(b)(iii) of this Agreement. The
Security Parcel is subject to Tentative Map 5577 which shall reconfigure the
Security Parcel and reduce it in size to approximately 10.5 acres, to become the
parcel shown as Parcel 1 on Tentative Map 5577. TKG agrees to cooperate with the
approval and filing of a final Parcel Map conforming to Tentative Map 5577
including but not limited to the release from the lien of the Deed of Trust of
any real property not included in Parcel 1 of Tentative Map 5577.
9.3. Amendment. This Merger Agreement may be amended by the parties hereto,
by or pursuant to action taken by the Acquisition Manager and the Advisory
Board, at any time before or after approval hereof by the Company Share Holders,
but, after such approval, no amendment shall be made which reduces the amount or
changes the form of Merger Consideration or which in any way materially
adversely affects the rights of the Company Share Holders, without the further
approval of such Company Share Holders. This Merger Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto, except that TKG and Acquisition may, in their sole discretion, increase
the amount of the Merger Consideration by written notice to the Company signed
by or on behalf of TKG and Acquisition, and such notice shall be immediately
effective in accordance with its terms, without action by the Company.
9.4. Waiver. At any time prior to the Effective Time, the parties hereto,
by or pursuant to action taken by the Acquisition Manager and Advisory Board,
may (i) extend the time for the performance of any of the obligations or other
acts of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any documents delivered
pursuant hereto, and (iii) waive compliance with any of the agreements or
conditions contained herein; provided, however, that no such waiver shall
materially adversely affect the rights of the Company Share Holders and
Acquisition. Any agreement on the part of a party hereto to any such extension
or waiver shall be valid if set forth in an instrument in writing signed on
behalf of such party.
SECTION 10. Commitments of TKG
TKG shall cause Acquisition to be capitalized with all funds necessary for
Acquisition to fulfill its obligations under the Merger Agreement and the
transactions contemplated hereby. TKG shall indemnify and hold the Company
harmless from any and all claims, liens, losses or damage, including attorneys'
fees, arising
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out of the physical presence of employees, agents or contractors of Acquisition
or TKG at the Company, out of any tests or inspections of the Company's Property
by or on behalf of Acquisition or TKG or out of a failure of Acquisition to pay
the costs and expenses as provided for in Section 1.4.
SECTION 11. General Provisions
11.1. Non-Survival of Representations, Warranties and Agreements. No
representations, warranties or agreements in this Merger Agreement shall survive
the Merger, except for the agreements contained in Sections 3.1, 3.2 and 3.4 and
the agreements referred to in Sections 7.4, 7.5, 11.1, 11.3 and 11.6. No claims
for any breach of any representation or warranty may be brought by either party
after the Effective Time.
11.2. Notices. All notices or other communications under this Merger
Agreement shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telegram, telex,
telecopy or other standard form of telecommunications, or by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company:
Mr. Stanley F. Marquis
Triad Park, LLC
3055 Triad Drive
Livermore, California 94550
Telecopy No.: 510-455-6917
With a copy to:
McCutchen, Doyle, Brown & Enersen, LLP
3150 Porter Drive
Palo Alto, California 94304
Attention: Edward S. Merrill, Esq.
Telecopy No.: 650-849-4800
If to Acquisition or TKG:
TKG International, Inc.
2755 Campus Drive, Suite 100
San Mateo, California 94403
Attention: John Kontrabecki
Telecopy No.: 650-312-1333
With a copy to:
Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, California 94301
Attention: Rod J. Howard, Esq.
Telecopy No.: 650-327-3699
or to such other address as any party may have furnished to the other parties in
writing in accordance with this Section 11.2.
11.3. Expenses. Except for the Termination Fee as provided by Section 9.2,
all costs and expenses incurred in connection with this Merger Agreement and the
transactions contemplated hereby (regardless of whether the Merger is
consummated) shall be paid by the party incurring such expenses, and the
incurrence and payment of transaction expenses by the Company shall not affect
the Merger Consideration. Notwithstanding the foregoing, if one party fails to
promptly pay to the other any fee due or otherwise to perform or comply with any
of its obligations under this Agreement or applicable law, the defaulting party
shall pay the costs and expenses (including legal fees and expenses) in
connection with any action, including the filing of any lawsuit or other legal
action, taken to collect payment or to enforce such obligations, together with
interest
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on the amount of any unpaid fee at the publicly announced prime rate of
Citibank, N.A. from the date such fee was required to be paid.
11.4. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Merger
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Merger Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
11.5. Interpretation. The headings contained in this Merger Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Merger Agreement. As used in this Agreement, the term
by-laws shall be construed to include an operating agreement or other similar
document, whether or not denominated "by-laws".
11.6. Miscellaneous. This Merger Agreement (including the documents and
instruments referred to herein) (a) constitute the entire agreement and
supersede all other prior agreements, understandings and waivers, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof (other than as provided in the Confidentiality Agreement, as the same may
be amended); (b) except as provided in Section 7.4 of this Merger Agreement, are
not intended to confer upon any other person any rights or remedies hereunder;
(c) except for an assignment by Acquisition to one of its affiliates, shall not
be as assigned by operation of law or otherwise; and (d) shall be governed in
all respects, including validity, interpretation and effect, by the laws of the
State of Delaware (without giving effect to the provisions thereof relating to
conflicts of law). This Merger Agreement may be executed in two or more
counterparts which together shall constitute a single agreement.
SECTION 12. Settlement and Full Mutual Release
12.1. Release by TKG and Acquisition. Except as expressly stated in Section
12.3, upon the execution and delivery of this Merger Agreement by the Company,
TKG and Acquisition, and each of them, on behalf of themselves, their respective
heirs and administrators, partners, officers, directors, agents, employees,
successors and assigns, and anyone claiming through them, hereby release the
Company, its Advisory Board, its manager, and their respective officers,
directors, agents, employees, successors and assigns (the "Company Releasees"),
from any and all claims, demands, causes of action, awards, judgments, orders,
damages or liabilities which TKG or Acquisition (or any of them) may have (or
may have the right to recover, as the case may be) against the Company, whether
known or unknown, asserted or unasserted, which arise out of TKG's or
Acquisition's dealings with the Company, including but not limited to any and
all claims and obligations arising out of the Agreement of Merger, dated as of
February 1, 1998, as amended (the "Previous Merger Agreement"), the
Confidentiality Agreement between TKG and Triad Park dated as of November 25,
1997 (the "Confidentiality Agreement"), the March 25, 1998 special meeting of
Triad Park shareholders convened by the Company on March 28, 1998 to consider
the Previous Merger Agreement (the "Special Meeting"), the matters alleged in
the verified complaint for injunctive relief and specific performance and motion
for temporary restraining order filed in the Court of Chancery for the State of
Delaware in and for New Castle County (the "Delaware Court of Chancery") on
March 16, 1998 (the "Delaware Action"), the temporary restraining order entered
on March 19, 1998 in the Delaware Court of Chancery (the "Delaware Order"), and
the conduct of the Company Releasees leading up to and following the Special
Meeting.
12.2. Release by the Company. Except as expressly stated in Section 12.3,
effective upon the execution and delivery of this New Merger Agreement by TKG
and Acquisition, the Company, on behalf of itself, its Advisory Board, its
manager, and their respective officers, directors, agents, employees, successors
and assigns, and anyone claiming by or through them, hereby releases TKG and
Acquisition and their respective partners, lenders, officers, directors, heirs,
administrators, agents, employees, successors and assigns (the "TKG Releasees"),
from any and all claims, demands, causes of action, awards, judgments, damages
or liabilities which they may have (or may have the right to recover, as the
case may be) against them or any of them, whether known or unknown, asserted or
unasserted, which arise in connection with the Company's dealings
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with TKG or Acquisition, including but not limited to any and all claims and
obligations arising out of the Previous Merger Agreement, the Confidentiality
Agreement, the Special Meeting, the filing of or matters alleged in the Delaware
Action, the Delaware Order, and the conduct of the TKG Releasees leading up to
and following the Special Meeting.
12.3. Specific Potential and Actual Claims Not Released. Nothing in this
Merger Agreement shall be construed to release (i) Richard C. Blum and
Associates, L.P., a California limited partnership, Richard C. Blum &
Associates, Inc., a California corporation, Richard C. Blum, TPL Acquisition,
LLC, a Delaware limited liability company (the "Blum Parties"), from any claims,
demands, causes of action, awards, judgments, orders, damages or liabilities
whether known or unknown, and whether or not accrued, which may be asserted
against or recovered from the Blum Parties (or any of them) by the Company, TKG
or Acquisition (or any of them); or (ii) any party from any claims, demands,
causes of action, awards, judgments, orders, damages or liabilities which may be
asserted against or recovered from any other party under or arising out of this
Merger Agreement; and (iii) the obligations of Acquisition to pay certain costs
and expenses as provided in Section 1.4 of the Previous Merger Agreement in
connection with the transactions contemplated thereby, provided that such costs
and expenses shall be paid by Acquisition on the earlier of (x) the payment of
any Termination Fee to TKG or Acquisition or (y) immediately prior to the
Closing.
12.4. Termination of Litigation. Upon the execution and delivery of this
Merger Agreement by all parties, TKG and Acquisition shall cause to have
executed and filed a dismissal of the Delaware Action and the Company shall
release TKG and Acquisition from the bond given in the Delaware Action.
12.5. Consultation with Counsel. The parties hereby declare and represent
to each other that they have read and have had an opportunity to consult with
counsel. Each of the parties, by the execution of this Merger Agreement,
represents that it has reviewed each term of this Merger Agreement either with
its legal counsel or with the opportunity to obtain its own legal counsel and
that hereafter it shall not deny the validity of any provision of this Merger
Agreement on the grounds that it did not have advice of counsel.
12.6. No Assignment. TKG, Acquisition and the Company represent and warrant
that they have not heretofore assigned or transferred, or purported to assign or
transfer, to any person or entity any claims, demands, causes of action, awards,
judgments, orders, damages or liabilities herein released, and that they are the
sole owners of the claims, demands, causes of action, awards, judgments, orders,
damages and liabilities they are releasing herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be signed by their respective officers thereunder duly authorized all as of the
date first written above.
THE KONTRABECKI GROUP, INC.
By:
------------------------------------
Name: John T. Kontrabecki
Title: President
TKG ACQUISITION COMPANY, LLC
By: THE KONTRABECKI GROUP, INC.,
its Manager
By:
------------------------------------
Name: John T. Kontrabecki
Title: President
TRIAD PARK, LLC
By: 3055 Management Corp.,
its Manager
By:
------------------------------------
Name: Stanley F. Marquis
Title: Vice President
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<PAGE> 62
EXHIBIT B
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Management's discussion and analysis of financial condition
and results of operations................................. B-2
Balance sheets as of December 31, 1996 and 1997............. B-5
Statements of operations of the years ended September 30,
1996 and December 31, 1997 and the three months ended
December 31, 1995 and 1996................................ B-6
Statements of members' equity for the years ended September
30, 1996 and December 31, 1997 and the three months ended
December 31, 1996......................................... B-7
Statements of cash flows for the years ended September 30,
1996 and December 31, 1997 and the three months ended
December 31, 1995 and 1996................................ B-8
Notes to financial statements............................... B-9
Report of independent accountants........................... B-15
</TABLE>
B-1
<PAGE> 63
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The following Management's Discussion and Analysis is based upon and should
be read in conjunction with the Company's financial statements and notes thereto
included elsewhere in these financial statements.
RESULTS OF OPERATIONS
Revenues generated from the leasing of the facilities located at 3055 Triad
Drive were $2.5 million in the years ended September 30, 1996 and December 31,
1997 and $.6 million for the three month periods ended December 31, 1996 and
1995. These revenues are pursuant to a lease agreement in effect through
February 2002. See "Management's Discussion and Analysis-Liquidity and Capital
Resources." Revenues from land sales were $3.8 million during the year ended
September 30, 1996. There were two land sales totaling $1.7 million during the
year ended December 31, 1997. Revenues from land sales were $640,000 for the
three months ended December 31,1996 with no land sales during the comparable
period in the prior year. Overall gross margin was $2.4 million in the year
ended December 31, 1997, a decrease of 31% compared to the gross margin of $3.5
million in the year ended September 30, 1996. The difference was attributed to a
decline in the land sale revenue as well as lower margins in 1997. Gross margin
for the three months ended December 31, 1996 was $678,000 compared to $491,000
for the three months ended December 31, 1995. The increase was directly
attributed to land sales.
The Company had a net loss of $324,000 for the year ended December 31, 1997
compared to net income of $521,000 for the year ended September 30, 1996. The
decrease is due principally to the reduction in land sale revenue as well as
higher general and administrative expenses in 1997. The increase from a loss of
$130,000 for the three months ended December 31, 1995 to a loss of $8,000 for
the three months ended December 31, 1996 was due to the absence of land sales in
the earlier period.
LAND SALES
As of December 31, 1997, the Company had approximately 292 acres of
unimproved land remaining to be sold. Approximately 35.9 acres are zoned for
retail/commercial use, 28.1 acres for residential use, and 103.7 acres for
retail/light industrial/office use. The remaining acres are zoned for open
space/agricultural and transportation purposes. The Company sold two parcels
totaling 10.6 acres for $1.7 million during the year ended December 31, 1997.
Four parcels totaling 25.5 acres were sold during the year ended September 30,
1996 for $3.8 million and one parcel of 4.1 acres for $640,000 during the three
months ended December 31, 1996. There were no land sales during the three months
ended December 31, 1995.
GROSS MARGIN
Land sale gross margins were 41% for the year ended September 30, 1996
compared to 29% for the year ended December 31, 1997. The percentage decline
resulted from the cost of a required street extension and increased net
assessment improvements. Likewise, there was a 29% gross margin on land sales
for the three months ended December 31, 1996. Gross margins on rental income
were approximately the same for all periods as the properties are subject to a
triple net lease whereby substantially all operating expenses are paid by the
tenant.
COSTS AND EXPENSES
Land-related sales expenses include broker commissions, escrow fees, etc.,
and totaled $369,000 for the year ended September 30, 1996 and $64,000 for the
three months ended December 31, 1996. The sales expenses for the year ended
December 31, 1997 were $108,000. The decrease from the year ended September 30,
1996 is a result of fewer land sales.
B-2
<PAGE> 64
General and administrative expenses consist of property taxes and other
general management and operational costs including costs necessary to maintain
the appearance of the land in a marketable condition and personnel and overhead
expenses required for the development, management and marketing of the
properties. These expenses were $.7 million for the year ended September 30,
1996 compared to $1.1 million for the year ended December 31, 1997 with the
increase attributed to increased legal and professional expenses. Operating
expenses were similar for the quarters ending December 31, 1995 and 1996.
Interest expense consists of mortgage interest in the buildings and the
bonded indebtedness incurred in connection with the development improvements and
community services. Interest expense was approximately $1.9 million for the year
ended September 30, 1996, compared to $1.6 million for the year ended December
31, 1997. The reduction is due to normal debt maturation. Interest expense for
the quarters ending December 31, 1995 and 1996 was relatively unchanged at
$472,000 and $449,000, respectively. See "Management's Discussion and
Analysis -- Liquidity and Capital Resources."
FUTURE OPERATING RESULTS
Future operating results are dependent upon the Company's ability to
dispose of its real estate assets. Risks that affect real estate sales include,
but are not limited to, the relative illiquidity of real estate investments, the
ability to obtain entitlements from governmental agencies, changing tax
assessments, compliance with environmental requirements, and general risks such
as changes in interest rates and changes in local market conditions which affect
real estate values. The future operating results may also be affected by the
Company's relationship with Triad. These risks include, but are not limited to,
the indemnification agreement between the Company and Triad, potential conflicts
of interest within the management and representation of the Company and Triad,
and reliance upon Triad lease payments for the Company's financial performance.
On September 9, 1997, the Company entered into an Agreement of Merger with
TPL Acquisition, LLC and Richard C. Blum Associates, LP, a California limited
partnership ("RCBA"), subject to approval of the Members, in which TPL
Acquisition LLC would have merged with and into the Company and each share would
have been converted into the right to receive a cash payment of $1.32 per share
from RCBA or TPL Acquisition LLC. On February 1, 1998, the Company notified RCBA
that it was terminating the Merger Agreement pursuant to a provision contained
in the Merger Agreement allowing either party to terminate should the merger
fail to be consummated on or prior to January 31, 1998.
On February 1, 1998, the Company entered into an Agreement of Merger with
The Kontrabecki Group, Inc., a California corporation ("TKG"), and TKG
Acquisition Company LLC, a Delaware limited liability corporation whose sole and
managing member is TKG ("Acquisition LLC"), subject to approval of the Members,
in which Acquisition LLC will be merged with and into the Company and each
outstanding share will be converted into the right to receive a cash payment of
$1.65125 per share from TKG or Acquisition LLC. Following the merger of
Acquisition LLC and Triad Park, LLC, all obligations and contingent liabilities
of Triad Park, LLC will remain with Triad Park, LLC as the surviving company in
the merger and will not become obligations or liabilities of the Members. If the
Merger is not consummated on or before March 31, 1998, either Acquisition LLC or
the Company may terminate the Agreement of Merger provided that certain
conditions are met. Under certain circumstances, the Company is obligated to pay
a termination fee of $1.2 million to Acquisition LLC. A copy of the Agreement of
Merger was included as Exhibit 2.1 to the Company's Form 8-K filed with the
Securities and Exchange Commission on February 9, 1998.
LIQUIDITY AND CAPITAL RESOURCES
The Company's ability to continue funding its current business will depend
upon the timing and volume of land sales, without taking the merger of the
Company and TKG into account. Receipts from rental of its buildings under the
existing lease agreements are expected to be sufficient to fund mortgage
obligations for the foreseeable future. Currently, there is a lease agreement
for the Company's buildings in effect through February 2002 with an option to
renew for an additional term of five years. All expenses related to the
buildings are paid by the tenant as required by the "triple net lease". The
Company's ability to repay the
B-3
<PAGE> 65
remaining assessment district debt and operating expenses are dependent in part
on making future land sales. To the extent additional working capital is
required, management expects that it will have sufficient borrowing capacity to
finance any needs which may arise in the ordinary course of business.
On March 24, 1997, the City of Livermore completed the sale of Mello-Roos
bonds which raised a total of $9,070,000 in new funds, of which approximately
$6,944,000 encumbered property owned by the Company. The proceeds were
designated to refinance $2,255,000 of prior bonded indebtedness, to fund the
reimbursement to the Company of approximately $2,045,000 of previously completed
improvements, to provide funds of approximately $3,700,000 to complete
improvements required by various agreements with the City of Livermore and
others, to pay financing expenses of $610,000 and to create a reserve fund of
approximately $673,000. Of the indebtedness, approximately $5,218,000 was an
additional encumbrance to the property owned by the Company and $1,726,000
refinanced existing debt. In the quarter ended June 30, 1997, the Company
received approximately $1,485,000 from the City of Livermore as reimbursement
for previously completed projects totaling $2,085,000, net of a surety deposit
of $600,000. In the quarter ended December 31, 1997, the Company received an
additional $177,000 for completion of a designated project. The amounts received
were recorded as reductions to the assessment receivable.
In addition, the Company is obligated to undertake an estimated additional
$7,000,000 in improvements to its land in connection with its approved
development plan. The City of Livermore is expected to issue bonds to reimburse
the Company for such improvements. Improvements are funded as projects are
completed. The current estimates for the required improvements indicate that
bonded funding limits are expected to be adequate to cover the remaining items
of improvement. However, the actual costs of the improvements may be greater
than estimated and may exceed the bond funding limit. Any shortfall in the bond
funding will be borne by the Company or by purchasers of lots, which may have an
adverse effect on the value of the land.
B-4
<PAGE> 66
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
BALANCE SHEETS
(AMOUNTS SHOWN IN THOUSANDS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1996 1997
------------- -------------
<S> <C> <C>
ASSETS
Cash........................................................ $ -- $ 1,249
Land........................................................ 27,876 27,634
Property, plant and equipment............................... 12,362 12,520
Assessments receivable...................................... 2,091 1,667
Property development commitments............................ -- 3,031
Prepaid expenses and other assets........................... -- 477
------- -------
Total assets................................................ $42,329 $46,578
======= =======
LIABILITIES AND MEMBERS' EQUITY
Debt........................................................ $18,840 $21,891
Other liabilities........................................... -- 631
------- -------
Total liabilities........................................... 18,840 22,522
------- -------
Commitments and contingencies (Note 9)
Members' shares; no par value; 19,708,123 shares outstanding
at December 31, 1997...................................... -- --
Members' equity............................................. 23,489 24,056
------- -------
Total liabilities and members' equity....................... $42,329 $46,578
======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
B-5
<PAGE> 67
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
STATEMENTS OF OPERATIONS
(AMOUNTS SHOWN IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, FOR THE YEAR ENDED
SEPTEMBER 30, ------------------ DECEMBER 31,
1996 1995 1996 1997
-------------- ------- ------- ------------------
UNAUDITED
<S> <C> <C> <C> <C>
Revenues:
Rental income............................. $2,506 $ 627 $ 627 $2,506
Land sales................................ 3,795 -- 640 1,670
------ ------ ------ ------
Total revenues............................ 6,301 627 1,267 4,176
Depreciation of rental property........... 547 136 137 557
Cost of land sold......................... 2,231 -- 452 1,192
------ ------ ------ ------
Gross Margin.............................. 3,523 491 678 2,427
------ ------ ------ ------
Costs and Expenses:
Sales expenses............................ 369 -- 64 108
General and administrative................ 723 162 174 1,075
------ ------ ------ ------
Total costs and expenses.................. 1,092 162 238 1,183
------ ------ ------ ------
Operating income.......................... 2,431 329 440 1,244
Interest expense............................ 1,857 472 449 1,577
------ ------ ------ ------
Income (loss) before provision for
(benefit from) income taxes............ 574 (143) (9) (333)
Provision for (benefit from) income taxes... 53 (13) (1) (9)
------ ------ ------ ------
Net income (loss)......................... $ 521 $ (130) $ (8) $ (324)
====== ====== ====== ======
Net income (loss) per share............... $ 0.03 $(0.01) $(0.00) $(0.02)
====== ====== ====== ======
Shares used in per share calculation
(a).................................... 19,708 19,708 19,708 19,708
====== ====== ====== ======
</TABLE>
- - - ---------------
(a) The number of shares used to compute earnings per share assumes that shares
issued in connection with the spin-off were outstanding for all periods
presented.
The accompanying notes are an integral part of these financial statements.
B-6
<PAGE> 68
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
STATEMENTS OF MEMBERS' EQUITY
FOR THE YEARS ENDED SEPTEMBER 30, 1996
AND DECEMBER 31, 1997 AND THE THREE
MONTHS ENDED DECEMBER 31, 1996
(IN THOUSANDS)
<TABLE>
<CAPTION>
UNDISTRIBUTED
UNALLOCATED EARNINGS TOTAL MEMBERS'
CAPITAL (LOSSES) EQUITY
----------- ------------- --------------
<S> <C> <C> <C>
Balance, September 30, 1995.......................... $29,319 $(5,222) $24,097
Distributions...................................... (988) -- (988)
Net income......................................... 521 521
------- ------- -------
Balance, September 30, 1996.......................... 28,331 (4,701) 23,630
Distributions...................................... (133) -- (133)
Net loss........................................... (8) (8)
------- ------- -------
Balance, December 31, 1996........................... 28,198 (4,709) 23,489
Contributions...................................... 891 -- 891
Net loss........................................... (324) (324)
------- ------- -------
Balance, December 31, 1997........................... $29,089 $(5,033) $24,056
======= ======= =======
</TABLE>
The accompanying notes are an integral part of these financial statements.
B-7
<PAGE> 69
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
STATEMENTS OF CASH FLOWS
(AMOUNTS SHOWN IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED THREE MONTHS ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31, DECEMBER 31,
1996 1995 1996 1997
------------- ---- ------ ------------
UNAUDITED
<S> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)............................. $ 521 $(130) $ (8) $ (324)
Gain from sale of land........................ (1,194) -- (124) (490)
Depreciation and amortization................. 567 141 143 640
Provision for doubtful accounts............... -- -- -- 65
Changes in assets and liabilities:............ -- -- --
Increase in prepaid expenses and other
assets................................... -- -- -- (539)
Increase in other liabilities............... -- -- -- 631
------- ----- ------ -------
Net cash provided by (used in)
operating activities.............. (106) 11 11 (17)
------- ----- ------ -------
Cashflows from investing activities:
Land sales.................................... 3,523 -- 576 1,561
Investment in property, plant and equipment... (15) (3) -- (113)
Acquisition of land........................... (972) -- -- --
Land improvements............................. (146) (38) (30) (14)
Assessment district improvements.............. (214) (80) (18) (1,303)
------- ----- ------ -------
Net cash provided by (used in)
investing activites............... 2,176 (121) 528 131
------- ----- ------ -------
Cash flows from financing activities:
Repayment of debt............................. (1,082) (443) (406) (1,418)
Reimbursement for property improvements....... -- 1,662
Members' contribution (distribution) net of
note receivable............................. (988) 553 (133) 891
------- ----- ------ -------
Net cash provided by (used in)
financing activities.............. (2,070) 110 (539) 1,135
------- ----- ------ -------
Net increase in cash.......................... -- -- -- 1,249
Cash, beginning of period..................... -- -- -- --
------- ----- ------ -------
Cash, end of period........................... $ -- $ -- $ -- $ 1,249
======= ===== ====== =======
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION:
Cash paid during the year for:
Interest...................................... $ 1,857 $ 472 $ 449 $ 1,735
------- ----- ------ -------
Income taxes.................................. $ 53 $ -- $ 5 $ --
------- ----- ------ -------
NONCASH INVESTING AND FINANCIAL ACTIVITY:
Land reclassified from (to) property, plant
and equipment to land for resale............ $5,672 $ (444)
------ -------
Bond issuance resulting in increased
assessment district improvements and related
debt........................................ $ 5,218
-------
Assessment district improvements and related
debt transferred upon sale.................. $ 1,348 $ 224 $ 850
------- ------ -------
</TABLE>
The accompanying notes are an integral part of these financial statements.
B-8
<PAGE> 70
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
NOTES TO FINANCIAL STATEMENTS
1. DESCRIPTION OF BUSINESS AND BASIS OF PRESENTATION:
Triad Park, LLC (the Company) is a Delaware limited liability company
organized to effect the spin-off of certain real estate assets and related
liabilities of Cooperative Computing, Inc., a Delaware Corporation, formerly
known as Triad Systems Corporation (Triad). On October 17, 1996 Triad signed a
definitive merger agreement with Cooperative Computing, Inc. (CCI), a Texas
corporation, and its affiliate, CCI Acquisition Corp. (CAC), a Delaware
corporation, under which CCI, through CAC, would acquire Triad. Pursuant to the
terms of the merger agreement, CCI, through CAC, commenced a cash tender offer
for all outstanding shares of Triad at a price of $9.25 per share on October 23,
1996. As a condition precedent to completion of the merger, Triad arranged for
the spin-off of certain real estate assets and related liabilities (the
Predecessor Business) to Triad stockholders.
On February 27, 1997, immediately prior to completion of the tender offer,
Triad contributed such assets and related liabilities to the Company which were
recorded by the Company based on historical cost of the Predecessor Business.
Under the terms of the Real Estate Distribution Agreement (the Agreement), all
indebtedness of Triad or any of its subsidiaries secured, in whole or in part,
by any of the contributed assets have been assumed by the Company. Stockholders
of Triad received one Triad Park LLC membership interest for each share of Triad
common stock held as of February 26, 1997, the Distribution Record Date.
The Company's operations include the ownership and management of the
spun-off real estate assets, all of which are located in Livermore, California,
for their orderly liquidation and distribution of related net proceeds to the
holders of membership interests ("Members"). The Company's shares are owned 99%
by the former shareholders of Triad and 1% by Management Corp ("the Manager").
The Manager is responsible for management and control of the business of the
Company, subject to certain required approvals of the Advisory Board. The
Members may elect or vote to remove members of the Advisory Board.
The Company will be dissolved upon the earlier of a majority vote to
dissolve the Company or upon the sale or other disposition of all or
substantially all of the assets and properties of the Company and distribution
of the proceeds to the members. The financial statements presented herein
include the financial position, results of operations and cash flows of the
Predecessor Business through February 27, 1997 as if the Company had existed as
a corporation separate from Triad with all periods presented on a historical
basis and may not be indicative of actual results of operations and financial
position of the Company as an independent stand-alone entity. The statements of
operations through February 27, 1997 reflect certain expense items incurred by
Triad which are allocated to the Company on a basis which management believes
represents a reasonable allocation of such costs. These allocations consist
primarily of corporate expenses such as management and accounting services.
Expenses related to the normal recurring management activities of the Company
through February 27, 1997 have been allocated based on an estimate of Triad
personnel time dedicated to the operations and management of the Company.
Separate information for the period from January 1, 1997 to February 27, 1997 is
not presented due to the immateriality of operating results and changes in
financial position during this period.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
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 dates of the financial
statements and the reported amounts of revenues and expenses during the reported
periods. Actual results could differ from those estimates.
B-9
<PAGE> 71
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Land:
Land held for resale includes developed lots, land underdeveloped and raw
land. Land held for resale is carried at the lower of cost or market. The cost
of development of building lots includes the land, the related costs of
development (planning, survey, engineering and other) and interest costs during
development, all of which are capitalized. The carrying costs of property held
for resale, interest expense, property taxes and other are expensed. Common
costs are allocated based on square footage and relative market value.
Property, Plant and Equipment:
Property, plant and equipment are stated at cost. Depreciation is computed
using the straight-line method over the estimated useful lives of the related
assets. Leasehold improvements are amortized using the straight-line method over
their estimated useful lives or the lease term, whichever is less. As property,
plant and equipment are disposed of, the asset cost and related accumulated
depreciation or amortization are removed from the accounts, and the resulting
gains or losses are reflected in operations.
Fair Value of Financial Instruments:
Carrying amounts of certain of the Company's financial instruments
including cash, assessments receivable, accounts payable and other accrued
liabilities approximate fair value due to their short maturities. Based on
borrowing rates currently available to the company for loans with similar terms,
the carrying value of mortgage obligations and assessment district improvement
bond obligations also approximate fair value.
Debt Issuance Costs:
The unamortized costs associated with the issuance of debt are recorded
with the associated liability. Amortization is computed according to the
interest method for debt issuance costs and is included in interest expense.
Upon retirement of remaining principal balances, the associated unamortized
costs are reflected in operations.
Revenue Recognition:
Profits on sale of developed lots, developed land and raw land are
recognized in accordance with standards established for the real estate industry
which generally provide for deferral of all or part of the profit on a sale if
the buyer does not meet certain down payment requirements or certain other tests
of the buyer's financial commitment to the purchase, or the Company is required
to perform significant obligations subsequent to the sale. Cost of land sold
includes an allocated portion of acquisition and development costs along with
sales commissions, closing costs and other costs specifically related to the
sale.
Income Taxes:
The Company does not provide for income taxes as all income and losses are
allocated to the members for inclusion in their respective state and federal tax
returns. Prior to the quarter ending December 31, 1997, the company had elected
to be treated as a taxable entity in the state of California. During the
calendar quarter ending December 31, 1997, legislation was enacted retroactive
to January 1, 1997 requiring an entity to use the same election for both federal
and state purposes. The Company changed its election to comply with this
legislation.
B-10
<PAGE> 72
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Unaudited Interim Period Ended December 31, 1995:
In the opinion of management, the unaudited interim financial statements
for the three months ended December 31, 1995 include all adjustments, consisting
only of those of a normal recurring nature, necessary for fair presentation. The
accompanying financial statements should be read in conjunction with the audited
financial statements and notes thereto presented in the Form 10-SB Information
Statement (Amendment No. 1) filed by the Company with the Securities and
Exchange Commission on September 20, 1997 (Form 10-SB Information Statement).
The balance sheet as of December 31, 1996 has been derived from the audited
financial statements as of September 30, 1996 and for the three months ended
December 31, 1996 and includes all information and footnotes required by
generally accepted accounting principles for interim financial statements.
Fiscal Year:
As a limited liability corporation, the Company is treated as a partnership
for federal income tax purposes and is therefore required to use a calendar
based fiscal year end whereas Triad had a fiscal year based on the twelve months
ending on September 30 of each year. Accordingly, the accompanying financial
statements include audited financial statements for the three-month transition
period ending December 31, 1996. Unaudited financial statements are presented
for the three-month period ended December 31, 1995 for comparative purposes
only.
Net Income (Loss) Per Share:
The number of shares used to compute earnings per share assumes that shares
issued in connection with the spin-off were outstanding for all periods
presented. Net income (loss) per share has been computed in accordance with SFAS
128. Basic net income (loss) per share is computed using the weighted average
common shares outstanding during the period and are presented for all periods as
if the spin-off had occurred at the beginning of the earliest period presented.
Basic and diluted net income per share are the same for all periods presented.
3. RELATED PARTY AGREEMENT:
The Company's developed commercial property, consisting of three buildings
and improvements on approximately 15 acres, is occupied by Triad under a lease
agreement that provides for annual rent of $2,505,720 payable monthly in advance
through February 1999 and prevailing market rate thereafter, providing that
annual rental shall not fall below rate in effect at the date of renegotiation
nor exceed 120% of such rental rate. Payments under the lease are on a "net
lease" basis, free of any impositions and with out abatement, deduction or
set-off. The tenant is required to pay all impositions (e.g. taxes, assessments,
water and sewer charges, excises, levies, etc.) in addition to the annual rent.
Certain officers of the Company are also officers or employees of Triad.
The stock of Management Corp. is owned by two of Triad's current or former
directors. In February 1997, in connection with the Company's capitalization, a
promissory note of $142,000 was received from Management Corp. for purchase of
1% of the membership interests. This note was redeemed as of the quarter ended
December 31, 1997.
B-11
<PAGE> 73
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
4. LAND:
Land consists of property in Livermore, California, classified by planned
use as follows (Dollars shown are in thousands and acreage is approximate.):
<TABLE>
<CAPTION>
DECEMBER 31,1996 DECEMBER 31,1997
USE CLASSIFICATION ACREAGE/COST ACREAGE/COST
------------------ ---------------- ----------------
<S> <C> <C> <C> <C>
Residential............................. 28.1 $ 4,029 28.1 $ 4,311
Retail/commercial....................... 35.9 4,797 35.9 5,788
Retail/industrial/office................ 114.3 17,925 103.7 16,570
Open space/agricultural................. 112.0 -- 112.0 --
Transportation.......................... 12.3 1,125 12.3 965
---------------- ----------------
302.6 $27,876 292.0 $27,634
================ ================
</TABLE>
5. PROPERTY, PLANT AND EQUIPMENT:
Property, plant and equipment consist of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1996 1997
------------ ------------
<S> <C> <C>
Building and leasehold improvements................ $16,317 $16,429
Less accumulated depreciation...................... (4,932) (5,488)
------- -------
11,385 10,941
Land............................................... 977 1,579
------- -------
$12,362 $12,520
======= =======
</TABLE>
The above facilities and land are all subject to a lease agreement with
Triad for use as their headquarters (see Note 3).
During 1997, assessment projects were funded and the prorata portion,
$158,000, was capitalized to land included in property, plant and equipment. In
addition, a change in the valuation by the tax assessor resulted in a $444,000
reclassification which increased the land associated with property, plant, and
equipment and decreased land for resale by the same amount.
6. DEBT:
Long-term debt consists of the following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1996 1997
------------ ------------
<S> <C> <C>
Mortgage loan payable, bearing interest at 9.9% and
maturing through 2003............................ $ 9,749 $ 8,680
Assessment district improvement bonds bearing
interest rates ranging from 4.5% to 7.25% and
maturing through 2022............................ 9,228 13,328
Unamortized debt issuance costs.................... (137) (117)
------- -------
$18,840 $21,891
======= =======
</TABLE>
The interest rate on the mortgage financing for the Livermore headquarters
facility may be adjusted at the option of the lender in 1998 and could impact
the interest rate from 1999 to its maturity in 2003. Borrowings are
collateralized by the land and buildings and are payable in monthly
installments.
B-12
<PAGE> 74
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
6. DEBT: (CONTINUED)
A portion of the Company's land for resale and the parcel retained for its
facilities are part of assessment districts and are subject to bonded
indebtedness incurred in connection with the development of improvements and
community services. Semiannual principal and interest payments on the bonds are
required as long as the parcels are owned by the Company. As the Company sells
land, the corresponding obligation will be assumed by the new owners.
On March 24, 1997, the City of Livermore entered into a Bond Indenture and
issued an additional $9,070,000 in new funds from the sale of community facility
bonds. At that time the Company owned 76.56% of the property related to this
Issuance. The Company's portion of the bond issuance was designated for
approximately $5,218,000 of additional debt and $1,726,000 for the refinancing
of existing debt. The Company recorded the net additional debt as a liability.
7. MEMBERS' EQUITY:
Members have the right to vote on certain matters of the Company including
the election and removal of Advisory Board members, merger with or into another
business entity and dissolution of the Company. All the issued and outstanding
membership interests are fully paid and nonassessable. Holders of membership
interests do not have preemptive or conversion rights, nor rights to redemption
or sinking fund provisions by the Company. In the event of any liquidation,
dissolution or winding up of the Company, the holders of the membership
interests are entitled to distribution in any assets remaining after payment of
all debts and liabilities.
8. SIGNIFICANT CUSTOMERS:
The Company had land sales to four customers during the year ended
September 30, 1996 and one customer during the three months ended December 31,
1996. The Company had land sales to two customers during the year ended December
31, 1997.
9. CONTINGENCIES:
Under the terms of the Distribution Agreement (see Note 1), the Company
will indemnify and hold Triad and its subsidiaries harmless from and against
loss, cost, damage or expense arising out of or related to any failure of the
Company to discharge the obligations specified in the Agreement. The Company
will indemnify and hold Triad and its subsidiaries harmless from and against any
taxes attributed to, arising out of or relating to the Company, its formation,
the transfer of contributed assets, the assumption or refinancing of liabilities
with respect to the contributed assets, the sale, exchange, distribution,
dividend or other disposition of interests of the Company by Triad or its
subsidiaries.
To support its ability to fund the indemnity commitment to Triad, the
Company has agreed to maintain net assets with a minimum market value of
$2,350,000 based upon the most recent appraised value of the Company's then
existing real property assets until 60 days after the expiration of all statutes
of limitation related to the collection of taxes related to the transactions
contemplated by the Agreement (estimated to be approximately four years). Triad
may cause the real property to be appraised at any time and the Company must pay
one half of the expense if the most current calculation of net worth is less
than $4,000,000. Compliance with these requirements may limit the Company's
ability to make distributions to members.
The Company is obligated to undertake an estimated additional $7,000,000 in
improvements to its land held for resale in connection with its approved
development plan. The City of Livermore has indicated that it is willing to
reimburse the Company for such improvements by means of a bond financing.
Historically, the City of Livermore has been able to successfully sell its bond
offerings and the current estimates for required
B-13
<PAGE> 75
TRIAD PARK, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
9. CONTINGENCIES (CONTINUED)
improvements indicate that bonded funding limits will be adequate to cover the
remaining items of improvement. However, the actual costs of the improvements
may be greater than estimated and may exceed the bond funding limit.
Alternatively, if the City of Livermore is unsuccessful in completing a bond
offering, it is possible the Company would not receive any reimbursement for
such improvements. Any shortfall in the bond funding will be borne by the
Company or by purchasers of lots, which may have an adverse effect on the value
of the land.
10. RECENT ACCOUNTING PRONOUNCEMENTS:
In July 1997, the Financial Accounting Standards Board issued Statement of
Accounting Standard No. 130 (SFAS 130), "Reporting Comprehensive Income", which
requires a separate financial statement showing changes in comprehensive income,
is effective for financial statements issued for fiscal years beginning after
December 15, 1997. SFAS 130 requires reclassification of all prior-period
financial statements for comparative purposes. The Company is evaluating
alternative formats for presenting this information, but does not expect this
pronouncement to materially impact the Company's results of operations.
In July 1997, the Financial Accounting Standards Board issued Statement of
Accounting Standards No. 131 (SFAS 131), "Disclosures about Segments of an
Enterprise and Related Information", which requires companies to report certain
information about operating segments, including certain information about their
products, services, the geographic areas in which they operate and their major
customers. This statement supersedes FASB Statements Nos. 14, 18, 24, 30. SFAS
131 is effective for financial statements for fiscal years beginning after
December 15, 1997. The Company is evaluating the requirements of SFAS 131 and
the effects if any, on the Company's current reporting and disclosures.
11. SUBSEQUENT EVENT:
On September 9, 1997, the Company entered into an Agreement of Merger with
TPL Acquisition, LLC and Richard C. Blum Associates, LP, a California limited
partnership ("RCBA"), subject to approval of the Members, in which TPL
Acquisition, LLC would have merged with and into the Company and each share
would have been converted into the right to receive a cash payment of $1.32 per
share from RCBA or TPL Acquisition, LLC. On February 1, 1998, the Company
notified RCBA that it was terminating the Merger Agreement pursuant to a
provision contained in the Merger Agreement allowing either party to terminate
should the merger fail to be consummated on or prior to January 31, 1998.
On February 1, 1998, the Company entered into an Agreement of Merger with
The Kontrabecki Group, Inc., a California corporation("TKG"), and TKG
Acquisition Company LLC, a Delaware limited liability corporation whose sole and
managing member is TKG ("Acquisition LLC"), subject to approval of the Members,
in which Acquisition LLC will be merged with and into the Company and each
outstanding share will be converted into the right to receive a cash payment of
$1.65125 per share from TKG or Acquisition LLC. Following the merger of
Acquisition LLC and Triad Park, LLC, all obligations and contingent liabilities
of Triad Park, LLC will remain with Triad Park, LLC as the surviving company in
the merger and will not become obligations or liabilities of the Members. If the
Merger is not consummated on or before March 31, 1998, either Acquisition LLC or
the Company may terminate the Agreement of Merger provided that certain
conditions are met. Under certain circumstances, the Company is obligated to pay
a termination fee of $1.2 million to Acquisition LLC. A copy of the Agreement of
Merger was included as Exhibit 2.1 to the Company's Form 8-K filed with the
Securities and Exchange Commission on February 9, 1998.
B-14
<PAGE> 76
REPORT OF INDEPENDENT ACCOUNTANTS
To the Members of
Triad Park, LLC:
We have audited the accompanying balance sheet of Triad Park, LLC (a
Delaware limited liability company) as of December 31, 1997, and the related
statements of operations, changes in members' equity and cash flows for the year
then ended. We have also audited the balance sheet at December 31, 1996 and the
related statements of operations, changes in members' equity and cash flows of
the Predecessor Business (See Note 1) for the year ended September 30, 1996 and
the three months 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 audit.
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 audit provides 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 Triad Park, LLC (a Delaware
limited liability company) as of December 31, 1997 and the results of its
operations and cash flows for the year then ended, in conformity with generally
accepted accounting principles. Also in our opinion, the financial statements of
the Predecessor Business referred to above present fairly, in all material
respects, the financial position of the Predecessor Business as of December 31,
1996 and the results of its operations and its cash flows for the year ended
September 30, 1996 and the three months ended December 31, 1996, in conformity
with generally accepted accounting principles.
/s/ COOPERS & LYBRAND LLP
San Jose, California
February 27, 1998
B-15
<PAGE> 77
TRIAD PARK, LLC
3055 TRIAD DRIVE
LIVERMORE, CALIFORNIA 94550
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS MAY , 1998
THIS PROXY IS SOLICITED ON BEHALF OF THE ADVISORY BOARD
The undersigned appoints Larry D. McReynolds and Stanley F. Marquis, and
each of them, with power to act without the other and with all the right of
substitution in each, the proxies of the undersigned to vote all shares of Triad
Park, LLC (the "Company") held by the undersigned on May , 1998, at the
Special Meeting of Shareholders of the Company, to be held on May , 1998 at
10:00 a.m. local time at the offices of the Company, 3055 Triad Drive,
Livermore, California 94550, and all adjournments thereof, with all powers the
undersigned would possess if present in person. All previous proxies given with
respect to the meeting are revoked.
Receipt of Notice of Special Meeting of Shareholders and Proxy Statement is
acknowledged by your execution of this proxy. Complete, sign, date, and return
this proxy in the addressed envelope -- no postage required. Please mail
promptly to save further solicitation expenses.
<TABLE>
<S> <C> <C> <C>
1. Approval of Merger Agreement, dated April 24, [ ] FOR THE MERGER [ ] AGAINST THE MERGER [ ] ABSTAIN
1998, by and among The Kontrabecki Group, Inc.,
TKG Aquisition Company, LLC and Triad Park, LLC
</TABLE>
(continued, and to be dated and signed, on other side)
<PAGE> 78
2. To allow the Advisory Board, in its sole discretion, to adjourn the meeting
to permit further solicitation of proxies in the event there are not
sufficient votes to approve and adopt the Merger Agreement.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
3. To vote with discretionary authority upon such other matters as may come
before the meeting. (Discretionary authority will be only exercised with
respect to votes in favor or abstentions.)
[ ] FOR [ ] AGAINST [ ] ABSTAIN
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS PROVIDED BY THE
UNDERSIGNED SHAREHOLDER, THIS PROXY WILL BE VOTED "FOR" ITEMS 1, 2 AND 3.
SIGNATURE(S)
-----------------------------------
-----------------------------------
Dated: , 1998
INSTRUCTION: When shares are held
by joint tenants, all joint tenants
should sign. When signing as
attorney, executor, administrator,
trustee, custodian, or guardian,
please give full title as such. If
shares are held by a corporation,
this proxy should be signed in full
corporate name by its president or
other authorized officer. If a
partnership holds the shares
subject to this proxy, an
authorized person should sign in
the name of such partnership.
