<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
MARCAM SOLUTIONS, INC.
(Name of Subject Company)
INVENSYS PLC
M ACQUISITION CORP.
M MERGER SUB, INC.
(BIDDERS)
COMMON STOCK, $.01 PAR VALUE
(INCLUDING THE ASSOCIATED RIGHTS)
(TITLE OF CLASS OF SECURITIES)
56614A107
(CUSIP NUMBER OF COMMON STOCK)
PAUL REINSTEIN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004-1930
(212) 859-8000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
---------------------- --------------------
<S> <C>
$65,808,975 $13,162
</TABLE>
* FOR PURPOSES OF CALCULATING FEE ONLY. THIS AMOUNT IS BASED ON A PER
SHARE OFFERING PRICE OF $7.50, FOR 8,774,530 SHARES OF COMMON STOCK.
PURSUANT TO THE AGREEMENT AND PLAN OF MERGER, DATED AS OF MAY 27, 1999,
BY AND AMONG MARCAM SOLUTIONS, INC. (THE "COMPANY"), INVENSYS PLC, M
ACQUISITION CORP. AND M MERGER SUB, INC. (COLLECTIVELY, THE "BIDDERS"),
THE COMPANY REPRESENTED TO THE BIDDERS THAT, AS OF SUCH DATE, IT HAD
7,818,087 SHARES OF COMMON STOCK ISSUED AND OUTSTANDING AND 889,176
SHARES OF COMMON STOCK RESERVED FOR ISSUANCE UPON EXERCISE OF
OUTSTANDING STOCK OPTIONS WITH EXERCISE PRICES BELOW $7.50 PER SHARE.
THE COMPANY HAS ALSO ADVISED THE BIDDERS THAT IT HAS APPROXIMATELY
158,746 SHARES OF COMMON STOCK RESERVED FOR ISSUANCE PURSUANT TO THE
TERMS OF THE COMPANY'S EMPLOYEE STOCK PURCHASE PLAN AND THAT THE
ESTIMATED NUMBER OF SHARES OF COMMON STOCK THAT MAY BE PURCHASED BY
EMPLOYEES AT THE END OF THE CURRENT PAYMENT PERIOD IS 67,267. THE
AMOUNT OF THE FILING FEE, CALCULATED IN ACCORDANCE WITH RULE 0-11 UNDER
THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, EQUALS 1/50 OF ONE
PERCENT OF THE AGGREGATE OF THE CASH OFFERED BY THE BIDDER.
/ / CHECK BOX IF ANY PART OF THE FEE IS OFFSET AS PROVIDED BY RULE
0-11(a)(2) AND IDENTIFY THE FILING WITH WHICH THE OFFSETTING FEE WAS
PREVIOUSLY PAID. IDENTIFY THE PREVIOUS FILING BY REGISTRATION STATEMENT
NUMBER, OR THE FORM OR SCHEDULE AND THE DATE OF ITS FILING.
AMOUNT PREVIOUSLY PAID: N/A FILING PARTY: N/A
FORM OR REGISTRATION NO.: N/A DATE FILED: N/A
<PAGE> 2
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Invensys plc
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
3
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
England and Wales
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,848,107**
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.5%**
10 TYPE OF REPORTING PERSON
CO
**See Section 12 of the Offer to Purchase, incorporated herein by reference, for
a description of the Tender and Option Agreement, dated May 27, 1999, between
Purchaser, Offeror and the Stockholders Listed on Schedule A thereto.
2
<PAGE> 3
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
M Acquisition Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [x]
3
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d)or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,848,107**
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.5%**
10 TYPE OF REPORTING PERSON
CO
** See Section 12 of the Offer to Purchase, incorporated herein by reference,
for a description of the Tender and Option Agreement, dated May 27, 1999,
between Purchaser, Offeror and the Stockholders Listed on Schedule A thereto.
3
<PAGE> 4
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
M Merger Sub, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
3
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,848,107**
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.5%**
10 TYPE OF REPORTING PERSON
CO
** See Section 12 of the Offer the Purchase, incorporated herein by reference,
for a description of the Tender and Option Agreement, dated May 27, 1999,
between Purchaser, Offeror and the Stockholders Listed on Schedule A thereto.
4
<PAGE> 5
This Tender Offer Statement on Schedule 14D-1 relates to a tender offer
by M Merger Sub, Inc., a Delaware corporation ("Offeror"), and a direct wholly
owned subsidiary of M Acquisition Corp., a Delaware corporation ("Purchaser")
and an indirect wholly owned subsidiary of Invensys plc, a public limited
company organized under the laws of England and Wales ("Parent"), to purchase
all outstanding shares of Common Stock, par value $.01 per share (the "Common
Stock"), including the associated preferred stock purchase rights issued
pursuant to the Amended and Restated Rights Agreement, dated as of September 18,
1998, as amended through the date hereof, between the Company and BankBoston,
N.A., as Rights Agent (the "Rights" and, together with the Common Stock, the
"Shares"), of Marcam Solutions, Inc., a Delaware corporation (the "Company"), at
a purchase price of $7.50 per Share, net to the seller in cash, without
interest, upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated June 3, 1999 (the "Offer to Purchase"), and in the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer"), copies of which are filed as
Exhibits (a)(1) and (a)(2) hereto, respectively, and which are incorporated
herein by reference. Purchaser and Offeror have been formed by Parent in
connection with the Offer and the transactions contemplated thereby. This
Tender Offer Statement on Schedule 14D-1 also constitutes a Statement on
Schedule 13D with respect to the Tender and Option Agreement, a copy of which
is attached as Exhibit (c)(2).
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Marcam Solutions, Inc. The
address of the principal executive offices of the Company is 95 Wells Avenue,
Newton, Massachusetts 02459.
(b) The information set forth in the Introduction and Section 1 ("Terms
of the Offer") of the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 ("Price Range of Shares;
Dividends") of the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) through (d), (g) This Schedule 14D-1 is filed by Parent, Purchaser
and Offeror. The information set forth in the Introduction and Section 9
("Certain Information Concerning Parent, Purchaser and Offeror") of the Offer to
Purchase and in Schedule I thereto is incorporated herein by reference.
(e) and (f) None of Offeror, Purchaser or Parent or, to the best of
their knowledge, any of the persons listed in Schedule I of the Offer to
Purchase, has during the last five years (i) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) been a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting activities
subject to, federal or state securities laws or finding of any violation of such
laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) and (b) The information set forth in the Introduction, Section 8
("Certain Information Concerning the Company"), Section 9 ("Certain Information
Concerning Parent, Purchaser and Offeror"), Section 11 ("Background of the
Offer") and Section 12 ("Purpose of the Offer and the Merger; Plans for the
Company; The Transaction Documents") of the Offer to Purchase is incorporated
herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
(b) and (c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a) through (c), (e) The information set forth in the Introduction,
Section 12 ("Purpose of the Offer and the Merger; Plans for the Company; The
Transaction Documents") and Section 13 ("Dividends and Distributions") of the
Offer to Purchase is incorporated herein by reference.
(d) The information set forth in the Offer to Purchase is incorporated
herein by reference.
-5-
<PAGE> 6
(f) through (g) The information set forth in Section 7 ("Effect of the
Offer on the Market for Shares; Stock Quotation; Exchange Act Registration and
Margin Securities") of the Offer to Purchase is incorporated herein by
reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) None.
(b) Not applicable.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introduction, Section 1 ("Terms of the
Offer"), Section 9 ("Certain Information Concerning Parent, Purchaser and
Offeror"), Section 10 ("Source and Amount of Funds"), Section 11 ("Background of
the Offer"), Section 12 ("Purpose of the Offer and the Merger; Plans for the
Company; The Transaction Documents"), Section 13 ("Dividends and Distributions")
and Section 14 ("Certain Conditions to the Offer") of the Offer to Purchase is
incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Introduction and Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not Applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in the Introduction, Section 1 ("Terms of
the Offer"), Section 9 ("Certain Information Concerning Parent, Purchaser and
Offeror"), Section 11 ("Background of the Offer"), Section 12 ("Purpose of
the Offer and the Merger; Plans for the Company; The Transaction Documents"),
Section 13 ("Dividends and Distributions") and Section 14 ("Certain Conditions
to the Offer") of the Offer to Purchase is incorporated herein by reference.
(b) and (c) The information set forth in Section 15 ("Certain
Regulatory and Legal Matters") of the Offer to Purchase is incorporated herein
by reference.
(d) The information set forth in Section 7 ("Effect of the Offer on the
Market for Shares, Stock Quotation, Exchange Act Registration and Margin
Securities") of the Offer to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase, a copy of which
is attached as Exhibit (a)(1), and the Letter of Transmittal, a copy of which is
attached as Exhibit (a)(2), is incorporated herein by reference in its entirety.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase, dated June 3, 1999.
(a)(2) Letter of Transmittal.
(a)(3) Letter from Morgan Stanley Dean Witter to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
(a)(4) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(7) Summary Announcement, dated June 3, 1999.
(a)(8) Press Release issued by Parent on May 27, 1999.
(a)(9) Press Release issued by Parent on June 3, 1999.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of May 27, 1999, among
Parent, Purchaser, Offeror and
-6-
<PAGE> 7
the Company.
(c)(2) Tender and Option Agreement, between Purchaser, Offeror and
the Stockholders Listed on Schedule A thereto, dated as
of May 27, 1999.
(c)(3) Confidentiality Agreement, between Parent and the Company,
dated May 17, 1999.
(d) None.
(e) Not applicable.
(f) None.
-7-
<PAGE> 8
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: June 3, 1999
INVENSYS PLC
By: /s/ R.P.A. Coles
---------------------------------------
Name: R.P.A. Coles
Title: Secretary
M ACQUISITION CORP.
By: /s/ Roy H. Slavin
---------------------------------------
Name: Roy H. Slavin
Title: Chief Executive Officer
M MERGER SUB, INC.
By: /s/ Roy H. Slavin
---------------------------------------
Name: Roy H. Slavin
Title: Chief Executive Officer
-8-
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION NO.
------- ---------------
<S> <C>
(a)(1) -- Offer to Purchase, dated June 3, 1999.
(a)(2) -- Letter of Transmittal.
(a)(3) -- Letter from Morgan Stanley Dean Witter to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees.
(a)(4) -- Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(a)(5) -- Notice of Guaranteed Delivery.
(a)(6) -- Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(7) -- Summary Announcement, dated June 3, 1999.
(a)(8) -- Press Release issued by Parent on May 27, 1999.
(a)(9) -- Press Release issued by Parent on June 3, 1999.
(b) -- Not applicable.
(c)(1) -- Agreement and Plan of Merger, dated as of May 27, 1999,
among Parent, Purchaser, Offeror and
the Company.
(c)(2) -- Tender and Option Agreement, between Purchaser, Offeror and
the Stockholders Listed on Schedule A thereto, dated as
of May 27, 1999.
(c)(3) -- Confidentiality Agreement, between Parent and the Company,
dated May 17, 1999.
(d) -- None.
(e) -- Not applicable.
(f) -- None.
</TABLE>
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<PAGE> 1
EXHIBIT (A)(1)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Rights)
of
Marcam Solutions, Inc.
at
$7.50 Net Per Share
by
M Merger Sub, Inc.,
a direct wholly owned subsidiary of
M ACQUISITION CORP.,
an indirect wholly owned subsidiary of
INVENSYS PLC
------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, JUNE 30, 1999, UNLESS THE OFFER IS EXTENDED.
------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS HEREINAFTER DEFINED) OF THE
OFFER THAT NUMBER OF SHARES WHICH WOULD REPRESENT AT LEAST A MAJORITY OF THE
OUTSTANDING SHARES ON A FULLY DILUTED BASIS. SEE SECTIONS 12 AND 14.
------------------------
THE BOARD OF DIRECTORS OF MARCAM SOLUTIONS, INC. (THE "COMPANY") HAS UNANIMOUSLY
APPROVED THE OFFER AND THE MERGER REFERRED TO HEREIN AND DETERMINED THAT THE
TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY AND RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER ALL OF THEIR SHARES PURSUANT THERETO.
------------------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares (as hereinafter defined) should either (i) complete and sign the Letter
of Transmittal (or a facsimile thereof) in accordance with the instructions in
the Letter of Transmittal and mail or deliver the certificate(s) representing
the tendered Shares, and all other required documents, to the Depositary or
tender such Shares pursuant to the procedure for book-entry transfer set forth
in Section 3 or (ii) request his broker, dealer, commercial bank, trust company
or other nominee to effect the transaction for him. A stockholder whose Shares
are registered in the name of a broker, dealer, commercial bank, trust company
or other nominee must contact such person if he desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates representing
such Shares are not immediately available or who cannot comply with the
procedures for book-entry transfer on a timely basis may tender such Shares by
following the procedure for guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to Morgan Stanley & Co.
Incorporated, the Dealer Manager, or to D.F. King & Co., Inc., the Information
Agent, at their respective addresses and telephone numbers set forth on the back
cover of this Offer to Purchase. Additional copies of this Offer to Purchase,
the Letter of Transmittal, the Notice of Guaranteed Delivery and other related
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks and trust companies.
------------------------
The Dealer Manager for the Offer is:
MORGAN STANLEY DEAN WITTER
June 3, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. Terms of the Offer.............. 4
2. Acceptance for Payment and
Payment for Shares.............. 5
3. Procedure for Tendering
Shares........................... 6
4. Withdrawal Rights............... 8
5. Certain Federal Income Tax
Consequences.................... 9
6. Price Range of Shares;
Dividends....................... 9
7. Effect of the Offer on the
Market for Shares; Stock
Quotation; Exchange Act
Registration and Margin
Securities...................... 10
8. Certain Information Concerning
the Company..................... 11
9. Certain Information Concerning
Parent, Purchaser and Offeror... 14
</TABLE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
10. Source and Amount of Funds........ 15
11. Background of the Offer........... 15
12. Purpose of the Offer and the
Merger; Plans for the Company; The
Transaction Documents............. 16
13. Dividends and Distributions....... 29
14. Certain Conditions to the Offer... 30
15. Certain Regulatory and Legal
Matters........................... 31
16. Fees and Expenses................. 32
17. Miscellaneous..................... 33
Schedule I -- Certain Information
Concerning the Directors and
Executive Officers of Parent,
Purchaser and Offeror............... I-1
</TABLE>
i
<PAGE> 3
To the Holders of Common Stock of
MARCAM SOLUTIONS, INC.:
INTRODUCTION
M Merger Sub, Inc., a Delaware corporation ("Offeror"), and a direct wholly
owned subsidiary of M Acquisition Corp., a Delaware corporation ("Purchaser")
and an indirect wholly owned subsidiary of Invensys plc, a public limited
company organized under the laws of England and Wales ("Parent"), hereby offers
to purchase all outstanding shares of Common Stock, par value $.01 per share
(the "Common Stock"), together with the associated preferred stock purchase
rights (the "Rights" and, together with the Common Stock, the "Shares"), of
Marcam Solutions, Inc., a Delaware corporation (the "Company"), at a purchase
price of $7.50 per Share, net to the seller in cash, without interest (the
"Offer Price"), upon the terms and subject to the conditions set forth in this
Offer to Purchase and in the related Letter of Transmittal (which, together with
any amendments or supplements hereto or thereto, collectively constitute the
"Offer"). The Rights were issued pursuant to the Amended and Restated Rights
Agreement, dated as of September 18, 1998, as amended through the date hereof
(the "Rights Agreement"), between the Company and BankBoston, N.A., as Rights
Agent, and are currently evidenced by and trade with certificates evidencing the
Common Stock. See Section 12 for a brief discussion of the Rights Agreement and
its application to the Offer and the Merger (as hereinafter defined).
Each of Offeror and Purchaser is a corporation, newly formed by Parent in
connection with the Offer and the transactions contemplated thereby. For
information concerning Parent, see Section 9.
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer.
Purchaser will pay all fees and expenses of Morgan Stanley & Co. Incorporated
(the "Dealer Manager"), which is acting as Dealer Manager, Bankers Trust
Company, which is acting as the Depositary (the "Depositary"), and D.F. King &
Co., Inc., which is acting as Information Agent (the "Information Agent"),
incurred in connection with the Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD OF DIRECTORS") HAS
UNANIMOUSLY APPROVED THE OFFER AND THE MERGER AND DETERMINED THAT THE TERMS OF
THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY AND RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER ALL OF THEIR SHARES PURSUANT THERETO.
BROADVIEW INTERNATIONAL LLC, THE COMPANY'S FINANCIAL ADVISOR (THE
"FINANCIAL ADVISOR"), HAS DELIVERED TO THE BOARD OF DIRECTORS ITS WRITTEN
OPINION DATED MAY 25, 1999 TO THE EFFECT THAT, AS OF SUCH DATE, THE CASH
CONSIDERATION OF $7.50 PER SHARE TO BE RECEIVED BY THE HOLDERS OF THE SHARES
PURSUANT TO THE OFFER AND THE MERGER IS FAIR TO SUCH HOLDERS FROM A FINANCIAL
POINT OF VIEW. SUCH OPINION IS SET FORTH IN FULL AS AN ANNEX TO THE COMPANY'S
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"),
WHICH IS BEING MAILED TO STOCKHOLDERS OF THE COMPANY CONCURRENTLY HEREWITH.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER THAT NUMBER
OF SHARES WHICH WOULD REPRESENT AT LEAST A MAJORITY OF THE OUTSTANDING SHARES ON
A FULLY DILUTED BASIS (SUCH CONDITION, THE "MINIMUM CONDITION," AND SUCH SHARES,
THE "MINIMUM SHARES"). SEE SECTIONS 12 AND 14.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of May 27, 1999 (the "Merger Agreement"), among Parent, Purchaser, Offeror
and the Company, pursuant to which, as promptly as practicable following the
later of the consummation of the Offer and the satisfaction or waiver of certain
1
<PAGE> 4
conditions, Offeror will be merged with and into the Company. Following the
consummation of the Merger, the Company will be the surviving corporation (the
"Surviving Corporation"). Offeror also has the right to assign its rights under
the Merger Agreement to a wholly owned subsidiary or subsidiaries of Parent. In
the Merger, each outstanding Share (other than Shares held by the Company or
owned by Parent, Purchaser or Offeror and other than Shares held by
stockholders, if any, who perfect their appraisal rights under Delaware law)
will be converted into the right to receive $7.50, without interest thereon, in
cash (the "Merger Consideration") and the Company will become a direct wholly
owned subsidiary of Purchaser and an indirect wholly owned Subsidiary of Parent.
See Section 12.
Subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Securities and Exchange Commission (the "Commission"),
Offeror expressly reserves the right, in its sole discretion, at any time and
from time to time, and regardless of whether or not any of the events set forth
in Section 14 hereof shall have occurred or shall have been determined by
Offeror to have occurred, (i) to extend the period of time during which the
Offer is open, and thereby delay acceptance for payment of and the payment for
any Shares, by giving oral or written notice of such extension to the Depositary
and (ii) to amend the Offer in any other respect by giving oral or written
notice of such amendment to the Depositary.
If by 12:00 Midnight, New York City time, on Wednesday, June 30, 1999 (or
any other date or time then set as the Expiration Date), any or all conditions
to the Offer have not been satisfied or waived, Offeror reserves the right (but
shall not be obligated), subject to the terms and conditions contained in the
Merger Agreement and to the applicable rules and regulations of the Commission,
to (i) terminate the Offer and not accept for payment any Shares and return all
tendered Shares to tendering stockholders, (ii) waive all the unsatisfied
conditions and, subject to complying with the terms of the Merger Agreement and
the applicable rules and regulations of the Commission, accept for payment and
pay for all Shares validly tendered prior to the Expiration Date and not
theretofore withdrawn, (iii) extend the Offer and, subject to the right of
stockholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended or (iv) amend the Offer. The Merger Agreement provides that, so long as
the Merger Agreement is in effect and the Offer conditions are not satisfied on
any scheduled expiration date of the Offer, then, provided that all such
conditions are and continue to be reasonably probable of being satisfied by the
date that is 30 business days after commencement of the Offer, Parent, Purchaser
and Offeror shall extend the Offer from time to time, until such conditions are
satisfied or waived, provided that Parent, Purchaser and Offeror shall not be
required to extend the Offer beyond the date that is 30 business days after the
commencement of the Offer.
There can be no assurance that Offeror will exercise its right to extend
the Offer. Any extension, waiver, amendment or termination will be followed as
promptly as practicable by public announcement thereof. In the case of an
extension, Rule 14e-1(d) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), requires that the announcement be issued no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Exchange Act, subject to applicable law
(including Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which require
that any material change in the information published, sent or given to
stockholders in connection with the Offer be promptly disseminated to
stockholders in a manner reasonably designed to inform stockholders of such
change). Without limiting the obligation of Offeror under such rules or the
manner in which Offeror may choose to make any public announcement, Offeror will
not have any obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to the Dow Jones News
Service.
In the Merger Agreement, Offeror has agreed that, it will not, without the
prior consent of the Company, extend the Offer if all of the Offer conditions
are satisfied or waived, except that Offeror may, without the consent of the
Company, extend the Offer at any time and from time to time (i) if at the then
scheduled expiration date of the Offer any of the conditions to Offeror's
obligation to accept for payment and pay for Shares shall not have been
satisfied or waived, such extension not to exceed such time as Offeror shall
reasonably conclude is necessary for all such conditions to be satisfied or
waived, (ii) for any period required by any statute or rule, regulation,
interpretation or position of the Commission or its staff applicable to the
Offer, (iii) for any period required by applicable law in connection with an
increase in the consideration to be
2
<PAGE> 5
paid pursuant to the Offer, and (iv) if all conditions to the Offer are
satisfied or waived but the number of Shares tendered is less than 90% of the
then outstanding number of Shares, but only if Offeror waives all Offer
conditions, for an aggregate period of not more than 10 business days (for all
such extensions under this clause (iv)) beyond the latest expiration date that
would be permitted under clause (i), (ii) or (iii) of this sentence. In
addition, Offeror has agreed that, without the prior written consent of the
Company, it will not (i) waive or increase the Minimum Condition, (ii) reduce
the number of Shares subject to the Offer, (iii) reduce the price per Share to
be paid pursuant to the Offer, (iv) change the form of consideration payable in
the Offer, or (v) amend, modify or add to the conditions of the Offer (including
the conditions described in Section 14) or the Offer in any manner adverse to
the holders of Shares.
If Offeror extends the Offer, or if Offeror (whether before or after its
acceptance for payment of Shares) is delayed in its acceptance for payment of,
or payment for, Shares or is unable to pay for Shares pursuant to the Offer for
any reason, then, without prejudice to Offeror's rights under the Offer, the
Depositary may retain tendered Shares on behalf of Offeror, and such Shares may
not be withdrawn except to the extent tendering stockholders are entitled to
withdrawal rights as described in Section 4. However, the ability of Offeror to
delay the payment for Shares that Offeror has accepted for payment is limited by
Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which requires that a bidder pay the consideration offered or
return the securities deposited by or on behalf of holders of securities
promptly after the termination or withdrawal of such bidder's offer.
If Offeror makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including, with the consent of the Company, the Minimum Condition), Offeror
will disseminate additional tender offer materials and extend the Offer to the
extent required by Rules 14d-4(c), 14d-6(d) and 14e-l under the Exchange Act.
The minimum period during which an offer must remain open following material
changes in the terms of the offer or information concerning the offer, other
than a change in price or a change in the percentage of securities sought, will
depend upon the facts and circumstances then existing, including the relative
materiality of the changed terms or information. With respect to a change in
price or a change in the percentage of securities sought, a minimum period of 10
business days is generally required to allow for adequate dissemination to
stockholders. As used in this Offer to Purchase, "business day" has the meaning
set forth in Rule 14d-1 under the Exchange Act.
Based on the representations and warranties of the Company contained in the
Merger Agreement and information provided by the Company, as of May 27, 1999,
(i) 7,818,087 Shares were outstanding, (ii) 500,000 Shares were reserved for
issuance upon the exercise of outstanding warrants (all of which warrants have
exercise prices above $7.50 per share), (iii) 2,336,540 Shares were reserved for
issuance upon the exercise of outstanding employee and non-employee director and
other stock options (1,457,364 of which options have exercise prices above $7.50
per share) and (iv) approximately 67,267 Shares were expected to be issued
pursuant to the Company's employee stock purchase plan. In addition, the Company
has offered to grant to each of two new employees options to purchase 5,000
Shares. Pursuant to the Merger Agreement, to the extent that the per share
exercise price of any option or warrant exceeds $7.50, such option or warrant
will be cancelled at the Effective Time (as hereinafter defined) and the holder
of such option or warrant will not receive any consideration therefor.
Based on the foregoing, the Minimum Condition will be satisfied if
5,365,948 Shares are validly tendered and not withdrawn prior to the Expiration
Date. The number of Shares required to be validly tendered and not withdrawn in
order to satisfy the Minimum Condition will increase to the extent additional
Shares are deemed to be outstanding on a fully diluted basis under the Merger
Agreement. For purposes of the Merger Agreement, "on a fully diluted basis"
means, as of any date, the number of Shares outstanding, together with Shares
the Company is then required to issue pursuant to obligations outstanding at
that date under employee stock option or other benefit plans or otherwise
(assuming all options and other rights to acquire Shares are fully vested and
exercisable and all Shares issuable at any time have been issued), including
without limitation, pursuant to the Company's stock option plans and stock
purchase plans (the "Stock Option Plans").
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<PAGE> 6
The consummation of the Merger is subject to the satisfaction or waiver of
a number of conditions, including, if required, the approval of the Merger by
the requisite vote or consent of the stockholders of the Company. Under the
General Corporation Law of the State of Delaware ("Delaware Law") and the
Company's Certificate of Incorporation, the stockholder vote necessary to
approve the Merger will be the affirmative vote of the holders of at least a
majority of the outstanding Shares, including Shares held by Offeror and its
affiliates. Accordingly, if Offeror acquires a majority of the outstanding
Shares, Offeror will have the voting power required to approve the Merger
without the affirmative vote of any other stockholders of the Company.
Furthermore, if Offeror acquires at least 90% of the outstanding Shares pursuant
to the Offer or otherwise, Offeror would be able to effect the Merger pursuant
to the "short-form" merger provisions of Section 253 of the Delaware Law,
without prior notice to, or any action by, any other stockholder of the Company.
In such event, Offeror intends to effect the Merger as promptly as practicable
following the purchase of Shares in the Offer. The Merger Agreement is more
fully described in Section 12.
Concurrently with the execution and delivery of the Merger Agreement,
General Atlantic Partners 32, L.P., General Atlantic Partners 21, L.P., and GAP
Coinvestment Partners, L.P. (collectively, the "Major Stockholder"), which has
beneficial ownership (as defined pursuant to Rule 13d-3 of the Exchange Act)
with respect to 2,000,000 Shares, and directors and officers of the Company (the
"Directors and Officers"), who collectively have beneficial ownership (as
defined in Rule 13d-3 of the Exchange Act) of 848,107 Shares, entered into a
Tender and Option Agreement, dated as of May 27, 1999 (the "Tender and Option
Agreement"), with Purchaser and Offeror. The Major Stockholder and the Directors
and Officers beneficially own (as defined pursuant to Rule 13d-3 of the Exchange
Act) 31.5% of the Shares (21.6% of the Shares on a fully diluted basis if all
options and warrants with exercise prices above $7.50 are excluded). Pursuant to
the Tender and Option Agreement, the Major Stockholder and the Directors and
Officers have agreed, among other things, to tender promptly the Shares held by
them pursuant to the Offer, and not to withdraw any such Shares, upon the terms
and subject to the conditions set forth therein.
The Company has distributed one Right for each outstanding share of Common
Stock pursuant to the Rights Agreement. Based on the information disclosed by
the Company in the Merger Agreement and in the Schedule 14D-9, in connection
with the Company's entering into the Merger Agreement, the Board of Directors
authorized an amendment to the Rights Agreement so that the Rights Agreement
shall not be applicable to the purchase of the Shares pursuant to the Offer, the
Merger, the Tender and Option Agreement or the consummation of the other
transactions contemplated by the Merger Agreement. If the Rights Agreement had
not been so amended, a distribution of Rights certificates separate from the
Common Stock might have resulted from the Offer, the Merger Agreement or the
Tender and Option Agreement or any of the respective transactions contemplated
thereby.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER. THIS OFFER TO PURCHASE CONTAINS FORWARD-LOOKING
STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES, INCLUDING THE RISKS ASSOCIATED
WITH SATISFYING THE CONDITIONS TO THE OFFER. CERTAIN OF THESE RISK FACTORS, AS
WELL AS ADDITIONAL RISKS AND UNCERTAINTIES, ARE DETAILED IN THE COMPANY'S
PERIODIC FILINGS WITH THE COMMISSION.
1. TERMS OF THE OFFER; EXPIRATION DATE.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Offeror will accept for payment and pay for all Shares validly
tendered prior to the Expiration Date and not withdrawn in accordance with
Section 4. The term "Expiration Date" means 12:00 Midnight, New York City time,
on Wednesday, June 30, 1999, unless and until Offeror (subject to the terms of
the Merger Agreement) shall have extended the period of time during which the
Offer is open, in which event the term "Expiration Date" shall mean the latest
time and date at which the Offer, as so extended by Offeror, shall expire.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition and the other conditions set forth in Section 14. Subject to the terms
and conditions contained in the Merger Agreement, Offeror reserves the right
(but shall not be obligated) to waive any or all such conditions.
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<PAGE> 7
The Company is providing Offeror with its list of stockholders and security
position listings for the purpose of disseminating the Offer to holders of
Shares. This Offer to Purchase and the related Letter of Transmittal and other
relevant materials will be mailed by Offeror to record holders of Shares and
will be furnished by Offeror to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder lists or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Offeror will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date, and not properly withdrawn in
accordance with Section 4, as soon as practicable after the Expiration Date. Any
determination concerning the satisfaction or waiver of such terms and conditions
will be within the sole discretion of Offeror, and such determination will be
final and binding on all tendering stockholders. See Sections 1 and 14. Offeror
expressly reserves the right, in its sole discretion, to delay acceptance for
payment of, or payment for, Shares in order to comply in whole or in part with
any applicable law. Any such delays will be effected in compliance with Rule
14e-1(c) under the Exchange Act (relating to Offeror's obligation to pay for or
return tendered Shares promptly after the termination or withdrawal of the
Offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates for
such Shares or timely confirmation (a "Book-Entry Confirmation") of the
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company or the Philadelphia Depositary Trust Company (each a
"Book-Entry Transfer Facility" and, collectively, the "Book Entry Transfer
Facilities") pursuant to the procedures set forth in Section 3, (ii) a Letter of
Transmittal (or facsimile thereof) properly completed and duly executed, with
any required signature guarantees, or an Agent's Message (as hereinafter
defined) in connection with a book-entry transfer and (iii) any other documents
required by the Letter of Transmittal.
The per Share consideration paid to any stockholder pursuant to the Offer
will be the highest per Share consideration paid to any other stockholder
pursuant to the Offer.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares which are the subject of such Book-Entry
Confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that Offeror may enforce such agreement
against such participant.
For purposes of the Offer, Offeror will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Offeror and not
withdrawn as, if and when Offeror gives oral or written notice to the Depositary
of Offeror's acceptance for payment of such Shares pursuant to the Offer. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from Offeror and
transmitting payment to tendering stockholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY OFFEROR,
REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
If Offeror is delayed in its acceptance for payment of, or payment for,
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to Offeror's rights under the
Offer (but subject to compliance with Rule 14e-l(c) under the Exchange Act,
which requires that a tender offeror pay the consideration offered or return the
tendered securities promptly after the termination or withdrawal of a tender
offer), the Depositary may, nevertheless, on behalf of Offeror, retain tendered
Shares, and any such Shares may not be withdrawn except to the extent tendering
stockholders are entitled to exercise, and duly exercise, withdrawal rights as
described in Section 4.
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<PAGE> 8
If any tendered Shares are not purchased pursuant to the Offer because of
an invalid tender or otherwise, certificates for any such Shares will be
returned, without expense to the tendering stockholder (or, in the case of
Shares delivered by book-entry transfer of such Shares into the Depositary's
account at a Book-Entry Transfer Facility pursuant to the procedures set forth
in Section 3, such Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility), as promptly as practicable after the
expiration or termination of the Offer.
Offeror reserves the right to transfer or assign, in whole or from time to
time in part, to any of its affiliates (including Purchaser or Parent), the
right to purchase Shares tendered pursuant to the Offer, but any such transfer
or assignment will not relieve Offeror of its obligations under the Offer and
will in no way prejudice the rights of tendering stockholders to receive payment
for Shares validly tendered and accepted for payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES.
Valid Tender. For Shares to be validly tendered pursuant to the Offer, a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), together with any required signature guarantees, or an
Agent's Message in connection with a book-entry transfer of Shares, and any
other documents required by the Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date. In addition, either (i) certificates for
tendered Shares must be received by the Depositary along with the Letter of
Transmittal at one of such addresses or such Shares must be tendered pursuant to
the procedure for book-entry transfer set forth below (and a Book-Entry
Confirmation received by the Depositary), in each case prior to the Expiration
Date, or (ii) the tendering stockholder must comply with the guaranteed delivery
procedure set forth below.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL
BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN
THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at each Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in any of the Book-Entry Transfer Facilities'
systems may make book-entry delivery of Shares by causing a Book-Entry Transfer
Facility to transfer such Shares into the Depositary's account at a Book-Entry
Transfer Facility in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry at a Book-Entry Transfer Facility, a properly
completed and duly executed Letter of Transmittal (or manually signed facsimile
thereof) with any required signature guarantees or an Agent's Message in
connection with a book-entry delivery of Shares, and any other documents
required by the Letter of Transmittal, must, in any case, be transmitted to, and
received by, the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase prior to the Expiration Date, or the tendering
stockholder must comply with the guaranteed delivery procedure described below.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if (i) the Letter of Transmittal is signed by the registered holder
of Shares (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities whose name appears on a security
position listing as the owner of the Shares) tendered therewith and such
registered holder has not completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on the Letter
of Transmittal or (ii) such Shares are tendered for the account of a bank,
broker, dealer, credit union, savings association or other entity that is a
member in good standing of a recognized Medallion Program approved by The
Securities Transfer Association, Inc. (an "Eligible Institution"). In all other
cases, all signatures on the
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<PAGE> 9
Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instructions 1 and 5 to the Letter of Transmittal. If the certificates for
Shares are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made or certificates for Shares
not tendered or not accepted for payment are to be issued to a person other than
the registered holder of the certificates surrendered, the tendered certificates
must be endorsed or accompanied by appropriate stock powers, in either case
signed exactly as the name or names of the registered holders or owners appear
on the certificates, with the signatures on the certificates or stock powers
guaranteed as described above. See Instruction 5 to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
(1) such tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Offeror herewith, is
received by the Depositary as provided below, prior to the Expiration Date;
and
(3) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to such Shares),
together with a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile thereof), with any required signature
guarantees and any other documents required by the Letter of Transmittal,
are received by the Depositary within three NASDAQ National Market trading
days after the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a signature guarantee by an Eligible Institution in
the form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (i) certificates for the Shares or a Book-Entry
Confirmation with respect to such Shares, (ii) a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof) with any
required signature guarantees or an Agent's Message in connection with a
book-entry delivery of Shares, and (iii) any other documents required by the
Letter of Transmittal. Accordingly, tendering stockholders may be paid at
different times depending upon when certificates for Shares or Book-Entry
Confirmations are actually received by the Depositary. UNDER NO CIRCUMSTANCES
WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering stockholder and
Offeror upon the terms and subject to the conditions of the Offer.
Backup Withholding. Payments in connection with the Offer or the Merger
may be subject to "backup withholding" at a rate of 31%. In order to avoid
backup withholding, each tendering stockholder, unless an exemption applies,
must provide the Depositary with such stockholder's correct taxpayer
identification number and certify that such stockholder is not subject to such
backup withholding by completing the Substitute Form W-9 included in the Letter
of Transmittal. Backup withholding is not an additional tax but merely an
advance payment, which may be refunded to the extent it results in an
overpayment of tax. Certain persons generally are entitled to exemption from
backup withholding, including corporations and financial institutions. Certain
penalties apply for failure to furnish correct information and for failure to
include reportable payments in income. Each stockholder should consult with such
holder's own tax advisor as to such holder's qualification for exemption from
backup withholding and the procedure for obtaining such exemption.
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<PAGE> 10
All stockholders surrendering Shares pursuant to the Offer should complete
and sign the main signature form and the Substitute Form W-9 included as part of
the Letter of Transmittal to provide the information and certification necessary
to avoid backup withholding (unless an applicable exemption exists and is proved
in a manner satisfactory to Offeror and the Depositary). Noncorporate foreign
stockholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 10 to the
Letter of Transmittal.
Appointment. By executing the Letter of Transmittal, the tendering
stockholder will irrevocably appoint designees of Offeror as such stockholder's
attorneys-in-fact and proxies in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to the full extent of such
stockholder's rights with respect to the Shares tendered by such stockholder and
accepted for payment by Offeror and with respect to any and all other Shares or
other securities or rights issued or issuable in respect of such Shares on or
after May 27, 1999. All such proxies shall be considered coupled with an
interest in the tendered Shares. Such appointment will be effective when, and
only to the extent that, Offeror accepts for payment Shares tendered by such
stockholder as provided herein. Upon such acceptance for payment, all prior
powers of attorney and proxies given by such stockholder with respect to such
Shares or other securities or rights will, without further action, be revoked
and no subsequent powers of attorney and proxies may be given (and, if given,
will not be deemed effective). The designees of Offeror will thereby be
empowered to exercise all voting and other rights with respect to such Shares or
other securities or rights in respect of any annual, special or adjourned
meeting of the Company's stockholders, or otherwise, as they in their sole
discretion deem proper. Offeror reserves the right to require that, in order for
Shares to be deemed validly tendered, immediately upon Offeror's acceptance for
payment of such Shares, Offeror must be able to exercise full voting and other
rights with respect to such Shares and other securities or rights, including
voting at any meeting of stockholders then scheduled.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Offeror, in its sole discretion, which
determination will be final and binding. Offeror reserves the absolute right to
reject any or all tenders determined by it not to be in proper form or the
acceptance for payment of or payment for which may, in the opinion of Offeror's
counsel, be unlawful. Offeror also reserves the absolute right, in its sole
discretion, subject to the terms and conditions of the Merger Agreement, to
waive any of the conditions of the Offer or any defect or irregularity in any
tender with respect to any particular Shares, whether or not similar defects or
irregularities are waived in the case of other Shares. No tender of Shares will
be deemed to have been validly made until all defects or irregularities relating
thereto have been cured or waived. None of Parent, Purchaser, Offeror, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give any such notification.
Offeror's interpretation of the terms and conditions of the Offer (including the
Letter of Transmittal and the instructions thereto) will be final and binding.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless accepted for payment and paid for by Offeror pursuant to the Offer, may
also be withdrawn at any time after July 30, 1999.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution.
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<PAGE> 11
If Shares have been tendered pursuant to the procedures for book-entry transfer
set forth in Section 3, the notice of withdrawal must specify the name and
number of the account at the appropriate Book-Entry Transfer Facility to be
credited with the withdrawn Shares. Withdrawals of tenders of Shares may not be
rescinded, and any Shares properly withdrawn will thereafter be deemed not
validly tendered for any purposes of the Offer. However, withdrawn Shares may be
retendered by again following one of the procedures described in Section 3 at
any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Offeror in its sole discretion,
which determination will be final and binding. None of Offeror, Parent, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
THE FOLLOWING IS A SUMMARY OF THE PRINCIPAL FEDERAL INCOME TAX CONSEQUENCES
OF THE OFFER AND THE MERGER TO HOLDERS WHOSE SHARES ARE PURCHASED PURSUANT TO
THE OFFER OR WHOSE SHARES ARE CONVERTED INTO THE RIGHT TO RECEIVE CASH IN THE
MERGER. THE DISCUSSION IS BASED ON THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, REGULATIONS ISSUED THEREUNDER, JUDICIAL DECISIONS AND ADMINISTRATIVE
RULINGS, ALL OF WHICH ARE SUBJECT TO CHANGE, POSSIBLY WITH RETROACTIVE EFFECT.
THE DISCUSSION DOES NOT ADDRESS HOLDERS OF SHARES IN WHOSE HANDS SHARES ARE NOT
CAPITAL ASSETS, NOR DOES IT ADDRESS HOLDERS WHO RECEIVED SHARES UPON CONVERSION
OF SECURITIES OR EXERCISE OF WARRANTS OR OTHER RIGHTS TO ACQUIRE SHARES OR
PURSUANT TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS COMPENSATION,
OR TO HOLDERS OF SHARES WHO ARE IN SPECIAL TAX SITUATIONS (SUCH AS INSURANCE
COMPANIES, TAX-EXEMPT ORGANIZATIONS OR NON-US. PERSONS). FURTHERMORE, THE
DISCUSSION DOES NOT ADDRESS THE TAX TREATMENT OF HOLDERS WHO EXERCISE
DISSENTER'S RIGHTS IN THE MERGER.
THE FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW ARE INCLUDED FOR
GENERAL INFORMATIONAL PURPOSES ONLY. BECAUSE INDIVIDUAL CIRCUMSTANCES MAY
DIFFER, EACH HOLDER OF SHARES SHOULD CONSULT SUCH HOLDER'S OWN TAX ADVISOR TO
DETERMINE THE APPLICABILITY OF THE RULES DISCUSSED BELOW TO SUCH STOCKHOLDER AND
THE PARTICULAR TAX EFFECTS OF THE OFFER AND THE MERGER, INCLUDING THE
APPLICATION AND EFFECT OF STATE, LOCAL AND OTHER INCOME TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for federal income tax purposes under the Internal Revenue
Code of 1986, as amended (and also may be a taxable transaction under applicable
state, local and other income tax laws). In general, for federal income tax
purposes, a holder of Shares will recognize gain or loss equal to the difference
between its adjusted tax basis in the Shares sold pursuant to the Offer or
converted into the right to receive cash in the Merger and the amount of cash
received therefor. Gain or loss must be determined separately for each block of
Shares (i.e., Shares acquired at the same cost in a single transaction) sold
pursuant to the Offer or converted to cash in the Merger. Such gain or loss will
be capital gain or loss and will be long-term gain or loss if, on the date of
sale (or, if applicable, the date of the Merger), the Shares were held for more
than one year.
Payments in connection with the Offer or the Merger may be subject to
"backup withholding" as discussed in Section 3.
6. PRICE RANGE OF SHARES.
The fiscal year ended September 30, 1998 marked the first full year of
operations for the Company since its spin-off from Marcam Corporation. Marcam
Corporation distributed all of its ownership interest in the Company by means of
a distribution on July 29, 1997 to its stockholders of record on July 23, 1997.
According to the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1998 (the "Company Form 10-K") and information supplied to
Offeror by the Company, the Shares were approved for listing on the National
Association of Securities Dealers Automated Quotation National Market System
9
<PAGE> 12
("NASDAQ/NMS") under the trading symbol "MRCM" on July 30, 1997. Prior to such
date, the Company was a wholly owned subsidiary of Marcam Corporation. The
Company has never paid or declared cash dividends on the Shares. The following
table sets forth, for the periods indicated, the high and low closing bid prices
per Share on the NASDAQ/NMS for the applicable periods.
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
Fiscal 1997
Fourth Quarter............................................ $ 11 3/8 $ 5
Fiscal 1998
First Quarter............................................. $ 11 1/4 $ 6 1/2
Second Quarter............................................ 8 3/4 5 5/16
Third Quarter............................................. 19 1/2 7 15/16
Fourth Quarter............................................ 19 7 1/2
Fiscal 1999
First Quarter............................................. $ 9 $ 4 3/4
Second Quarter............................................ 6 1/4 2 5/8
Third Quarter(through June 2, 1999)....................... 7 9/32 1 7/8
</TABLE>
On May 26, 1999, the last full trading day before the public announcement
of the execution of the Merger Agreement, the closing sales price per Share as
reported on the NASDAQ/NMS was $3 3/4. On May 18, 1999, the closing sales price
per Share as reported on the NASDAQ/NMS was $2 1/2. On June 2, 1999, the last
full trading day before the commencement of the Offer, the closing sales price
per Share as reported on the NASDAQ/NMS was $7.25 per Share. STOCKHOLDERS ARE
URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
7. EFFECT OF THE OFFER ON THE MARKET FOR SHARES; STOCK QUOTATION; EXCHANGE ACT
REGISTRATION AND MARGIN SECURITIES.
The purchase of Shares pursuant to the Offer will reduce the number of
holders of Shares and the number of Shares that might otherwise trade publicly
and could adversely affect the liquidity and market value of the remaining
Shares, if any, held by the public.
The Shares are currently listed and traded on the NASDAQ/NMS, which
constitutes the principal trading market for the Shares. Depending upon the
number of shares purchased pursuant to the Offer, the Shares many no longer meet
the requirements of the NASD for continued inclusion on the NASDAQ/NMS, which
requires that an issuer either (i) have at least 750,000 publicly held shares,
held by at least 400 round lot shareholders, with a market value of at least
$5,000,000, have at least 2 market makers, have net tangible assets of at least
$4 million, and have a minimum bid price of $1 or (ii) have at least 1,100,000
publicly held shares, held by at least 400 round lot shareholders, with a market
value of at least $15,000,000, have a minimum bid price of $5, have at least 4
market makers and have either (A) a market capitalization of at least
$50,000,000 or (B) total assets and revenues each of at least $50,000,000. If
the NASDAQ/NMS were to cease to publish quotations for the Shares, it is
possible that the Shares would continue to trade in the over-the-counter market
and that price or other quotations would be reported by other sources. The
extent of the public market for such Shares and the availability of such
quotations would depend, however, upon such factors as the number of
stockholders and/or the aggregate market value of such securities remaining at
such time, the interest in maintaining a market in the Shares on the part of
securities firms, the possible termination of registration under the Exchange
Act as described below, and other factors. Purchaser cannot predict whether the
reduction in the number of Shares that might otherwise trade publicly would have
an adverse or beneficial effect on the market price for, or marketability of,
the Shares or whether it would cause future market prices to be greater or
lesser than the Offer Price.
The Shares are currently registered under the Exchange Act. Registration of
the Shares under the Exchange Act may be terminated upon application of the
Company to the Commission if the Shares are
10
<PAGE> 13
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially reduce the information required to be furnished by the
Company to its stockholders and to the Commission and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the
requirement of furnishing a proxy statement pursuant to Section 14(a) of the
Exchange Act in connection with stockholders' meetings and the related
requirement of furnishing an annual report to stockholders, and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions. Furthermore, the ability of "affiliates" of the Company and
persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or 144A promulgated under the Securities Act of
1933, as amended (the "Securities Act"), may be impaired or eliminated.
Purchaser intends to seek delisting of the Shares from the NASDAQ/NMS and
to cause the Company to apply for termination of registration of the Shares
under the Exchange Act as soon after the completion of the Offer as the
requirements for such delisting and termination are met. If registration of the
Shares is not terminated prior to the Merger, then the Shares will cease to be
reported on the NASDAQ/NMS and the registration of the Shares under the Exchange
Act will be terminated following the consummation of the Merger.
The Shares are currently "margin securities", as such term is defined under
the rules of the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"), which has the effect, among other things, of allowing brokers
to extend credit on the collateral of such securities. Depending upon factors
similar to those described above regarding listing and market quotations,
following the Offer it is possible that the Shares might no longer constitute
"margin securities" for purposes of the margin regulations of the Federal
Reserve Board, in which event such Shares could no longer be used as collateral
for loans made by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as specifically set forth herein, the historical information
concerning the Company contained in this Offer to Purchase, including financial
information, has been taken from or based upon publicly available documents and
records on file with the Commission and other public sources. None of Parent,
Purchaser, Offeror, the Dealer Manager, the Information Agent or the Depositary
assumes any responsibility for the accuracy or completeness of the information
concerning the Company contained in such documents and records or for any
failure by the Company to disclose events which may have occurred or may affect
the significance or accuracy of any such information to Parent, Purchaser or
Offeror.
The Company is a Delaware corporation with its principal place of business
located at 95 Wells Avenue, Newton, Massachusetts 02459. According to the
Company Form 10-K, the Company develops, globally markets, implements, and
supports enterprise resources planning (ERP) software applications designed
exclusively for process manufacturers and enterprise asset management (EAM)
software for all capital-intensive industries. The Company's mission is to
provide process manufacturing companies with specialized, agile business
solutions that enable them to achieve process operational excellence while
realizing low total cost of ownership, and to provide best-of-breed asset
management solutions to industries that must protect and optimize their capital
investments.
Set forth below is certain selected historical consolidated financial
information with respect to the Company and its subsidiaries excerpted or
derived from the audited consolidated financial statements included in the
Company Form 10-K and from the unaudited consolidated financial statements
included in the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999. More comprehensive financial information is included in such
reports and other documents filed by the Company with the Commission, and the
following summary is qualified in its entirety by reference to such reports and
such other documents and all the financial information (including any related
notes) contained therein. The reports and other documents filed with the
Commission should be available for inspection and copies thereof should be
obtainable in the manner set forth below under "Available Information".
11
<PAGE> 14
MARCAM SOLUTIONS, INC.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED SEPTEMBER 30,
----------------------------------------------------------------
1998 1997(F) 1996(F) 1995(F) 1994(F)
---- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Total revenues................. $124,520 $163,880 $201,424 $202,332 $172,876
Loss before income tax expense
and extraordinary item....... (4,425)(A) (38,674)(B) (21,740)(C) (31,723)(D) (1,756)
Net loss....................... (5,525)(A) (46,883)(B) (26,326)(C) (34,357)(D) (1,018)
Net loss per share(E).......... (0.73)(A) (7.77)(B) (4.63)(C) (6.10)(D) (0.18)
Weighted average number
of basic and diluted shares
outstanding(E)............... 7,580 6,035 5,692 5,634 5,514
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30,
----------------------------------------------------------------
1998 1997 1996(F) 1995(F) 1994(F)
---- ---- ------- ------- -------
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total assets................... $ 69,502 $ 77,869 $132,202 $146,852 $128,948
Total long-term obligations.... 218 1,012 26,526 26,359 35,483
Total stockholders' equity..... 17,202 20,862 11,674 26,646 38,126
</TABLE>
- ------------
(A) Fiscal 1998 results include a restructuring charge reversal of $1,896, or
$0.25 per diluted share.
(B) Fiscal 1997 results include restructuring charges of $19,175, or $3.18 per
diluted share, and an extraordinary loss from early extinguishment of debt
of $3,009, or $.50 per diluted share.
(C) Fiscal 1996 results include restructuring charges of $10,600, or $1.86 per
diluted share, and a litigation settlement of $3,250, or $.57 per diluted
share.
(D) Fiscal 1995 results include a restructuring charge of $28,756, or $5.10 per
diluted share.
(E) Historical weighted average shares outstanding and net loss per share have
been restated for the Distribution, which has been presented in part as a
2-for-1 reverse stock split occurring on July 29, 1997.
(F) See Note 2 of Notes to Consolidated Financial Statements and Management's
Discussion and Analysis of Financial Condition and Results of Operations
"Distribution" in the Company Form 10-K with respect to the fiscal year
ended September 30, 1998 for discussion of the Distribution that occurred on
July 29, 1997, which is presented in part as a disposal of the business,
assets and liabilities of the Company's MAPICS product line. Consequently,
the Statement of Operations Data for the years ended, and the Balance Sheet
Data as of, September 30, 1996, 1995 and 1994 includes results related to
the MAPICS business, and the Statement of Operations for the year ended
September 30, 1997 includes ten months of results related to the MAPICS
business.
12
<PAGE> 15
<TABLE>
<CAPTION>
SIX MONTHS ENDED
MARCH 31,
-------------------
1999 1998
---- ----
<S> <C> <C>
STATEMENT OF OPERATIONS DATA (UNAUDITED):
Total revenues........................................... $55,215 $59,157
Loss before income tax expense........................... (20,602)(A) (2,223)
Net loss................................................. (21,077)(A) (3,323)
Net loss per share....................................... (2.71)(A) (0.44)
Weighted average number of basic and diluted shares
outstanding............................................ 7,773 7,505
</TABLE>
<TABLE>
<CAPTION>
MARCH 31,
-------------------
1999 1998
---- ----
<S> <C> <C>
BALANCE SHEET DATA (UNAUDITED):
Total assets............................................ $ 49,022 $71,923
Total long-term obligations............................. 162 297
Total stockholders' equity.............................. (4,517) 17,632
</TABLE>
- ---------------
(A) Six months ended March 31, 1999 results include a restructuring charge of
$3,237, or $0.42 per diluted share.
CERTAIN COMPANY PROJECTIONS.
To the knowledge of Parent, Purchaser and Offeror, the Company does not as
a matter of course make public forecasts as to its future financial performance.
However, in connection with the preliminary discussions concerning the
feasibility of the Offer and the Merger, the Company prepared and furnished
Parent with certain financial projections.
The projections set forth below (the "Projections") are derived or
excerpted from information provided by the Company and are based on numerous
assumptions concerning future events. The Projections have not been adjusted to
reflect the effects of the Offer or the Merger. The Projections should be read
together with the other information contained in this Section 8.
The Projections included preliminary operating Projections for the Company
for the calendar years 1999 and 2000 (the Company reports its financial results
based on a September 30 fiscal year end) developed by the Company's senior
management predicated on their then preliminary assumptions for macroeconomic
conditions, gross profits and operating expenses. The Company's calendar year
1999 Projections estimated revenues of $131.7 million, total costs of goods sold
of $64.3 million, total gross profit of $67.4 million and an operating loss
before restructuring and after charges of $4.5 million. The Company's calendar
year 2000 Projections which the Company has informed the Offeror are highly
preliminary and speculative, estimated revenues of $164.4 million, total costs
of goods sold of $72.4 million, total gross profit of $92.0 million and an
operating profit of $20.7 million.
THE PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR
COMPLIANCE WITH PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING
PROJECTIONS OR FORECASTS AND ARE INCLUDED HEREIN ONLY BECAUSE SUCH INFORMATION
WAS PROVIDED TO PARENT. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN
RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY
FROM THE PROJECTIONS. THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS, ALL MADE BY
MANAGEMENT OF THE COMPANY, WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL
BUSINESS, ECONOMIC, MARKET AND FINANCIAL CONDITIONS AND OTHER MATTERS, ALL OF
WHICH ARE DIFFICULT TO PREDICT, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL
AND NONE OF WHICH WERE SUBJECT TO APPROVAL BY PARENT, PURCHASER OR OFFEROR.
ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT THE ASSUMPTIONS MADE IN PREPARING
THE PROJECTIONS WILL PROVE ACCURATE, AND ACTUAL RESULTS MAY BE MATERIALLY
GREATER OR LESS THAN THOSE CONTAINED IN THE PROJECTIONS. THE INCLUSION OF THE
PROJECTIONS HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT ANY OF PARENT,
PURCHASER OR OFFEROR OR THEIR RESPECTIVE FINANCIAL ADVISORS CONSIDERED OR
CONSIDER THE PROJECTIONS TO
13
<PAGE> 16
BE A RELIABLE PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS SHOULD NOT HE
RELIED UPON AS SUCH. NONE OF PARENT, PURCHASER OR OFFEROR AND THEIR RESPECTIVE
FINANCIAL ADVISORS ASSUMES ANY RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS,
ACCURACY OR COMPLETENESS OF THE PROJECTIONS. NONE OF PARENT, PURCHASER OR
OFFEROR AND ANY OF THEIR FINANCIAL ADVISORS HAS MADE, OR MAKES, ANY
REPRESENTATION TO ANY PERSON REGARDING THE INFORMATION CONTAINED IN THE
PROJECTIONS AND NONE OF THEM INTENDS TO UPDATE OR OTHERWISE REVISE THE
PROJECTIONS TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO
REFLECT THE OCCURRENCE OF FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR ALL OF THE
ASSUMPTIONS UNDERLYING THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
AVAILABLE INFORMATION.
The Company is subject to the reporting requirements of the Exchange Act
and, in accordance therewith, is required to file reports and other information
with the Commission relating to its business, financial condition and other
matters. Information as of particular dates concerning the Company's directors
and officers, their remuneration, options granted to them, the principal holders
of the Company's securities and any material interests of such persons in
transactions with the Company is required to be disclosed in proxy statements
distributed to the Company's stockholders and filed with the Commission. Such
reports, proxy statements and other information should be available for
inspection at the public reference facilities of the Commission located at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the
Commission located in the Northwestern Atrium Center, 500 West Madison Street
(Suite 1400), Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor,
New York, New York 10048. Copies should be obtainable, by mail, upon payment of
the Commission's customary charges, by writing to the Commission's principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also
maintains a World Wide Web site on the Internet at http://www.sec.gov that
contains reports, proxy statements and other information regarding registrants
that file electronically with the Commission.
9. CERTAIN INFORMATION CONCERNING PARENT, PURCHASER AND OFFEROR.
Parent is a global electronics and engineering company created by the
merger of BTR plc and Siebe plc on February 4, 1999. Operating through over 500
companies and employing over 120,000 people, Parent is a worldwide leader in
automation and controls. More than 75% of Parent's business is controls and
automation based, with products ranging from advanced control systems for
automating industrial plants and controlling the environments of buildings, to
electronic devices found in many domestic and commercial appliances. For the
year ended March 31, 1999, Parent had revenues of approximately L9.41 billion
and losses after tax of approximately L95 million. Parent's stockholders' equity
at March 31, 1999 was approximately L2.14 billion with approximately L748
million of cash and cash equivalents. As of March 31, 1999, the exchange ratio
was US$1.61 to L1.00. Parent's offices are located at Carlisle Place, London
SW1P 1BX, England.
Each of Purchaser and Offeror is a Delaware corporation, newly formed by
Parent in connection with the Offer and the transactions contemplated thereby.
The offices of Purchaser and Offeror are located at 33 Commercial Street,
Foxboro, MA 02035. Parent indirectly owns all the outstanding capital stock of
Purchaser which, in turn, directly owns all the outstanding capital stock of
Offeror. It is not anticipated that, prior to the consummation of the Offer and
the Merger, Purchaser or Offeror will have any significant assets or liabilities
or will engage in any activities other than those incident to the Offer and the
Merger and the financing thereof.
For certain information concerning the directors and executive officers of
the Parent, Purchaser and Offeror, see Schedule I to this Offer to Purchase.
Except as set forth in this Offer to Purchase: (i) none of Parent,
Purchaser, Offeror nor, to the best knowledge of any of the foregoing, any of
the persons listed in Schedule I to this Offer to Purchase or any associate or
majority owned subsidiary of any of the foregoing, beneficially owns or has a
right to acquire any Shares or any other equity securities of the Company; (ii)
none of Parent, Purchaser nor Offeror nor, to the best knowledge of any of the
foregoing, any of the persons or entities referred to in clause (i) above or any
of
14
<PAGE> 17
their executive officers, directors, or subsidiaries has effected any
transaction in the Shares or any other equity securities of the Company during
the past 60 days; (iii) none of Parent, Purchaser nor Offeror nor, to the best
knowledge of any of the foregoing, any of the persons listed in Schedule I to
this Offer to Purchase has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Company, including but not limited to, contracts, arrangements, understandings
or relationships concerning the transfer or voting thereof, joint ventures, loan
or option arrangements, puts or calls, guaranties of loans, guaranties against
loss or the giving or withholding of proxies, consents or authorizations; (iv)
since October 1, 1995, there have been no transactions or business relationships
which would be required to be disclosed under the rules and regulations of the
Commission between any of Parent, Purchaser, Offeror or any of their respective
subsidiaries or, to the best knowledge of any of Parent, Purchaser or Offeror,
any of the persons listed in Schedule I to this Offer to Purchase, on the one
hand, and the Company or any of its executive officers, directors or affiliates,
on the other hand; and (v) since October 1, 1995, there have been no contacts,
negotiations or transactions between any of Parent, Purchaser, Offeror or any of
their respective subsidiaries or, to the best knowledge of any of Parent,
Purchaser, Offeror or any of the persons listed in Schedule I to this Offer to
Purchase, on the one hand, and the Company or its subsidiaries or affiliates, on
the other hand, concerning a merger, consolidation or acquisition, tender offer
or other acquisition of securities, an election of directors or a sale or other
transfer of a material amount of assets of the Company or any of its
subsidiaries.
None of Parent, Purchaser or Offeror had any relationship with the Company
prior to the commencement of the discussions which led to the execution of the
Merger Agreement. See Section 11. Each of Parent, Purchaser and Offeror
disclaims that it is an "affiliate" of the Company within the meaning of Rule
13e-3 under the Exchange Act.
10. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by Offeror to purchase all of the Shares
and to cancel all of the Options with exercise prices below $7.50 per share and
Purchase Rights pursuant to the Offer and the Merger (assuming all such Options
are exercised prior to the Effective Time) and to pay related fees and expenses
is expected to be approximately $68,000,000. Offeror intends to obtain all of
such funds from Parent which in turn would obtain such funds from Parent's
existing working capital.
11. BACKGROUND OF THE OFFER.
On May 17, 1999, Roy H. Slavin, President of Wonderware Corporation, an
affiliate of Parent, contacted Jonathan Crane, President and Chief Executive
Officer of the Company to discuss a possible acquisition of the Company by an
affiliate of Parent and to arrange a meeting on May 18, 1999 in Boston,
Massachusetts. Additionally, on May 17, 1999, Parent and the Company executed a
Confidentiality Agreement.
On May 18, 1999, Mr. Crane, along with various other representatives of the
Company and Broadview International, LLC, delivered a presentation relating to
the possible acquisition of the Company by Parent to various senior officers of
Parent and its affiliates.
On May 19 and May 20, 1999, Parent and its outside counsel and accountants
held additional meetings in Newton, Massachusetts with the Company and its
outside counsel and accountants with respect to legal, business, accounting and
financial issues and to negotiate a possible purchase price.
On May 21, 1999, after additional negotiations regarding the purchase
price, the Company and Parent signed a nonbinding letter agreement (the "Letter
Agreement") pursuant to which the per share purchase price would be $7.50 in
cash, subject to, among other things, the completion of due diligence, the
negotiation of a definitive acquisition agreement and the execution of customary
support agreements by the principal stockholders of the Company. The Letter
Agreement contained, among other things, a prohibition on the solicitation of
alternative acquisition proposals for a limited period of time.
On May 22, 1999, Parent's outside counsel delivered drafts of a Merger
Agreement and a Tender and Option Agreement to the Company and its outside
counsel. On May 23, the Company's outside counsel
15
<PAGE> 18
distributed to Parent's outside counsel initial comments to the Merger Agreement
and the Tender and Option Agreement.
From May 24, 1999 to the early morning of May 27, 1999, Parent and its
outside counsel continued to conduct legal and business due diligence and to
negotiate the terms of the transaction documents relating to the acquisition of
the Company. On the early morning of May 27, 1999, the Merger Agreement and the
Tender and Option Agreement were executed, and Parent and the Company issued a
joint press release on May 27, 1999, announcing the execution of these
agreements.
Following the Offer and the Merger, Parent intends to operate the Company
on a basis generally consistent with the Company's existing plans and programs.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; THE TRANSACTION
DOCUMENTS.
PURPOSE OF THE OFFER AND THE MERGER
The purpose of the Offer is to enable Parent to acquire control of, and the
entire equity interest in, the Company. The purpose of the Merger is to acquire
all outstanding Shares not purchased pursuant to the Offer. The purchase of
Shares pursuant to the Offer will increase the likelihood that the Merger will
be effected. Following the completion of the Offer, Parent intends to acquire
any remaining Shares not then owned by it by consummating the Merger. In the
Merger, each outstanding Share (other than Shares held by the Company as
treasury stock, or owned by Parent, Purchaser or Offeror and other than Shares
held by stockholders who perfect appraisal rights, if any, under the Delaware
Law), will be converted into the right to receive the Merger Consideration,
without interest, and the Company will become a wholly owned subsidiary of
Purchaser.
The acquisition of the entire interest in the Company is structured as a
cash tender offer followed by a merger in order to expedite the opportunity for
Parent to obtain a controlling interest in the Company. Under the Delaware Law
and the Company's Certificate of Incorporation, the affirmative vote of the
holders of a majority of the outstanding Shares is required to approve the
Merger. If the Minimum Condition is satisfied, Parent would have sufficient
voting power to approve the Merger without the affirmative vote of any other
stockholder of the Company.
PLANS FOR THE COMPANY
If and to the extent that the Purchaser acquires control of the Company,
Parent and the Purchaser intend to conduct a detailed review of the Company and
its assets, corporate structure, capitalization, operations, properties,
policies, management and personnel and consider and determine what, if any,
changes would be desirable in light of the circumstances which then exist. Such
strategies could include, among other things and subject to the terms of the
Merger Agreement, changes in the Company's business, corporate structure,
Certificate of Incorporation, Bylaws, capitalization, management or dividend
policy.
Except as noted in this Offer to Purchase, Offeror, Purchaser and Parent
have no present plans nor proposals that would result in an extraordinary
corporate transaction, such as a merger, reorganization, liquidation, or sale or
transfer of a material amount of assets, involving the Company or any subsidiary
of the Company or any other material changes in the Company's capitalization,
dividend policy, corporate structure, business or composition of its management
or Board of Directors.
THE TRANSACTION DOCUMENTS
The Merger Agreement
The following is a summary of the material terms of the Merger Agreement.
This summary is not a complete description of the terms and conditions thereof
and is qualified in its entirety by reference to the full text thereof, which is
incorporated herein by reference and a copy of which has been filed with the
Commission as an exhibit to the Schedule 14D-1. The Merger Agreement may be
examined, and copies thereof may be obtained, as set forth in Section 8.
16
<PAGE> 19
The Offer. The Merger Agreement provides for the commencement of the
Offer, in connection with which Parent, Purchaser and Offeror have expressly
reserved the right to waive certain conditions of the Offer, but without the
prior written consent of the Company, Offeror has agreed not to (i) waive or
increase the Minimum Condition, (ii) reduce the number of Shares subject to the
Offer, (iii) reduce the price per Share to be paid pursuant to the Offer, (iv)
extend the Offer if all of the Offer conditions are satisfied or waived, (v)
change the form of consideration payable in the Offer, or (vi) amend, modify or
add to the conditions of the Offer or the Offer in any manner adverse to the
holders of Shares. Notwithstanding the foregoing, Offeror may, without the
consent of the Company, extend the Offer at any time and from time to time (A)
if at the then scheduled expiration date of the Offer any of the conditions to
the Offer shall not have been satisfied or waived, such extension not to exceed
such time as Offeror shall reasonably conclude is necessary for all such
conditions to be satisfied or waived; (B) for any period required by any statute
or rule, regulation, interpretation or position of the Commission or its staff
applicable to the Offer; (C) for any period required by applicable law in
connection with an increase in the consideration to be paid pursuant to the
Offer; and (D) if all Offer conditions are satisfied or waived but the number of
Shares tendered is less than 90% of the then outstanding number of Shares, but
only if Offeror waives all Offer conditions, for an aggregate period of not more
than 10 business days (for all such extensions under this clause (D)) beyond the
latest expiration date that would be permitted under clause (A), (B) or (C) of
this sentence. So long as the Merger Agreement is in effect and the Offer
conditions are not satisfied on any scheduled expiration date of the Offer,
then, provided that all such conditions are and continue to be reasonably
probable of being satisfied by the date that is 30 business days after
commencement of the Offer, Parent, Purchaser and Offeror shall extend the Offer
from time to time, until such conditions are satisfied or waived, provided that
Parent, Purchaser and Offeror shall not be required to extend the Offer beyond
the date that is 30 business days after the commencement of the Offer.
Consideration to be Paid in the Merger. The Merger Agreement provides that
subject to the terms and conditions set forth in the Merger Agreement and the
applicable provisions of the Delaware Law, Offeror shall be merged with and into
the Company and the separate existence of Offeror will cease, and the Company
shall be the Surviving Corporation and shall be a wholly owned subsidiary of
Purchaser. In the Merger, each share of common stock, $.01 par value per share,
of Offeror outstanding immediately prior to the time of filing of a certificate
of merger relating to the Merger with the Secretary of State of the State of
Delaware, or such later time as is agreed by the parties (the "Effective Time"),
shall be converted into and exchanged for one validly issued, fully paid and
non-assessable share of Common Stock, $.01 par value per share, of the Surviving
Corporation. At the Effective Time, each Share issued and outstanding
immediately prior to the Effective Time (other than Shares owned by Parent,
Purchaser or Offeror or held by the Company, all of which shall be cancelled,
and Shares held by stockholders who perfect appraisal rights under Delaware law)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive the Merger Consideration,
without interest. The Merger Agreement provides that (subject to the provisions
of the Merger Agreement and the applicable provisions of the Delaware Law) the
closing of the Merger shall occur as soon as practicable following the
satisfaction or, to the extent permitted under the Merger Agreement, waiver of
the conditions to the Merger set forth in Article 7 of the Merger Agreement.
Treatment of Stock Options and Warrants. The Merger Agreement provides
that all options (individually, an "Option" and collectively, the "Options")
outstanding immediately prior to the Effective Time under any of the Stock
Option Plans, whether or not then exercisable, and all warrants to acquire
Shares (individually, a "Warrant" and collectively, "Warrants") outstanding
immediately prior to the Effective Time, whether or not then exercisable, and
all rights (individually a "Purchase Right" and collectively, the "Purchase
Rights") to purchase shares of Common Stock under the Company's 1997 Employee
Stock Purchase Plan (the "Purchase Plan") shall be cancelled. Promptly after the
Effective Time, each holder of an Option or Warrant shall be entitled to receive
from the Surviving Corporation, for each Share subject to an Option or Warrant,
whether or not then exercisable, an amount in cash equal to the excess, if any,
of the Merger Consideration over the per share exercise price of such Option or
Warrant, without interest, in full settlement of the Company's (and the
Surviving Corporation's) obligations under each Option or Warrant. To the extent
that the per share exercise price of any Option or Warrant exceeds the Merger
Consideration, at the Effective Time, such Option or Warrant shall be cancelled
and the holder of such Option or Warrant shall not
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receive or be entitled to receive any consideration from Purchaser, Merger Sub
or the Surviving Corporation. All amounts payable in respect of Options and
Warrants shall be subject to all applicable withholding of taxes. Additionally,
promptly after the Effective Time, each holder of a Purchase Right shall be
entitled to receive from the Surviving Corporation the Merger Consideration for
each Purchase Right, without interest, in full settlement of the Company's (and
the Surviving Corporation's) obligations under each Purchase Right. The Company
has agreed to take all actions as may be necessary to effect the foregoing.
Board Representation. The Merger Agreement provides that, promptly upon
the purchase of Shares pursuant to the Offer, Purchaser shall be entitled to
designate such number of directors as will give Purchaser representation on the
Board of Directors equal to the product of (i) the number of directors on the
Board of Directors and (ii) the percentage that the number of Shares purchased
by Purchaser or Offeror bears to the number of Shares outstanding, rounded up to
the next whole number, but rounded down if rounding up would cause Purchaser's
representatives to constitute the entire Board of Directors, and the Company
shall, upon request by Purchaser, promptly increase the size of the Board of
Directors and/or exercise its best efforts to secure the resignations of such
number of directors as is necessary to enable Purchaser's designees to be
elected to the Board of Directors and will cause Purchaser's designees to be so
elected. At the request of Purchaser, the Company will use its best efforts to
cause such individuals designated by Parent to constitute the same percentage of
(i) each committee of the Board of Directors, (ii) the board of directors of
each subsidiary of the Company, and (iii) each committee of each such
subsidiary's board of directors. The Company's obligations to appoint designees
to the Board of Directors are subject to Section 14(f) of the Exchange Act.
Stockholder Meeting. The Merger Agreement provides that, if required by
applicable law, the Company, acting through the Board of Directors, shall (i)
call, as promptly as practicable following the consummation of the Offer, a
meeting of its stockholders (the "Stockholder Meeting") for the purpose of
voting upon the Merger, (ii) hold the Stockholder Meeting as soon as practicable
after the purchase of Shares pursuant to the Offer and (iii) recommend to its
stockholders the approval of the Merger. At the Stockholder Meeting, Parent
shall cause all the Shares then owned by Parent, Purchaser, Offeror and any of
their subsidiaries or affiliates to be voted in favor of the Merger. The Merger
Agreement provides that, notwithstanding the foregoing, if Offeror, or any other
direct or indirect subsidiary of Purchaser, shall acquire at least 90 percent of
the outstanding Shares, the parties thereto shall take all necessary and
appropriate action to cause the Merger to become effective as soon as
practicable after the expiration of the Offer without a vote of stockholders of
the Company, in accordance with Section 253 of the Delaware Law.
Representations and Warranties. The Merger Agreement contains various
representations and warranties of the parties thereto. These include
representations and warranties by the Company with respect to (i) the due
organization, existence and, subject to certain limitations, the qualification,
good standing, corporate power and authority of the Company and its
subsidiaries; (ii) the due authorization, execution, and delivery of the Merger
Agreement and certain ancillary documents executed in connection therewith and
the consummation of transactions contemplated thereby, and the validity and
enforceability thereof; (iii) subject to certain exceptions and limitations, the
compliance by the Company and its subsidiaries with all applicable foreign,
federal, state or local laws, statutes, ordinances, rules, regulations, orders,
judgments, rulings and decrees ("Laws") of any foreign, federal, state or local
judicial, legislative, executive, administrative or regulatory body or
authority, or any court, arbitration, board or tribunal ("Governmental Entity");
(iv) the capitalization of the Company, including the number of shares of
capital stock of the Company outstanding, the number of shares reserved for
issuance on the exercise of options and similar rights to purchase shares; (v)
the identity, ownership and capitalization of each of the Company's subsidiaries
and ownership by the Company and its subsidiaries of interests or investments in
entities other than subsidiaries of the Company or its subsidiaries; (vi)
subject to certain exceptions and limitations, the absence of consents and
approvals necessary for consummation by the Company of the Merger and the
absence of any violations, breaches or defaults which would result from
compliance by the Company with any provision of the Merger Agreement; (vii)
compliance with the Securities Act and the Exchange Act, in connection with each
registration statement, report, proxy statement or information statement (as
defined under the Exchange Act) prepared by it since September 30, 1997, each in
the form (including exhibits and any amendments thereto) filed with the
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<PAGE> 21
Commission (collectively, the "Company Reports") and the financial statements
included therein filed by the Company with the Commission, the Schedule 14D-9,
the information statement, if any, filed by the Company in connection with the
Offer pursuant to Rule 14f-1 under the Exchange Act and any schedule required to
be filed by the Company with the Commission or any amendment or supplement
thereto; (viii) subject to certain exceptions and limitations, the absence of
pending or (to the knowledge of the Company) threatened claims, actions, suits,
proceedings, arbitrations, investigations or audits (collectively,
"Litigation"); (ix) the absence of certain changes or effects; (x) certain tax
matters; (xi) certain employee benefit and ERISA matters; (xii) certain labor
and employment matters; (xiii) certain fees in connection with the transactions
contemplated by the Merger Agreement; (xiv) certain matters relating to the
Company's intellectual property; (xv) subject to certain limitations, the
possession by the Company and its subsidiaries of necessary franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents,
certificates, approvals and orders; (xvi) certain environmental matters; (xvii)
subject to certain exceptions and limitations, title to assets; (xviii) certain
insurance policy matters; (xix) material contracts of the Company and its
subsidiaries; (xx) the opinion of the Financial Advisor; (xxi) state takeover
statutes; (xxii) the required vote of stockholders of the Company with respect
to the transactions contemplated by the Merger Agreement; (xxiii) the Rights
Agreement and (xxiv) year 2000 and euro compliance.
Parent, Purchaser and Offeror and have also made certain representations
and warranties, including with respect to (i) the due incorporation, existence,
good standing and, subject to certain limitations, corporate power and authority
of Parent, Purchaser and Offeror; (ii) the due authorization, execution and
delivery of the Merger Agreement and certain ancillary documents executed in
connection therewith and the consummation of the transactions contemplated
thereby, and the validity and enforceability thereof; (iii) subject to certain
exceptions and limitations, the absence of consents and approvals necessary for
consummation by Parent, Purchaser and Offeror and the absence of any violations,
breaches or defaults which would result from compliance by Parent, Purchaser and
Offeror with any provision of the Merger Agreement; (iv) the interim operations
of Offeror; (v) the sufficiency of funds available to Parent, Purchaser and
Offeror for the consummation of the Offer and the Merger; and (vi) the lack of
beneficial ownership by Parent, Purchaser or Offeror of any Shares.
Conduct of the Merger. The Company has agreed that from the date of the
Merger Agreement to the Effective Time, with certain exceptions, unless
Purchaser has consented in writing thereto, the Company shall, and shall cause
each of its subsidiaries to: (i) conduct its operations according to its
ordinary course of business consistent with past practice; (ii) use its
reasonable best efforts to preserve intact its business organizations and
goodwill, keep available the services of its officers and employees and maintain
satisfactory relationships with those persons having business relationships with
them; (iii) promptly upon the discovery thereof, notify Purchaser of the
existence of any breach of any representation or warranty contained in the
Merger Agreement (or, in the case of any representation and warranty that makes
no reference to Material Adverse Effect (as defined in the Merger Agreement),
any breach of such representation and warranty in any material respect) or the
occurrence of any event that would cause any representation or warranty
contained in the Merger Agreement no longer to be true and correct (or in the
case of any representation and warranty that makes no reference to Material
Adverse Effect, to no longer be true and correct in any material respect); and
(iv) promptly deliver to the Purchaser true and correct copies of any report,
statement or schedule filed with the Commission subsequent to the date of the
Merger Agreement, any internal monthly reports prepared for or delivered to the
Board of Directors after the date of the Merger Agreement and monthly financial
statements for the Company and its subsidiaries for and as of each month end
subsequent to the date of the Merger Agreement.
The Company has agreed that from the date of the Merger Agreement to the
Effective Time, with certain exceptions, unless Purchaser has consented in
writing thereto, the Company shall not, and shall not permit any of its
subsidiaries to, (i) amend its certificate of incorporation or by-laws; (ii)
issue, sell or pledge any shares of its capital stock or other ownership
interest in the Company (other than issuances of shares of Common Stock in
respect of any exercise of Options or Warrants outstanding on the date of the
Merger Agreement and disclosed to Purchaser or pursuant to the Purchase Plan) or
any of the subsidiaries, or any securities convertible into or exchangeable for
any such shares or ownership interest, or any rights, warrants or options to
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acquire or with respect to any such shares of capital stock, ownership interest,
or convertible or exchangeable securities (or derivative securities in respect
of the foregoing); (iii) effect any stock split or otherwise change its
capitalization as it exists on the date of the Merger Agreement; (iv) grant,
confer or award any option, warrant, convertible security or other right to
acquire any shares of its capital stock or take any action to cause to be
exercisable any otherwise unexercisable option under any existing stock option
plan (except as otherwise required by the terms of such unexercisable options);
(v) declare, set aside or pay any dividend or make any other distribution or
payment with respect to any shares of its capital stock or other ownership
interests (other than such payments by a subsidiary); (vi) directly or
indirectly redeem, purchase or otherwise acquire any shares of its capital stock
or capital stock of any of its subsidiaries; (vii) sell, lease or otherwise
dispose of any of its assets (including capital stock of subsidiaries), except
the sale or disposition of inventory or the license of the Company's products in
the ordinary course of business or the sale, lease or other disposition of
assets which, individually or in the aggregate, are obsolete or not material to
the Company and its subsidiaries, taken as a whole; (viii) acquire by merger,
purchase or any other manner, any business or entity or otherwise acquire any
assets that would be material, individually or in the aggregate, to the Company
and its subsidiaries taken as a whole, except for purchases of inventory,
supplies or capital equipment in the ordinary course of business consistent with
past practice; (ix) incur or assume any long-term or short-term debt for
borrowed money, including debt under the Company's existing credit agreement;
provided that, upon the written consent of Purchaser (which consent shall not be
unreasonably withheld), the Company may incur or assume debt under its existing
credit agreement at any time after 75 days after the date of the Merger
Agreement; (x) subject to certain exceptions, assume, guarantee or otherwise
become liable or responsible (whether directly, contingently or otherwise) for
the debt or other obligations of any other person except obligations (other than
debt) of the subsidiaries of the Company; (xi) make or forgive any loans,
advances or capital continuations to, or investments in, any other person; (xii)
grant any stock-related or performance awards; (xiii) enter into any new
employment, severance, consulting or salary continuation agreements with any
officers, directors or employees or grant any increases in compensation or
benefits to employees; (xiv) except to the extent required by Law, adopt or
amend in any material respect any material employee benefit plan or arrangement;
(xv) amend, change or waive (or exempt any person or entity from the effect of)
the Rights Agreement, except as set forth in the Merger Agreement; (xvi) permit
any insurance policy naming the Company or any subsidiary as a beneficiary or a
loss payee to be cancelled or terminated other than in the ordinary course of
business; (xvii) settle or compromise any pending or threatened litigation;
(xviii) make any tax election or settle any tax liability other than settlements
involving solely the payment of money (without admission of liability) not to
exceed $50,000; or (xix) agree in writing or otherwise to take any of the
foregoing actions.
Access to Information. Under the Merger Agreement, from the date of the
Merger Agreement to the closing date of the Merger, the Company shall, and shall
cause its subsidiaries to, (i) give Purchaser and its authorized representatives
full access to all books, records, personnel, offices and other facilities and
properties of the Company and its subsidiaries and their accountants and
accountants' work papers, (ii) permit Purchaser to make such copies and
inspections thereof as Purchaser may reasonably request and (iii) furnish
Purchaser with such financial and operating data and other information with
respect to the business and properties of the Company and its subsidiaries as
Purchaser may from time to time reasonably request; provided that no
investigation or information furnished pursuant to the Merger Agreement shall
affect any representations or warranties made by the Company therein or the
conditions to the obligations of Parent, Purchaser and Offeror to consummate the
transactions contemplated thereby.
No Solicitation. The Company has agreed in the Merger Agreement that from
the date of the Merger Agreement to the Effective Time or termination of the
Merger Agreement in accordance with Article 8 thereof, neither it nor any of its
subsidiaries shall, and it shall direct and use its best efforts to cause its
officers, directors, employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by it or any
of its subsidiaries) ("Representatives") not to, initiate, solicit or encourage,
directly or indirectly, any inquiries or the making or implementation of any
proposal or offer (including, without limitation, any proposal or offer to its
stockholders) with respect to a merger, acquisition, consolidation or similar
transaction involving, or any purchase of all or any significant portion of the
assets or any equity securities (other than pursuant to Options, Warrants and
Purchase Rights) of, the Company or any of its subsidiaries (any such proposal
or offer being hereinafter referred to as an "Alternative Proposal") or
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engage in any negotiations concerning, or provide any confidential information
or data to, afford access to the properties, books or records of the Company or
any of its subsidiaries to, or have any discussions with, any person relating to
an Alternative Proposal, or otherwise facilitate any effort or attempt to make
or implement an Alternative Proposal; (b) that it will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing, and it
will take the necessary steps to inform such parties of the obligations
undertaken under Section 6.1 of the Merger Agreement; and (c) that it will
notify Purchaser immediately of the identity of the potential acquiror and the
terms of such person's or entity's proposal if any such inquiries or proposals
are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with, the
Company; provided, however, that these provisions shall not prohibit the Company
or its subsidiaries or its Representatives, upon approval by the Board of
Directors of the Company, from (i) prior to the acceptance for payment of Shares
pursuant to the Offer, furnishing information to, or entering into discussions
or negotiations with, any person or entity that makes an unsolicited bona fide
proposal to acquire the Company pursuant to a merger, consolidation, share
exchange, purchase of substantially all of the assets of the Company, a business
combination or other similar transaction, if, and only to the extent that, (A)
such proposal was not solicited, encouraged or knowingly facilitated by the
Company, its subsidiaries or their agents in violation of Section 6.1 of the
Merger Agreement or the Letter Agreement, (B) such proposal is not subject to
the receipt of any necessary financing, unless the Board of Directors has
determined in good faith, based on the advice of the Financial Adviser or other
nationally recognized investment banking firm, that such proposal is readily
financeable, and involves consideration that provides a higher value per share
than the Merger Consideration, (C) the Board of Directors of the Company
determines in good faith after receiving a written opinion from outside counsel
that the failure to take such action would be a violation by the Board of
Directors of its fiduciary duties to stockholders imposed by Law and (D) prior
to furnishing information to, or entering into discussions or negotiations with,
such person or entity, the Company provides written notice to Purchaser to the
effect that it is furnishing information to, or entering into discussions or
negotiations with, such person or entity; and (ii) to the extent applicable,
complying with Rule 14e-2(a) promulgated under the Exchange Act with regard to
an Alternative Proposal. Additionally, the Merger Agreement requires the Company
to keep Purchaser immediately informed of the status of any such discussions or
negotiations permitted pursuant to the previous sentence (including the identity
of such person or entity and the terms of any proposal).
Fees and Expenses. Except as otherwise provided in the Merger Agreement,
whether or not the Offer or the Merger is consummated, all fees, costs and
expenses incurred in connection with the Merger Agreement and the transactions
contemplated by the Merger Agreement shall be paid by the party incurring such
fees, costs and expenses.
The Merger Agreement provides that, under certain circumstances, the
Company shall (a) pay to Purchaser a fee equal to $3,000,000 (the "Termination
Fee"). The Company is obligated to pay the Termination Fee under the following
circumstances: (i) Purchaser or the Company terminates the Merger Agreement
because of the failure of the condition to the Offer that the Company's
representations and warranties made by the Company in the Merger Agreement that
are qualified by materiality or Material Adverse Effect shall have been true and
correct in all respects when made (except to the extent that any such
representation or warranty refers specifically to another date, in which case
such representation or warranty shall be true and correct in all respects as of
such other date), the other representations and warranties made by the Company
in the Merger Agreement shall have been true and correct in all material
respects when made (except to the extent that any such representation or
warranty refers specifically to another date, in which case such representation
or warranty shall be true and correct in all material respects as of such other
date) or the Company shall have not breached and shall have complied in all
material respects with any of its obligations under the Merger Agreement; (ii)
Purchaser or the Company terminates the Merger Agreement because of the failure
of the condition to the Offer that no corporation, entity, "group" or "person"
(as defined in the Exchange Act), other than Purchaser or Offeror, shall have
acquired beneficial ownership of a majority of the outstanding Shares; (iii)
Purchaser or the Company terminates the Merger Agreement because of the failure
of the condition to the Offer that the Company's Board of Directors shall not
have modified or amended its recommendation of the Offer in any manner adverse
to Purchaser or Offeror or shall not have withdrawn its recommendation of the
Offer or shall not have recommended acceptance of any Alternative Proposal or
shall
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not have resolved to do any of the foregoing; (iv) the Company terminates the
Merger Agreement because of an Alternative Proposal which the Board of Directors
in good faith determines is more favorable from a financial point of view to the
stockholders of the Company as compared to the Offer and the Merger and the
Board of Directors determines, after receiving a written opinion from outside
counsel, that failure to terminate the Merger Agreement would constitute a
violation by the Board of Directors of its fiduciary duties to stockholders
imposed by Law, subject to certain provisos that would render such termination
right unavailable; or (v) Purchaser terminates the Merger Agreement because the
Board of Directors shall have failed to recommend, or shall have withdrawn,
modified or amended its approval or recommendation of the Offer or the Merger in
a manner adverse to Purchaser, or shall have resolved to do any of the
foregoing. In addition, the Company will be obligated to pay the Termination Fee
if an Alternative Proposal shall have been made known to the Company or shall
have been made directly to the stockholders of the Company generally or shall
have otherwise become publicly known or any person shall have publicly announced
an intention (whether or not conditional) to make an Alternative Proposal and
thereafter Purchaser or the Company terminates the Merger Agreement as a result
of (1) the Effective Time not having occurred on or before November 30, 1999 or
(2) the Offer terminating or expiring on account of the failure of the Minimum
Condition to be satisfied prior to the expiration of the Offer; provided,
however, that the Termination Fee shall not be payable to Purchaser pursuant to
this sentence unless and until within 12 months of such termination the Company
or any of its subsidiaries enters into any definitive agreement with respect to
any Alternative Proposal or any Alternative Proposal is consummated, in which
event the Termination Fee shall be payable upon consummation thereof.
Other Agreements. The Merger Agreement provides that, subject to the terms
and conditions provided in the Merger Agreement, the Company, Parent, Purchaser
and Offeror shall: (a) use their best efforts to cooperate with one another in
(i) determining which filings are required to be made prior to the Expiration
Date or the Effective Time with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Effective Time from,
Governmental Entities or other third parties in connection with the execution
and delivery of the Merger Agreement and certain other ancillary documents and
the consummation of the transactions contemplated thereby and (ii) timely making
all such filings and timely seeking all such consents, approvals, permits,
authorizations and waivers; and (b) use their reasonable best efforts to take,
or cause to be taken, all other action and do, or cause to be done, all other
things necessary, proper or appropriate to consummate and make effective the
transactions contemplated by the Merger Agreement at the earliest practicable
time. If, at any time after the Effective Time, any further action is necessary
or desirable to carry out the purpose of the Merger Agreement, the proper
officers and directors of Parent, Purchaser and the Surviving Corporation shall
take all such necessary action.
Conditions to the Merger. The respective obligations of each party to
effect the Merger are subject to the satisfaction or waiver, where permissible,
prior to the Effective Time, of the following conditions: (i) if approval of the
Merger Agreement and the Merger by the holders of Shares is required by
applicable Law, the Merger Agreement and the Merger shall have been approved by
the requisite vote of such holders; and (ii) there shall not have been issued
any injunction or issued or enacted any Law, which prohibits or has the effect
of prohibiting the consummation of the Merger or making such consummation
illegal.
The obligations of Purchaser and Offeror to effect the Merger shall be
further subject to the satisfaction or waiver, on or prior to the Effective
Time, of the condition that Purchaser shall have accepted for payment and paid
for Shares tendered pursuant to the Offer.
Termination. The Merger Agreement, notwithstanding approval thereof by the
stockholders of the Company, may be terminated at any time prior to the
Effective Time:
(a) by mutual written consent of the Board of Directors of Purchaser
and the Company;
(b) by Purchaser or the Company:
(i) if the Effective Time shall not have occurred on or before
November 30, 1999 (provided that the right to terminate the Merger
Agreement pursuant to this clause (i) shall not be available to any
party whose failure to fulfill any obligation under the Merger Agreement
has been the cause of or resulted in the failure of the Effective Time
to occur on or before such date);
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(ii) if there shall be any Law that makes consummation of the Offer
or the Merger illegal or prohibited, or if any court of competent
jurisdiction in the United States or other Governmental Entity shall
have issued an order, judgment, decree or ruling, or taken any other
action restraining, enjoining or otherwise prohibiting the Merger and
such order, judgment, decree, ruling or other action shall have become
final and non-appealable;
(iii) if the Offer terminates or expires on account of the failure
of any condition specified in Section 14 without Offeror having
purchased any Shares thereunder (provided that the right to terminate
the Merger Agreement pursuant to this clause (iii) shall not be
available to any party whose failure to fulfill any obligation under the
Merger Agreement has been the cause of or resulted in the failure of any
such condition); or
(iv) upon a vote at a duly held meeting, or upon any adjournment
thereof, the stockholders of the Company shall have failed to give any
approval required by applicable Law;
(c) by the Company if there is an Alternative Proposal which the Board
of Directors in good faith determines is more favorable from a financial
point of view to the stockholders of the Company as compared to the Offer
and the Merger, and the Board of Directors determines in good faith after
receiving a written opinion from outside counsel that failure to terminate
the Merger Agreement would constitute a violation by the Board of Directors
of its fiduciary duties to stockholders imposed by Law; provided, however,
that the right to terminate the Merger Agreement in such event shall not be
available (i) if the Company has breached its obligations not to solicit an
Alternative Proposal, or (ii) if the Alternative Proposal (x) is subject to
a financing condition or (y) involves consideration that is not entirely
cash or does not permit stockholders to receive the payment of the offered
consideration in respect of all Shares at the same time, unless the Board
of Directors has determined in good faith, based on the advice of the
Financial Advisor or other nationally recognized investment banking firm,
that (in the case of clause (x)) the Alternative Proposal is readily
financeable and (in the case of clause (y)) that such offer provides a
higher value per share than the consideration per share pursuant to the
Offer or the Merger, or (iii) if, prior to or concurrently with any
purported termination pursuant to this clause (c), the Company shall not
have paid the fees contemplated by Section 8.2 of the Merger Agreement, or
(iv) if the Company has not provided Purchaser and Offeror with three
business days prior written notice of its intent to terminate the Merger
Agreement and delivered to Purchaser and Offeror a copy of the written
agreement embodying the Alternative Proposal in its then most definitive
form; and
(d) by Purchaser if the Board of Directors shall have failed to
recommend, or shall have withdrawn, modified or amended its approval or
recommendation of the Offer or the Merger in a manner adverse to Purchaser
or shall have resolved to do any of the foregoing.
Indemnification. The Merger Agreement provides that Purchaser will cause
the Surviving Corporation to maintain in effect for not less than three years
after the Effective Time, the Company's current directors and officers insurance
policies, if such insurance is obtainable (or policies of at least the same
coverage containing terms and conditions no less advantageous to the current and
all former directors and officers of the Company) with respect to acts or
failures to act prior to the Effective Time, including acts relating to the
transactions contemplated by the Merger Agreement; provided, however, that in
order to maintain or procure such coverage, Purchaser and the Surviving
Corporation shall not be required to maintain or obtain policies providing such
coverage except to the extent such coverage can be provided at an annual cost of
no greater than 1.5 times the most recent annual premium paid by the Company
prior to the date hereof (the "Cap"); and provided, further, that if equivalent
coverage cannot be obtained, or can be obtained only by paying an annual premium
in excess of the Cap, Purchaser or the Surviving Corporation shall only be
required to obtain as much coverage as can be obtained by paying an annual
premium equal to the Cap.
The Merger Agreement also provides that from and after the Effective Time,
Purchaser and the Surviving Corporation shall indemnify and hold harmless each
person who is, or has been at any time prior to the date hereof or who becomes
prior to the Effective Time, an officer or director of the Company or any of its
subsidiaries (each, an "Indemnified Party"), in connection with any claim,
action, suit, proceeding or investigation (an "Action") arising out of or
pertaining to acts or omissions by them in their capacities as
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such, which acts or omissions occurred prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, at least to the
extent that such Indemnified Party is presently indemnified by the Company. In
the event of any such Action, the Surviving Corporation shall control the
defense of such Action with counsel selected by the Surviving Corporation, which
counsel shall be reasonably acceptable to the Indemnified Party; provided,
however, that the Indemnified Party shall be permitted to participate in the
defense of such Action through counsel selected by the Indemnified Party, which
counsel shall be reasonably acceptable to the Surviving Corporation, at the
Indemnified Party's expense. Notwithstanding the foregoing, if there is any
conflict between the Surviving Corporation and any Indemnified Parties or there
are additional defenses available to any Indemnified Parties, the Indemnified
Parties shall be permitted to participate in the defense of such Action with
counsel selected by the Indemnified Parties, which counsel shall be reasonably
acceptable to the Surviving Corporation, and Purchaser shall cause the Surviving
Corporation to pay the reasonable fees and expenses of such counsel, as accrued
and in advance of the final disposition of such Action to the fullest extent
permitted by applicable law; provided, however, that the Surviving Corporation
shall not be obligated to pay the reasonable fees and expenses of more than one
counsel for all Indemnified Parties in any single Action except to the extent
that, in the opinion of counsel for the Indemnified Parties, two or more of such
Indemnified Parties have conflicting interests in the outcome of such Action.
The Surviving Corporation shall not be liable for any settlement effected
without its written consent, which consent shall not unreasonably be withheld.
Purchaser has also agreed to cause the Surviving Corporation promptly to
adopt and keep in effect provisions in the Surviving Corporation's certificate
of incorporation and by-laws to provide for exculpation of director and officer
liability and indemnification (and advancement of expenses related thereto) of
the past and present officers and directors of the Company at least to the
extent they are presently indemnified by the Company and such provisions shall
not be amended except as either required by applicable Law or to make changes
permitted by Law that would enhance the rights of past or present officers and
directors to indemnification or advancement of expenses. Purchaser has also
agreed to cause the Surviving Corporation to comply with the terms and
conditions of all existing indemnification agreements with the Company's
officers and directors.
Certain Employee Matters. The Merger Agreement provides that the Company
shall take such action as is required to cause the current "Payment Period"
under the Purchase Plan to terminate on the earlier of the Effective Time and
July 23, 1999. If the Offer is consummated on or before the final day of the
current Payment Period under the Purchase Plan, the holders of Purchase Rights
shall receive from the Company, promptly after the last day of the Payment
Period, a cash payment in exchange for each Share issuable upon exercise of such
holder's Purchase Rights as of the last day of the Payment Period as set forth
in the first sentence hereof, in an amount equal to the Merger Consideration,
and each Purchase Right shall terminate automatically upon such payment. If the
Offer is not consummated on or before the final day of the current Payment
Period, the Purchase Rights will be exercisable solely for Common Stock in
accordance with the terms of the Purchase Plan. So long as this Agreement has
not been terminated, no additional Payment Period shall begin after the
termination of the current Payment Period.
From and after the Effective Time, the Surviving Corporation and its
subsidiaries will honor in accordance with their terms all existing employment,
severance, consulting and salary continuation agreements between the Company or
any of its subsidiaries and any current or former officer, director, employee or
consultant of the Company or any of its subsidiaries or group of such officers,
directors, employees or consultants which agreements have been previously
disclosed to Purchaser.
The Merger Agreement also provides that, to the extent permitted under
applicable law, each employee of the Company or its subsidiaries shall be given
credit for all service with the Company or its subsidiaries (or service credited
by the Company or its subsidiaries) under all employee benefit plans, programs,
policies and arrangements maintained by the Surviving Corporation or Purchaser
in which they participate or in which they become participants for purposes of
eligibility and vesting (but not benefit accrual), but only to the extent such
years of service would have been credited under the relevant plan of Purchaser
or its Subsidiaries if the employee had been a similarly situated employee of
Purchaser or its Subsidiaries during the relevant period of time.
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Additionally, to the extent that any benefit plan of the Surviving
Corporation or any of its subsidiaries in which an employee of the Company or
its subsidiaries participates after the Effective Time provides medical or
dental benefits, the Surviving Corporation shall cause any eligible expenses
incurred by such employee on or before the Effective Time under a similar
Company Employee Benefit Plan to be taken into account under the Surviving
Corporation or its subsidiaries' plan for purposes of satisfying all deductible,
coinsurance and maximum out-of-pocket requirements applicable to such employee
and his or her covered dependents for the applicable plan year. The Surviving
Corporation agrees to maintain the Company's Flexible Benefits Plan, as in
effect as of the date hereof, through the end of its current plan year.
Amendment. To the extent permitted by applicable law, the Merger Agreement
may be amended by action taken by or on behalf of the Board of Directors of the
Company, Parent and Purchaser at any time before or after adoption of the Merger
Agreement by the stockholders of the Company but, after any such stockholder
approval, no amendment shall be made which decreases the Merger Consideration or
which adversely affects the rights of, or the income tax consequences to, the
Company's stockholders thereunder without the approval of such stockholders;
provided, however, that any amendment occurring after the election or
appointment of Purchaser's designees to the Board of Directors shall require
approval of a majority of the directors of the Company then in office, and
Purchaser shall ensure that its designees who are serving on the Board of
Directors do not vote or take any action to approve any such amendment without
the approval of a majority of the directors then in office who are not
designated by Purchaser. The Merger Agreement may not be amended except by an
instrument in writing signed on behalf of all of the parties.
Timing. The exact timing and details of the Merger will depend upon legal
requirements and a variety of other factors, including the number of Shares
acquired by Offeror pursuant to the Offer. Although Purchaser has agreed to
cause the Merger to be consummated on the terms contained in the Merger
Agreement, there can be no assurance as to the timing of the Merger.
THE TENDER AND OPTION AGREEMENT.
The following is a summary of the material terms of the Tender and Option
Agreement. This summary is not a complete description of the terms and
conditions thereof and is qualified in its entirety by reference to the full
text thereof, which is incorporated herein by reference and a copy of which has
been filed with the Commission as an exhibit to the Schedule 14D-1.
Concurrently with the execution and delivery of the Merger Agreement, the
Major Stockholder, which has beneficial ownership (as defined in Rule 13d-3 of
the Exchange Act) with respect to 2,000,000 Shares, and the Directors and
Officers, who collectively have beneficial ownership (as defined in Rule 13d-3
of the Exchange Act) of 848,107 Shares, entered into the Tender and Option
Agreement with Purchaser and Offeror. The Major Stockholder and the Directors
and Officers beneficially own (as defined pursuant to Rule 13d-3 of the Exchange
Act) 31.5% of the Shares (21.6% of the Shares on a fully diluted basis if all
options and warrants with exercise prices above $7.50 are excluded). Pursuant to
the Tender and Option Agreement, the Major Stockholder and the Directors and
Officers (the "T&O Stockholders") have agreed, among other things, to tender
promptly the Shares held by them pursuant to the Offer, and not to withdraw any
such Shares, and to various other provisions described below.
Transfer of the Shares. The Tender and Option Agreement provides that
during its term, except as otherwise expressly provided therein, each T&O
Stockholder agrees that such T&O Stockholder will not (a) enter into any tender
or exchange offer or otherwise sell, transfer, pledge, assign, hypothecate or
otherwise dispose of, or encumber with any lien, any of the Shares, except for
(i) transfers to any spouse or descendant (including by adoption) of such T&O
Stockholder, or any trust or retirement plan or account for the benefit of such
T&O Stockholder, spouse or descendant; provided any such transferee agrees in
writing to be bound by the terms of the Tender and Option Agreement and (ii)
transfers by operation of Law; provided that any such transferee shall be bound
by the terms of the Tender and Option Agreement, (b) acquire any Shares or other
securities of the Company (otherwise than in connection with a transaction in
connection with adjustments or by exercising any of the Options, Warrants or
Rights), (c) deposit the Shares into a voting trust, enter into a voting
agreement or arrangement with respect to the Shares or grant any proxy or power
of attorney with
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respect to the Shares, (d) enter into any contract, option or other arrangement
(including any profit sharing arrangement) or undertaking with respect to the
direct or indirect acquisition or sale, transfer, pledge, assignment,
hypothecation or other disposition of any interest in or the voting of any
Shares or any other securities of the Company, (e) exercise any rights
(including, without limitation, under Section 262 of the Delaware General
Corporation Law) to demand appraisal of any Shares which may arise with respect
to the Merger, or (f) take any other action that would in any way restrict,
limit or interfere with the performance of such T&O Stockholder's obligations
hereunder or the transactions contemplated hereby or which would otherwise
diminish the benefits of the Tender and Option Agreement to Purchaser or
Offeror.
Tender of Shares. The Tender and Option Agreement provides that each T&O
Stockholder agrees that such T&O Stockholder will validly tender (or cause the
record owner of such shares to validly tender) and sell (and not withdraw,
except in the event the Purchase Option is exercised, in which case such
withdrawal shall be for the limited purpose of consummating the Purchase Option)
pursuant to and in accordance with the terms of the Offer not later than the
fifth business day after commencement of the Offer (or the earlier of the
expiration date of the Offer and the fifth business day after such Shares are
acquired by such T&O Stockholder if the T&O Stockholder acquires Shares after
the date hereof), or, if the T&O Stockholder has not received the Offer
documents by such time, within two business days following receipt of such
documents, all of the then outstanding Shares beneficially owned by such T&O
Stockholder (including the Shares outstanding as of the date of the Tender and
Option Agreement and shares issued following the exercise (if any) of the
Options, Warrants and Rights.
Voting Agreement. The Tender and Option Agreement also provides that each
T&O Stockholder, (a) agrees to appear (or not appear, if requested by Purchaser
or Offeror) at any annual, special, postponed or adjourned meeting of the
stockholders of the Company or otherwise cause the Shares such T&O Stockholder
beneficially owns to be counted as present (or absent, if requested by Purchaser
or Offeror) thereat for purposes of establishing a quorum and to vote or
consent, and (b) constitutes and appoints Purchaser and Offeror, or any nominee
thereof, with full power of substitution, during and for the term of the Merger
Agreement, as his true and lawful attorney and proxy for and in his name, place
and stead, to vote all the Shares such T&O Stockholder beneficially owns at the
time of such vote, at any annual, special, postponed or adjourned meeting of the
stockholders of the Company (and this appointment will include the right to sign
his or its name (as stockholder) to any consent, certificate or other document
relating to the Company that laws of the State of Delaware and the Commonwealth
of Massachusetts may require or permit), in the case of both (a) and (b) above,
(x) in favor of approval and adoption of the Merger Agreement and approval and
adoption of the Merger and the other transactions contemplated thereby and (y)
against (1) any Alternative Proposal, (2) any action or agreement that would
result in a breach in any respect of any covenant, agreement, representation or
warranty of the Company under the Merger Agreement and (3) the following actions
(other than the Merger and the other transactions contemplated by the Merger
Agreement and the ancillary documents thereto): (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its subsidiaries; (ii) a sale, lease or transfer
of a material amount of assets of the Company or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
any of its subsidiaries; (iii)(A) any change in a majority of the persons who
constitute the board of directors of the Company or any of its subsidiaries as
of the date hereof; (B) any change in the present capitalization of the Company
or any amendment of the Company's or any of its subsidiaries' certificate of
incorporation or bylaws, as amended to date; (C) any other material change in
the Company's or any of its subsidiaries' corporate structure or business; or
(D) any other action that is intended, or could be expected, to impede,
interfere with, delay, postpone, or adversely affect the Offer, the Merger and
the other transactions contemplated by the Tender and Option Agreement, the
Merger Agreement and the ancillary documents thereto.
Grant of Purchase Option. The Tender and Option Agreement also provides
that each T&O Stockholder grants to Purchaser and Offeror an irrevocable option
(the "Purchase Option") to purchase for cash, in a manner set forth below, any
or all of the Shares (and including Shares acquired after the date hereof by
such Stockholder) beneficially owned by the T&O Stockholder at a price per share
(the "Exercise Price") equal to
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the Merger Consideration. The Merger Consideration as it relates to the Options,
Warrants and Purchase Rights shall be an amount in cash equal to the excess, if
any, of the Merger Consideration over the per share exercise price of such
Option, Warrant or Purchase Right, without interest, in full settlement of the
Company's (and the Surviving Corporation's) obligations under each such Option,
Warrant or Purchase Right. To the extent that the per share exercise price of
any Option, Warrant or Purchase Right exceeds the Merger Consideration, such
Option, Warrant or Purchase Right shall be canceled and the T&O Stockholder
shall not receive or be entitled to receive any consideration from Purchaser,
Offeror or the Company relating thereto. The amount payable shall be subject to
all applicable withholding taxes.
Exercise of Purchase Option. The Tender and Option Agreement provides that
the Purchase Option may be exercised by Purchaser or Offeror, in whole or in
part, at any time or from time to time after the occurrence of any Trigger
Event. A Trigger Event will occur if: (i) the Merger Agreement becomes
terminable under circumstances that entitle Purchaser or Offeror to receive the
Termination Fee (regardless of whether the Merger Agreement is actually
terminated and whether such Termination Fee is then actually paid), (ii) the
Offer is consummated but, due to the failure of the T&O Stockholder to validly
tender and not withdraw all of the then outstanding Shares beneficially owned by
such T&O Stockholder, Purchaser has not accepted for payment or paid for all of
such T&O Stockholder's shares of Common Stock, (iii) a tender or exchange offer
for at least 20% of the Shares shall have been publicly proposed to be made or
shall have been made by another person or "group" (as defined in Section
13(d)(3) of the Exchange Act) (other than Parent, Purchaser or Offeror), or (iv)
it shall have been publicly disclosed that (A) any person or "group" (other than
Purchaser or Offeror) shall have acquired or proposed to acquire beneficial
ownership of more than 20% of any class or series of capital stock of the
Company (including the Common Stock), through the acquisition of stock, the
formation of a group or otherwise, or shall have been granted any option, right
or warrant, conditional or otherwise, to acquire beneficial ownership of more
than 20% of any class or series of capital stock of the Company or any of its
subsidiaries, or (B) any person or "group" (other than Parent, Purchaser and
Offeror) shall have entered into or publicly offered to enter into a definitive
agreement or an agreement in principle with respect to a merger, consolidation
or other business combination with the Company or any of its subsidiaries.
Total Profit Remittance. The Tender and Option Agreement provides that in
the event that, within 12 months of the exercise of the Purchase Options,
Purchaser or Offeror sells, to a third party which is not an affiliate of
Purchaser, Shares acquired by means of exercise of the Purchase Options
("Exercise Shares") for an aggregate consideration (the "Aggregate
Consideration") greater than the aggregate Exercise Price (the "Aggregate
Exercise Price") paid for such Exercise Shares, Purchaser agrees to pay to the
T&O Stockholders an amount equal to the excess of the Aggregate Consideration
over the Aggregate Exercise Price. The excess of the Aggregate Consideration
over the Aggregate Exercise Price shall be distributed to the T&O Stockholders
who sold shares to Purchaser or Merger Sub pursuant to the exercise of the
Purchase Options in a manner so that each such T&O Stockholder shall have
received the same consideration after including such payments for each Share so
sold. In addition, in the event that, within 12 months of the exercise of the
Purchase Options, Parent, Purchaser or Offeror or any of their affiliates shall
consummate a merger or other business combination with the Company, or shall
purchase Shares pursuant to a tender offer for all Shares, at a price per share
(taking into account any stock dividends, stock splits, reverse stock splits,
recapitalizations, combinations, exchanges of shares or the like) in excess of
the Exercise Price paid for any Shares, Purchaser agrees to pay each T&O
Stockholder such excess for each Exercise Share purchased from such T&O
Stockholder.
Representations and Warranties. Under the Tender and Option Agreement, the
T&O Stockholders made customary representations and warranties to Purchaser and
Offeror, including with respect to their authority to enter into and perform
their obligations under the Tender and Option Agreement, the due execution and
delivery by the T&O Stockholders of the Tender and Option Agreement and their
good title to all of the Shares, free and clear of all encumbrances.
Each of Purchaser and Offeror has also made customary representations and
warranties under the Tender and Option Agreement, including with respect to
Purchaser's and Offeror's authority to enter into and perform its obligations
under the Tender and Option Agreement, the due execution and delivery by
Purchaser and
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Offeror of the Tender and Option Agreement, and each of Purchaser's and
Offeror's representation that it will not transfer or dispose of the Option
Shares except in compliance with the Securities Act.
Termination. The Tender and Option Agreement will terminate, with respect
to any T&O Stockholder, upon the purchase by Purchaser of Offeror of all of the
then outstanding Shares beneficially owned by such T&O Stockholder in accordance
with Section 6 of the Tender and Option Agreement, and otherwise, upon the
earliest of: (i) the Effective Time; (ii) termination of the Merger Agreement
other than upon, during the continuance of, or after, a Trigger Event; or (iii)
90 days following any termination of the Merger Agreement upon, during the
continuance of or after a Trigger Event (or if, at the expiration of such 90 day
period the Purchase Option cannot be exercised by reason of any applicable
judgment, decree, order, injunction, law or regulation, 10 business days after
such impediment to exercise has been removed or has become final and not subject
to appeal).
Arrangement with Mr. Crane. Parent and Jonathan C. Crane, President of the
Company, executed a summary of terms with respect to his relationship with the
Company and its affiliates after consummation of the Offer.
This arrangement provides that Mr. Crane will provide consultative
assistance on matters involving customers, strategies and organizational matters
for 90 days after the completion of the Offer. In consideration for this
service, the Company shall, and Parent shall cause the Company to, pay to Mr.
Crane $250,000 subject to repayment in full of the loan referred to below. This
payment will be made regardless as to whether Mr. Crane becomes an employee or
consultant of any other party and thus becomes less available to perform
services during such 90-day period. Additionally, Parent and the Company will
honor in accordance with its terms Mr. Crane's employment agreement (the
"Employment Agreement"), dated December 22, 1998, with the Company, and will pay
the amounts due under the Employment Agreement with respect to the termination
of Mr. Crane's employment with the Company promptly after consummation of Offer.
Furthermore, the loan agreement, dated as of December 22, 1998, between the
Company and Mr. Crane, and the promissory note, dated December 22, 1998,
relating thereto, will remain in effect through the 90-day period, except that
Mr. Crane will not borrow any additional amounts under the loan agreement or the
promissory note. At the end of the 90-day period, Mr. Crane will repay the
entire principal amount ($410,000) of such loan and all accrued interest on this
loan prior to receiving the $250,000 consideration referred to above.
OTHER MATTERS.
Section 203 of the Delaware Law. Section 203 of the Delaware Law limits
the ability of a Delaware corporation to engage in business combinations with
"interested stockholders" (defined as any beneficial owner of 15% or more of the
outstanding voting stock of the corporation) unless, among other things, the
corporation's board of directors has given its prior approval to either the
business combination or the transaction which resulted in the stockholder's
becoming an "interested stockholder". On May 26, 1999, the Board of Directors
approved the Offer, the Merger and the Tender and Option Agreement for purposes
of Section 203, and, therefore, Section 203 is inapplicable to the Merger and
the transactions contemplated by the Tender and Option Agreement.
Appraisal Rights. No appraisal rights are available to holders of Shares
in connection with the Offer. However, if the Merger is consummated, holders of
Shares will have certain rights under Section 262 of the Delaware Law to dissent
and demand appraisal of, and payment in cash for the fair value of, their
Shares. Such rights, if the statutory procedures are complied with, could lead
to a judicial determination of the fair value (excluding any element of value
arising from accomplishment or expectation of the Merger) required to be paid in
cash to such dissenting holders for their Shares. Any such judicial
determination of the fair value of Shares could be based upon considerations
other than in addition to the Offer Price and the market value of the Shares,
including asset values and the investment value of the Shares. The value so
determined could be more or less than the Offer Price or the Merger
Consideration.
If any holder of Shares who demands appraisal under Section 262 of the
Delaware Law fails to perfect, or effectively withdraws or loses his right to
appraisal, as provided in the Delaware Law, the shares of such holder will be
converted into the Merger Consideration in accordance with the Merger Agreement.
A stockholder
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may withdraw his demand for appraisal by delivery to Parent of a written
withdrawal of his demand for appraisal and acceptance of the Merger.
Failure to follow the steps required by Section 262 of the Delaware Law for
perfecting appraisal rights may result in the loss of such rights.
Rule 13e-3: The Commission has adopted Rule 13e-3 under the Exchange Act
("Rule 13e-3"), which is applicable to certain "going private" transactions.
Rule 13e-3 requires, among other things, that certain financial information
concerning the company and certain information relating to the fairness of the
proposed transaction and the consideration offered to minority stockholders in
such transaction be filed with the Commission and disclosed to stockholders
prior to consummation of the transaction.
Parent believes that Rule 13e-3 will not be applicable to the Merger
because of the exemption afforded by Rule 13e-3(g)(1), among other reasons.
However, under certain circumstances, Rule 13e-3 could be applicable to the
Merger or other business combination in which Purchaser seeks to acquire the
remaining Shares it does not beneficially own following the purchase of Shares
pursuant to the Offer. For example, if the Merger as consummated is not
substantially similar to the Merger as described in this Offer to Purchase and
the Merger Agreement, Rule 13e-3 could apply. However, the terms and conditions
of the Merger are governed by the Merger Agreement, and any amendment to the
Merger Agreement must be approved by each party thereto. If Purchaser has
exercised its right to appoint directors to the Board of Directors following its
purchase of Shares pursuant to the Offer, any such amendment must be approved on
behalf of the Company by the directors of the Company in the manner set forth
above.
There can be no assurance that the Merger will take place, even though each
party has agreed in the Merger Agreement to use its best efforts to cause the
Merger to occur, because the Merger is subject to certain conditions, some of
which are beyond the control of either Purchaser or the Company. Since the
Purchaser's ultimate objective is to acquire ownership of all the Shares, if the
Merger does not take place, the Purchaser would consider the acquisition,
whether directly or through an affiliate of Shares through private or open
market purchases, or subsequent tender offers or a different type of merger or
other combination of the Company with the Purchaser or an affiliate or
subsidiary thereof, or by any other permissible means deemed advisable by it.
Except as described in the section captioned "The Merger Agreement," any of
these possible transactions might be on terms the same as, or more or less
favorable than, those of the Offer or the Merger.
13. DIVIDENDS AND DISTRIBUTIONS.
Pursuant to the terms of the Merger Agreement, from and after the date of
the Merger Agreement until the Effective Time, unless Purchaser has consented in
writing thereto, the Company shall not, and shall not permit its subsidiaries
to, (a) issue, sell or pledge any shares of its capital stock or other ownership
interest in the Company (other than issuances of Common Stock in respect of any
exercise of stock options or warrants outstanding on the date of the Merger
Agreement or pursuant to the Employee Stock Purchase Plan to acquire Shares in
accordance with its terms in effect on the date of the Merger Agreement) or its
Subsidiaries, or any securities convertible into or exchangeable for any such
shares or ownership interest, or any rights, warrants or options to acquire or
with respect to any such shares of capital stock, ownership interest, or
convertible or exchangeable securities (or derivative instruments in respect of
the foregoing); (b) effect any stock split or otherwise change its
capitalization as it exists on the date hereof; (c) grant, confer or award any
option, warrant, convertible security or other right to acquire any shares of
its capital stock or take any action to cause to be exercisable any otherwise
unexercisable option under any existing stock option plan (except as otherwise
required by the terms of such unexercisable options or the stock option plan);
(d) declare, set aside or pay any dividend or make any other distribution or
payment with respect to any shares of its capital stock or other ownership
interests (other than such payments by its subsidiaries to the Company); or (e)
directly or indirectly redeem, purchase or otherwise acquire any shares of its
capital stock or capital stock of its Subsidiaries.
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14. CERTAIN CONDITIONS TO THE OFFER.
Notwithstanding any other term of the Offer, Offeror shall not be required
to accept for payment or pay for, subject to any applicable rules and
regulations of the Commission, including Rule 14e-1(c) of the Exchange Act, any
Shares not theretofore accepted for payment or paid for and may terminate or
amend the Offer as to such Shares to the extent permitted by the Merger
Agreement, unless there shall have been validly tendered and not withdrawn prior
to the expiration of the Offer that number of Shares which would represent at
least a majority of the outstanding Shares on a fully diluted basis and any
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, applicable to the purchase of Shares pursuant to the Offer shall
have been expired or been terminated. Furthermore, notwithstanding any other
term of the Offer or the Merger Agreement, Offeror shall not be required to
accept for payment or, subject as aforesaid, to pay for any Shares not
theretofore accepted for payment or paid for, and may terminate or amend the
Offer to the extent permitted by the Merger Agreement, if at any time on or
after the date of the Merger Agreement and before the acceptance of such Shares
for payment or the payment therefor, any of the following conditions shall exist
or occur and remain in effect:
(a) there shall have been instituted, pending or threatened in writing
any litigation by the Government of the United States of America or by any
agency or instrumentality thereof that seeks to (i) challenge the
acquisition by Purchaser or Offeror (or any of its affiliates) of Shares
pursuant to the Offer or restrain or prohibit the making or consummation of
the Offer or the Merger, or obtain damages in connection thereunder, (ii)
make the purchase of or payment for some or all of the Shares pursuant to
the Offer or the Merger illegal, (iii) in connection with the Offer or the
Merger or the transactions contemplated to the Merger Agreement, impose
limitations on the ability of Purchaser or Offeror (or any of their
affiliates) effectively to acquire or hold, or to require Purchaser,
Offeror or the Company or any of their respective affiliates or
subsidiaries to dispose of or hold separate, any material portion of their
assets or the business of any one of them, (iv) impose limitations on the
ability of Purchaser, Offeror or their affiliates to exercise full rights
of ownership of the Shares purchased by it, including, without limitation,
the right to vote the Shares purchased by it on all matters properly
presented to the stockholders of the Company, or (v) in connection with the
Offer or the Merger or the transactions contemplated by the Merger
Agreement, affect Purchaser, Offeror, the Company or any of their
respective affiliates which, in the sole judgment of Purchaser, may have or
be likely to have a Material Adverse Effect or a material adverse effect on
Purchaser, Offeror or any of their affiliates or otherwise make
consummation of the Offer or the Merger or the consummation of the
transactions contemplated hereunder unduly burdensome; or
(b) there shall have been promulgated, enacted, entered, enforced or
deemed applicable to the Offer or the Merger, by any Governmental Entity,
any Law that could directly or indirectly result in any of the consequences
referred to in subsection (a) above; or
(c) the Merger Agreement shall have been terminated in accordance with
its terms; or
(d) (i) any of the representations and warranties made by the Company
in the Merger Agreement that are qualified by materiality or Material
Adverse Effect shall not have been true and correct in all respects when
made (except to the extent that any such representation or warranty refers
specifically to another date, in which case such representation or warranty
shall be true and correct in all respects as of such other date), or the
other representations and warranties made by the Company in the Merger
Agreement shall not have been true and correct in all material respects
when made (except to the extent that any such representation or warranty
refers specifically to another date, in which case such representation or
warranty shall be true and correct in all material respects as of such
other date) or (ii) the Company shall have breached or failed to comply in
any material respect with any of its obligations under the Merger
Agreement; or
(e) any corporation, entity, "group" or "person" (as defined in the
Exchange Act), other than Purchaser or Offeror, shall have acquired
beneficial ownership of a majority of the outstanding Shares; or
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(f) the Company's Board of Directors shall have modified or amended
its recommendation of the Offer in any manner adverse to Purchaser or
Offeror or shall have withdrawn its recommendation of the Offer or shall
have recommended acceptance of any Alternative Proposal or shall have
resolved to do any of the foregoing; or
(g) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on any national securities
exchange or in the over the counter market in the United States, (ii) a
declaration of any banking moratorium by federal or state authorities or
any suspension of payments in respect of banks or any limitation (whether
or not mandatory) imposed by federal or state authorities on the extension
of credit by lending institutions in the United States, or (iii) in the
case of the foregoing clause existing at the time of the commencement of
the Offer, in the reasonable judgment of Parent, a material acceleration or
worsening thereof.
Other than the Minimum Condition, the foregoing conditions are for the sole
benefit of Purchaser and Offeror and may be asserted by Purchaser or Offeror
regardless of the circumstances (including any action or inaction by Purchaser
or the Company) giving rise to any such condition and may be waived by Purchaser
or Offeror, in whole or in part, at any time and from time to time, in the sole
discretion of Purchaser. The failure by Purchaser or Offeror at any time to
exercise any of the foregoing rights will not be deemed a waiver of any right,
the waiver of such right with respect to any particular facts or circumstances
shall not be deemed a waiver with respect to any other facts or circumstances,
and each right will be deemed an ongoing right which may be asserted at any time
and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions, all
tendered Shares shall promptly be returned by the depositary to the tendering
stockholders.
15. CERTAIN REGULATORY AND LEGAL MATTERS.
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company, as well as certain representations
made to Parent, Purchaser and Offeror in the Merger Agreement by the Company,
neither Parent, Purchaser nor Offeror is aware of any license or regulatory
permit that appears to be material to the business of the Company and its
subsidiaries, taken as a whole, that might be adversely affected by the
Offeror's acquisition of Shares as contemplated herein or of any approval or
other action by any Governmental Entity that would be required for the
acquisition or ownership of Shares by Offeror as contemplated herein. Should any
such approval or other action be required, Offeror, Purchaser and Parent
currently contemplate that such approval or other action will be sought, except
as described below under "State Takeover Laws". While, except as otherwise
expressly described in this Section 15, Offeror does not currently intend to
delay the acceptance for payment of, or payment for, Shares tendered pursuant to
the Offer, pending the outcome of any such matter, there can be no assurance
that any such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that failure to obtain any such
approval or other action might not result in consequences adverse to the
Company's business, or that certain parts of the Company's business might not
have to be disposed of if such approvals were not obtained or such other actions
were not taken or in order to obtain any such approval or other action. If
certain types of adverse action are taken with respect to the matters discussed
below (or if any required governmental approval is not obtained), the Offeror
could decline to accept for payment or pay for any Shares tendered. See Section
14 for certain conditions to the Offer.
State Takeover Laws. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, stockholders, executive offices or places of business in such states. In
Edgar v. MITE Corp., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a
31
<PAGE> 34
potential acquiror from voting on the affairs of a target corporation without
prior approval of the remaining stockholders, provided that such laws were
applicable only under certain conditions.
The Company is incorporated under the laws of Delaware. Section 203 of the
Delaware Law prevents an "Interested Stockholder" (defined generally as a person
with 15% or more of the corporation's outstanding voting stock) from engaging in
a "Business Combination" (defined to include a variety of transactions,
including mergers) with a Delaware corporation for three years following the
date such person becomes an Interested Stockholder, unless (i) before such
person became an Interested Stockholder, the board of directors of the
corporation approved the transaction in which the Interested Stockholder became
an Interested Stockholder or approved the Business Combination, or (ii) upon
consummation of the transaction which resulted in the Interested Stockholder
becoming an Interested Stockholder, the Interested Stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding stock held by directors who are also officers
of the corporation and by certain employee stock ownership plans), or (iii)
following the transaction in which such person became an Interested Stockholder,
the Business Combination is approved by the board of directors of the
corporation and authorized at a meeting of stockholders by the affirmative vote
of the holders of two-thirds of the outstanding voting stock of the corporation
not owned by the Interested Stockholder. The Board of Directors has unanimously
approved the Merger Agreement and the transactions contemplated thereby,
including the Offer and the Tender and Option Agreement, for purposes of Section
203 of the Delaware Law, and the restrictions of such Section 203 are,
accordingly, not applicable to Parent, Purchaser, Offeror or their affiliates or
associates as a result of the consummation of the transactions contemplated by
this Offer to Purchase.
Neither Offeror, Purchaser nor Parent has currently complied with any state
takeover statute or regulation. Offeror reserves the right to challenge the
applicability or validity of any state law purportedly applicable to the Offer
or the Merger and nothing in this Offer to Purchase or any action taken in
connection with the Offer or the Merger is intended as a waiver of such right.
If it is asserted that any state takeover statute is applicable to the Offer or
the Merger and an appropriate court does not determine that it is inapplicable
or invalid as applied to the Offer or the Merger, Offeror might be required to
file certain information with, or to receive approvals from, the relevant state
authorities, and Offeror might be unable to accept for payment or pay for Shares
tendered pursuant to the Offer or is delayed in consummating the Offer or the
Merger. In such case, Offeror may not be obliged to accept for payment or pay
for any Shares tendered pursuant to the Offer.
Antitrust. The Federal Trade Commission (the "FTC") and the Antitrust
Division of the United States Department of Justice frequently scrutinize the
legality under the antitrust laws of transactions such as Offeror's proposed
acquisition of the Company. At any time before or after Offeror's purchase of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by Offeror or the divestiture of substantial assets of Parent or its
subsidiaries, or the Company or its subsidiaries. Private parties may also bring
legal action under the antitrust laws under certain circumstances. There can be
no assurance that a challenge to the Offer on antitrust grounds will not be made
or, if such a challenge is made, of the results thereof.
16. FEES AND EXPENSES.
Morgan Stanley & Co. Incorporated ("Morgan Stanley") is acting solely as
Dealer Manager in connection with the Offer. Purchaser has agreed to pay Morgan
Stanley customary fees for its services as Dealer Manager in connection with the
Offer pursuant to customary dealer manager terms of engagement. Purchaser has
also agreed to reimburse Morgan Stanley for certain reasonable expenses incurred
in connection with the Offer and to indemnify Morgan Stanley against certain
liabilities.
The Purchaser has retained D.F. King & Co., Inc. to act as the Information
Agent and Bankers Trust Company to serve as the Depositary in connection with
the Offer. The Information Agent and the Depositary each will receive reasonable
and customary compensation for their services, be reimbursed for certain
32
<PAGE> 35
reasonable out-of-pocket expenses and be indemnified against certain liabilities
and expenses in connection therewith, including certain liabilities under the
federal securities laws.
Except as described herein, neither Offeror, Purchaser, nor Parent will pay
any fees or commissions to any broker or dealer or other person in connection
with the solicitation of tenders of Shares pursuant to the Offer. Brokers,
dealers, banks and trust companies will be reimbursed by Offeror upon request
for customary mailing and handling expenses incurred by them in forwarding
material to their customers.
17. MISCELLANEOUS.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither Offeror, Purchaser nor Parent is aware of any jurisdiction
in which the making of the Offer or the tender of Shares in connection therewith
would not be in compliance with the laws of such jurisdiction. If Offeror,
Purchaser or Parent becomes aware of any state law prohibiting the making of the
Offer or the acceptance of Shares pursuant thereto in such state, Offeror will
make a good faith effort to comply with any such state statute or seek to have
such state statute declared inapplicable to the Offer. If, after such good faith
effort, Offeror cannot comply with any such state statute, the Offer will not be
made to (nor will tenders be accepted from or on behalf of) the holders of
Shares in such jurisdiction. In any jurisdiction the securities, blue sky or
other laws of which require the Offer to be made by a licensed broker or dealer,
the Offer will be made on behalf of Offeror by the Dealer Manager or one or more
registered brokers or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF OFFEROR, PURCHASER OR PARENT NOT CONTAINED HEREIN OR
IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER THE
DELIVERY OF THIS OFFER TO PURCHASE NOR ANY PURCHASE PURSUANT TO THE OFFER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF PARENT, PURCHASER OR THE COMPANY SINCE THE DATE AS OF WHICH
INFORMATION IS FURNISHED OR THE DATE OF THIS OFFER TO PURCHASE.
Offeror, Purchaser or Parent has filed with the Commission the Schedule
14D-1 pursuant to Rule 14d-3 under the Exchange Act, furnishing certain
additional information with respect to the Offer. In addition, the Company has
filed with the Commission the Schedule 14D-9 pursuant to Rule 14d-9 under the
Exchange Act, setting forth its recommendation with respect to the Offer and the
reasons for such recommendation and furnishing certain additional related
information. Such Schedules and any amendments thereto, including exhibits,
should be available for inspection and copies should be obtainable in the manner
set forth in Sections 8 and 9 (except that they will not be available at the
regional offices of the Commission).
M MERGER SUB, INC.
June 3, 1999
33
<PAGE> 36
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF PARENT, PURCHASER AND OFFEROR
The names and ages of the directors and executive officers of Parent,
Purchaser and Offeror, and their present principal occupations, are set forth
below. Unless otherwise indicated, each individual is a citizen of the United
Kingdom and his business address is Carlisle Place, London SW1P 1BX England.
PARENT
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE PARENT; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ ----------------------------------------------------------
<S> <C>
Lord Marshall of Knightsbridge (65)....... Chairman since June 1998 and Deputy Chairman from January
1998 until June 1998. Chairman of British Airways Plc
since 1993. Chairman of Inchcape plc since 1996. Deputy
Chairman of British Telecommunications plc since 1995.
Non-Executive Director of HSBC Holdings plc. President of
the Confederation of British Industry from May 1996 until
July 1998.
Ian C. Strachan (56)(a)................... Deputy Chairman since February 1999. Member of Board of
Directors of BTR plc ("BTR") since April 1995 and Chief
Executive Officer of BTR from January 1996 until February
1999. Deputy Chief Executive of RTZ Corporation plc from
1981 until 1991.
Allen M. Yurko (47)(b).................... Member of Board of Directors since 1991, Chief Executive
since February 1999, Managing Director and Chief Executive
Officer from January 1994 until February 1999, and
Managing Director and Chief Operating Officer from October
1992 until January 1994. Member of the Board of Directors
of Tate & Lyle plc since April 1996.
Kathleen A. O'Donovan (41)................ Member of Board of Directors and Chief Financial Officer
since February 1999. Member of Board of Directors of BTR
since July 1991 and Finance Director of BTR from July 1991
until February 1999. Partner at Ernst & Young from 1989
until June 1991. Member of Board of Directors of EMI Group
plc since November 1997.
Robert Bauman (68)(c)..................... Member of Board of Directors since February 1999. Member
of Board of Directors of BTR since August 1997 and
Chairman of BTR from May 1998 until February 1999. Chief
Executive of SmithKline Beecham plc from July 1989 until
April 1994. Chairman of British Aerospace plc from May
1994 until April 1998. Member of Board of Directors of
Reuters Holdings plc since 1993.
Sir Philip Beck (64)...................... Member of Board of Directors since 1991, Chairman from
March 1998 until June 1998 and Deputy Chairman from June
1998 until February 1999. Deputy Chairman of Railtrack plc
since May 1999. Member of Board of Directors of Delta plc
since August 1994. Member of Board of Directors of
Kitagawa Europe Limited since June 1990.
</TABLE>
I-1
<PAGE> 37
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE PARENT; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ ----------------------------------------------------------
<S> <C>
Rolf Borjesson (56)(d).................... Member of Board of Directors since July 1998. Chief
Executive and Managing Director of Rexam PLC since July
1996. Member of Board of Directors of Midway Holding AB
since May 1995. Member of Board of Directors of Svenska
Handelsbanken AB since August 1995. Chief Executive of PLM
AB from March 1988 until June 1996.
Hugh Collum (58).......................... Member of Board of Directors since October 1998. Executive
Vice President and Chief Financial Officer of SmithKline
Beecham plc from 1989 until 1998. Member of Board of
Directors of Whitehead Mann Group plc since 1997, Safeway
plc since 1997, and South African Breweries plc since
1999. Non-Executive Chairman of Chiroscience Group plc
since 1998.
Sir Graham Hearne (61).................... Member of Board of Directors since February 1999. Member
of Board of Directors of BTR since June 1998. Chairman of
Enterprise Oil since 1991. Member of Board of Directors of
N.M. Rothschild & Sons Limited since 1977, NRM
Continuation Limited since 1997 and Gallagher Group plc
since 1987.
Simon Robertson (58)...................... Member of Board of Directors since February 1999. Member
of Board of Directors of BTR since March 1997. Managing
Director of Goldman Sachs International since September
1997. Chairman of Kleinwort Benson Group plc ("Kleinwort")
from 1996 until 1997 and Deputy Chairman of Kleinwort from
1992 until 1996. Member of Board of Directors of Inchcape
plc since May 1996 and Berry Bros. & Rudd since June 1998.
James F. Mueller (52)(e).................. Chief Operating Officer since February 1999 and member of
Board of Directors from April 1996 until February 1999.
President and Chief Operating Officer of Siebe Temperature
and Compliance Control from 1993 until February 1999.
James C. Bays (49)(f)..................... Senior Vice President since February 1999, General Counsel
and Chief Legal Officer since March 1996 and Vice
President from March 1996 until February 1999. Vice
President, Law and Assistant General Counsel of GenCorp.
Inc. from April 1993 until March 1996.
R.P.A. Coles (56)......................... Director of Legal Affairs, Group Senior Counsel since
February 1999 and Director of Legal Affairs and Company
Secretary from 1988 until February 1999.
Philip G. Cox (47)........................ Vice President-Operational Planning since February 1999,
Member of the Board of Directors from July 1998 until
February 1999 and Group Financial Director from July 1998
until February 1999. Has occupied various positions with
Parent since 1989.
Barry C. Francis (54)..................... Senior Vice President and Director of Public Relations
since February 1999. Group Public Relations Director from
1993 until February 1999.
John B. Saunders (56)..................... Senior Vice President and Director of Corporate Strategy
and Development since February 1999. Director, Corporate
Strategy and Development from January 1996 until February
1999. Senior Vice President and Director Corporate
Strategy at SmithKline Beecham plc from 1988 until 1994.
</TABLE>
I-2
<PAGE> 38
FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL WILL BE ACCEPTED. THE LETTER OF
TRANSMITTAL AND CERTIFICATES FOR SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD
BE SENT OR DELIVERED BY EACH STOCKHOLDER OF THE COMPANY OR HIS BROKER, DEALER,
COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE TO THE DEPOSITARY AT ONE OF THE
ADDRESSES SET FORTH BELOW:
THE DEPOSITARY FOR THE OFFER IS:
BANKERS TRUST COMPANY
<TABLE>
<S> <C> <C>
BY MAIL BY HAND BY OVERNIGHT MAIL OR COURIER
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust & Agency Group Corporate Trust & Agency Group
P. O. Box 292737 Receipt and Delivery Window Reorganization Unit
Nashville, TN 37229-2737 123 Washington St., 1st Floor 648 Grassmere Park Road
New York, NY 10006 Nashville, TN 37211
</TABLE>
FACSIMILE COPY NUMBER
(FOR ELIGIBLE INSTITUTIONS ONLY):
(615) 835-3701
FOR CONFIRMATION TELEPHONE:
(615) 835-3572
FOR INFORMATION TELEPHONE:
(800) 735-7777
Any questions or requests for assistance or additional copies of the Offer to
Purchase and the Letter of Transmittal and Notice of Guaranteed Delivery may be
directed to the Information Agent or the Dealer Manager at its telephone number
and location listed below. Stockholders may also contact their broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: (800) 848-3409
THE DEALER MANAGER FOR THE OFFER IS:
MORGAN STANLEY DEAN WITTER
1585 Broadway
New York, New York 10036
(212) 761-7896
<PAGE> 1
EXHIBIT (A)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
MARCAM SOLUTIONS, INC.
AT
$7.50 Net Per Share
Pursuant to the Offer to Purchase dated June 3, 1999
BY
M MERGER SUB, INC.,
a direct wholly owned subsidiary of
M ACQUISITION CORP.,
an indirect wholly owned subsidiary of
INVENSYS PLC
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, WEDNESDAY, JUNE 30, 1999, UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
Bankers Trust Company
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT MAIL OR COURIER:
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust & Agency Group Corporate Trust & Agency Group
P.O. Box 292737 Receipt and Delivery Window Reorganization Unit
Nashville, TN 37229-2737 123 Washington St., 1st Floor 648 Grassmere Park Road
New York, NY 10006 Nashville, TN 37211
</TABLE>
FACSIMILE COPY NUMBER
(FOR ELIGIBLE INSTITUTIONS ONLY):
(615) 835-3701
FOR CONFIRMATION TELEPHONE:
(615) 835-3572
FOR INFORMATION TELEPHONE:
(800) 735-7777
------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR
PROVIDED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE> 2
This Letter of Transmittal is to be completed by stockholders of Marcam
Solutions, Inc. if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined in the Offer to Purchase) is utilized, if delivery
of Shares (as defined below) is to be made by book-entry transfer to the
Depositary's account at The Depository Trust Company or the Philadelphia
Depository Trust Company (each a "Book-Entry Transfer Facility" and,
collectively, the "Book-Entry Transfer Facilities") pursuant to the procedures
set forth in Section 3 of the Offer to Purchase. DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Stockholders whose Share Certificates (as defined in the Offer to Purchase)
are not immediately available or who cannot deliver their Share Certificates and
all other documents required hereby to the Depositary on or prior to the
Expiration Date (as defined in the Offer to Purchase), or who cannot complete
the procedure for the book-entry transfer on a timely basis, may nevertheless
tender their Shares pursuant to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase. See Instruction 2.
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITIES AND COMPLETE
THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY
DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution
-----------------------------------------------
Account Number at
-----------------------------------------------------------
Transaction Code Number
-----------------------------------------------------
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Tendering Stockholder(s)
-----------------------------------------
Date of Execution of Notice of Guaranteed Delivery
--------------------------
Window Ticket Number (if any)
-----------------------------------------------
Name of Institution which Guaranteed Delivery
-------------------------------
If delivery is by book-entry transfer:
Name of Tendering Institution
-----------------------------------------------
Account Number at
------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------
2
<PAGE> 3
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST, IF NECESSARY)
- --------------------------------------------------------------------------------------------------------------------------
SHARE NUMBER OF SHARES
CERTIFICATE REPRESENTED BY NUMBER OF
NUMBER(S)* CERTIFICATE(S)* SHARES TENDERED**
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
Total Shares
- --------------------------------------------------------------------------------------------------------------------------
* Need not be completed by stockholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares represented by any certificates delivered in the
Depository are being tendered. See Instruction 4.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to M Merger Sub, Inc., a Delaware
corporation ("Offeror"), and a direct wholly owned subsidiary of M Acquisition
Corp., a Delaware corporation ("Purchaser"), and an indirect wholly owned
subsidiary of Invensys plc, a public limited company organized under the laws of
England and Wales ("Parent"), the above-described shares of Common Stock, par
value $.01 per share (the "Common Stock"), including the associated preferred
stock purchase rights issued pursuant to the Amended and Restated Rights
Agreement, dated September 18, 1998, as amended through the date hereof, between
the Company and BankBoston, N.A., as Rights Agent (the "Rights" and, together
with the Common Stock, the "Shares") of Marcam Solutions, Inc., a Delaware
corporation (the "Company"), pursuant to Offeror's offer to purchase all of the
outstanding Shares at a purchase price of $7.50 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated June 3, 1999 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer"). Each of Offeror and Purchaser is a corporation, newly
formed by Parent in connection with the Offer and the transactions contemplated
thereby. The Offer is being made pursuant to an Agreement and Plan of Merger,
dated as of May 27, 1999, among Parent, Purchaser, Offeror and the Company (the
"Merger Agreement").
Subject to, and effective upon, acceptance for payment of and payment for
the Shares tendered herewith, the undersigned hereby sells, assigns and
transfers to, or upon the order of, Offeror all right, title and interest in and
to all the Shares that are being tendered hereby (and any and all other shares
or other securities issued or issuable in respect of such Shares on or after the
date of the Offer to Purchase) and appoints Bankers Trust Company (the
"Depositary") the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares (and such other shares or securities), with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (a) deliver certificates for such Shares
(and such other shares or securities), or transfer ownership of such Shares (and
such other Shares or securities) on the account books maintained by any of the
Book-Entry Transfer Facilities, together, in any such case, with all
accompanying evidences of transfer and authenticity, to or upon the order of
Purchaser, (b) present such Shares (and such other shares or securities) for
transfer on the books of the Company and (c) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Shares (and such other
shares or securities), all in accordance with the terms of the Offer.
The undersigned hereby irrevocably appoints designees of Offeror and each
of them as the attorneys-in-fact and proxies of the undersigned, each with full
power of substitution, to the full extent of the rights of the undersigned with
respect to the Shares tendered hereby and accepted for payment by Offeror prior
to the time of any vote or other action
3
<PAGE> 4
(and any and all other shares or other securities issued or issuable in respect
of such Shares on or after the date of the Offer to Purchase). All such powers
of attorney and proxies shall be considered irrevocable and coupled with an
interest. Such appointment will be effective when, and only to the extent that,
Offeror accepts such Shares for payment. Upon such acceptance for payment, all
prior powers of attorney and proxies given by the stockholder with respect to
such Shares (and such other shares and securities) will, without further action,
be revoked and no subsequent powers of attorney and proxies may be given nor any
subsequent written consents executed (and, if given or executed, will not be
deemed effective). The designees of Offeror will, with respect to the Shares
(and such other shares and securities) for which such appointment is effective,
be empowered to exercise all voting and other rights of such stockholder as they
in their sole discretion may deem proper at any annual or special meeting of the
Company's stockholders, or any adjournment or postponement thereof by written
consent in lieu of any such meeting or otherwise. Offeror reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon Offeror's payment for such Shares, Offeror must be able to exercise full
voting and other rights with respect to such Shares (and such other shares and
securities), including voting at any meeting of stockholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby (and any and all other shares or other securities issued or
issuable in respect of such Shares on or after the date of the Offer to
Purchase) and that when the same are accepted for payment by Offeror, Offeror
will acquire good and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claims.
The undersigned, upon request, will execute and deliver any additional documents
deemed by the Depositary or Offeror to be necessary or desirable to complete the
sale, assignment and transfer of the Shares tendered hereby (and such other
shares or securities).
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Except as stated in the Offer, this tender is
irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute an agreement between the undersigned and
Offeror upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of any Shares purchased, and return any
Shares not tendered or not purchased, in the name(s) of the undersigned.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the purchase price of any Shares purchased and return
any Share Certificates not tendered or not purchased (and accompanying
documents, as appropriate) to the undersigned at the address shown below the
undersigned's signature(s). In the event that both "Special Payment
Instructions" and "Special Delivery Instructions" are completed, please issue
the check for the purchase price of any Shares purchased and return any Shares
not tendered or not purchased in the name(s) of, and mail such check and any
certificates to, the person(s) so indicated. Unless otherwise indicated under
"Special Payment Instructions," please credit any Shares tendered hereby and
delivered by book-entry transfer, but which are not purchased by crediting the
account at the Book-Entry Transfer Facility designated above. The undersigned
recognizes that Offeror has no obligation, pursuant to the "Special Payment
Instructions," to transfer any Shares from the name of the registered holder(s)
thereof if Offeror does not accept for payment any of the Shares so tendered.
4
<PAGE> 5
------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificates not tendered or not purchased are to be
issued in the name of someone other than the undersigned, or if Shares
tendered hereby and delivered by book-entry transfer which are not
accepted for payment are to be returned by credit to an account at one of
the Book-Entry Transfer Facilities other than designated above.
Issue [ ] check [ ] certificate(s) to:
Name
---------------------------------------------------------------------
(PLEASE PRINT)
---------------------------------------------------------------------
Address
------------------------------------------------------------------
------------------------------------------------------------------
(ZIP CODE)
------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
[ ] Credit Shares delivered by book-entry transfer and not purchased to
the account set forth below.
-------------------------------------------------------------
-------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificates not tendered or not purchased are to be
mailed to someone other than the undersigned or to the undersigned at an
address other than that shown below the undersigned's signature(s).
Mail check and/or certificate(s) to:
Name
---------------------------------------------------------------------
(PLEASE PRINT)
---------------------------------------------------------------------
Address
------------------------------------------------------------------
------------------------------------------------------------------
(ZIP CODE)
------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
------------------------------------------------------------
5
<PAGE> 6
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE(S) OF OWNER(S)
Name(s)
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title)
-----------------------------------------------------------
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Area Code and Telephone Number
--------------------------------------------------
Taxpayer Identification Number
or Social Security Number
-------------------------------------------------------
(SEE SUBSTITUTE FORM W-9)
Dated: , 1999
- --------------------------------------------------------------------------
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
Share Certificate(s) or on a security position listing or by the person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or other person
acting in a fiduciary or representative capacity, please set forth full title
and see Instruction 5).
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY, PLACE MEDALLION
GUARANTEE IN SPACE BELOW.
Authorized signature(s)
---------------------------------------------------------
Name
----------------------------------------------------------------------------
(PLEASE PRINT)
Name of Firm
--------------------------------------------------------------------
Address
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Area Code and Telephone Number
--------------------------------------------------
Dated: , 1999
--------------------------------------------------------------------
6
<PAGE> 7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below,
signatures on Letters of Transmittal must be guaranteed by a member in good
standing of the Securities Transfer Agents Medallion Program, or by any other
firm which is a bank, broker, dealer, credit union or savings association (each
of the foregoing being referred to as an "Eligible Institution" and,
collectively, as "Eligible Institutions"), except in cases where Shares are
tendered (i) by a registered holder of Shares who has not completed either the
box labeled "Special Delivery Instructions" or the box labeled "Special Payment
Instructions" on the Letter of Transmittal or (ii) for the account of any
Eligible Institution. See Instruction 5. If the Share Certificates are
registered in the name of a person other than the signer of this Letter of
Transmittal, or if payment is to be made, or Share Certificates not accepted for
payment or not tendered are to be returned, to a person other than the
registered holder, then the Share Certificates must be endorsed or accompanied
by duly executed stock powers, in either case, signed exactly as the name of the
registered holder appears on such certificates, with the signatures on such
certificates or stock powers guaranteed by an Eligible Institution as provided
herein. See Instruction 5.
2. Delivery of Letter of Transmittal and Shares. This Letter of
Transmittal is to be used either if Share Certificates are to be forwarded
herewith or, unless an Agent's Message is utilized, if the delivery of Shares is
to be made by book-entry transfer pursuant to the procedures set forth in
Section 3 of the Offer to Purchase. Certificates for all physically delivered
Shares, or a confirmation of a book-entry transfer into the Depositary's account
at one of the Book-Entry Transfer Facilities of all Shares delivered
electronically, as well as a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof) and any other documents required by this
Letter of Transmittal or an Agent's Message in the case of a book-entry
delivery, must be received by the Depositary at one of its addresses set forth
on the front page of this Letter of Transmittal by the Expiration Date.
Stockholders who cannot deliver their Shares and all other required documents to
the Depositary by the Expiration Date must tender their Shares pursuant to the
guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase.
Pursuant to such procedures: (a) such tender must be made by or through an
Eligible Institution; (b) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by Offeror, must be
received by the Depositary prior to the Expiration Date; and (c) the
certificates for all tendered Shares, in proper form for transfer (or a
Book-Entry Confirmation), together with a properly completed and duly executed
Letter of Transmittal (or a facsimile thereof), and any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other documents required by this Letter of Transmittal must be received by
the Depositary within three trading days after the date of such Notice of
Guaranteed Delivery, all as provided in Section 3 of the Offer to Purchase. The
term "trading day" is any day on which the NASDAQ National Market is open for
business.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY,
IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. By executing this Letter of Transmittal (or
a facsimile thereof), the tendering stockholder waives any right to receive any
notice of the acceptance for payment of the Shares.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. Partial Tenders (not applicable to stockholders who tender by
book-entry transfer). If fewer than all the Shares represented by any Share
Certificate delivered to the Depositary are to be tendered, fill in the number
of Shares which are to be tendered in the box entitled "Number of Shares
Tendered." In such case, a new Share Certificate for the remainder of the Shares
represented by the old Share Certificate will be sent to the person(s) signing
this Letter of Transmittal unless otherwise provided in the appropriate box on
this Letter of Transmittal, as promptly as practicable following the expiration
or termination of the Offer. All Shares represented by Share Certificates
delivered to the Depositary will be deemed to have been tendered unless
otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the Share Certificates without alteration, enlargement or any change
whatsoever.
7
<PAGE> 8
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different Share Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal as there are different registrations of
Share Certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate stock
powers are required unless payment of the purchase price is to be made, or
Shares not tendered or not purchased are to be returned, in the name of any
person other than the registered holder(s), in which case, the certificate(s)
for such Shares tendered hereby must be endorsed, or accompanied by appropriate
stock powers, in either case, signed exactly as the name(s) of the registered
holder(s) appears(s) on the certificate(s) for such Shares. Signatures on any
such certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate must
be endorsed or accompanied by appropriate stock powers, in either case, signed
exactly as the name(s) of the registered holder(s) appear(s) on the certificates
for such Shares. Signature(s) on any such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Purchaser of the authority of such person so to act must be
submitted.
6. Stock Transfer Taxes. Offeror will pay any stock transfer taxes with
respect to the sale and transfer of any Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or
Shares not tendered or not purchased are to be returned in the name of, any
person other than the registered holder(s), then the amount of any stock
transfer taxes (whether imposed on the registered holder(s), such other person
or otherwise) payable on account of the transfer to such person will be deducted
from the purchase price unless satisfactory evidence of the payment of such
taxes, or exemption therefrom, is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATES LISTED IN THIS
LETTER OF TRANSMITTAL.
7. Special Payment and Delivery Instructions. If the check for the
purchase price of any Shares purchased is to be issued, or any Shares not
tendered or not purchased are to be returned, in the name of a person other than
the person(s) signing this Letter of Transmittal or if the check or any Share
Certificates not tendered or not purchased are to be mailed to someone other
than the person(s) signing this Letter of Transmittal or to the person(s)
signing this Letter of Transmittal at an address other than that shown above,
the appropriate boxes on this Letter of Transmittal should be completed.
Shareholders tendering Shares by book-entry transfer may request that Shares not
purchased be credited to such account at any of the Book-Entry Transfer
Facilities as such stockholder may designate under "Special Payment
Instructions." If no such instructions are given, any such Shares not purchased
will be returned by crediting the account at the Book-Entry Transfer Facilities
designated above.
8. Substitute Form W-9. The tendering stockholder is required to provide
the Depositary with such stockholder's correct Taxpayer Identification Number
("TIN") on Substitute Form W-9, which is provided below, unless an exemption
applies. Failure to provide the information on the Substitute Form W-9 may
subject the tendering stockholder to a $50 penalty and to 31% federal income tax
backup withholding on the payment of the purchase price for the Shares.
9. Foreign Holders. Foreign holders must submit a completed IRS Form W-8
to avoid 31% backup withholding. IRS Form W-8 may be obtained by contacting the
Depositary at one of the addresses on the face of this Letter of Transmittal.
10. Requests for Assistance or Additional Copies. Requests for assistance
or additional copies of the Offer to Purchase and this Letter of Transmittal may
be obtained from the Information Agent or the Dealer Manager at their respective
addresses or telephone number set forth below.
8
<PAGE> 9
11. Waiver of Conditions. The conditions of the Offer may be waived by
Offeror (subject to certain limitations in the Merger Agreement), in whole or in
part, at any time or from time to time, in Offeror's sole discretion.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE COPY HEREOF (TOGETHER
WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY
ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO PURCHASE).
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary with such
stockholder's correct TIN on the Substitute Form W-9. If such stockholder is an
individual, the TIN is such stockholder's social security number. If the
Depositary is not provided with the correct TIN, the stockholder may be subject
to a $50 penalty imposed by the Internal Revenue Service. In addition, payments
that are made to such stockholder with respect to Shares purchased pursuant to
the Offer may be subject to backup withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that stockholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements may be
obtained from the Depositary. All exempt recipients (including foreign persons
wishing to qualify as exempt recipients) should see the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding on payments that are made
to a stockholder with respect to Shares purchased pursuant to the Offer, the
stockholder is required to notify the Depositary of such stockholder's correct
TIN by completing the form certifying that the TIN provided on the Substitute
Form W-9 is correct.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidelines on which number to
report.
9
<PAGE> 10
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME: [ ]
- --------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE BOX AT THE RIGHT
FORM W-9 AND CERTIFY BY SIGNING AND DATING BELOW. TIN: -------------------------
Social Security
Number or Taxpayer
Identification Number
---------------------------------------------------------------------------------------------
DEPARTMENT OF THE PART II--For Payees exempt from backup withholding, see the enclosed Guidelines for
TREASURY, INTERNAL Certification of Taxpayer Identification Number on Substitute Form W-9 and complete
REVENUE SERVICE as instructed therein.
PAYER'S REQUEST FOR -------------------------------------------------------------------------------------------
TAXPAYER IDENTIFICATION Certification--Under penalties of perjury, I certify that:
NUMBER ("TIN") AND
CERTIFICATION (1) The number shown on this form is my correct TIN (or I am waiting for a number to be
issued to me); and
(2) I am not subject to backup withholding because (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS")
that I am subject to backup withholding as a result of a failure to report all interest
or dividends, or (c) the IRS has notified me that I am no longer subject to backup
withholding.
-------------------------------------------------------------------------------------------
SIGNATURE: ---------------------------------------- DATE: --------------------------------
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding, you received
another notification from the IRS that you were no longer subject to backup
withholding, do not cross out item (2). (Also see the instructions in the
enclosed Guidelines).
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR TIN.
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a TIN has not been issued to me, and either (1) I
have mailed or delivered an application to receive a TIN to the appropriate IRS Center or Social
Security Administration Officer or (2) I intend to mail or deliver an application in the near
future. I understand that if I do not provide a TIN by the time of payment, 31% of all payments
pursuant to the Offer made to me thereafter will be withheld, but such amounts will be refunded
to me if I then provide a Taxpayer Identification Number within (60) days.
Signature: ------------------------------------------------------ Date: ------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
10
<PAGE> 11
THE INFORMATION AGENT FOR THE OFFER IS:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: (800) 848-3409
THE DEALER MANAGER FOR THE OFFER IS:
MORGAN STANLEY DEAN WITTER
1585 Broadway
New York, New York 10036
(212) 761-7896
11
<PAGE> 1
EXHIBIT (A)(3)
MORGAN STANLEY & CO. INCORPORATED
1585 BROADWAY
NEW YORK, NEW YORK 10036
OFFER TO PURCHASE FOR CASH
All Outstanding Shares of Common Stock
(Including the Associated Rights)
OF
MARCAM SOLUTIONS, INC.
AT
$7.50 Net Per Share
BY
M MERGER SUB, INC.,
a direct wholly owned subsidiary of
M ACQUISITION CORP.,
an indirect wholly owned subsidiary of
INVENSYS PLC
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, WEDNESDAY, JUNE 30, 1999, UNLESS THE OFFER IS EXTENDED.
To Brokers, Dealers, Commercial Banks, June 3, 1999
Trust Companies and Other Nominees:
We have been appointed in connection with the offer by M Merger Sub, a
Delaware corporation ("Offeror"), and a wholly owned subsidiary of M Acquisition
Corp., a Delaware corporation ("Purchaser"), and an indirect wholly owned
subsidiary of Invensys plc, a public limited company organized under the laws of
England and Wales ("Parent"), to act as Dealer Manager in connection with
Offeror's offer to purchase all outstanding shares of Common Stock, par value
$.01 per share (the "Common Stock"), including the associated preferred stock
purchase rights issued pursuant to the Amended and Restated Rights Agreement,
dated September 18, 1998, as amended through the date hereof, between the
Company and BankBoston, N.A., as Rights Agent (the "Rights" and, together with
the Common Stock, the "Shares") of Marcam Solutions, Inc., a Delaware
corporation (the "Company"), at a purchase price of $7.50 per Share, net to the
seller in cash, without interest, upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated June 3, 1999 (the "Offer to Purchase")
and in the related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer") enclosed herewith.
<PAGE> 2
Each of Offeror and Purchaser is a corporation, newly formed by Parent in
connection with the Offer and the transactions contemplated thereby. The Offer
is being made in connection with the Agreement and Plan of Merger, dated as of
May 27, 1999, among Parent, Purchaser, Offeror and the Company (the "Merger
Agreement"). Holders of Shares whose certificates for such Shares (the
"Certificates") are not immediately available or who cannot deliver their
Certificates and all other required documents to Bankers Trust Company (the
"Depositary") or complete the procedures for book-entry transfer prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase) must tender
their Shares according to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares in your name or in the name of your nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated June 3, 1999.
2. The Letter of Transmittal to tender Shares for your use and for
the information of your clients. Facsimile copies of the Letter of
Transmittal may be used to tender Shares.
3. A letter to stockholders of the Company from Jonathan C. Crane,
Chairman of the Board, President and Chief Executive Officer, together with
a Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission by the Company and mailed to the
stockholders of the Company.
4. The Notice of Guaranteed Delivery for Tender of Shares to be used
to accept the Offer if following the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase.
5. A printed form of letter which may be sent to your clients for
whose accounts you hold Shares registered in your name, with space provided
for obtaining such clients' instructions with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to Bankers Trust Company (the
"Depositary").
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON WEDNESDAY, JUNE 30, 1999,
UNLESS THE OFFER IS EXTENDED.
Please note the following:
1. The tender price is $7.50 per Share, net to the seller in cash,
without interest.
2. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the Expiration Date (as defined
in the Offer to Purchase) of the Offer that number of Shares which would
represent at least a majority of the outstanding Shares on a fully diluted
basis.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer. However, federal income tax backup withholding at a rate of 31% may
be required, unless an exemption is available or unless the required
taxpayer identification information is provided. See Important Tax
Information of the Letter of Transmittal.
5. The Board of Directors of the Company has unanimously approved the
Offer and the Merger (as defined in the Offer to Purchase) and determined
that the terms of the Offer and the Merger are fair
2
<PAGE> 3
to, and in the best interests of, the stockholders of the Company, and
recommends that the stockholders of the Company accept the Offer and tender
all of their Shares pursuant thereto.
6. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Certificates pursuant to
the procedures set forth in Section 3 of the Offer to Purchase or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees or an Agent's Message (as defined in the Offer to
Purchase) in connection with a book-entry delivery of Shares, and (c) any
other documents required by the Letter of Transmittal. Accordingly,
tendering stockholders may be paid at different times depending upon when
Certificates for Shares or Book-Entry Confirmations (as defined in the
Offer to Purchase) are actually received by the Depositary.
In order to take advantage of the Offer, (i) a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof) with any
required signature guarantees or an Agent's Message in connection with a
book-entry delivery of Shares, and any other documents required by the Letter of
Transmittal should be sent to the Depositary and (ii) Certificates representing
the tendered Shares or a timely Book-Entry Confirmation should be delivered to
the Depositary in accordance with the instructions set forth in the Letter of
Transmittal and the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Certificates or other required documents or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender may be
effected by following the guaranteed delivery procedures specified in Section 3
of the Offer to Purchase.
None of Offeror, Purchaser or Parent, or any officer, director,
stockholder, agent or other representative of Offeror, Purchaser or Parent, will
pay any fees or commissions to any broker, dealer or other person (other than
the Dealer Manager, the Depositary and the Information Agent as described in the
Offer to Purchase) for soliciting tenders of Shares pursuant to the Offer.
Offeror will, however, upon request, reimburse you for customary mailing and
handling expenses incurred by you in forwarding any of the enclosed materials to
your clients. Offeror will pay or cause to be paid any transfer taxes payable on
the transfer of Shares to it, except as otherwise provided in Instruction 6 of
the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed
to, and additional copies of the enclosed material may be obtained from, D.F.
King & Co., Inc., the Information Agent for the Offer, or the undersigned, at
the addresses and telephone numbers set forth on the back cover of the Offer to
Purchase.
Very truly yours,
MORGAN STANLEY DEAN WITTER
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF PARENT, OFFEROR, PURCHASER, THE DEALER MANAGER,
THE DEPOSITARY, THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THEM, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON
BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED
DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
EXHIBIT (A)(4)
OFFER TO PURCHASE FOR CASH
All Outstanding Shares of Common Stock
(Including the Associated Rights)
OF
MARCAM SOLUTIONS, INC.
AT
$7.50 NET PER SHARE
BY
M MERGER SUB, INC.,
a direct wholly owned subsidiary of
M ACQUISITION CORP.,
an indirect wholly owned subsidiary of
INVENSYS PLC
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, JUNE 30, 1999, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated June 3,
1999 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to an offer by M Merger Sub, a Delaware corporation
("Offeror"), and a direct wholly owned subsidiary of M Acquisition Corp., a
Delaware corporation ("Purchaser"), and an indirect wholly owned subsidiary of
Invensys plc, a public limited company organized under the laws of England and
Wales ("Parent"), to purchase all outstanding shares of Common Stock, par value
$.01 per share (the "Common Stock"), including the associated preferred stock
purchase rights issued pursuant to the Amended and Restated Rights Agreement,
dated September 18, 1998, as amended through the date hereof, between the
Company and BankBoston, N.A., as Rights Agent (the "Rights" and, together with
the Common Stock, the "Shares"), of Marcam Solutions, Inc., a Delaware
corporation (the "Company"), at a purchase price of $7.50 per Share, net to the
seller in cash, without interest, upon the terms and subject to the conditions
set forth in the Offer. Each of Offeror and Purchaser is a corporation, newly
formed by Parent in connection with the Offer and the transactions contemplated
thereby. The Offer is being made in connection with the Agreement and Plan of
Merger dated as of May 27, 1999, among Parent, Purchaser, Offeror and the
Company (the "Merger Agreement"). This material is being forwarded to you as the
beneficial owner of Shares carried by us in your account but not registered in
your name.
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US FOR
YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED
TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD
BY US FOR YOUR ACCOUNT.
<PAGE> 2
Accordingly, we request instructions as to whether you wish to have us
tender any or all of the Shares held by us for your account pursuant to the
terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $7.50 per Share, net to the seller in cash,
without interest.
2. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the Expiration Date (as defined
in the Offer to Purchase) of the Offer that number of Shares which would
represent at least a majority of the outstanding Shares on a fully diluted
basis.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer. However, federal income tax backup withholding at a rate of 31% may
be required, unless an exemption is available or unless the required
taxpayer identification information is provided. See Important Tax
Information of the Letter of Transmittal.
5. The Board of Directors of the Company has unanimously approved the
Offer and the Merger (as defined in the Offer to Purchase) and determined
that the terms of the Offer and the Merger are fair to, and in the best
interests of, the stockholders of the Company, and recommends that the
stockholders of the Company accept the Offer and tender all of their Shares
pursuant thereto.
6. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Certificates pursuant to
the procedures set forth in Section 3 of the Offer to Purchase or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees or an Agent's Message (as defined in the Offer to
Purchase) in connection with a book-entry delivery of Shares, and (c) any
other documents required by the Letter of Transmittal. Accordingly,
tendering stockholders may be paid at different times depending upon when
Certificates for Shares or Book-Entry Confirmations are actually received
by the Depositary.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON WEDNESDAY, JUNE 30, 1999, UNLESS THE OFFER IS EXTENDED.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth below. If you authorize the tender of your
Shares, all such Shares will be tendered unless otherwise indicated in such
instruction form. An envelope to return your instruction to us is enclosed.
PLEASE FORWARD YOUR INSTRUCTIONS TO US AS SOON AS POSSIBLE TO ALLOW US AMPLE
TIME TO TENDER YOUR SHARES ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares residing in any jurisdiction in which the making of
the Offer or acceptance thereof would not be in compliance with the securities
laws of such jurisdiction. However, Offeror may, in its discretion, take such
action as it may deem necessary to make the Offer in any jurisdiction and extend
the Offer to holders of Shares in such jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require
the Offer to be made by a licensed broker or dealer, the Offer will be deemed to
be made on behalf of Offeror by Morgan Stanley & Co. Incorporated, the Dealer
Manager for the Offer, or one or more registered brokers or dealers licensed
under the laws of such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS)
OF
MARCAM SOLUTIONS, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase, dated June 3, 1999 (the "Offer to Purchase"), and the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer") in connection with the offer by M
Merger Sub, Inc., a Delaware corporation ("Offeror"), and a direct wholly owned
subsidiary of M Acquisition Corp., a Delaware corporation ("Purchaser"), and an
indirect wholly owned subsidiary of Invensys plc, a public limited company
organized under the laws of England and Wales ("Parent"), to purchase all
outstanding shares of Common Stock, par value $.01 per share (the "Common
Stock"), including the associated preferred stock purchase rights issued
pursuant to the Amended and Restated Rights Agreement, dated September 18, 1998,
as amended through the date hereof, between the Company and BankBoston, N.A., as
Rights Agent (the "Rights" and, together with the Common Stock, the "Shares"),
of Marcam Solutions, Inc., a Delaware corporation (the "Company"), at a purchase
price of $7.50 per Share, net to the seller in cash, without interest, upon the
terms and subject to the conditions set forth in the Offer. Each of Offeror and
Purchaser is a corporation newly formed by Parent in connection with the Offer
and the transactions contemplated thereby. The Offer is being made in connection
with the Agreement and Plan of Merger dated as of May 27, 1999, among Parent,
Purchaser, Offeror and the Company (the "Merger Agreement").
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or if no number is indicated below, all Shares) which are held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Number of Shares to be Tendered:*
- --------------
SIGN HERE
<TABLE>
<S> <C>
Account Number: --------------------------------------------
- ----------------------------------
Date: --------------------------------------------
- ------------------------------------, 1999 Signature(s)
--------------------------------------------
--------------------------------------------
(Print Name(s))
--------------------------------------------
--------------------------------------------
(Print Address(es))
--------------------------------------------
(Area Code and Telephone Number(s))
--------------------------------------------
(Taxpayer Identification or
Social Security Number(s))
</TABLE>
- ------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<PAGE> 1
EXHIBIT (A)(5)
NOTICE OF GUARANTEED DELIVERY
TO
Tender of Shares of Common Stock
(Including the Associated Rights)
OF
Marcam Solutions, Inc.
This form, or one substantially equivalent hereto, must be used to accept
the Offer (as defined below) if certificates for shares of Common Stock, par
value $.01 per share (the "Common Stock"), including the associated preferred
stock purchase rights issued pursuant to the Amended and Restated Rights
Agreement, dated September 18, 1998, as amended through the date hereof, between
the Company and BankBoston, N.A., as Rights Agent (the "Rights" and, together
with the Common Stock, the "Shares"), of Marcam Solutions, Inc., a Delaware
corporation (the "Company"), are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis or time will not
permit all required documents to reach the Depositary prior to the Expiration
Date (as defined in the Offer to Purchase). This Notice of Guaranteed Delivery
may be delivered by hand or facsimile transmission or mailed to the Depositary.
See Section 3 of the Offer to Purchase, dated June 3, 1999 (the "Offer to
Purchase").
The Depositary for the Offer is:
BANKERS TRUST COMPANY
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT MAIL OR COURIER:
BT Services Tennessee, Inc. Bankers Trust Company BT Services Tennessee, Inc.
Reorganization Unit Corporate Trust & Agency Group Corporate Trust & Agency Group
P. O. Box 292737 Receipt and Delivery Window Reorganization Unit
Nashville, TN 37229-2737 123 Washington St., 1st Floor 648 Grassmere Park Road
New York, NY 10006 Nashville, TN 37211
</TABLE>
FACSIMILE COPY NUMBER
(FOR ELIGIBLE INSTITUTIONS ONLY):
(615) 835-3701
FOR CONFIRMATION TELEPHONE:
(615) 835-3572
FOR INFORMATION TELEPHONE:
(800) 735-7777
------------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION OF
INSTRUMENTS VIA FACSIMILE TRANSMISSION, OTHER THAN AS SET FORTH ABOVE, DOES NOT
CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF
A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN
"ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE
MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER
OF TRANSMITTAL.
THE ELIGIBLE INSTITUTION THAT COMPLETES THIS FORM MUST COMMUNICATE THE GUARANTEE
TO THE DEPOSITARY AND MUST DELIVER THE LETTER OF TRANSMITTAL OR AN AGENT'S
MESSAGE (AS DEFINED IN THE OFFER TO PURCHASE) AND CERTIFICATES FOR SHARES TO THE
DEPOSITARY WITHIN THE TIME PERIOD SHOWN HEREIN. FAILURE TO DO SO COULD RESULT IN
A FINANCIAL LOSS TO SUCH ELIGIBLE INSTITUTION.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to M Merger Sub, Inc., a Delaware
corporation ("Offeror"), and a direct wholly owned subsidiary of M Acquisition
Corp., a Delaware corporation ("Purchaser"), and an indirect wholly owned
subsidiary of Invensys plc, a public limited company organized under the laws of
England and Wales ("Parent"), upon the terms and subject to the conditions set
forth in the Offer to Purchase and in the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"), receipt of each of which is hereby acknowledged, the number of Shares
indicated below, pursuant to the guaranteed delivery procedure set forth in
Section 3 of the Offer to Purchase. Each of Offeror and Purchaser is a
corporation, newly formed by Parent in connection with the Offer and the
transactions contemplated thereby.
<TABLE>
<S> <C>
Number of Shares: --------------------------------- SIGN HERE
Certificate No(s). (if available): Name(s) of Record Holders(s):
- ----------------------------------------------------- -----------------------------------------------------
- ----------------------------------------------------- -----------------------------------------------------
(Please Print)
If Shares will be tendered by book-entry transfer: Addresses: ------------------------------------------
Name of Tendering Institutions (Zip Code)
Area Code and Telephone No.:
- -----------------------------------------------------
Account No.: ---------------------------------------- -----------------------------------------------------
Signature(s): ---------------------------------------
Dated: --------------------------------------- , 1999
</TABLE>
2
<PAGE> 3
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, as Eligible Institution (as such term is defined in
Section 3 of the Offer to Purchase), hereby guarantees to deliver to the
Depositary the certificates representing the Shares tendered hereby, in proper
form for transfer, or a Book-Entry Confirmation (as defined in Section 3 of the
Offer to Purchase) with respect to transfer of such Shares into the Depositary's
account at The Depository Trust Company or the Philadelphia Depositary Trust
Company, in each case, together with a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees or an Agent's Message (as defined in the Offer to Purchase)
in the case of a book-entry delivery of Shares, and any other documents required
by the Letter of Transmittal, all within three Nasdaq National Market trading
days after the date hereof.
<TABLE>
<S> <C>
Name of Firm: ---------------------------------------
-----------------------------------------------------
(Authorized Signature)
Address: -------------------------------------------- Name: -----------------------------------------------
- -----------------------------------------------------
- ----------------------------------------------------- Title:
-----------------------------------------------------
(Zip Code)
Area Code and Tel. No.: ----------------------------- Date: -----------------------------------------------
</TABLE>
DO NOT SEND CERTIFICATES FOR SHARES AND/OR RIGHTS WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES SHOULD BE SENT TOGETHER WITH A LETTER OF TRANSMITTAL.
3
<PAGE> 1
EXHIBIT (A)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER--Social Security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
- ------------------------------------------------------------
GIVE THE TAXPAYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF --
- ------------------------------------------------------------
<C> <S> <C>
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife (joint account) The actual owner of
account or, if
joint funds, either
person(2)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if
the minor is the
only contributor,
the minor(1)
6. Account in the name of guardian or The ward, minor, or
committee for a designated ward, incompetent
minor, or incompetent person(3)
7. a. The usual revocable savings The grantor-
trust account (grantor is also trustee(1)
trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust
under State law
8. Sole proprietorship account The owner(4)
- ------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
GIVE THE TAXPAYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF --
- ------------------------------------------------------------
- ------------------------------------------------------------
<C> <S> <C>
9. A valid trust, estate, or pension Legal entity (Do
trust not furnish the
trust identifying
number of the
personal
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization account
12. Partnership account held in the The partnership
name of the business
13. Association, club, or other tax- The organization
exempt organization
14. A broker or registered nominee The broker or
nominee
15. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State or
local government, school district,
or prison) that receives
agricultural program payments
- ------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's, or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Payments of mortgage interest to you.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE--Section 6109 requires most recipients of dividend, interest,
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file a tax return. Payers must generally withhold 31% of taxable
interest, dividend, and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS--If you fail to
include any portion of an includable payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 20% on any portion of an
underpayment attributable to that failure unless there is clear and convincing
evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING--If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE
<PAGE> 1
Exhibit (a)(7)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase, dated June 3,
1999 and the related Letter of Transmittal, and is not being made to, and
tenders will not be accepted from, or on behalf of, holders of Shares in any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction. If the securities laws
of any jurisdiction require the Offer to be made by a licensed broker or dealer,
the Offer shall be deemed to be made on behalf of Offeror by Morgan Stanley &
Co. Incorporated, the Dealer Manager for the Offer, or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
Notice of Offer to Purchase
All Outstanding Shares of Common Stock
(Including the Associated Rights)
of
Marcam Solutions, Inc.
at
$7.50 Net Per Share in Cash
by
M MERGER SUB, INC.,
a direct wholly owned subsidiary of
M ACQUISITION CORP.
an indirect wholly owned subsidiary of
INVENSYS, PLC
M Merger Sub, Inc., a Delaware corporation ("Offeror"), and a direct wholly
owned subsidiary of M Acquisition Corp., a Delaware corporation ("Purchaser")
and an indirect wholly owned subsidiary of Invensys, plc, a public limited
company organized under the laws of England and Wales ("Parent"), is offering to
purchase all outstanding shares of Common Stock, par value $0.01 per share
("Common Stock"), of Marcam Solutions, Inc., a Delaware corporation ("Company"),
including the associated preferred stock purchase rights issued pursuant to the
Amended and Restated Rights Agreement, dated as of September 18, 1998, as
amended through the date hereof, between the Company and BankBoston, N.A., as
Rights Agent ("Rights" and, together with the shares of Common Stock, "Shares"),
at a purchase price of $7.50 per share, net to the seller in cash, without
interest ("Offer Price"), upon the terms and subject to the conditions set forth
in the Offer to Purchase, dated June 3, 1999, and in the related Letter of
Transmittal (which, together with any amendments or supplements hereto or
thereto, collectively constitute the "Offer"). See the Offer to Purchase for
capitalized terms used but not defined herein.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, JUNE 30, 1999, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not withdrawn prior to the Expiration Date (as defined below)
Shares representing not less than a majority of the Shares then outstanding on a
fully diluted basis on the date of purchase ("Minimum Condition") and (ii) the
expiration or termination of any applicable waiting periods imposed by the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. See Sections
12 and 14 of the Offer to Purchase.
The Offer is not conditioned on obtaining financing.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as
of May 27, 1999 ("Merger Agreement"), by and among Offeror, Purchaser, Parent
and the Company. The Merger Agreement provides, among other things, for the
commencement of the Offer by Offeror and further provides that, after the
purchase of the Shares pursuant to the Offer and subject to the satisfaction or
waiver of certain conditions set forth therein, Offeror will be merged with and
into the Company ("Merger"), with the Company surviving the Merger as a direct
wholly owned subsidiary of Purchaser, and an indirect wholly owned subsidiary of
Parent. Pursuant to the Merger, each outstanding Share (other than (i) Shares
owned by Parent, Purchaser, Offeror or any subsidiaries thereof or Shares held
in the Company's treasury and (ii) Shares held by holders who have properly
exercised their appraisal rights under the Delaware General Corporation Law)
immediately prior to the Effective Time (as defined in the Merger Agreement),
will be converted into the right to receive the Offer Price, in cash, without
interest thereon, less any required withholding of taxes, upon the surrender of
certificates formerly representing such Shares.
The Board of Directors of the Company has unanimously approved the Offer and the
Merger and determined that the Offer and the Merger are fair to and in the best
interests of the Company and the holders of Shares and has unanimously
recommended that the holders of Shares accept the Offer and tender their Shares.
For purposes of the Offer, Offeror will be deemed to have accepted for payment
(and thereby purchased) Shares validly tendered to Offeror and not withdrawn on
or prior to the Expiration Date if, as and when Offeror gives oral or written
notice to Bankers Trust Company ("Depositary") of Offeror's acceptance for
payment of such Shares. Upon the terms and subject to the conditions of the
Offer, payment for Shares accepted for payment pursuant to the Offer will be
made by deposit of the purchase price therefor with the Depositary, which will
act as agent for tendering stockholders for the purpose of receiving payment
from Offeror and transmitting payments to tendering stockholders. Upon the
deposit of funds with the Depositary for the purpose of making payments to
tendering stockholders, Offeror's obligation to make such payments will be
satisfied, and tendering stockholders must thereafter look solely to the
Depositary for payments of amounts owed to them by reason of the acceptance for
payment of Shares pursuant to the Offer.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Wednesday, June 30, 1999, unless and until Offeror, in accordance with the terms
of the Offer and the Merger Agreement, extends the period of time during which
the Offer is open, in which event the term "Expiration Date" means the latest
time and date at which the Offer, as so extended, expires. In the Merger
Agreement, Offeror has agreed that so long as the Merger Agreement is in effect
and the Offer conditions have not been satisfied or waived on any scheduled
Expiration Date of the Offer, then, provided that all such conditions are and
continue to be reasonably probable of being satisfied by the date that is 30
business days after commencement of the Offer, Offeror will, and Parent and
Purchaser will cause Offeror to, extend the Offer from time to time, until such
conditions are satisfied or waived, for an aggregate period of not more than 30
business days (for all such extensions) beyond the commencement of the Offer.
Otherwise, Offeror has agreed in the Merger Agreement that, without the prior
written approval of the Company, it will not extend the period during which the
Offer is open, except (subject to the Company's right to terminate the Merger
Agreement, discussed under Section 12 of the Offer to Purchase) (A) if at the
then scheduled expiration date of the Offer any of the conditions to Offeror's
obligation to accept for payment and pay for Shares shall not have been
satisfied or waived, such extension not to exceed such time as Offeror shall
reasonably conclude is necessary for all such conditions to be satisfied or
waived, (B) for any period required by any statute or rule, regulation,
interpretation or position of the Securities and Exchange Commission
("Commission") or its staff applicable to the Offer, (C) for any period required
by applicable law in connection with an increase in the consideration to be paid
pursuant to the Offer, and (D) if all conditions to the Offer are satisfied or
waived but the number of Shares tendered is less than 90% of the then
outstanding number of Shares, but only if Offeror waives all offer conditions,
for an aggregate period of not more than 10 business days (for all such
extensions under this clause (D)) beyond the latest expiration date that would
be permitted under clause (A), (B) or (C) of this sentence. There can be no
assurance that Offeror will exercise its right to extend the Offer.
Offeror reserves the right (but shall not be obligated), in accordance with
applicable rules and regulations of the Commission, to waive or reduce the
Minimum Condition or to waive any other condition to the Offer; provided,
however, that pursuant to the Merger Agreement, Offeror has agreed that it will
not, without the consent of the Company, waive or increase the Minimum
Condition. If the Minimum Condition, or any of the other conditions set forth in
Section 14 of the Offer to Purchase, has not been satisfied by 12:00 midnight,
New York City time, on Wednesday, June 30, 1999 (or any other time then set as
the expiration date), Offeror may elect to (1) subject to the qualifications
above with respect to the extension of the Offer, extend the Offer and, subject
to applicable withdrawal rights, retain all tendered Shares until the expiration
of the Offer, as extended, subject to the terms of the Offer, (2) subject to
complying with applicable rules and regulations of the Commission and to the
terms of the Merger Agreement, accept for payment all Shares so tendered and not
extend the Offer or (3) subject to the terms of the Merger Agreement, terminate
the Offer and not accept for payment any Shares and return all tendered Shares
to tendering stockholders.
Except as set forth above, and subject to the applicable rules and regulations
of the Commission, Offeror expressly reserves the right, in its sole discretion,
to amend the Offer in any respect. Any extension of the period during which the
Offer is open, or delay in acceptance for payment or termination or amendment of
the Offer, will be followed, as promptly as practicable, by public announcement
thereof, such announcement in the case of an extension to be issued not later
than 9:00 a.m. New York City time, on the next business day after the previously
scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Securities Exchange Act of 1934, as
amended ("Exchange Act"). The reservation by Offeror of the right to delay
acceptance for payment of, or payment for, Shares is subject to the provisions
of Rule 14e-1(c) under the Exchange Act, which requires that Offeror pay
consideration offered or return the Shares deposited by or on behalf of
stockholders promptly after the termination or withdrawal of the Offer. Offeror
shall not have any obligation to pay interest on the purchase price for tendered
Shares whether or not Offeror exercises its right to extend the Offer.
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in Section 4 of the Offer to Purchase. Shares tendered
pursuant to the Offer may be withdrawn pursuant to the procedures set forth in
Section 4 of the Offer to Purchase at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by Offeror pursuant to the
Offer, may also be withdrawn at any time after July 30, 1999. For a withdrawal
to be effective, a written, telegraphic or facsimile transmission notice of
withdrawal must be timely received by the Depositary at one of its addresses set
forth on the back cover of the Offer to Purchase. Any such notice of withdrawal
must specify the name of the person who tendered the Shares to be withdrawn, the
number of Shares to be withdrawn and the name of the registered holder, if
different from that of the person who tendered such Shares. If certificates
evidencing Shares to be withdrawn have been delivered or otherwise identified to
the Depositary, then, prior to the physical release of such certificates, the
tendering stockholder must also submit to the Depositary the serial numbers
shown on the particular certificates evidencing the Shares to be withdrawn, and
the signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined below), except in the case of Shares tendered for the
account of an Eligible Institution. If Shares have been tendered pursuant to the
procedure for book-entry transfer set forth in Section 3 of the Offer to
Purchase, the notice of withdrawal must also specify the name and number of the
account at the applicable Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's
procedures. An "Eligible Institution" is a bank, broker, dealer, credit union,
savings association or other entity that is a member in good standing of a
recognized Medallion Program approved by The Securities Transfer Association,
Inc.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the General
Rules and Regulations under the Exchange Act is contained in the Offer to
Purchase and is incorporated herein by reference.
The Company has provided Offeror with its stockholder list and security position
listings for the purpose of disseminating the Offer to stockholders. The Offer
to Purchase, the related Letter of Transmittal and other relevant materials will
be mailed to record holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the Company's stockholder list, or, if applicable,
who are listed as participants in a clearing agency's security position listing
for subsequent transmittal to beneficial owners of Shares.
Stockholders are urged to read the Offer to Purchase and the related Letter of
Transmittal carefully before deciding whether to tender their Shares pursuant to
the Offer.
Questions and requests for assistance or for copies of the Offer to Purchase,
the related Letter of Transmittal, the Notice of Guaranteed Delivery or other
related materials may be directed to the Information Agent or the Dealer Manager
at their respective addresses and telephone numbers set forth below, and copies
will be furnished promptly at Offeror's expense. Holders of Shares may also
contact brokers, dealers, commercial bankers and trust companies for additional
copies of the Offer to Purchase, the related Letter of Transmittal, the Notice
of Guaranteed Delivery or other related materials.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect:
(212) 269-5550
All Others Call Toll Free:
(800) 848-3409
The Dealer Manager for the Offer is:
Morgan Stanley Dean Witter
1585 Broadway
New York, New York 10036
(212) 761-7896
June 3, 1999
<PAGE> 1
Exhibit (a)(8)
[MARCAM SOLUTIONS NEWS LETTERHEAD]
INVENSYS PLC TO ACQUIRE MARCAM SOLUTIONS, INC.
NEWTON, MASSACHUSETTS -- MAY 27, 1999 -- Invensys plc and Marcam Solutions, Inc.
(NASDAQ Trading Symbol: MRCM) announced today that Invensys has entered into a
definitive agreement to acquire Marcam for $7.50 per share in cash, or
approximately $60 million.
Marcam is a Massachusetts-based software company, which specialities in
enterprise resource planning and enterprise asset management applications for
industrial customers. The company's products provide customers with the
necessary enterprise-wide financial, planning, and production information to
improve the productivity of their business and manufacturing operations. The
company employs 715 employees and has more than 1,400 customers in 40+ countries
worldwide. For the twelve months ended September 30, 1998. Marcam had sales of
$124.52 million, which yielded an operating loss of $6.2 million.
"We believe that Marcam with their Windows NT and Object-based ERP and Asset
Management Software products, is a clear technology leader in Enterprise
Management Systems," said Allen Yurko, Chief Executive of Invensys. "Combining
Marcam software with our highly successful Wonderware FactorySuite will enable
us to offer a complete software solution to the process automation market. This
proposed acquisition provides further evidence of our strategy to enhance our
leadership position in the Automation and Controls industry."
"The acquisition of Marcam is a major step toward realizing our vision of a
real time, bottoms up, plant-focused ERP system," says Roy Slavin, President and
Chief Executive Officer of Wonderware (a member of the Invensys Intelligent
Automation Division. "The combination of Marcam, our FactorySuite and the
commercial simulation software from our sister company, Simulation Science
will enable us to extend our already broad software product offerings into the
higher end world of enterprise software."
"This acquisition shows the depth of commitment to our 'Sensor to Boardroom'
strategy," added George Sarney, Division Chief Executive of the Invensys
Intelligent Automation Division. "We believe Wonderware's presence as a leading
source of plant data and Marcam's position as a leading Enterprise Resource
Planning (ERP) supplier for the process industry will enable a new generation of
plant-centric information systems."
"At Marcam, we are pleased with this acquisition and what it means for our
stockholders, employees and customers," said Jonathan Crane, Marcam Chairman,
President and Chief Executive Officer. "We are all very appreciative of the
confidence Invensys has in Marcam as evidenced by this merger. We are confident
our employees and affiliates will gain from the much larger size of the
Intelligent Automation division at Invensys and Wonderware's standing in a very
competitive marketplace. We also believe our customers will benefit from the
increased viability of Marcam as well as access to a more comprehensive solution
for achieving enterprise excellence."
<PAGE> 2
Marcam Solutions - News and Events Page 2 of 3
The offer was unanimously approved by Marcam's Board of Directors. Under the
terms of the merger agreement with Marcam, a subsidiary of Invensys is expected
to start a tender offer for all of the outstanding shares of Marcam no later
than June 3, 1999. General Atlantic Partners, which beneficially owns
approximately 25% of Marcam's stock, and the officers and directors of Marcam
have agreed to tender their shares and support the merger.
The offer is subject to the condition that a majority of the shares are tendered
and other customary conditions. If the tender offer is successful, it will be
followed as promptly as possible by a merger in which any remaining shares of
Marcam stock will be converted into the right to receive $7.50 per share in
cash.
Invensys plc is a global electronics and engineering company created by the
merger of BTR plc and Siebe plc on 4th February, 1999. Operating globally
through over 500 companies and employing over 120,000 people, Invensys is a
worldwide leader in automation and controls. More than 75% of the company's
business is controls and automation based, with products ranging from advanced
control systems for automating industrial plants and controlling the
environments of buildings, to electronic devices found in many domestic and
commercial appliances.
CONTACT:
Al Fink
Marcam Solutions, Inc.
(617) 928-8237
[email protected]
Charlotte Locke
Marcam Solutions, Inc.
(617) 928-8256
[email protected]
ABOUT MARCAM SOLUTIONS
Marcam Solutions, Inc. (NASDAQ:MRCM) is a global provider of process enterprise
resource planning (ERP) and enterprise asset management (EAM) solutions,
enabling more than one thousand customers to achieve true enterprise
operational excellence. Serving AS/400, UNIX and NT environments, Marcam's
solutions are differentiated by their advanced functionality which provides
strong fit to vertical markets as well as of integration to complementary
industry solutions.
Marcam's process ERP solutions address the unique requirements of its target
markets: food, beverage, and chemical industries. The Protean and PRISM
solutions encompass a broad range of applications including production,
planning, inventory, procurement, order management, costing, financials and
maintenance.
Avantis is Marcam's best of breed solution for the EAM market. The Avantis.XA
and Avantis.Pro suites provide extensive functionality including maintenance
management, MRO inventory control and procurement. Targeted to Fortune 500
companies, Avantis is widely used in capital-intensive industries such as
chemical, metals & mining, and pulp & paper, and for facilities management in
areas such as education and municipalities.
Headquartered in Newton, Massachusetts, the company is represented in more than
40 countries. For more information, visit Marcam at http://www.marcam.com and
Avantis at http://www.avantis.marcam.com.
(C) 1999 Marcam Solutions, Inc. All rights reserved, Marcam, PRISM, Protean
and Avantis are registered trademarks of Marcam Solutions, Inc. Portions of
PRISM and Protean are the subject of U.S. Patent numbers 4,864,507,
5,493,671 and 5,737,609. Other patents pending. Other product,
<PAGE> 3
Marcam Solutions - News and Events Page 3 of 3
company and service names mentioned herein may be trademarks or service marks
of their respective holders.
<PAGE> 1
Exhibit (a)(9)
June 3, 1999
INVENSYS, PLC COMMENCES TENDER OFFER
FOR MARCAM SOLUTIONS, INC.
A corporation formed by Invensys, plc is today commencing its tender offer
for all outstanding shares of Common Stock of Marcam Solutions, Inc. (NASDAQ:
MRCM) ("Marcam"), at a price of $7.50 per share, payable in cash. The offer,
which has been unanimously approved and recommended by Marcam's Board of
Directors, is being made pursuant to the merger agreement between the
companies. The merger was announced on May 27, 1999.
The tender offer, which is currently scheduled to expire at 12:00
midnight, New York City time, Wednesday, June 30, 1999 unless extended, is
subject to the tender by Marcam stockholders of that number of shares of Marcam
which would represent a majority of the outstanding shares of Marcam on a fully
diluted basis and other customary conditions.
Marcam is a Massachusetts-based software company, which specializes in
enterprise resource planning and enterprise asset management applications for
industrial customers. The company's products provide customers with the
necessary enterprise-wide financial, planning, and product information to
improve the productivity of their business and manufacturing operations. The
company employs 715 employees and has more than 1,400 customers in 40+
countries worldwide. For the twelve months ended September 30, 1998, Marcam had
sales of $124.52 million, which yielded an operating loss of $6.2 million.
Invensys, plc is a global electronics and engineering company created by
the merger of BTR plc and Siebe plc on February 4, 1999. Operating globally
through over 500 companies and employing over 120,000 people, Invensys is a
worldwide leader in automation and controls. More than 75% of the company's
business is controls and automation based, with products ranging from advanced
control systems for automating industrial plants and controlling the
environments of buildings, and electronic devices found in many domestic and
commercial appliances.
Morgan Stanley Dean Witter is acting as dealer manager for the tender
offer, D.F. King & Co., Inc. is acting as information agent, and Bankers Trust
Company is acting as depositary.
Contact:
Barry Francis
Invensys, plc
44-171-821-3712
<PAGE> 1
Exhibit (c)(1)
AGREEMENT AND PLAN OF MERGER
among
INVENSYS, plc,
M ACQUISITION CORP.
M MERGER SUB, INC.
and
MARCAM SOLUTIONS, INC.
Dated as of May 27, 1999
<PAGE> 2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 27,
1999, among Invensys, plc, a United Kingdom public limited company ("Parent"), M
Acquisition Corp., a Delaware corporation and indirect wholly-owned subsidiary
of Parent ("Purchaser"), M Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Purchaser ("Merger Sub"), and Marcam Solutions, Inc., a
Delaware corporation (the "Company").
RECITALS
WHEREAS, the respective boards of directors of Parent, Purchaser and
the Company each have determined that it is in the best interests of their
respective companies and stockholders for Purchaser to acquire the Company upon
the terms and subject to the conditions set forth herein; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. The Offer.
1.1 The Offer. (a) Subject to the provisions of this Agreement
and this Agreement not having been terminated in accordance with Article 8, as
promptly as practicable but in no event later than Thursday, June 3, 1999,
Merger Sub shall commence, and Parent and Purchaser shall cause Merger Sub to
commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (the
"Exchange Act"), an offer to purchase all of the outstanding shares of common
stock, par value $.01 per share (the "Common Stock"), of the Company together
with the associated Rights (as hereinafter defined), at a price of $7.50 per
share of Common Stock, net to the seller in cash (the "Offer"). Except where the
context otherwise requires, all references herein to the shares of Common Stock
shall include the associated Rights. The obligation of Merger Sub, and of Parent
and Purchaser to cause Merger Sub, to commence the Offer and to accept for
payment, and to pay for any shares of Common Stock tendered pursuant to the
Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer
Conditions"). Subject to
-1-
<PAGE> 3
the provisions of this Agreement, the Offer shall initially expire on the 20th
business day from and after the date the Offer is commenced, including the date
of the commencement of the Offer as the first business day in accordance with
Rule 14d-2, unless this Agreement is terminated in accordance with Article 8, in
which case the Offer (whether or not previously extended in accordance with the
terms hereof) shall expire on such date of termination.
(b) Without the prior written consent of the Company, Parent,
Purchaser and Merger Sub shall not (i) waive or increase the Minimum Condition
(as defined in Exhibit A), (ii) reduce the number of shares of Common Stock
subject to the Offer, (iii) reduce the price per share of Common Stock to be
paid pursuant to the Offer, (iv) extend the Offer if all of the Offer Conditions
are satisfied or waived, (v) change the form of consideration payable in the
Offer, or (vi) amend, modify or add to the Offer Conditions or the Offer in any
manner adverse to the holders of Common Stock. Notwithstanding the foregoing,
Merger Sub may, without the consent of the Company, extend the Offer at any time
and from time to time: (i) if at the then scheduled expiration date of the Offer
any of the Offer Conditions shall not have been satisfied or waived, such
extension not to exceed such time as Merger Sub shall reasonably conclude is
necessary for all such conditions to be satisfied or waived; (ii) for any period
required by any statute or rule, regulation, interpretation or position of the
Securities and Exchange Commission (the "SEC") or its staff applicable to the
Offer; (iii) for any period required by applicable law in connection with an
increase in the consideration to be paid pursuant to the Offer; and (iv) if all
Offer Conditions are satisfied or waived but the number of shares of Common
Stock tendered is less than 90% of the then outstanding number of shares of
Common Stock, but only if Merger Sub waives all Offer Conditions, for an
aggregate period of not more than 10 business days (for all such extensions
under this clause (iv)) beyond the latest expiration date that would be
permitted under clause (i), (ii) or (iii) of this sentence. Notwithstanding the
foregoing, Parent, Purchaser and Merger Sub agree that if all of the Offer
Conditions are not satisfied on any scheduled expiration date of the Offer then,
provided that all such conditions are and continue to be reasonably probable of
being satisfied by the date that is 30 business days after the commencement of
the Offer, Parent, Purchaser and Merger Sub shall extend the Offer from time to
time until such conditions are satisfied or waived, provided that Parent,
Purchaser and Merger Sub shall not be required to extend the Offer beyond the
date that is 30 business days after the commencement of the Offer. Subject to
and in accordance with the terms and conditions of the Offer and this Agreement
(but subject to the right of termination in accordance with Article 8), Merger
Sub shall, and Parent and Purchaser shall cause Merger Sub to, accept for
payment, in accordance with the terms of the Offer, all shares of Common Stock
validly tendered and not withdrawn pursuant to the Offer as soon as practicable
after the expiration of the Offer.
-2-
<PAGE> 4
1.2. Actions by Purchaser and Merger Sub. (a) As soon as
reasonably practicable following execution of this Agreement, but in no event
later than five business days from the date hereof, Parent, Purchaser and Merger
Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with
respect to the Offer, which shall contain an offer to purchase and a related
letter of transmittal (such Schedule 14D-1 and the documents therein pursuant to
which the Offer will be made, together with any supplements or amendments
thereto, the "Offer Documents"). The Company and its counsel shall be given an
opportunity to review and comment upon the Offer Documents prior to the filing
thereof with the SEC. The Offer Documents shall comply as to form in all
material respects with the requirements of the Exchange Act. On the date filed
with the SEC and on the date first published, sent or given to the Company's
stockholders, the Offer Documents shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by Parent, Purchaser or Merger Sub with respect to
information supplied by the Company in writing specifically for inclusion in the
Offer Documents. Each of Parent, Purchaser and Merger Sub agrees to correct
promptly, and the Company agrees to notify Purchaser promptly as to, any
information provided by it in writing specifically for inclusion in the Offer
Documents if and to the extent such information shall have become false or
misleading in any material respect, and each of Parent, Purchaser and Merger Sub
further agrees to take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to all of the holders
of shares of Common Stock, in each case as and to the extent required by
applicable federal securities laws. Parent, Purchaser and Merger Sub agree to
provide the Company and its counsel in writing any comments Parent, Purchaser,
Merger Sub or their counsel may receive from the SEC or its staff with respect
to the Offer Documents promptly after receipt of such comments. Parent,
Purchaser and Merger Sub shall use their reasonable best efforts, after
consultation with the Company, to respond promptly to all such comments of and
requests by the SEC. Parent, Purchaser and Merger Sub shall provide the Company
copies of any written responses and telephonic notification of any verbal
responses by Parent, Purchaser, Merger Sub or their counsel.
(b) Parent shall provide or cause to be provided to Merger Sub
all of the funds necessary to purchase any shares of Common Stock that Merger
Sub becomes obligated to purchase pursuant to the Offer at such time as such
funds are necessary.
1.3. Actions by the Company. (a) The Company hereby approves
of and consents to the Offer and represents and warrants that the board of
directors of the Company (the "Board of Directors" or the "Board"), at a meeting
duly called and held, has duly adopted, by unanimous vote, resolutions: (i)
approving this Agreement, the Offer and the Merger (as hereinafter defined),
(ii) determining that the Merger is advisable and
-3-
<PAGE> 5
that the terms of the Offer and Merger are fair to, and in the best interests
of, the Company's stockholders, (iii) recommending that the Company's
stockholders accept the Offer and approve the Merger and this Agreement, (iv)
taking all action necessary to render (x) Section 203 of the Delaware General
Corporation Law (the "DGCL") and (y) the Company's Amended and Restated Rights
Agreement, dated as of September 18, 1998, between the Company and BankBoston,
N.A., as rights agent (the "Rights Agreement"), inapplicable to the Offer, the
Merger, the Tender and Option Agreement, dated as of May 27, 1999, among
Purchaser, Merger Sub and each of the persons listed on Schedule A thereto (the
"Option Agreement"), this Agreement or any of the transactions contemplated
hereby or thereby. The Company further represents and warrants that the Board of
Directors has received the written opinion of Broadview International LLC (the
"Financial Advisor") to the effect that, as of May 25, 1999, the consideration
to be received by the holders of shares of Common Stock pursuant to the Offer
and the Merger is fair to such holders from a financial point of view (the
"Fairness Opinion"). The Company hereby consents to the inclusion in the Offer
Documents of the recommendation of the Board of Directors described in the first
sentence of this Section 1.3(a). The Company hereby represents and warrants that
it has been authorized by the Financial Advisor to permit the inclusion of the
Fairness Opinion and references thereto, subject to prior review and consent by
the Financial Advisor (such consent not to be unreasonably withheld) in the
Offer Documents, the Schedule 14D-9 (as hereinafter defined) and the Proxy
Statement (as hereinafter defined).
(b) On the date the Offer Documents are filed with the SEC,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the "Schedule 14D-9") containing the recommendations described in
Section 1.3(a) and shall mail the Schedule 14D-9 to the stockholders of the
Company. To the extent practicable, the Company shall cooperate with Purchaser
in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate
Offer Documents to the Company's stockholders. Purchaser and its counsel shall
be given an opportunity to review and comment upon the Schedule 14D-9 prior to
the filing thereof with the SEC. The Schedule 14D-9 shall comply in all material
respects with the requirements of the Exchange Act. On the date filed with the
SEC and on the date first published, sent or given to the Company's
stockholders, the Schedule 14D-9 shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by the Company with respect to information supplied by
Parent, Purchaser or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9. The Company agrees to correct promptly, and each of Purchaser
and Merger Sub agrees to notify the Company promptly as to, any information
provided by it in writing specifically for inclusion in the Schedule 14D-9 if
and to the extent such information shall have become false or misleading in any
material respect,
-4-
<PAGE> 6
and the Company further agrees to take all steps necessary to cause the Schedule
14D-9 as so corrected to be filed with the SEC and to be disseminated to all of
the holders of shares of Common Stock, in each case as and to the extent
required by applicable federal securities laws. The Company agrees to provide
Purchaser and its counsel in writing any comments the Company or its counsel may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments. The Company shall use its reasonable best
efforts, after consultation with Purchaser, to respond promptly to all such
comments of and requests by the SEC. The Company shall provide Purchaser copies
of any written responses and telephonic notification of any verbal responses by
the Company and its counsel.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Merger Sub with mailing labels containing the names
and addresses of the record holders of Common Stock as of a recent date and of
those persons becoming record holders subsequent to such date, together with
copies of all lists of stockholders and security position listings and all other
information in the Company's possession or control regarding the beneficial
owners of Common Stock, and shall furnish to Merger Sub such information and
assistance (including updated lists of stockholders, security position listings
and computer files) as Merger Sub may reasonably request in communicating the
Offer to the Company's stockholders. Subject to the requirements of law, and
except for such steps as are necessary to disseminate the Offer Documents and
any other documents necessary to consummate the Offer and the Merger, Parent,
Purchaser and Merger Sub and each of their affiliates and associates shall hold
in confidence the information contained in any of such labels, lists and files,
shall use such information only in connection with the Offer and the Merger,
and, if this Agreement is terminated, shall promptly deliver to the Company all
copies of such information then in their possession and otherwise treat such
information as subject to the Confidentiality Agreement, between Purchaser and
the Company, dated May 17, 1999 (the "Confidentiality Agreement").
(d) Subject to the terms and conditions of this Agreement, if
there shall occur a change in law or in a binding judicial interpretation of
existing law which would, in the absence of action by the Company or the Board,
prevent the Merger Sub, were it to acquire a specified percentage of the shares
of Common Stock then outstanding, from approving and adopting this Agreement by
its affirmative vote as the holder of a majority of shares of Common Stock and
without the affirmative vote of any other stockholder, the Company will use its
best efforts to promptly take or cause such action to be taken.
1.4. Directors. (a) Promptly upon the purchase of shares of
Common Stock pursuant to the Offer, Purchaser shall be entitled to designate
such number of directors as will give Purchaser representation on the Board
equal to the product of (i) the number of directors on the Board and (ii) the
percentage that the number of shares of
-5-
<PAGE> 7
Common Stock purchased by Merger Sub or Purchaser bears to the number of shares
of Common Stock then outstanding (the "Percentage"), rounded up to the next
whole number but rounded down if rounding up would cause the Purchaser's
representatives to constitute the entire Board, and the Company shall, upon
request by Purchaser, promptly increase the size of the Board and/or exercise
its best efforts to secure the resignations of such number of directors as is
necessary to enable the Purchaser's designees to be elected to the Board and
shall cause the Purchaser's designees to be so elected. At the request of
Purchaser, the Company will use its best efforts to cause such individuals
designated by Purchaser to constitute the same Percentage of (i) each committee
of the Board, (ii) the board of directors of each Subsidiary (as defined in
Section 4.5) and (iii) each committee of each Subsidiary's board of directors.
The Company's obligations to appoint designees to the Board of Directors shall
be subject to compliance with Section 14(f) of the Exchange Act. The Company
shall take, at its expense, all action necessary to effect any such election,
and shall include in the Schedule 14D-9 the information required by Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent and
Purchaser will supply to Company in writing, and be solely responsible for, any
information with respect to itself and its nominees, directors and affiliates
that is required by Section 14(f) and Rule 14f-1.
(b) Following the election or appointment of Purchaser's
designees pursuant to this Section 1.4 and prior to the Effective Time, the
approval of a majority of the directors of the Company then in office shall be
required to authorize, on behalf of the Company, any permitted termination of
this Agreement by the Company, any amendment of this Agreement requiring action
by the Board, any extension of time for the performance of any of the
obligations or other acts of Purchaser or Merger Sub, and any waiver of
compliance with any of the agreements or conditions contained herein for the
benefit of the Company, and Purchaser shall ensure that its designees who are
serving on the Board do not vote or take any other action to approve any such
authorization without the approval of a majority of the directors then in office
who are not designated by Purchaser.
ARTICLE 2
2. The Merger.
2.1. The Merger. At the Effective Time, subject to the terms
and conditions of this Agreement and the applicable provisions of the DGCL,
Merger Sub shall be merged with and into the Company and the separate corporate
existence of Merger Sub shall thereupon cease (the "Merger"). The Company shall
be the surviving corporation in the Merger (sometimes hereinafter referred to as
the "Surviving Corporation"). The Merger shall have the effects specified in the
DGCL.
-6-
<PAGE> 8
2.2. The Closing. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place at the
offices of Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New
York, New York, at 10:00 a.m., local time, as soon as practicable following the
satisfaction (or waiver if permissible) of the conditions set forth in Article
7. The date on which the Closing occurs is hereinafter referred to as the
"Closing Date."
2.3. Effective Time. If all the conditions to the Merger set
forth in Article 7 shall have been fulfilled or waived in accordance herewith
and this Agreement shall not have been terminated as provided in Article 8 (and
subject to Section 3.6), the parties hereto shall cause a Certificate of Merger
meeting the requirements of Section 251 of the DGCL to be properly executed and
filed in accordance with such Section on the Closing Date. The Merger shall
become effective at the time of filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the DGCL or at
such later time which the parties hereto shall have agreed upon and designated
in such filing as the effective time of the Merger (the "Effective Time").
2.4. Certificate of Incorporation, Bylaws, Directors and
Officers of the Surviving Corporation. Unless otherwise agreed by the Company
and Purchaser prior to the Closing, at the Effective Time:
(a) The Certificate of Incorporation of Merger Sub as in
effect immediately prior to the Effective Time shall be the certificate of
incorporation of the Surviving Corporation, until duly amended in accordance
with applicable law and the terms thereof;
(b) The By-Laws of Merger Sub as in effect immediately prior
to the Effective Time shall be the by-laws of the Surviving Corporation, until
duly amended in accordance with applicable law, the terms thereof, and the
Surviving Corporation's certificate of incorporation;
(c) The officers of the Company immediately prior to the
Effective Time shall continue to serve in their respective offices of the
Surviving Corporation from and after the Effective Time, until their successors
are duly appointed or elected in accordance with applicable law and the
Surviving Corporation's certificate of incorporation and by-laws; and
(d) The directors of Merger Sub immediately prior to the
Effective Time shall be the directors of the Surviving Corporation from and
after the Effective Time, until their successors are duly appointed or elected
in accordance with applicable law and the Surviving Corporation's certificate of
incorporation and by-laws.
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ARTICLE 3
3. Effect of the Merger on Securities of Merger Sub and the Company.
3.1. Merger Sub Stock. At the Effective Time, each share of
common stock, $.01 par value per share, of Merger Sub that is outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of common stock,
$.01 par value per share, of the Surviving Corporation.
3.2. Company Securities. (a) At the Effective Time, each share
of Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares of Common Stock owned by Parent, Purchaser or Merger Sub or
held by the Company, all of which shall be canceled, and other than the shares
of Dissenting Common Stock (as defined in Section 3.5)) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into the right to receive the highest per share consideration paid in the Offer,
without interest (the "Merger Consideration").
(b) As a result of the Merger and without any action on the
part of the holder thereof, at the Effective Time, all shares of Common Stock
shall cease to be outstanding and shall be canceled and retired and shall cease
to exist, and each holder of shares of Common Stock (other than Merger Sub,
Purchaser and the Company and other than shares of Dissenting Common Stock)
shall thereafter cease to have any rights with respect to such shares of Common
Stock, except the right to receive, without interest, the Merger Consideration
in accordance with this Section 3.2 and Section 3.3 upon the surrender of a
certificate or certificates (a "Certificate") representing such shares of Common
Stock.
(c) Each share of Common Stock issued and held in the
Company's treasury at the Effective Time, or held by Merger Sub, Purchaser or
Parent, shall, by virtue of the Merger, cease to be outstanding and shall be
canceled and retired without payment of any consideration therefor.
(d) All options (individually, an "Option" and collectively,
the "Options") outstanding immediately prior to the Effective Time under any
Company stock option plan, including the Marcam Solutions 1997 Stock Plan (the
"1997 Plan") and the Marcam Solutions, Inc. 1997 Non-Employee Director Stock
Option Plan (the "Directors Plan") (the "Stock Option Plans"), whether or not
then exercisable, and all warrants to acquire shares of Common Stock
(individually, a "Warrant" and collectively, the "Warrants") outstanding
immediately prior to the Effective Time, whether or not then exercisable, and
all rights (individually, a "Purchase Right" and collectively, the "Purchase
Rights") to purchase shares of Common Stock under the Company's 1997 Employee
Stock Purchase
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<PAGE> 10
Plan (the "Purchase Plan") shall be canceled and (i) each holder of an Option or
Warrant shall promptly after the Effective Time receive from the Surviving
Corporation, for each share of Common Stock subject to an Option or Warrant,
whether or not exercisable, an amount in cash equal to the excess, if any, of
the Merger Consideration over the per share exercise price of such Option or
Warrant, without interest, in full settlement of the Company's (and the
Surviving Corporation's) obligations under each such Option or Warrant, and (ii)
each holder of a Purchase Right shall promptly after the Effective Time receive
from the Surviving Corporation the Merger Consideration for each such Purchase
Right, without interest, in full settlement of the Company's (and the Surviving
Corporation's) obligations under each such Purchase Right. To the extent that
the per share exercise price of any Option or Warrant exceeds the Merger
Consideration, at the Effective Time such Option or Warrant shall be canceled
and the holder of such Option or Warrant shall not receive or be entitled to
receive any consideration from Purchaser, Merger Sub or the Surviving
Corporation. The amount payable pursuant to this Section 3.2(d) shall be subject
to all applicable withholding of taxes. The Company shall take all actions as
may be necessary to effectuate the foregoing.
3.3. Exchange of Certificates Representing Common Stock. (a)
Prior to the Effective Time, Purchaser shall appoint a commercial bank or trust
company, subject to the reasonable satisfaction of the Company, to act as paying
agent hereunder for payment of the Merger Consideration upon surrender of
Certificates (the "Paying Agent"). Parent and Purchaser shall take all steps
necessary to cause the Surviving Corporation to provide the Paying Agent with
cash in amounts necessary to pay for all the shares of Common Stock pursuant to
Section 3.2(a) and, in connection with the Options, Warrants and Purchase
Rights, pursuant to Section 3.2(d), as and when such amounts are needed by the
Paying Agent. Such amounts shall hereinafter be referred to as the "Exchange
Fund."
(b) As soon as practicable after the Effective Time, Purchaser
shall cause the Paying Agent to mail to each holder of record of shares of
Common Stock (i) a letter of transmittal which shall specify that delivery shall
be effected, and risk of loss and title to such Certificates shall pass, only
upon delivery of the Certificates to the Paying Agent and which letter shall be
in such form and have such other provisions as are customary for letters of this
nature and (ii) instructions for effecting the surrender of such Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate to the
Paying Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the amount of cash
into which shares of Common Stock theretofore represented by such Certificate
shall have been converted pursuant to Section 3.2, and the shares represented by
the Certificate so surrendered shall forthwith be canceled. No interest will be
paid or will accrue on the cash payable upon surrender of any Certificate.
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<PAGE> 11
In the event of a transfer of ownership of Common Stock that is not registered
in the transfer records of the Company, payment may be made with respect to such
Common Stock to such a transferee if the Certificate representing such shares of
Common Stock is presented to the Paying Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
(c) At or after the Effective Time, there shall be no
transfers on the stock transfer books of the Company of the shares of Common
Stock that were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving Corporation,
they shall be canceled and exchanged as provided in this Article 3.
(d) Any portion of the Exchange Fund (including the proceeds
of any interest and other income received by the Paying Agent in respect of all
such funds) that remains unclaimed by the former stockholders of the Company six
months after the Effective Time shall be delivered to the Surviving Corporation.
Any former stockholders of the Company who have not theretofore complied with
this Article 3 may thereafter look only to the Surviving Corporation for payment
of any Merger Consideration, without any interest thereon, that may be payable
in respect of each share of Common Stock such stockholder holds as determined
pursuant to this Agreement.
(e) None of Parent, Purchaser, the Company, the Surviving
Corporation, the Paying Agent or any other person shall be liable to any former
holder of shares of Common Stock for any amount properly delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim which may be made against it with respect to such Certificate, the
Paying Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration payable in respect thereof pursuant to this
Agreement.
3.4. Adjustment of Merger Consideration. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of Common Stock shall have been changed into a different
number of shares or a different class as a result of a stock split, reverse
stock split, stock dividend, subdivision, reclassification, split, combination,
exchange, recapitalization or other similar transaction, the Merger
Consideration shall be appropriately adjusted.
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<PAGE> 12
3.5. Dissenting Company Stockholders. Notwithstanding any
provision of this Agreement to the contrary, if required by the DGCL but only to
the extent required thereby, shares of Common Stock that are issued and
outstanding immediately prior to the Effective Time and which are held by
holders of such shares of Common Stock who have properly exercised appraisal
rights with respect thereto in accordance with Section 262 of the DGCL (the
"Dissenting Common Stock") will not be exchangeable for the right to receive the
Merger Consideration, and holders of such shares of Dissenting Common Stock will
be entitled to receive payment of the appraised value of such shares of Common
Stock in accordance with the provisions of such Section 262 unless and until
such holders fail to perfect or effectively withdraw or lose their rights to
appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively withdraws or loses such right, such
shares of Common Stock will thereupon be treated as if they had been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration, without any interest thereon. The Company will
give Purchaser prompt notice of any demands received by the Company for
appraisals of shares of Common Stock prior to the Effective Time. The Company
shall not, except with the prior written consent of Purchaser, make any payment
with respect to any demands for appraisal or offer to settle or settle any such
demands.
3.6. Merger Without Meeting of Stockholders. In the event that
Merger Sub, or any other direct or indirect subsidiary of Purchaser, shall
acquire at least 90 percent of the outstanding shares of Common Stock, the
parties hereto shall take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after the expiration of the
Offer without a vote of stockholders of the Company, in accordance with Section
253 of the DGCL.
ARTICLE 4
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to Parent, Purchaser and Merger Sub as of the
date of this Agreement as follows:
4.1. Existence; Good Standing; Corporate Authority. Each of
the Company and each of its Subsidiaries is (i) a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and (ii) is duly licensed or qualified to do business as a foreign
corporation and is in good standing under the laws of any other state of the
United States in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary,
except where the failure to be so qualified or to be in good standing would not
have, individually or in the aggregate, a material adverse effect on the
business,
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<PAGE> 13
operations, revenues, assets or financial condition of the Company and its
Subsidiaries taken as a whole or the ability of the Company and its Subsidiaries
to conduct their business after the Closing substantially consistent with the
manner conducted in the past (a "Material Adverse Effect") (it being understood
that (i) any adverse effect that is caused by conditions affecting the economy
or securities markets generally shall not be taken into account in determining
whether there has been a Material Adverse Effect (ii) any adverse effect that is
caused by conditions affecting the primary industry in which the Company
currently competes shall not be taken into account in determining whether there
has been a Material Adverse Effect (provided that such effect does not affect
the Company in a disproportionate manner) and (iii) any adverse effect resulting
from the Offer, the Merger or any of the transactions contemplated hereby or the
announcement thereof (including those resulting from litigation brought or
threatened against the Company or any member of its Board of Directors in
respect thereof) shall not be taken into account in determining whether there
has been a Material Adverse Effect). Each of the Company and each of its
Subsidiaries has all requisite corporate power and authority to own or lease and
operate its properties and carry on its business as now conducted. The Company
has heretofore made available to Purchaser true and correct copies of the
Company's Certificate of Incorporation and By-Laws as currently in effect.
4.2. Authorization, Validity and Effect of Agreements. The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and all agreements and documents contemplated hereby (the
"Ancillary Documents") and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the Ancillary
Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Board of Directors, and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement and the Ancillary Documents or
to consummate the transactions contemplated hereby and thereby (other than the
approval of this Agreement by the holders of a majority of the shares of Common
Stock if required by applicable law). This Agreement has been, and any Ancillary
Document at the time of execution will have been, duly and validly executed and
delivered by the Company, and (assuming this Agreement and such Ancillary
Documents each constitutes a valid and binding obligation of Purchaser and
Merger Sub) constitutes and will constitute the valid and binding obligations of
the Company, enforceable in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
4.3. Compliance with Laws. Except as set forth in Section 4.3
of the disclosure letter, dated as of the date hereof, delivered by the Company
to Purchaser (the "Company Disclosure Letter"), neither the Company nor any of
its Subsidiaries is in violation of any order of any foreign, federal, state or
local judicial, legislative, executive,
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<PAGE> 14
administrative or regulatory body or authority or any court, arbitration board
or tribunal ("Governmental Entity"), or any foreign, federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or decree ("Laws")
applicable to the Company or its Subsidiaries or any of their respective
properties or assets, except where the failure to be in compliance, individually
or in the aggregate, would not have a Material Adverse Effect.
4.4. Capitalization, etc. The authorized capital stock of the
Company consists of 30,000,000 shares of Common Stock and 5,000,000 shares of
preferred stock, $.01 par value, of which 30,000 shares have been designated as
Series A Junior Participating Preferred Stock ("Preferred Stock"). As of the
date hereof, (a) 7,818,087 shares of Common Stock are outstanding, (b) 30,000
shares of Preferred Stock are subject to Preferred Stock Purchase Rights
("Rights") issued pursuant to the Company's Rights Agreement and no other shares
of Preferred Stock are issued and outstanding, (c) 0 shares of Common Stock are
held by the Company in its treasury, and (d) no shares of capital stock of the
Company are held by the Company's Subsidiaries. Section 4.4 of the Company
Disclosure Letter sets forth a complete and accurate list, as of the date
hereof, of (i) the number of outstanding Options and Warrants, (ii) the number
of shares of Common Stock which can be acquired upon the exercise of all
outstanding Options and Warrants, respectively, (iii) the number of shares of
Common Stock which are reserved for issuance upon the exercise of outstanding
Options and the number of shares which are reserved for future grants under the
Stock Option Plans, (iv) the number of shares of Common Stock which are reserved
for issuance upon the exercise of outstanding Warrants, and (v) the exercise
price of each outstanding Option and Warrant, and (vi) the number of shares of
Common Stock which are reserved for issuance pursuant to the Purchase Plan.
Except for the Common Stock, the Rights, the Options, the Warrants, and the
Purchase Rights, the Company has no outstanding bonds, debentures, notes or
other obligations entitling the holders thereof to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of the Company on any matter. Except as set forth in Section
4.4 of the Company Disclosure Letter, since March 31, 1999, the Company (i) has
not issued any shares of Common Stock other than upon the exercise of Options
and Warrants or pursuant to the Purchase Plan, (ii) has granted no Options to
purchase shares of Common Stock under the Stock Option Plans, (iii) has not
amended the Purchase Plan, and (iv) has not split, combined or reclassified any
of its shares of capital stock. All issued and outstanding shares of Common
Stock are duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights. Except as set forth above in this Section 4.4 or in Section
4.4 of the Company Disclosure Letter, there are no other shares of capital stock
or voting securities of the Company, and no existing options, warrants, calls,
subscriptions, convertible securities, and no stock appreciation rights or
limited stock appreciation rights or other rights (including rights of first
refusal), agreements or commitments which obligate the Company or any of its
Subsidiaries to issue, transfer or sell any shares of capital stock of, or
equity interests in,
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<PAGE> 15
or any material assets of, the Company or any of its Subsidiaries. Except as set
forth in Section 4.4 of the Company Disclosure Letter, the Company is not
obligated to issue any Options, Warrants or Purchase Rights after the date
hereof. There are no outstanding obligations of the Company or any Subsidiaries
to repurchase, redeem or otherwise acquire any shares of capital stock of the
Company and there are no unissued performance awards outstanding under the Stock
Option Plan or any other outstanding stock related awards. At the Effective
Time, each outstanding Option and Warrant shall be canceled without the consent
of any other party or the payment of any consideration other than as provided in
Section 3.2(d). After the Effective Time, the Surviving Corporation will have no
obligation to issue, transfer or sell any shares of capital stock of the Company
or the Surviving Corporation pursuant to any Company Employee Benefit Plan (as
defined in Section 4.11). There are no voting trusts or other agreements or
understandings to which the Company or any of its Subsidiaries is a party with
respect to the voting of capital stock of the Company or any of its
Subsidiaries.
4.5. Subsidiaries. Except as set forth in Section 4.5 of the
Company Disclosure Letter, the Company owns, directly or indirectly, all of the
outstanding shares of capital stock of each subsidiary of the Company (the
"Subsidiaries"). Except as set forth in Section 4.5 of the Company Disclosure
Letter, all of the outstanding shares of capital stock of each Subsidiary are
duly authorized, validly issued, fully paid and nonassessable, and are owned,
directly or indirectly, by the Company free and clear of all liens, pledges,
security interests, claims or other encumbrances ("Encumbrances"). Section 4.5
of the Company Disclosure Letter sets forth for each Subsidiary: (i) its name
and jurisdiction of incorporation or organization; (ii) its authorized capital
stock or share capital; (iii) the number of issued and outstanding shares of
capital stock or share capital; and (iv) the holder or holders of such shares.
Except for the Company's direct or indirect interests in the Subsidiaries or as
set forth in Section 4.5 of the Company Disclosure Letter, neither the Company
nor any of its Subsidiaries owns directly or indirectly any interest or
investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity.
4.6. No Violation. Except as set forth in Section 4.6 of the
Company Disclosure Letter, neither the execution and delivery by the Company of
this Agreement or any of the Ancillary Documents nor the consummation by the
Company of the transactions contemplated hereby or thereby will: (i) violate,
conflict with or result in a breach of any provision of the Certificate of
Incorporation or By-Laws of the Company or any Subsidiary; (ii) violate,
conflict with, result in a breach of any provision of, constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) under, result in the termination or in a right of termination of,
accelerate the performance required by or benefit obtainable under, result in
the triggering of any payment or other obligations pursuant to, result in the
creation of any Encumbrance upon any of the properties of the Company or any of
its Subsidiaries under, or result in there
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<PAGE> 16
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which the Company or any of its
Subsidiaries is a party, or by which the Company or any of its Subsidiaries or
any of their respective properties is bound (each, a "Contract" and,
collectively, "Contracts"), except for any of the foregoing matters specified in
this clause (ii) which, individually or in the aggregate, would not have a
Material Adverse Effect or prevent or delay or be likely to prevent or delay the
consummation of the transactions contemplated hereby; (iii) other than the
filings provided for in Section 2.3 and the filings required under the Exchange
Act and under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations thereunder (the "HSR Act"), require any
consent, approval or authorization of, or declaration, filing or registration
with, any Governmental Entity, the lack of which, individually or in the
aggregate, would have a Material Adverse Effect or, by Law, prevent or delay the
consummation of the transactions contemplated hereby; or (iv) violate any Laws
applicable to the Company, any of its Subsidiaries or any of their respective
assets, except for violations which individually or in the aggregate would not
have a Material Adverse Effect or materially adversely affect the ability of the
Company to consummate the transactions contemplated hereby.
4.7. Company Reports; Offer Documents. (a) Since September 30,
1997, the Company has filed all documents with the SEC required to be filed by
the Company under the Exchange Act. The Company has made available to Purchaser
each registration statement, report, proxy statement or information statement
(as defined under the Exchange Act) filed by it with the SEC since September 30,
1997, each in the form (including exhibits and any amendments thereto) so filed
(collectively, the "Company Reports"). As of their respective dates, the Company
Reports (i) complied as to form in all material respects with the applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the Exchange Act, and the rules and regulations thereunder and (ii) 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 made therein,
in the light of the circumstances under which they were made, not misleading.
Each of the consolidated balance sheets of the Company included in the Company
Reports (including the related notes and schedules) fairly presented the
consolidated financial position of the Company and its Subsidiaries as of its
date, and each of the consolidated statements of operations, cash flows and
stockholders' equity of the Company included in or incorporated by reference
into the Company Reports (including the related notes and schedules) fairly
presented the results of operations, cash flows and shareholders' equity of the
Company and its Subsidiaries for the periods set forth therein, in each case in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except as may be noted therein or in the notes
thereto and except that the unaudited interim financial statements are subject
to normal
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<PAGE> 17
year-end adjustments and any other adjustments referred to therein or in the
notes thereto and do not contain all of the footnote disclosures required by
generally accepted accounting principles. Except as set forth in Section 4.7 of
the Company Disclosure Letter or as disclosed in the Company Reports, neither
the Company nor any of its Subsidiaries has any liabilities or obligations,
contingent or otherwise, except (i) liabilities and obligations in the
respective amounts reflected or reserved against in the Company's consolidated
balance sheet as of March 31, 1999 included in the Company Reports (the "1999
Balance Sheet") or (ii) liabilities and obligations incurred in the ordinary
course of business since March 31, 1999 which individually or in the aggregate
would not have a Material Adverse Effect or (iii) obligations and liabilities
incurred or to be incurred relating to the transactions contemplated by this
Agreement.
(b) None of the Schedule 14D-9, the information statement, if
any, filed by the Company in connection with the Offer pursuant to Rule 14f-1
under the Exchange Act (the "Information Statement"), any schedule required to
be filed by the Company with the SEC or any amendment or supplement thereto, at
the respective times such documents are filed with the SEC or first published,
sent or given to the Company's stockholders, shall 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 the light of
the circumstances under which they are made, not misleading except that no
representation is made by the Company with respect to information supplied by
the Purchaser or Merger Sub in writing specifically for inclusion in the
Schedule 14D-9 or Information Statement or any amendment or supplement. None of
the information supplied or to be supplied by the Company in writing
specifically for inclusion or incorporation by reference in the Offer Documents
will, at the date of filing with the SEC, 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. If at any time prior
to the Effective Time the Company shall obtain knowledge of any facts with
respect to itself, any of its officers and directors or any of its Subsidiaries
that would require the supplement or amendment to any of the foregoing documents
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or to comply with applicable Laws, such
amendment or supplement shall be promptly filed with the SEC and, as required by
Law, disseminated to the stockholders of the Company, and in the event Purchaser
shall advise the Company as to its obtaining knowledge of any facts that would
make it necessary to supplement or amend any of the foregoing documents, the
Company shall promptly amend or supplement such document as required and
distribute the same to its stockholders.
4.8. Litigation. Except as set forth in the Company Reports or
in Section 4.8 of the Company Disclosure Letter, (i) there are no claims,
actions, suits, proceedings, arbitrations, or to the knowledge of the Company,
investigations or audits
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<PAGE> 18
(collectively, "Litigation") by or before a Governmental Entity pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries, at law or in equity, other than those in the ordinary course of
business that, individually or in the aggregate, would not have a Material
Adverse Effect nor does the Company or any of its Subsidiaries have knowledge of
any facts or circumstances that it believes would be likely to form the basis
for any such claims, actions, suits, proceedings, arbitrations, investigations
or audits.
4.9. Absence of Certain Changes. Except as set forth in the
Company Reports or in Section 4.9 of the Company Disclosure Letter, since March
31, 1999, the Company and its Subsidiaries have conducted their business in the
ordinary course of such business consistent with past practices, and there has
not been (i) any event or state of fact that, individually or in the aggregate,
would have a Material Adverse Effect; (ii) any declaration, setting aside or
payment of any dividend or other distribution with respect to its capital stock
or any repurchase, redemption or any other acquisition by the Company or its
Subsidiaries of any outstanding shares of capital stock or other securities of,
or other ownership interests in, the Company or any of its Subsidiaries; (iii)
any change in accounting principles, practices or methods; (iv) any entry into
any employment agreement with, or any increase in the rate or terms (including,
without limitation, any acceleration of the right to receive payment) of
compensation payable or to become payable by the Company or any of its
Subsidiaries to, their respective directors, officers or employees, except
increases for employees who are not officers or directors occurring in the
ordinary course of business in accordance with their customary practices; (v)
any increase in the rate or terms (including, without limitation, any
acceleration of the right to receive payment) of any bonus, insurance, pension
or other employee benefit plan or arrangement covering any such directors,
officers or employees, except increases for employees who are not officers or
directors occurring in the ordinary course of business in accordance with its
customary practices; (vi) any entry into any Contracts or transaction by the
Company or any Subsidiary which is material to the Company and its Subsidiaries
taken as a whole whether or not in the ordinary course of business; (vii) any
revaluation by the Company or any of its Subsidiaries of any of their respective
assets, including, without limitation, write-downs of inventory or write-offs of
accounts receivable other than in the ordinary course of business consistent
with past practices; or (viii) any action by the Company which if taken after
the date hereof would constitute a breach of Section 6.2(b) hereof (other than
Sections 6.2(b)(ii) and 6.2(b)(xiii)).
4.10. Taxes. The Company and its Subsidiaries have timely
filed (taking into account extensions) all material Tax Returns (as defined
below) required to be filed by any of them. All such Tax Returns are true,
correct and complete, except for such instances which individually or in the
aggregate would not have a Material Adverse Effect. Except as would not have a
Material Adverse Effect, except for those Taxes (as
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defined below) being contested in good faith and for which adequate reserves
have been established in the financial statements included in the Company
Reports in accordance with GAAP, and except as set forth in Section 4.10 of the
Company Disclosure Letter, the Company and its Subsidiaries have paid all Taxes
required to be paid by any of them or claimed or asserted by any taxing
authority to be due. There is no action, suit, claim or assessment pending with
respect to Taxes which, if upheld, would, individually or in the aggregate, have
a Material Adverse Effect. The Company and its Subsidiaries have withheld and
paid over to the relevant taxing authority all Taxes required to have been
withheld and paid in connection with payments to employees, independent
contractors, creditors, stockholders or other third parties, except for such
Taxes which, individually or in the aggregate, would not have a Material Adverse
Effect. The Company had no "plan or intention" (within the meaning of Revenue
Procedure 96-30), at the time of the consummation of the transactions set forth
in the Distribution Agreement, dated as of July 17, 1997, between MAPICS, Inc.
(f/k/a Marcam Corporation) ("MAPICS") and the Company (the "Distribution
Agreement"), to liquidate the Company, to merge the Company with any other
corporation (including for this purpose a transaction that would be treated for
federal income tax purposes as a sale of stock), or to sell or otherwise dispose
of the assets of the Company, except in the ordinary course of business. No
circumstances exist that could cause the Company or any of its Subsidiaries not
to be entitled to indemnification under Section 6(a)(iii) of the Tax Sharing
Agreement, dated as of July 17, 1997, by and between MAPICS and the Company, by
reason of the exception set forth therein relating to Section 5.02(e) of the
Distribution Agreement.
For purposes of this Agreement, (A) "Tax" (and, with correlative meaning,
"Taxes") means any federal, state, local or foreign income, gross receipts,
property, sales, use, license, excise, franchise, employment, payroll, premium,
withholding, alternative or added minimum, ad valorem, transfer or excise tax,
or any other tax, custom, duty, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest or penalty, imposed by
any Governmental Entity, and (B) "Tax Return" means any return, report or
similar statement required to be filed with respect to any Tax (including any
attached schedules), including, without limitation, any information return,
claim for refund, amended return or declaration of estimated Tax.
4.11. Employee Benefit Plans. (a) Section 4.11 of the Company
Disclosure Letter sets forth a list of all "employee benefit plans," as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and all other material employee benefit or compensation
arrangements, including, without limitation, any such arrangements providing
severance pay, sick leave, vacation pay, salary continuation for disability,
retirement benefits, deferred compensation, bonus pay, incentive pay, stock
options (including those held by directors, employees, and consultants),
hospitalization insurance, medical insurance, life insurance, scholarships or
tuition reimbursements, that are maintained by the Company or any of its
Subsidiaries or
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to which the Company or any of its Subsidiaries is obligated to contribute
thereunder for current or former directors, employees, independent contractors,
consultants and leased employees of the Company or any Company Subsidiary (the
"Company Employee Benefit Plans").
(b) None of the Company Employee Benefit Plans is a
"multiemployer plan," as defined in Section 4001(a)(3) of ERISA (a
"Multiemployer Plan") or a plan subject to Title IV of ERISA, and neither the
Company nor any of its Subsidiaries presently maintains or has maintained any
such plan, or has any liability, contingent or otherwise, with respect to any
such plan.
(c) Except as provided in Part 6 of Title I of ERISA or as set
forth in Section 4.11 of the Company Disclosure Letter, the Company does not
maintain or contribute to any plan or arrangement which provides or has any
liability to provide life insurance or medical or other employee welfare
benefits to any employee or former employee upon his retirement or termination
of employment, and the Company has never represented, promised or contracted
(whether in oral or written form) to any employee or former employee that such
benefits would be provided.
(d) Except as set forth in Section 4.11 of the Company
Disclosure Letter, (i) the execution of, and performance of the transactions
contemplated in, this Agreement will not, either alone or upon the occurrence of
subsequent events, result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any
employee, and (ii) there are no severance agreements applicable to the Company
or any of its Subsidiaries. No payment or benefit which will or may be made by
the Company, Parent or any of their Subsidiaries or affiliates with respect to
any employee of the Company or any of its Subsidiaries will be characterized as
an "excess parachute payment" within the meaning of Section 280G(b)(1) of the
Code.
(e) (i) each Company Employee Benefit Plan that is intended to
qualify under Section 401 of the Internal Revenue Code of 1986, as amended (the
"Code"), and each trust maintained pursuant thereto, has been determined to be
exempt from federal income taxation under Section 501 of the Code by the
Internal Revenue Service, and nothing has occurred with respect to the operation
or organization of any such Company Employee Benefit Plan that would cause the
loss of such qualification or exemption or the imposition of any material
liability, penalty or tax under ERISA or the Code, (ii) there are no pending
material actions, claims (other than claims for benefits), investigations or
lawsuits which have been asserted, filed or, to the Company's knowledge,
threatened, in connection with the Company Employee Benefit Plans, (iii) no
"non-exempt" "prohibited transaction" (within the meaning of Section 4975 of the
Code or Section 406 of ERISA) has occurred with respect to any Company Employee
Benefit Plan that could result in a material liability to the Company, any
Company Employee Benefit Plan or any of the
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beneficiaries thereof, and (iv) the Company Employee Benefit Plans have been
maintained in all material respects in accordance with their terms and with all
applicable provisions of ERISA and the Code (including rules and regulations
thereunder) and all other applicable federal and state laws and regulations.
(f) Neither the Company nor any of its Subsidiaries has made
any payment or is obligated to make any payment that is not or will not be fully
deductible under Section 162(m) of the Code, nor is the Company or any of its
Subsidiaries a party to any agreement that could result in any such payment.
(g) Section 4.11 of the Company Disclosure Letter sets forth a
complete list of all amounts (other than de mimimus amounts) outstanding
relating to bonuses payable to employees and any obligation to pay bonuses to
employees relating to the Company's performance, the employee's performance or
the transactions contemplated hereby.
(h) Other than the Subsidiaries, there is no business or
entity which is a member of the same "controlled group of corporations," under
"common control" or an "affiliated service group" with the Company within the
meanings of Sections 414(b), (c) or (m) of the Code, or required to be
aggregated with the Company under Section 414(o) of the Code, or is under
"common control" with the Company, within the meaning of Section 4001(a)(14) of
ERISA, or any regulations promulgated or proposed under any of the foregoing
Sections.
4.12. Labor and Employment Matters. Except as set forth in
Section 4.12 of the Company Disclosure Letter, neither the Company nor any of
its Subsidiaries is a party to, or bound by, any collective bargaining agreement
or other Contracts or understanding with a labor union or labor organization.
Except for such matters which, individually or in the aggregate, would not have
a Material Adverse Effect and, there is no (i) unfair labor practice, labor
dispute (other than routine individual grievances) or labor arbitration
proceeding pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries relating to their businesses, (ii) activity
or proceeding by a labor union or representative thereof to organize any
employees of the Company or any of its Subsidiaries, or (iii) lockouts, strikes,
slowdowns, work stoppages or threats thereof by or with respect to such
employees. The Company is in compliance with all Laws regarding employment,
employment practices, terms and conditions of employment and wages and Laws,
except for such noncompliance which, either individually or in the aggregate,
would not have a Material Adverse Effect.
4.13. Brokers. Except for the Financial Advisor, no broker,
finder or financial advisor is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this Agreement
that is based upon any
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arrangement made by or on behalf of the Company. The Company's fee arrangements
with the Financial Advisor have been disclosed to the Purchaser.
4.14. Intellectual Property Rights. Each item of Company
Intellectual Property which is (i) owned by the Company and is a patent, patent
application, material or registered trademark, trademark application, material
or registered service mark, service mark application, material trade dress,
material logo, trade name, domain name, corporate name, copyright registration,
copyright application, mask work registration or mask work application, or (ii)
a material license out of the ordinary course of business, material sublicense
out of the ordinary course of business or material agreement out of the ordinary
course of business is set forth in Section 4.14A of the Company Disclosure
Letter or filed as an exhibit to the Company Reports. Except as set forth in
Section 4.14B(a) of the Company Disclosure Letter, (i) the Company owns the
Company Intellectual Property, free and clear of any Encumbrance, license or
other restriction, or has the valid right to make, use, sell or license as
necessary in the conduct of its business the Company Intellectual Property; (ii)
the Company has the right to require any Company employee or contractor having
rights in any Company Intellectual Property which is an application for
registration, including but not limited to patent applications, trademark
applications, service mark applications, copyright applications, or mask work
applications, to transfer ownership to the Company of the application and of the
registration once it issues, and all registered patents, trademarks, service
marks and copyrights owned by the Company are valid and subsisting and in full
force and effect; and (iii) Company Intellectual Property is all the
Intellectual Property that is necessary for the ownership, maintenance and
operation of the Company's properties and assets and the Company has the right
to make, use, sell or license as necessary in the conduct of its business all of
the Company Intellectual Property in all jurisdictions in which the Company
conducts or proposes to conduct its business. The consummation of the
transactions contemplated hereby will not alter or impair any such rights in any
manner which, individually or in the aggregate, would have a Material Adverse
Effect (other than as a result of limitations arising because of contractual or
other restrictions to which the Purchaser or its affiliates is a party). Other
than exceptions which, individually or in the aggregate, would not have a
Material Adverse Effect, (i) the Company has not, and the continued operation of
the Company's and its Subsidiaries' businesses as presently conducted will not,
interfere with, infringe upon, misappropriate or otherwise come into conflict
with, any Intellectual Property rights of third parties, and the Company has not
received any charge, complaint, claim, demand or notice so alleging (including
any claim that the Company must license or refrain from using any Intellectual
Property rights of any third party); (ii) the Company has never agreed to defend
or indemnify any person for or against any interference, infringement,
misappropriation or other conflict with respect to any Company Intellectual
Property, other than in license agreements with customers and agreements with
business partners entered into in the ordinary course of business (and in
substantially all such agreements, the Company has excluded consequential
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damages and in the remainder of such agreements, has limited consequential
damages); (iii) no third party has interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Company Intellectual
Property; and (iv) no action, suit, proceeding or hearing, or to the knowledge
of the Company, investigation, charge, complaint, claim or demand, has been
made, is pending, or, to the knowledge of the Company, is threatened which
challenges the legality, validity, enforceability, use or ownership of any
Company Intellectual Property. Except as set forth in Section 4.14B(b) of the
Company Disclosure Letter, the Company does not license any Intellectual
Property from any third party which Intellectual Property is integral to the
operation of the Company's independently developed core standard software
products. The Company has obtained from all of its employees, former employees,
independent contractors and former independent contractors (collectively,
"Inventors") valid and effective assignments of all of such Inventors' rights in
any Intellectual Property developed by such Inventors while employed by, or
under contract with, the Company or its predecessor, except where the failure to
obtain such assignments, individually or in the aggregate, would not have a
Material Adverse Effect.
"Company Intellectual Property" means (a) all inventions
(whether patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all patents, patent applications and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (b) all
trademarks, service marks, trade dress, logos, trade names, domain names, and
corporate names, together with all translations, adaptations, derivations and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, (c) all
copyrightable works, all copyrights and all applications, registrations and
renewals in connection therewith, (d) all mask works and all applications,
registrations and renewals in connection therewith, (e) all trade secrets and
confidential business information (including ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, methods, schematics, technology, technical data, designs, drawings,
flowcharts, block diagrams, specifications, customer and supplier lists, pricing
and cost information and business and marketing plans and proposals), (f) all
computer software (including data and related documentation) (g) all other
proprietary rights, and (h) all licenses, sublicenses, or agreements related to
the foregoing categories of intellectual property listed in subsections (a)
through (g) herein (categories (a) through (h) herein are collectively referred
to as "Intellectual Property") which is used, has been used, or is proposed to
be used in connection with the Business.
4.15. Permits. The Company and its Subsidiaries are in
possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exceptions, consents, certificates, approvals and orders
of any court, governmental or regulatory authority necessary for the Company and
its Subsidiaries to own, lease and operate its
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properties or to lawfully conduct their respective businesses as presently
conducted (the "Company Permits"), except where the failure to have any of the
Company Permits, individually or in the aggregate, would not have a Material
Adverse Effect. As of the date hereof, no suspension or cancellation of any of
the Company Permits is pending or, to the knowledge of the Company threatened,
except where the suspension or cancellation of any of the Company Permits,
individually or in the aggregate, would not have a Material Adverse Effect.
4.16. Environmental Matters. (a) Except as set forth in the
Company Reports filed prior to the date hereof and with such other exceptions
which, individually or in the aggregate, would not have a Material and Adverse
Effect:
(i) the Company and each of its Subsidiaries has at
all times been operated, and is, in compliance with all applicable Environmental
Laws, and neither the Company nor any of its Subsidiaries has received any
written communication from any Person or Governmental Entity that alleges that
the Company or any of its Subsidiaries is not in compliance with applicable
Environmental Laws;
(ii) the Company and each of its Subsidiaries has
obtained or has applied for all applicable environmental, health and safety
permits, licenses, variances, approvals and authorizations required under
Environmental Laws (collectively, "Environmental Permits") necessary for the
conduct of its operations, and such Environmental Permits are in effect or,
where applicable, a renewal application has been timely filed, and the Company
and its Subsidiaries are in compliance in all respects with all terms and
conditions of such Environmental Permits;
(iii) there is no Environmental Claim pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries;
(iv) to the knowledge of the Company, there have been
no Releases of any Hazardous Materials that would be reasonably likely to form
the basis of any material Environmental Claim against the Company, any of its
Subsidiaries or any predecessor thereof; and
(v) none of the properties currently owned, leased or
operated, or, to the knowledge of the Company, formerly owned, leased or
operated, by the Company, its Subsidiaries or any predecessor thereof, are now,
or were in the past, listed on the National Priorities List of Superfund Sites,
any analogous state list or any database listing sites for the purpose of
investigation under Environmental Laws.
(b) For purposes of this Agreement:
(i) "Environmental Claim" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
information requests,
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directives, claims, liens, investigations, proceedings or notices of
noncompliance, violation or status as a potentially responsible person or
otherwise liable party by any Person (including any Governmental Entity)
relating to or alleging potential liability (including, without limitation,
potential responsibility for or liability for enforcement, investigatory costs,
cleanup costs, response costs, removal costs, natural resources damages,
property damages, personal injuries or penalties) relating to (A) the presence,
or Release or threatened Release into the environment, of any Hazardous
Materials at any location; or (B) circumstances forming the basis of any
violation or alleged violation of any Environmental Law; or (C) any and all
claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief relating to any Environmental Laws.
(ii) "Environmental Laws" means all applicable
federal, state and local laws, rules, requirements, regulations and judicial or
administrative opinions, orders or decrees, and any common law causes of action,
in each case relating to pollution, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or protection of human or employee health or safety including, without
limitation, laws and regulations relating to Releases of Hazardous Materials.
(iii) "Hazardous Materials" means (A) any petroleum
or any by-products or fractions thereof, asbestos or asbestos-containing
materials, urea formaldehyde foam insulation, any form of natural gas,
explosives, polychlorinated biphenyls ("PCBs"), radioactive materials, ionizing
radiation or electromagnetic field radiation; (B) any chemicals, materials or
substances which are included in the definition of "wastes," "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
substances," "toxic substances," "toxic pollutants," "pollutants,"
"contaminants," or words of similar import under any Environmental Law; and (C)
any other chemical, material or substance, regulated under any Environmental
Law.
(iv) "Release" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including without limitation ambient air,
atmosphere, soil, surface water, groundwater or property).
4.17. Title to Assets. The Company and its Subsidiaries have
good and marketable title to all of their real and personal properties and
assets reflected in the 1999 Balance Sheet (other than assets disposed of since
March 31, 1999 in the ordinary course of business, and properties and assets
acquired since March 31, 1999), in each case free and clear of all Encumbrances
except for (i) liens for Taxes accrued but not yet payable; (ii) liens arising
as a matter of law in the ordinary course of business with respect to
obligations incurred after the date of the 1999 Balance Sheet, provided that the
obligations secured by such liens are not delinquent; (iii) such imperfections
of title and
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Encumbrances, if any, as would not have a Material Adverse Effect; and (iv) the
matters set forth in Section 4.7 of the Company Disclosure Letter. The Company
and its Subsidiaries own, or have valid leasehold interests in, all properties
and assets used in the conduct of their business. Any real property and other
assets held under lease by the Company or any of its Subsidiaries are held under
valid, subsisting and enforceable leases with such exceptions which,
individually or in the aggregate, would not interfere with the use made or
proposed to be made by the Company or any of its Subsidiaries of such property.
4.18. Insurance Policies. The Company and its Subsidiaries
have obtained and maintained in full force and effect insurance with insurance
companies or associations in such amounts, on such terms and covering such
risks, as is customarily carried by reasonably prudent persons conducting
businesses or owning or leasing assets similar to those conducted, owned or
leased by the Company, except where the failure to obtain or maintain such
insurance, individually or in the aggregate, would not have a Material Adverse
Effect.
4.19. Material Contracts. Section 4.19 of the Company
Disclosure Letter sets forth a list of all (i) Contracts for borrowed money or
guarantees thereof, (ii) Contracts containing non-compete covenants restricting
the business activities of the Company or its Subsidiaries and (iii) Contracts
for indebtedness payable to the Company or any of its Subsidiaries from any
officers or directors or affiliates (other than the Company's Subsidiaries). All
Contracts to which the Company or any of its Subsidiaries is a party, or by
which any of their respective assets are bound, are valid and binding, in full
force and effect and, to the Company's knowledge, enforceable against the
parties thereto in accordance with their respective terms, except where the
failure to be so valid and binding, in full force and effect or enforceable,
individually or in the aggregate, would not have a Material Adverse Effect.
Except as set forth in Section 4.19 of the Company Disclosure Letter, there is
not under any such Contract, any existing default, or event, which after notice
or lapse of time, or both, would constitute a default, by the Company or any of
its Subsidiaries, or to the Company's knowledge, any other party, other than any
such defaults or events which, individually or in the aggregate, would not have
a Material Adverse Effect. As of the date hereof, the Company has no outstanding
indebtedness for borrowed money and has not incurred any indebtedness under the
Loan and Security Agreement, dated April 20, 1999, between Greyrock Capital, a
Division of NationsCredit Commercial Corporation and the Company (the "Loan
Agreement").
4.20. Opinion of Financial Advisor. The Board of Directors of
the Company has received the written opinion of the Financial Advisor to the
effect that, as of May 25, 1999, the consideration to be received by the holders
of shares of Common Stock pursuant to the Offer and the Merger is fair to such
holders from a financial point of view.
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4.21. State Takeover Statutes. The Board of Directors of the
Company has approved the Offer, the Merger and this Agreement and such approval
is sufficient to render inapplicable to the Offer, the Merger, this Agreement
and the Option Agreement and the transactions contemplated hereby or by the
Ancillary Documents, the provisions of Section 203 of the DGCL to the extent, if
any, such Section is applicable to the transactions contemplated hereby or
thereby. To the Company's knowledge, no other state takeover statute or similar
statute or regulation applies to the Offer, the Merger or the transactions
contemplated hereby.
4.22. Required Vote of Company Stockholders. Unless the Merger
may be consummated in accordance with Section 253 of the DGCL, the only vote of
the stockholders of the Company required to adopt this Agreement, the Ancillary
Documents and to approve the Merger and the transactions contemplated hereby and
thereby, is the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock.
4.23. Rights Agreement. The Company has amended the Rights
Agreement so that the Rights Agreement will not be applicable to this Agreement,
the Offer, the announcement of the Offer, the purchase of shares of Common Stock
by Parent or Merger Sub pursuant to the Offer, the Merger, the Option Agreement
or any other action contemplated hereby or by the Ancillary Documents.
4.24. Year 2000 Compliance; Euro Compliance. (a) Except as set
forth in Section 4.24 of the Company Disclosure Letter or the Company Reports:
(i) the computer systems of the Company and its Subsidiaries are Year 2000
Compliant and Euro Compliant in all material respects; (ii) all inventory,
products and independently developed applications of the Company and its
Subsidiaries that is, consists of, includes or uses computer software is Year
2000 Compliant and Euro Compliant in all material respects; and (iii) to the
knowledge of the Company, any failure on the part of the customers of and
suppliers to the Company and its Subsidiaries to be Year 2000 Compliant by
December 31, 1999 will not have a Material Adverse Effect.
(b) The term "Year 2000 Compliant", with respect to a computer
system or software program, means that such computer system or program: (i) is
capable of recognizing, processing, managing, representing, interpreting and
manipulating correctly date-related data for dates earlier and later than
January 1, 2000; (ii) has the ability to provide date recognition for any data
element without limitation; (iii) has the ability to function automatically into
and beyond the year 2000 without human intervention and without any change in
operations associated with the advent of the year 2000; (iv) has the ability to
interpret data, dates and time correctly into and beyond the year 2000; (v) has
the ability not to produce noncompliance in existing data, nor otherwise corrupt
such data, into and beyond the year 2000; (vi) has the ability to process
correctly after January
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1, 2000, data containing dates before that date; and (vii) has the ability to
recognize all "leap year" dates, including February 29, 2000.
(c) The term "Euro Compliant, with respect to a computer
system or software program, means that such computer system or program contain
Euro functionality enabling companies to process multiple currencies and address
the requirements of Euro compliance.
ARTICLE 5
5. Representations and Warranties of Parent, Purchaser and Merger Sub.
Parent, Purchaser and Merger Sub hereby represent and warrant to the Company as
of the date of this Agreement as follows:
5.1. Existence; Good Standing; Corporate Authority. Each of
Parent, Purchaser and Merger Sub is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to own,
operate and lease its properties and carry on its business as now conducted,
except where the failure to have such power and authority, individually or in
the aggregate, would not materially adversely affect the ability of Parent,
Purchaser and Merger Sub to consummate the transactions contemplated hereby and
by the Ancillary Documents.
5.2. Authorization, Validity and Effect of Agreements. Each of
Parent, Purchaser and Merger Sub has the requisite corporate power and authority
to execute and deliver this Agreement and the Ancillary Documents and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Ancillary Documents and the consummation by
Parent, Purchaser and Merger Sub of the transactions contemplated hereby and
thereby have been duly and validly authorized by the respective Boards of
Directors of Parent, Purchaser and Merger Sub and by Purchaser as the sole
stockholder of Merger Sub and no other corporate proceedings on the part of
Parent, Purchaser or Merger Sub are necessary to authorize this Agreement and
the Ancillary Documents or to consummate the transactions contemplated hereby
and thereby. This Agreement has been, and any Ancillary Documents at the time of
execution will have been, duly and validly executed and delivered by Parent,
Purchaser and Merger Sub, and (assuming this Agreement and such Ancillary
Documents each constitutes a valid and binding obligation of the Company)
constitutes and will constitute the valid and binding obligations of each of
Parent, Purchaser and Merger Sub, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
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<PAGE> 29
5.3. No Violation. Neither the execution and delivery of this
Agreement or any of the Ancillary Documents by Parent, Purchaser and Merger Sub,
nor the consummation by them of the transactions contemplated hereby or thereby,
will (i) violate, conflict with or result in any breach of any provision of the
respective certificates of incorporation or by-laws of Parent, Purchaser or
Merger Sub; (ii) other than the filings provided for in Section 2.3 and the
filings required under the Exchange Act and the HSR Act, require any consent,
approval or authorization of, or declaration, filing or registration with, any
Governmental Entity, the lack of which, individually or in the aggregate, would
have a material adverse effect on the ability of Parent, Purchaser or Merger Sub
to consummate the transactions contemplated hereby, (iii) violate any Laws
applicable to Parent, Purchaser or the Merger Sub or any of their respective
assets, except for violations which, individually or in the aggregate, would not
have a material adverse effect on the ability of Parent, Purchaser or Merger Sub
to consummate the transactions contemplated hereby, and (iv) violate, conflict
with or result in a breach of any provision of, constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, result in the termination or in a right of termination of, accelerate the
performance required by or benefit obtainable under, result in the creation of
any Encumbrance upon any of the properties of Parent, Purchaser or Merger Sub
under, or result in there being declared void, voidable, or without further
binding effect, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any license, franchise, permit, lease,
contract, agreement or other instrument, commitment or obligation to which
Parent, Purchaser or Merger Sub is bound, except for any of the foregoing
matters which, individually or in the aggregate, would not materially adversely
affect the ability of Parent, Purchaser and Merger Sub to consummate the
transactions contemplated hereby and by the Ancillary Documents.
5.4. Interim Operations of Merger Sub. Merger Sub was formed
solely for the purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its operations as
contemplated hereby.
5.5. Financing. Parent has, and will have at the time of
consummation of the Offer and at the Effective Time, funds available to it
sufficient to consummate the Offer and the Merger on the terms contemplated
hereby. At the time of consummation of the Offer and at the Effective Time,
Parent and Purchaser will cause the Merger Sub to have funds available to it
sufficient to consummate the Offer and the Merger on the terms contemplated
hereby.
5.6. Interested Stockholder. Provided that the approvals set
forth in Section 1.3(a) are obtained, as of the date hereof, (i) neither Parent,
Purchaser nor Merger Sub nor any of their affiliates is, with respect to the
Company, an "Interested Stockholder", as such term is defined in Section 203 of
the DGCL and (ii) neither Parent,
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Purchaser nor Merger Sub nor any of their affiliates beneficially owns any
shares of Common Stock of the Company.
ARTICLE 6
6. Covenants.
6.1. Alternative Proposals. The Company agrees (a) that,
between the date hereof and the earlier of the Effective Time or the termination
of this Agreement in accordance with Article 8, neither it nor any of its
Subsidiaries shall, and it shall direct and use its best efforts to cause its
officers, directors, employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by it or any
of its Subsidiaries) (the "Representatives") not to, initiate, solicit or
encourage, directly or indirectly, any inquiries or the making or implementation
of any proposal or offer (including, without limitation, any proposal or offer
to its stockholders) with respect to a merger, acquisition, consolidation or
similar transaction involving, or any purchase of all or any significant portion
of the assets or any equity securities (other than pursuant to outstanding
Options, Warrants and Purchase Rights) of, the Company or any of its
Subsidiaries (any such proposal or offer being hereinafter referred to as an
"Alternative Proposal") or engage in any negotiations concerning, or provide any
confidential information or data to, afford access to the properties, books or
records of the Company or any of its Subsidiaries to, or have any discussions
with, any person relating to an Alternative Proposal, or otherwise facilitate
any effort or attempt to make or implement an Alternative Proposal; (b) that it
will immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing, and it will take the necessary steps to inform such
parties of the obligations undertaken in this Section 6.1; and (c) that it will
notify Purchaser immediately of the identity of the potential acquiror and the
terms of such person's or entity's proposal if any such inquiries or proposals
are received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with, the
Company; provided, however, that nothing contained in this Section 6.1 shall
prohibit the Company or its Subsidiaries or its Representatives, upon approval
by the Board, from (i) prior to the acceptance for payment of shares of Common
Stock by Merger Sub pursuant to the Offer, furnishing information to, or
entering into discussions or negotiations with, any person or entity that makes
an unsolicited bona fide proposal to acquire the Company pursuant to a merger,
consolidation, share exchange, purchase of substantially all of the assets of
the Company, a business combination or other similar transaction, if, and only
to the extent that, (A) such proposal was not solicited, encouraged or knowingly
facilitated by the Company, its Subsidiaries or their agents in violation of
this Section 6.1 or the letter, dated May 27, 1999, from Wonderware Corporation
to the Company, (B) such proposal is not subject to the receipt of any necessary
financing, unless the Board has determined
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in good faith, based on the advice of the Financial Advisor or other nationally
recognized investment banking firm, that such proposal is readily financeable
and involves consideration that provides a higher value per share than the
Merger Consideration, (C) the Board of Directors of the Company determines in
good faith after receiving a written opinion from outside counsel that the
failure to take such action would be a violation by the Board of Directors of
its fiduciary duties to stockholders imposed by Law and (D) prior to furnishing
information to, or entering into discussions or negotiations with, such person
or entity, the Company provides written notice to Purchaser to the effect that
it is furnishing information to, or entering into discussions or negotiations
with, such person or entity; and (ii) to the extent applicable, complying with
Rule 14e-2(a) promulgated under the Exchange Act with regard to an Alternative
Proposal. The Company shall keep Purchaser immediately informed of the status of
any such discussions or negotiations permitted pursuant to the previous sentence
(including the identify of such person or entity and the terms of any proposal).
Nothing in this Section 6.1 shall (x) permit the Company to terminate this
Agreement (except as specifically provided in Article 8 hereof), (y) permit the
Company to enter into any agreement with respect to an Alternative Proposal
during the term of this Agreement, or (z) affect any other obligation of the
Company under this Agreement.
6.2. Interim Operations. (a) From the date of this Agreement
until the Effective Time, except as set forth in Section 6.2 of the Company
Disclosure Letter, unless Purchaser has consented in writing thereto, the
Company shall, and shall cause its Subsidiaries to, (i) conduct its operations
according to its ordinary course of business consistent with past practice; (ii)
use its reasonable best efforts to preserve intact its business organizations
and goodwill, keep available the services of its officers and employees, and
maintain satisfactory relationships with those persons having business
relationships with them; (iii) upon the discovery thereof, promptly notify
Purchaser of the existence of any breach of any representation or warranty
contained herein (or, in the case of any representation or warranty that makes
no reference to Material Adverse Effect, any breach of such representation or
warranty in any material respect) or the occurrence of any event that would
cause any representation or warranty contained herein no longer to be true and
correct (or, in the case of any representation or warranty that makes no
reference to Material Adverse Effect, to no longer be true and correct in any
material respect); and (iv) promptly deliver to Purchaser true and correct
copies of any report, statement or schedule filed with the SEC subsequent to the
date of this Agreement, any internal monthly reports prepared for or delivered
to the Board of Directors after the date hereof and monthly financial statements
for the Company and its Subsidiaries for and as of each month end subsequent to
the date of this Agreement.
(b) From and after the date of this Agreement until the
Effective Time, except as set forth in Section 6.2 of the Company Disclosure
Letter, unless Purchaser has consented in writing thereto, the Company shall
not, and shall not permit its Subsidiaries to, (i) amend its certificate of
incorporation or by-laws; (ii) issue, sell or pledge any
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shares of its capital stock or other ownership interest in the Company (other
than issuances of Common Stock in respect of any exercise of stock options or
warrants outstanding on the date hereof and disclosed in Section 4.4 of the
Company Disclosure Letter or pursuant to the Purchase Plan as permitted by
Section 6.9) or its Subsidiaries, or any securities convertible into or
exchangeable for any such shares or ownership interest, or any rights, warrants
or options to acquire or with respect to any such shares of capital stock,
ownership interest, or convertible or exchangeable securities (or derivative
instruments in respect of the foregoing); (iii) effect any stock split or
otherwise change its capitalization as it exists on the date hereof; (iv) grant,
confer or award any option, warrant, convertible security or other right to
acquire any shares of its capital stock or take any action to cause to be
exercisable any otherwise unexercisable option under any existing stock option
plan (except as otherwise required by the terms of such unexercisable options or
the stock option plan); (v) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital stock or
other ownership interests (other than such payments by the Subsidiaries to the
Company); (vi) directly or indirectly redeem, purchase or otherwise acquire any
shares of its capital stock or capital stock of its Subsidiaries; (vii) sell,
lease or otherwise dispose of any of its assets (including capital stock of its
Subsidiaries), other than the sale or disposition of inventory or the license of
the Company's products in the ordinary course of business or the sale, lease or
other disposition of assets which, individually or in the aggregate, are
obsolete or not material to the Company and its Subsidiaries taken as a whole;
(viii) (x) acquire by merger, purchase or any other manner, any business or
entity or (y) otherwise acquire any assets which would be material, individually
or in the aggregate, to the Company and its Subsidiaries taken as a whole,
except for purchases of inventory, supplies or capital equipment in the ordinary
course of business consistent with past practice; (ix) incur or assume any
long-term or short-term debt for borrowed money, including debt under the Loan
Agreement; provided that, upon the written consent of Purchaser (which consent
shall not be unreasonably withheld), the Company may incur or assume debt under
the Loan Agreement at any time after 75 days after the date hereof; (x) assume,
guarantee or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the debt or other obligations of any other person
excluding the endorsement of checks and other commercial instruments in the
ordinary course of business, other than obligations (other than debt) of its
Subsidiaries incurred in the ordinary course of business; (xi) make or forgive
any loans, advances or capital continuations to, or investments in, any other
person; (xii) grant any stock-related or performance awards; (xiii) enter into
any new employment, severance, consulting or salary continuation agreements with
any officers, directors or employees or grant any increases in compensation or
benefits to employees; (xiv) except to the extent required by Law, adopt or
amend in any material respect any material employee benefit plan or arrangement;
(xv) amend, change or waive (or exempt any person or entity from the effect of)
the Rights Agreement, except as contemplated by Section 4.23; (xvi) permit any
insurance policy naming the Company or any Subsidiary as a beneficiary or a loss
payee
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to be canceled or terminated other than in the ordinary course of business;
(xvii) settle or compromise any pending or threatened Litigation; (xviii) make
any Tax election or settle any Tax liability other than settlements involving
solely the payment of money (without admission of liability) not to exceed
$50,000; and (xix) agree in writing or otherwise to take any of the foregoing
actions.
6.3. Company Stockholder Approval; Proxy Statement. (a) If
approval or action in respect of the Merger by the stockholders of the Company
is required by applicable Law, the Company, acting through the Board, shall (i)
call as promptly as practicable following the consummation of the Offer, a
meeting of its stockholders (the "Stockholders Meeting") for the purpose of
voting upon the Merger, (ii) hold the Stockholders Meeting as soon as
practicable following the purchase of shares of Common Stock pursuant to the
Offer, and (iii) recommend to its stockholders the approval of the Merger. The
record date for the Stockholders Meeting shall be a date subsequent to the date
on which Purchaser or Merger Sub becomes a record holder of Common Stock
purchased pursuant to the Offer.
(b) If required by applicable Law, the Company will, as soon
as practicable following the expiration of the Offer, prepare and file a
preliminary Proxy Statement (such proxy statement, and any amendments or
supplements thereto, the "Proxy Statement") or, if applicable, an information
statement with the SEC with respect to the Stockholders Meeting and will use its
best efforts to respond to any comments of the SEC or its staff and to cause the
Proxy Statement to be cleared by the SEC. The Company will notify Purchaser of
the receipt of any comments from the SEC or its staff and of any request by the
SEC or its staff for amendments or supplements to the Proxy Statement or for
additional information and will supply Purchaser with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC or its staff, on the other hand, with respect to the Proxy
Statement or the Merger. The Company shall give Purchaser and its counsel the
opportunity to review the Proxy Statement prior to it being filed with the SEC
and shall give Purchaser and its counsel the opportunity to review all
amendments and supplements to the Proxy Statement and all responses to requests
for additional information and replies to comments prior to their being filed
with, or sent to, the SEC. Each of the Company and Purchaser agrees to use its
best efforts, after consultation with the other parties hereto, to respond
promptly to all such comments of and requests by the SEC. As promptly as
practicable after the Proxy Statement has been cleared by the SEC, the Company
shall mail the Proxy Statement to the stockholders of the Company. If at any
time prior to the approval of this Agreement by the Company's stockholders there
shall occur any event which should be set forth in an amendment or supplement to
the Proxy Statement, the Company will prepare and mail to its stockholders such
an amendment or supplement.
(c) The Company represents and warrants that the Proxy
Statement will comply in all material respects with the Exchange Act and, at the
respective times filed
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with the SEC and distributed to stockholders of the Company, will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation or warranty as to
any information included in the Proxy Statement that was provided by Parent,
Purchaser or Merger Sub. Purchaser represents and warrants that none of the
information supplied by Parent, Purchaser or Merger Sub for inclusion in the
Proxy Statement will, at the respective times filed with the SEC and distributed
to stockholders of the Company, 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 the light of the circumstances under
which they were made, not misleading.
(d) Following the consummation of the Offer, the Company shall
use its best efforts to obtain the necessary approvals by its stockholders of
the Merger, this Agreement and the transactions contemplated hereby.
(e) Parent agrees to cause all shares of Common Stock
purchased by Merger Sub pursuant to the Offer and all other shares of Common
Stock owned by Purchaser, Merger Sub or any other subsidiary or affiliate of
Parent to be voted in favor of the approval of the Merger.
6.4. Filings; Other Action. Subject to the terms and
conditions herein provided, the Company, Parent, Purchaser, and Merger Sub
shall: (a) use their reasonable best efforts to cooperate with one another in
(i) determining which filings other than under the Exchange Act and under the
HSR are required to be made prior to the expiration of the Offer or the
Effective Time with, and which consents, approvals, permits or authorizations
are required to be obtained prior to the Effective Time from, Governmental
Entities or other third parties in connection with the execution and delivery of
this Agreement and any other Ancillary Documents and the consummation of the
transactions contemplated hereby and thereby and (ii) timely making all filings
under the Exchange Act and under the HSR and all such other filings and timely
seek all required consents, approvals, permits, authorizations and waivers; and
(b) use their reasonable best efforts to take, or cause to be taken, all other
action and do, or cause to be done, all other things necessary, proper or
appropriate to consummate and make effective the transactions contemplated by
this Agreement at the earliest practicable time. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purpose of this Agreement, the proper officers and directors of Parent,
Purchaser and the Surviving Corporation shall take all such necessary action.
6.5. Access to Information. (a) From the date of this
Agreement until the Closing, the Company shall, and shall cause its Subsidiaries
to, (i) give Purchaser and
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its authorized representatives full access to all books, records, personnel,
offices and other facilities and properties of the Company and its Subsidiaries
and their accountants and accountants' work papers, (ii) permit Purchaser to
make such copies and inspections thereof as Purchaser may reasonably request and
(iii) furnish Purchaser with such financial and operating data and other
information with respect to the business and properties of the Company and its
Subsidiaries as Purchaser may from time to time reasonably request; provided
that no investigation or information furnished pursuant to this Section 6.5
shall affect any representation or warranty made herein by the Company or the
conditions to the obligations of Parent, Purchaser and Merger Sub to consummate
the transactions contemplated by this Agreement.
(b) All such information shall be subject to the terms and
conditions of the Confidentiality Agreement.
6.6. Publicity. The initial press release relating to this
Agreement shall be issued jointly by the Company and Parent. Thereafter, subject
to their respective legal obligations, the Company and Parent shall consult with
each other, and use reasonable efforts to agree upon the text of any press
release, before issuing any such press release or otherwise making public
statements with respect to the transactions contemplated hereby and in making
any filings with any Governmental Entity or with any national securities
exchange with respect thereto.
6.7. Further Action. Each party hereto shall, subject to the
fulfillment at or before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such further acts
and execute such documents as may be reasonably required to effect the Merger.
6.8. Insurance; Indemnity. (a) Purchaser will cause the
Surviving Corporation to maintain in effect for not less than three years after
the Effective Time, the Company's current directors and officers insurance
policies, if such insurance is obtainable (or policies of at least the same
coverage containing terms and conditions no less advantageous to the current and
all former directors and officers of the Company) with respect to acts or
failures to act prior to the Effective Time, including acts relating to the
transactions contemplated by this Agreement; provided, however, that in order to
maintain or procure such coverage, Purchaser and the Surviving Corporation shall
not be required to maintain or obtain policies providing such coverage except to
the extent such coverage can be provided at an annual cost of no greater than
1.5 times the most recent annual premium paid by the Company prior to the date
hereof (the "Cap"); and provided, further, that if equivalent coverage cannot be
obtained, or can be obtained only by paying an annual premium in excess of the
Cap, Purchaser or the Surviving Corporation shall only be required to obtain as
much coverage as can be obtained by paying an annual premium equal to the Cap.
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(b) From and after the Effective Time, Purchaser and the
Surviving Corporation shall indemnify and hold harmless each person who is, or
has been at any time prior to the date hereof or who becomes prior to the
Effective Time, an officer or director of the Company or any of its Subsidiaries
(each, an "Indemnified Party"), in connection with any claim, action, suit,
proceeding or investigation (an "Action") arising out of or pertaining to acts
or omissions by them in their capacities as such, which acts or omissions
occurred prior to the Effective Time, whether asserted or claimed prior to, at
or after the Effective Time, at least to the extent that such Indemnified Party
is presently indemnified by the Company. In the event of any such Action, the
Surviving Corporation shall control the defense of such Action with counsel
selected by the Surviving Corporation, which counsel shall be reasonably
acceptable to the Indemnified Party; provided, however, that the Indemnified
Party shall be permitted to participate in the defense of such Action through
counsel selected by the Indemnified Party, which counsel shall be reasonably
acceptable to the Surviving Corporation, at the Indemnified Party's expense.
Notwithstanding the foregoing, if there is any conflict between the Surviving
Corporation and any Indemnified Parties or there are additional defenses
available to any Indemnified Parties, the Indemnified Parties shall be permitted
to participate in the defense of such Action with counsel selected by the
Indemnified Parties, which counsel shall be reasonably acceptable to the
Surviving Corporation, and Purchaser shall cause the Surviving Corporation to
pay the reasonable fees and expenses of such counsel, as accrued and in advance
of the final disposition of such Action to the fullest extent permitted by
applicable law; provided, however, that the Surviving Corporation shall not be
obligated to pay the reasonable fees and expenses of more than one counsel for
all Indemnified Parties in any single Action except to the extent that, in the
opinion of counsel for the Indemnified Parties, two or more of such Indemnified
Parties have conflicting interests in the outcome of such Action. The Surviving
Corporation shall not be liable for any settlement effected without its written
consent, which consent shall not unreasonably be withheld.
(c) Purchaser shall cause the Surviving Corporation promptly
to adopt and keep in effect provisions in the Surviving Corporation's
certificate of incorporation and by-laws to provide for exculpation of director
and officer liability and indemnification (and advancement of expenses related
thereto) of the past and present officers and directors of the Company at least
to the extent they are presently indemnified by the Company and such provisions
shall not be amended except as either required by applicable Law or to make
changes permitted by Law that would enhance the rights of past or present
officers and directors to indemnification or advancement of expenses. Purchaser
shall cause the Surviving Corporation to comply with the terms and conditions of
all existing indemnification agreements with the Company's officers and
directors.
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(d) If Parent, Purchaser or the Surviving Corporation or any
of their respective successors or assigns (i) shall consolidate with or merge
into any other corporation or other entity and shall not be the continuing or
surviving corporation or entity of the consolidation or merger or (ii) shall
transfer all or substantially all of its properties and assets to any
individual, corporation or other entity, then and in each such case, proper
provisions shall be made so that the successors and assigns of Parent, Purchaser
or the Surviving Corporation shall assume all of the obligations set forth in
this Section 6.8.
(e) The provisions of this Section 6.8 are intended to be for
the benefit of, and shall be enforceable by, each of the Indemnified Parties,
their heirs and their representatives.
6.9. Employee Stock Purchase Plan. The Company shall take such
action as is required to cause the current "Payment Period" under the Purchase
Plan to terminate on the earlier of the Effective Time and July 23, 1999. If the
Offer is consummated on or before the final day of the current Payment Period
under the Purchase Plan, the holders of Purchase Rights shall receive from the
Company, promptly after the last day of the Payment Period, a cash payment in
exchange for each share of Common Stock issuable upon exercise of such holder's
Purchase Rights as of the last day of the Payment Period as set forth in the
first sentence hereof, in an amount equal to the Merger Consideration, and each
such Purchase Right shall terminate automatically upon such payment. If the
Offer is not consummated on or before the final day of the current Payment
Period, the Purchase Rights will be exercisable solely for Common Stock in
accordance with the terms of the Purchase Plan. So long as this Agreement has
not been terminated, no additional Payment Period shall begin after the
termination of the current Payment Period.
6.10. Employee Benefits Plan. (a) From and after the Effective
Time, the Surviving Corporation and its Subsidiaries will honor in accordance
with their terms all existing employment, severance, consulting and salary
continuation agreements between the Company or any of its Subsidiaries and any
current or former officer, director, employee or consultant of the Company or
any of its Subsidiaries or group of such officers, directors, employees or
consultants which agreements have been previously disclosed to Purchaser.
(b) To the extent permitted under applicable law, each
employee of the Company or its subsidiaries shall be given credit for all
service with the Company or its Subsidiaries (or service credited by the Company
or its Subsidiaries) under all employee benefit plans, programs, policies and
arrangements maintained by the Surviving Corporation or Purchaser in which they
participate or in which they become participants for purposes of eligibility and
vesting (but not benefit accrual), but only to the extent such years of service
would have been credited under the relevant plan of Purchaser or its
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Subsidiaries if the employee had been a similarly situated employee of Purchaser
or its Subsidiaries during the relevant period of time.
(c) To the extent that any benefit plan of the Surviving
Corporation or any of its Subsidiaries in which an employee of the Company or
its Subsidiaries participates after the Effective Time provides medical or
dental benefits, the Surviving Corporation shall cause any eligible expenses
incurred by such employee on or before the Effective Time under a similar
Company Employee Benefit Plan to be taken into account under the Surviving
Corporation or its Subsidiaries' plan for purposes of satisfying all deductible,
coinsurance and maximum out-of-pocket requirements applicable to such employee
and his or her covered dependents for the applicable plan year. The Surviving
Corporation agrees to cause to maintain the Company's Flexible Benefits Plan, as
in effect as of the date hereof, through the end of its current plan year.
ARTICLE 7
7. Conditions.
7.1. Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction or waiver, where permissible, prior to the Effective
Time, of the following conditions:
(a) If approval of this Agreement and the Merger by the
holders of Common Stock is required by applicable Law, this Agreement and the
Merger shall have been approved by the requisite vote of such holders.
(b) There shall not have been issued any injunction, or issued
or enacted any Law, which prohibits or has the effect of prohibiting the
consummation of the Merger or makes such consummation illegal.
7.2. Conditions to Obligation of Purchaser and Merger Sub to
Effect the Merger. The obligations of Purchaser and Merger Sub to effect the
Merger shall be further subject to the satisfaction or waiver, on or prior to
the Effective Time, of the condition that Purchaser shall have accepted for
payment and paid for all of the shares of Common Stock tendered pursuant to the
Offer.
ARTICLE 8
8. Termination.
8.1. Termination. This Agreement, notwithstanding approval
thereof by the stockholders of the Company, may be terminated at any time prior
to the Effective Time:
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(a) by mutual written consent of the Board of Directors of the
Company and the Purchaser;
(b) by the Purchaser or the Company:
(i) if the Effective Time shall not have occurred on
or before November 30, 1999 (provided that the right to
terminate this Agreement pursuant to this clause (i) shall not
be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of or
resulted in the failure of the Effective Time to occur on or
before such date);
(ii) if there shall be any Law that makes
consummation of the Offer or the Merger illegal or prohibited,
or if any court of competent jurisdiction in the United States
or other Governmental Entity shall have issued an order,
judgment, decree or ruling, or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and
such order, judgment, decree, ruling or other action shall
have become final and non-appealable;
(iii) if the Offer terminates or expires on account
of the failure of any condition specified in Exhibit A without
the Merger Sub having purchased any shares of Common Stock
thereunder (provided that the right to terminate this
Agreement pursuant to this clause (iii) shall not be available
to any party whose failure to fulfill any obligation under
this Agreement has been the cause of or resulted in the
failure of any such condition); or
(iv) if, upon a vote at a duly held meeting, or upon
any adjournment thereof, the stockholders of the Company shall
have failed to give any approval required by applicable Law;
(c) by the Company if there is an Alternative Proposal which
the Board of Directors in good faith determines is more favorable from a
financial point of view to the stockholders of the Company as compared to the
Offer and the Merger, and the Board of Directors determines in good faith after
receiving a written opinion from outside counsel, that failure to terminate this
Agreement would constitute a violation by the Board of Directors of its
fiduciary duties to stockholders imposed by Law; provided, however, that the
right to terminate this Agreement pursuant to this Section 8.1(c) shall not be
available (i) if the Company has breached its obligations under Section 6.1, or
(ii) if the Alternative Proposal (x) is subject to a financing condition or (y)
involves consideration that is not entirely cash or does not permit stockholders
to receive the payment of the offered consideration in respect of all shares at
the same time, unless the Board has determined in good faith, based on the
advice of the Financial Advisor or other nationally recognized
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investment banking firm, that (in the case of clause (x)) the Alternative
Proposal is readily financeable and (in the case of clause (y)) that such offer
provides a higher value per share than the consideration per share pursuant to
the Offer or the Merger, or (iii) if, prior to or concurrently with any
purported termination pursuant to this Section 8.1(c), the Company shall not
have paid the fees contemplated by Section 8.2, or (iv) if the Company has not
provided Purchaser and Merger Sub with three business days prior written notice
of its intent to so terminate this Agreement and delivered to the Purchaser and
Merger Sub a copy of the written agreement embodying the Alternative Proposal in
its then most definitive form; and
(d) by Purchaser if the Board of Directors shall have failed
to recommend, or shall have withdrawn, modified or amended its approval in a
manner adverse or recommendation of the Offer or the Merger in a manner adverse
to Purchaser, or shall have resolved to do any of the foregoing.
8.2. Effect of Termination and Abandonment. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
Article 8, all obligations of the parties hereto shall terminate, except the
obligations of the parties pursuant to this Section 8.2 and Sections 6.5(b),
6.6, 9.5 and 9.6. If this Agreement (i) shall terminate pursuant to Section
8.1(b)(iii) as a result of the failure of the Company to satisfy any of the
conditions set forth in paragraphs (d), (e) or (f) of Exhibit A, or pursuant to
Sections 8.1(c) or 8.1(d), or (ii) in the event that an Alternative Proposal
shall have been made known to the Company or shall have been made directly to
the stockholders of the Company generally or shall have otherwise become
publicly known or any person shall have publicly announced an intention (whether
or not conditional) to make an Alternative Proposal and thereafter this
Agreement is terminated by either Purchaser or the Company pursuant to (x)
Section 8.1(b)(i) or (y) Section 8.1(b)(iii) as a result of the failure of the
Minimum Condition to be satisfied prior to the expiration of the Offer, then the
Company shall concurrently with any such termination, pay to Purchaser a fee
equal to $3,000,000 (the "Termination Fee"); provided, however, that the
Termination Fee shall not be payable to Purchaser pursuant to clause (ii) of
this Section 8.2 unless and until within 12 months of such termination the
Company or any of its Subsidiaries enters into any definitive agreement with
respect to any Alternative Proposal or any Alternative Proposal is consummated,
in which event the Termination Fee shall be payable upon consummation thereof.
The parties agree that such Termination Fee shall be Parent's, Purchaser's and
Merger Sub's exclusive remedy for any loss, liability, damage or claim arising
out of or in connection with any such termination of this Agreement. The
Termination Fee shall be exclusive of any expenses paid pursuant to Section 9.6.
The Company acknowledges that the agreements contained in this Section 8.2 are
an integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Parent, Purchaser and Merger Sub would not enter into
this Agreement.
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8.3. Amendment. To the extent permitted by applicable law,
this Agreement may be amended by action taken by or on behalf of the Board of
Directors of the Company (subject to Section 1.4) and Parent and Purchaser at
any time before or after adoption of this Agreement by the stockholders of the
Company but, after any such stockholder approval, no amendment shall be made
which decreases the Merger Consideration or which adversely affects the rights
of, or the income tax consequences to, the Company's stockholders hereunder
without the approval of such stockholders. This Agreement may not be amended
except by an instrument in writing signed on behalf of all of the parties.
8.4. Extension; Waiver. At any time prior to the Effective
Time, any party hereto, by action taken by its board of directors, may, to the
extent legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE 9
9. General Provisions.
9.1. Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement, or in any instrument
delivered pursuant to this Agreement, shall survive the Effective Time.
9.2. Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by facsimile, to the applicable
party at the following addresses or facsimile numbers (or at such other address
or telecopy number for a party as shall be specified by like notice):
If to Purchaser or Merger Sub: If to the Company:
Foxboro Company Marcam Solutions, Inc.
33 Commercial Street 95 Wells Avenue
B52-SI Newton, Massachusetts 02159
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<PAGE> 42
Foxboro, Massachusetts 02035-2099 Attention: President
Attention: Dr. George Sarney Facsimile: (617) 964-5614
Facsimile: (508) 549-6689
With copies to: With a copy to:
Fried, Frank, Harris, Testa, Hurwitz & Thibeault, LLP
Shriver & Jacobson 125 High Street
One New York Plaza Boston, Massachusetts 02110
New York, NY 10004 Attention: Mark H. Burnett, Esq. and
Attention: Paul M. Reinstein, Esq. Edwin L. Miller, Jr., Esq.
Facsimile: (212) 859-4000 Facsimile (617) 248-7100
and
Wonderware Corporation
100 Technology Drive
Irvine, California 92618
Attention: Philip Maynard
Facsimile: (949) 453-6543
9.3. Assignment; Binding Effect. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties; provided, however, that either
Purchaser or Merger Sub (or both) may assign its rights hereunder (including,
without limitation, the right to make the Offer and/or to purchase shares of
Common Stock pursuant to the Offer) to a wholly owned subsidiary or subsidiaries
of Parent; and, further provided that nothing shall relieve the assignor from
its obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns. Notwithstanding anything contained in
this Agreement to the contrary, except for the provisions of Sections 6.8 and
6.10 which may be enforced directly by the beneficiaries thereof, nothing in
this Agreement, expressed or implied, is intended to confer on any person other
than the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
9.4. Entire Agreement. This Agreement, the Confidentiality
Agreement, the Company Disclosure Letter, the Exhibits, the Ancillary Documents
and any other documents delivered by the parties in connection herewith
constitute the entire
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<PAGE> 43
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto.
9.5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company, Parent, Purchaser and Merger
Sub hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of any federal district court located in the City of Wilmington,
Delaware or any court of the State of Delaware located in the City of Wilmington
(the "Delaware Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum.
9.6. Fees and Expenses. Except as otherwise provided in
Section 8.2, whether or not the Offer or the Merger is consummated, all fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs and expenses.
9.7. Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(i) "affiliate" of a Person means a Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned Person.
(ii) "knowledge" of any party hereto shall mean the
knowledge of any of the executive officers of that party after due inquiry by
such officers.
(iii) "Person" means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization, entity or group (as defined in the Exchange Act).
9.8. Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever. The table of contents contained
in this Agreement is for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.9. Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural
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<PAGE> 44
persons shall include corporations and partnerships and vice versa. Whenever the
words "include," "includes" or "including" are used in this Agreement, they
shall be understood to be followed by the words "without limitation."
9.10. Waivers. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement or in any of the Ancillary Documents. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
9.11. Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
9.12. Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware Court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
9.13. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be an original. All such counterparts shall together constitute
one and the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
MARCAM SOLUTIONS, INC. INVENSYS, plc
By: /s/ Jonathan C. Crane By: /s/ Allen Yurko
----------------------------- -----------------------------
Name: Jonathan C. Crane Name: Allen Yurko
Title: President Title: President and CEO
M ACQUISITION CORP.
By: /s/ George Sarney
-----------------------------
Name: George Sarney
Title: President
M MERGER SUB, INC.
By: /s/ Thomas G. Foley
-----------------------------
Name: Thomas G. Foley
Title: Vice President
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<PAGE> 46
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1................................................................................................ 1
1. The Offer................................................................................... 1
1.1. The Offer.......................................................................... 1
1.2. Actions by Purchaser and Merger Sub................................................ 3
1.3. Actions by the Company............................................................. 3
1.4. Directors.......................................................................... 5
ARTICLE 2................................................................................................ 6
2. The Merger.................................................................................. 6
2.1. The Merger......................................................................... 6
2.2. The Closing........................................................................ 7
2.3. Effective Time..................................................................... 7
2.4. Certificate of Incorporation, Bylaws, Directors and Officers of the
Surviving Corporation.............................................................. 7
ARTICLE 3................................................................................................ 8
3. Effect of the Merger on Securities of Merger Sub and the Company............................ 8
3.1. Merger Sub Stock................................................................... 8
3.2. Company Securities................................................................. 8
3.3. Exchange of Certificates Representing Common Stock................................. 10
3.4. Adjustment of Merger Consideration................................................. 11
3.5. Dissenting Company Stockholders.................................................... 11
3.6. Merger Without Meeting of Stockholders............................................. 11
ARTICLE 4................................................................................................ 11
4. Representations and Warranties of the Company............................................... 12
4.1. Existence; Good Standing; Corporate Authority...................................... 12
4.2. Authorization, Validity and Effect of Agreements................................... 12
4.3. Compliance with Laws............................................................... 13
4.4. Capitalization, etc. .............................................................. 13
4.5. Subsidiaries....................................................................... 14
4.6. No Violation....................................................................... 14
4.7. Company Reports; Offer Documents................................................... 15
4.8. Litigation......................................................................... 17
4.9. Absence of Certain Changes......................................................... 17
4.10. Taxes.............................................................................. 18
4.11. Employee Benefit Plans............................................................. 19
4.12. Labor and Employment Matters....................................................... 20
4.13. Brokers............................................................................ 21
4.14. Intellectual Property Rights....................................................... 21
</TABLE>
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<TABLE>
<S> <C>
4.15. Permits............................................................................ 23
4.16. Environmental Matters.............................................................. 23
4.17. Title to Assets.................................................................... 25
4.18. Insurance Policies................................................................. 25
4.19. Material Contracts................................................................. 25
4.20. Opinion of Financial Advisor....................................................... 26
4.21. State Takeover Statutes............................................................ 26
4.22. Required Vote of Company Stockholders.............................................. 26
4.23. Rights Agreement................................................................... 26
4.24. Year 2000 Compliance, Euro Compliance.............................................. 26
ARTICLE 5................................................................................................ 27
5. Representations and Warranties of Purchaser and Merger Sub.................................. 27
5.1. Existence; Good Standing; Corporate Authority...................................... 28
5.2. Authorization, Validity and Effect of Agreements................................... 28
5.3. No Violation....................................................................... 29
5.4. Interim Operations of Merger Sub................................................... 29
5.5. Financing.......................................................................... 29
5.6. Interested Stockholder............................................................. 29
ARTICLE 6................................................................................................ 29
6. Covenants................................................................................... 29
6.1. Alternative Proposals.............................................................. 31
6.2. Interim Operations................................................................. 31
6.3. Company Stockholder Approval; Proxy Statement...................................... 32
6.4. Filings; Other Action.............................................................. 34
6.5. Access to Information.............................................................. 35
6.6. Publicity.......................................................................... 35
6.7. Further Action..................................................................... 35
6.8. Insurance; Indemnity............................................................... 35
6.9. Employee Stock Purchase Plan....................................................... 36
6.10. Employee Benefits Plan............................................................. 37
ARTICLE 7................................................................................................ 38
7. Conditions.................................................................................. 38
7.1. Conditions to Each Party's Obligation to Effect the Merger......................... 38
7.2. Conditions to Obligation of Purchaser and Merger Sub to Effect the
Merger............................................................................. 38
ARTICLE 8................................................................................................ 38
8. Termination................................................................................. 38
8.1. Termination........................................................................ 38
8.2. Effect of Termination and Abandonment.............................................. 40
8.3. Amendment.......................................................................... 40
8.4. Extension; Waiver.................................................................. 41
</TABLE>
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<PAGE> 48
<TABLE>
<S> <C>
ARTICLE 9................................................................................................ 41
9. General Provisions......................................................................... 41
9.1. Nonsurvival of Representations and Warranties...................................... 41
9.2. Notices............................................................................ 41
9.3. Assignment; Binding Effect......................................................... 42
9.4. Entire Agreement................................................................... 42
9.5. Governing Law...................................................................... 42
9.6. Fee and Expenses................................................................... 43
9.7. Certain Definitions................................................................ 43
9.8. Headings........................................................................... 43
9.9. Interpretation..................................................................... 43
9.10. Waivers............................................................................ 43
9.11. Severability....................................................................... 43
9.12. Enforcement of Agreement........................................................... 44
9.13. Counterparts....................................................................... 44
</TABLE>
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<PAGE> 49
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer, Merger Sub shall not be
required to accept for payment or pay for, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) of the Exchange Act, any shares
of Common Stock not theretofore accepted for payment or paid for and may
terminate or amend the Offer as to such shares of Common Stock to the extent
permitted by this Agreement unless (i) there shall have been validly tendered
and not withdrawn prior to the expiration of the Offer that number of shares of
Common Stock which would represent at least a majority of the outstanding shares
of Common Stock on a fully diluted basis (the "Minimum Condition") and (ii) any
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, applicable to the purchase of shares of Common Stock pursuant to the
Offer shall have expired or been terminated. Furthermore, notwithstanding any
other term of the Offer or this Agreement, Merger Sub shall not be required to
accept for payment or, subject as aforesaid, to pay for any shares of Common
Stock not theretofore accepted for payment or paid for, and may terminate or
amend the Offer to the extent permitted by this Agreement if at any time on or
after the date of this Agreement and before the acceptance of such shares of
Common Stock for payment or the payment therefor, any of the following
conditions shall exist or occur and remain in effect:
(a) there shall have been instituted, pending or threatened in
writing any litigation by the Government of the United States or by any
agency or instrumentality thereof that seeks to: (i) challenge the
acquisition by Purchaser or Merger Sub (or any of its affiliates) of
shares of Common Stock pursuant to the Offer or restrain or prohibit
the making or consummation of the Offer or the Merger, or obtain
damages in connection thereunder, (ii) make the purchase of or payment
for some or all of the shares of Common Stock pursuant to the Offer or
the Merger illegal, (iii) in connection with the Offer or the Merger or
the transactions contemplated by the Merger Agreement, impose
limitations on the ability of Purchaser or Merger Sub (or any of their
affiliates) effectively to acquire or hold, or to require Purchaser,
Merger Sub or the Company or any of their respective affiliates or
subsidiaries to dispose of or hold separate, any material portion of
their assets or the business of any one of them, (iv) impose
limitations on the ability of Purchaser, Merger Sub or their affiliates
to exercise full rights of ownership of the shares of Common Stock
purchased by it, including, without limitation, the right to vote the
shares purchased by it on all matters properly presented to the
stockholders of the Company, or (v) in connection with the Offer or the
Merger or the transactions contemplated by the Merger Agreement, affect
the Purchaser, the Merger Sub, Company or any of their respective
affiliates
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<PAGE> 50
which, in the sole judgment of Purchaser, may have or be likely to have
a Material Adverse Effect or a material adverse effect on the Purchaser
and Merger Sub or any of their affiliates or otherwise make
consummation of the Offer or the Merger or the consummation of the
transactions contemplated hereunder unduly burdensome; or
(b) there shall have been promulgated, enacted, entered,
enforced or deemed applicable to the Offer or the Merger, by any
Governmental Entity any Law that could directly or indirectly result in
any of the consequences referred to in subsection (a) above; or
(c) this Agreement shall have been terminated in accordance
with its terms; or
(d) (i) any of the representations and warranties made by the
Company in this Agreement that are qualified by materiality or Material
Adverse Effect shall not have been true and correct in all respects
when made (except to the extent that any such representation or
warranty refers specifically to another date, in which case such
representation or warranty shall be true and correct in all respects as
of such other date), or the other representations and warranties made
by the Company in this Agreement shall not have been true and correct
in all material respects when made (except to the extent that any such
representation or warranty refers specifically to another date, in
which case such representation or warranty shall be true and correct in
all material respects as of such other date), or (ii) the Company shall
have breached or failed to comply in any material respect with any of
its obligations under this Agreement; or
(e) any corporation, entity, "group" or "person" (as defined
in the Exchange Act), other than Purchaser or Merger Sub, shall have
acquired beneficial ownership of a majority of the outstanding shares
of Common Stock; or
(f) the Company's Board of Directors shall have modified or
amended its recommendation of the Offer in any manner adverse to
Purchaser or Merger Sub or shall have withdrawn its recommendation of
the Offer or shall have recommended acceptance of any Alternative
Proposal or shall have resolved to do any of the foregoing; or
(g) there shall have occurred (i) any general suspension of,
or limitation on prices for, trading in securities on any national
securities exchange or in the over the counter market in the United
States, (ii) a declaration of any banking moratorium by federal or
state authorities or any suspension of payments in respect of banks or
any limitation (whether or not mandatory) imposed by federal or state
authorities on the extension of credit by lending institutions in the
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<PAGE> 51
United States, or (iii) in the case of any of the foregoing existing at
the time of the commencement of the Offer, in the sole judgment of the
Purchaser, a material acceleration or worsening thereof.
Other than the Minimum Condition, the foregoing conditions are for the
sole benefit of Purchaser and Merger Sub and may be asserted by Purchaser or
Merger Sub regardless of the circumstances (including any action or inaction by
Purchaser or the Company) giving rise to any such condition and may be waived by
Purchaser or Merger Sub, in whole or in part, at any time and from time to time,
in the sole discretion of Purchaser. The failure by Purchaser or Merger Sub at
any time to exercise any of the foregoing rights will not be deemed a waiver of
any right, the waiver of such right with respect to any particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each right will be deemed an ongoing right which may be
asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions,
all tendered shares of Common Stock shall promptly be returned by the depositary
to the tendering stockholders.
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<PAGE> 1
Exhibit (c)(2)
TENDER AND OPTION AGREEMENT
between
M ACQUISITION CORP.,
M MERGER SUB, INC.
and
THE STOCKHOLDERS LISTED ON SCHEDULE A
Dated as of May 27, 1999
<PAGE> 2
TENDER AND OPTION AGREEMENT
TENDER AND OPTION AGREEMENT, dated as of May 27, 1999 (this
"Agreement"), between M Acquisition Corp., a Delaware corporation ("Purchaser"),
M Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Purchaser ("Merger Sub"), and each of the persons listed on Schedule A hereto
(each a "Stockholder" and, collectively, the "Stockholders").
RECITALS
WHEREAS, Invensys, plc ("Parent") Purchaser, Merger Sub and
Marcam Solutions, Inc., a Delaware corporation (the "Company"), propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the same
may be amended or supplemented, the "Merger Agreement") providing for, among
other things, the making of the Offer by Purchaser for all of the issued and
outstanding shares of common stock, par value $0.01 per share, of the Company
(referred to herein as "Common Stock"), and the merger of the Company and Merger
Sub on the terms and conditions set forth in the Merger Agreement (the
"Merger");
WHEREAS, each Stockholder is the beneficial owner of the
shares of Common Stock, Options, Warrants and Rights set forth opposite such
Stockholder's name on Schedule A hereto (collectively referred to herein as the
"Securities" of such Stockholder; such Securities, as such Securities may be
adjusted by stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, together with shares of Common Stock issuable
upon the exercise of Options, Warrants and Preferred Shares issuable upon the
exercise of Rights being referred to herein as the "Shares" of such
Stockholder); and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent, Purchaser and Merger Sub have requested that the
Stockholders enter into this Agreement;
NOW, THEREFORE, to induce Purchaser and Merger Sub to enter
into, and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and agreements
contained herein, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
Stockholder, severally and not jointly, represents and warrants to Purchaser and
Merger
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<PAGE> 3
Sub, as of the date hereof and as of the Closing (as defined below), as
follows:
(a) The Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of, and has good title to, all of the Shares,
free and clear of any pledge, hypothecation, claim, security interest, charge,
encumbrance, voting trust agreement, interest, option, lien, charge or similar
restriction or limitation, including any restriction on the right to vote, sell
or otherwise dispose of the Shares, other than those arising under the federal
and state securities laws (each, a "Lien"), except as set forth in this
Agreement.
(b) The Shares constitute all of the securities (as defined in
Section 3(a)(10) of the Exchange Act) of the Company beneficially owned,
directly or indirectly, by the Stockholder.
(c) Except for the Shares, the Stockholder does not, directly
or indirectly, beneficially own or have any option, warrant or other right to
acquire any securities of the Company that are or may by their terms become
entitled to vote or any securities that are convertible or exchangeable into or
exercisable for any securities of the Company that are or may by their terms
become entitled to vote, nor is the Stockholder subject to any contract,
commitment, arrangement, understanding, restriction or relationship (whether or
not legally enforceable), other than this Agreement, that provides for such
Stockholder to vote or acquire any securities of the Company. The Stockholder
holds exclusive power to vote the Common Stock and has not granted a proxy to
any other Person to vote the Common Stock (including those issuable upon
exercise of the Options, Warrants or Rights), subject to the limitations set
forth in this Agreement.
(d) This Agreement has been duly executed and delivered by the
Stockholder.
(e) Neither the execution and delivery of this Agreement nor
the performance by the Stockholder of the Stockholder's obligations hereunder
will conflict with, result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would result in a
default) or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the creation of any Lien on any Shares under, (i) any
contract, commitment, agreement, understanding, arrangement or restriction of
any kind to which the Stockholder is a party or by which the Stockholder is
bound or (ii) any injunction, judgment, writ, decree, order or ruling applicable
to the Stockholder; except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens that would not
individually or in the aggregate be expected to prevent or materially impair or
delay the consummation by such Stockholder of the transactions contemplated
hereby.
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<PAGE> 4
(f) Neither the execution and delivery of this Agreement nor
the performance by the Stockholder of the Stockholder's obligations hereunder
will violate any Law applicable to the Stockholder or require any order,
consent, authorization or approval of, filing or registration with, or
declaration or notice to, any court, administrative agency or other governmental
body or authority, other than any required notices or filings pursuant to the
HSR Act, foreign antitrust or competition laws or the federal securities laws.
(g) No investment banker, broker, finder or other intermediary
is, or will be, entitled to a fee or commission from Merger Sub, Purchaser or
the Company in respect of this Agreement based on any arrangement or agreement
made by or on behalf of such Stockholder in his or her capacity as a stockholder
of the Company.
(h) The Stockholder understands and acknowledges that
Purchaser is entering into, and causing Merger Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
Section 3. Representations and Warranties of Purchaser and Merger Sub.
Purchaser and Merger Sub represent and warrant to the Stockholders, as of the
date hereof and as of the Closing, as follows:
(a) Each of Purchaser and Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by
Purchaser and Merger Sub and, assuming the due authorization, execution and
delivery of this Agreement by the Company and the Stockholders, is a valid and
binding obligation of each of Purchaser and Merger Sub, enforceable against each
of them in accordance with its terms, except as such enforceability may be
limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally; and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Neither the execution and delivery of this Agreement nor
the performance by Purchaser and Merger Sub of their respective obligations
hereunder will conflict with, result in a violation or breach of, or constitute
a default (or an event that, with notice or lapse of time or both, would result
in a default) or give rise to any right of termination, amendment, cancellation,
or acceleration under, (i) their respective
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<PAGE> 5
certificates of incorporation or bylaws, (ii) any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which
Purchaser or Merger Sub is a party or by which Purchaser or Merger Sub is bound
or (iii) any judgment, writ, decree, order or ruling applicable to Purchaser or
Merger Sub; except in the case of clauses (ii) and (iii) for conflicts,
violations, breaches or defaults that would not individually or in the aggregate
be reasonably expected to prevent or materially impair or delay the consummation
by Purchaser or Merger Sub of the transactions contemplated hereby.
(d) Neither the execution and delivery of this Agreement nor
the performance by Purchaser and Merger Sub of their respective obligations
hereunder will violate any Law applicable to Purchaser or Merger Sub or require
any order, consent, authorization or approval of, filing or registration with,
or declaration or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the HSR Act or the federal securities laws.
(e) Any Shares acquired upon exercise of the Purchase Option
(as defined below) will be acquired for Purchaser's or Merger Sub's own account,
for investment purposes only and will not be, and the Purchase Option is not
being, acquired by Purchaser and Merger Sub with a view to public distribution
thereof in violation of any applicable provisions of the Securities Act.
Section 4. Transfer of the Shares. During the term of this Agreement,
except as otherwise expressly provided herein, each Stockholder agrees that such
Stockholder will not (a) tender into any tender or exchange offer or otherwise
sell, transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber
with any Lien, any of the Shares, except for (i) transfers to any spouse or
descendant (including by adoption) of such Stockholder, or any trust or
retirement plan or account for the benefit of such Stockholder, spouse or
descendant; provided any such transferee agrees in writing to be bound by the
terms of this Agreement and (ii) transfers by operation of Law; provided that
any such transferee shall be bound by the terms of this Agreement, (b) acquire
any shares of Common Stock or other securities of the Company (otherwise than in
connection with a transaction of the type described in Section 5 or by
exercising any of the Options, Warrants or Rights), (c) deposit the Shares into
a voting trust, enter into a voting agreement or arrangement with respect to the
Shares or grant any proxy or power of attorney with respect to the Shares, (d)
enter into any contract, option or other arrangement (including any profit
sharing arrangement) or undertaking with respect to the direct or indirect
acquisition or sale, transfer, pledge, assignment, hypothecation or other
disposition of any interest in or the voting of any Shares or any other
securities of the Company, (e) exercise any rights (including, without
limitation, under Section 262 of the Delaware General Corporation Law) to demand
appraisal of any Shares which may arise
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<PAGE> 6
with respect to the Merger, or (f) take any other action that would in any way
restrict, limit or interfere with the performance of such Stockholder's
obligations hereunder or the transactions contemplated hereby or which would
otherwise diminish the benefits of this Agreement to Purchaser or Merger Sub.
Section 5. Adjustments. (a) In the event (i) of any stock dividend,
stock split, recapitalization, reclassification, combination or exchange of
shares of capital stock or other securities of the Company on, of or affecting
the Shares or the like or any other action that would have the effect of
changing a Stockholder's ownership of the Company's capital stock or other
securities or (ii) a Stockholder becomes the beneficial owner of any additional
Shares of or other securities of the Company, then the terms of this Agreement
will apply to the shares of capital stock held by such Stockholder immediately
following the effectiveness of the events described in clause (i) or such
Stockholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Shares hereunder.
(b) Each Stockholder hereby agrees, while this Agreement is in
effect, to promptly notify Purchaser and Merger Sub of the number of any new
Shares acquired by such Stockholder, if any, after the date hereof.
Section 6. Tender of Shares. Each Stockholder hereby agrees that such
Stockholder will validly tender (or cause the record owner of such shares to
validly tender) and sell (and not withdraw, except in the event the Purchase
Option is exercised, in which case such withdrawal shall be for the limited
purpose of consummating the Purchase Option) pursuant to and in accordance with
the terms of the Offer not later than the fifth business day after commencement
of the Offer (or the earlier of the expiration date of the Offer and the fifth
business day after such Shares are acquired by such Stockholder if the
Stockholder acquires Shares after the date hereof), or, if the Stockholder has
not received the Offer Documents by such time, within two business days
following receipt of such documents, all of the then outstanding shares of
Common Stock beneficially owned by such Stockholder (including the shares of
Common Stock outstanding as of the date hereof and shares issued following the
exercise (if any) of the Options, Warrants and Rights, in each case as set forth
on Schedule A hereto opposite such Stockholder's name). Upon the purchase by
Purchaser or Merger Sub of all of such then outstanding shares of Common Stock
beneficially owned by such Stockholder pursuant to the Offer in accordance with
this Section 6, this Agreement will terminate as it relates to such Stockholder.
In the event, notwithstanding the provisions of the first sentence of this
Section 6, any shares of Common Stock beneficially owned by a Stockholder are
for any reason withdrawn from the Offer or are not purchased pursuant to the
Offer, such Shares will remain subject to the terms of this Agreement. Each
Stockholder acknowledges that Purchaser's obligation to accept for payment and
pay for
-5-
<PAGE> 7
the shares of Common Stock tendered in the Offer is subject to all the terms and
conditions of the Offer.
Section 7. Voting Agreement. Each Stockholder, by this Agreement, does
hereby (a) agree to appear (or not appear, if requested by Purchaser or Merger
Sub) at any annual, special, postponed or adjourned meeting of the stockholders
of the Company or otherwise cause the shares of Common Stock such Stockholder
beneficially owns to be counted as present (or absent, if requested by Purchaser
or Merger Sub) thereat for purposes of establishing a quorum and to vote or
consent, and (b) constitute and appoint Purchaser and Merger Sub, or any nominee
thereof, with full power of substitution, during and for the term of this
Agreement, as his true and lawful attorney and proxy for and in his name, place
and stead, to vote all the shares of Common Stock such Stockholder beneficially
owns at the time of such vote, at any annual, special, postponed or adjourned
meeting of the stockholders of the Company (and this appointment will include
the right to sign his or its name (as stockholder) to any consent, certificate
or other document relating to the Company that laws of the State of Delaware and
the Commonwealth of Massachusetts may require or permit), in the case of both
(a) and (b) above, (x) in favor of approval and adoption of the Merger Agreement
and approval and adoption of the Merger and the other transactions contemplated
thereby and (y) against (1) any Alternative Proposal, (2) any action or
agreement that would result in a breach in any respect of any covenant,
agreement, representation or warranty of the Company under the Merger Agreement
and (3) the following actions (other than the Merger and the other transactions
contemplated by the Merger Agreement and the Ancillary Documents): (i) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries; (ii) a
sale, lease or transfer of a material amount of assets of the Company or any of
its subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its Subsidiaries; (iii) (A) any change in a
majority of the persons who constitute the board of directors of the Company or
any of its Subsidiaries as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Company's or any of its
Subsidiaries' certificate of incorporation or bylaws, as amended to date; (C)
any other material change in the Company's or any of its Subsidiaries' corporate
structure or business; or (D) any other action that is intended, or could be
expected, to impede, interfere with, delay, postpone, or adversely affect the
Offer, the Merger and the other transactions contemplated by this Agreement, the
Merger Agreement and the Ancillary Documents. This proxy and power of attorney
is a proxy and power coupled with an interest, and each Stockholder declares
that it is irrevocable until this Agreement shall terminate in accordance with
its terms. Each Stockholder hereby revokes all and any other proxies with
respect to the shares of Common Stock that such Stockholder may have heretofore
made or granted. For shares of Common Stock as to which a Stockholder is the
beneficial but not the record owner, such Stockholder shall use his or its best
efforts
-6-
<PAGE> 8
to cause any record owner of such Shares to grant to Purchaser a proxy to the
same effect as that contained herein. Each Stockholder hereby agrees to permit
Purchaser and Merger Sub to publish and disclose in the Offer Documents and the
Proxy Statement and related filings under the securities laws such Stockholder's
identity and ownership of Shares and the nature of his or its commitments,
arrangements and understandings under this Agreement.
Section 8. No Solicitation. Each Stockholder agrees that neither such
Stockholder nor any of such Stockholder's officers, directors, employees,
trustees, representatives, agents or affiliates (including, without limitation,
any investment banker, attorney or accountant retained by any of them) will
directly or indirectly initiate, solicit or encourage (including by way of
furnishing non-public information or assistance), or take any other action to
facilitate, any inquiries or the making or submission of any Alternative
Proposal, or enter into or maintain or continue discussions or negotiate with
any person or entity in furtherance of such inquiries or to obtain or induce any
person to make or submit an Alternative Proposal or agree to or endorse any
Alternative Proposal or assist or participate in, facilitate or encourage, any
effort or attempt by any other person or entity to do or seek any of the
foregoing or authorize or permit any of its officers, directors, employees,
trustees or any of its affiliates or any investment banker, financial advisor,
attorney, accountant or other representative or agent retained by any of them to
take any such action. Each Stockholder shall promptly advise Purchaser in
writing of the receipt of request for information or any inquiries or proposals
relating to an Alternative Proposal.
Section 9. Grant of Purchase Option. The Stockholder hereby grants to
Purchaser and Merger Sub an irrevocable option (the "Purchase Option") to
purchase for cash, in a manner set forth below, any or all of the Shares (and
including Shares acquired after the date hereof by such Stockholder)
beneficially owned by the Stockholder at a price per share (the "Exercise
Price") equal to the Merger Consideration. In the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the like,
the Merger Consideration will be appropriately adjusted for the purpose of this
Section 9. The Merger Consideration as it relates to the Options, Warrants and
Rights shall be an amount in cash equal to the excess, if any, of the Merger
Consideration over the per share exercise price of such Option, Warrant or
Right, without interest, in full settlement of the Company's (and the Surviving
Corporation's) obligations under each such Option, Warrant or Right. To the
extent that the per share exercise price of any Option, Warrant or Right exceeds
the Merger Consideration, such Option, Warrant or Right shall be canceled and
the Stockholder shall not receive or be entitled to receive any consideration
from Purchaser, Merger Sub or the Company relating thereto. The amount payable
pursuant to this Section 9 shall be subject to all applicable withholding taxes.
-7-
<PAGE> 9
Section 10. Exercise of Purchase Option.
(a) Subject to the conditions set forth in Section 12 hereof,
the Purchase Option may be exercised by Purchaser or Merger Sub, in whole or in
part, at any time or from time to time after the occurrence of any Trigger Event
(as defined below). Each Stockholder shall notify Purchaser in writing of the
occurrence of any Trigger Event promptly after the learning of the occurrence
thereof, it being understood that the giving of such notice by the Stockholder
is not a condition to the right of Purchaser or Merger Sub to exercise the
Purchase Option. In the event Purchaser or Merger Sub wishes to exercise the
Purchase Option, Purchaser shall deliver to each Stockholder a written notice
(an "Exercise Notice") specifying the total number of Shares it wishes to
purchase from such Stockholder. Each closing of a purchase of Shares (a
"Closing") will occur at a place, on a date and at a time designated by
Purchaser or Merger Sub in an Exercise Notice delivered at least two business
days prior to the date of the Closing.
(b) A "Trigger Event" means any one of the following: (i) the
Merger Agreement becomes terminable under circumstances that entitle Purchaser
or Merger Sub to receive the Termination Fee under Section 8.2 of the Merger
Agreement (regardless of whether the Merger Agreement is actually terminated and
whether such Termination Fee is then actually paid), (ii) the Offer is
consummated but, due to the failure of the Stockholder to validly tender and not
withdraw all of the then outstanding shares of Common Stock beneficially owned
by such Stockholder, the Purchaser has not accepted for payment or paid for all
of such Stockholder's shares of Common Stock, (iii) a tender or exchange offer
for at least 20% of the shares of Common Stock shall have been publicly proposed
to be made or shall have been made by another Person or group (as defined in
Section 13(d)(3) of the Exchange Act) (other than Parent, Purchaser or Merger
Sub), or (iv) it shall have been publicly disclosed that (A) any Person or
"group" (as defined in Section 13(d)(3) of the Exchange Act) (other than
Purchaser or Merger Sub) shall have acquired or proposed to acquire beneficial
ownership of more than 20% of any class or series of capital stock of the
Company (including the Common Stock), through the acquisition of stock, the
formation of a group or otherwise, or shall have been granted any option, right
or warrant, conditional or otherwise, to acquire beneficial ownership of more
than 20% of any class or series of capital stock of the Company or any of its
subsidiaries, or (B) any Person or group (other than Parent, Purchaser and
Merger Sub) shall have entered into or publicly offered to enter into a
definitive agreement or an agreement in principle with respect to a merger,
consolidation or other business combination with the Company or any of its
subsidiaries.
(c) If requested by Purchaser and Merger Sub in the Exercise
Notice, such Stockholder shall exercise all Options, Warrants and Rights (to the
extent exercisable) and other rights (including conversion or exchange rights),
other than Options, Warrants
-8-
<PAGE> 10
and Rights with exercise prices above the Exercise Price, beneficially owned by
such Stockholder and shall sell or, if directed by Purchaser and Merger Sub,
tender the Shares acquired pursuant to such exercise to Purchaser or Merger Sub
as provided in this Agreement; provided, however, that Purchaser and Merger Sub
shall not be entitled to require General Atlantic Partners 32, L.P., General
Atlantic Partners 21, L.P., and GAP Coinvestment Partners, L.P. and their
affiliates to exercise any Options, Warrants or Rights that can be transferred
to and exercised by Purchaser or Merger Sub.
(d) In the event that, within 12 months of the exercise of the
Purchase Options, Purchaser or Merger Sub sells, to a third party which is not
an affiliate of Purchaser, Shares acquired by means of exercise of the Purchase
Options ("Exercise Shares") for an aggregate consideration (the "Aggregate
Consideration") greater than the aggregate Exercise Price (the "Aggregate
Exercise Price") paid for such Exercise Shares, Purchaser agrees to pay to the
Stockholders an amount equal to the excess of the Aggregate Consideration over
the Aggregate Exercise Price. The excess of the Aggregate Consideration over the
Aggregate Exercise Price shall be distributed to the Stockholders who sold
shares to Purchasers or Merger Sub pursuant to the exercise of the Purchase
Options in a manner so that each such Stockholder shall have received the same
consideration after including such payments for each Share so sold. In addition,
in the event that, within 12 months of the exercise of the Purchase Options,
Parent, Purchaser or Merger Sub or any of their affiliates shall consummate a
merger or other business combination with the Company, or shall purchase Shares
pursuant to a tender offer for all shares of Common Stock at a price per share
(taking into account any stock dividends, stock splits, reverse stock splits,
recapitalizations, combinations, exchanges of shares or the like) in excess of
the Exercise Price paid for any Shares, Purchaser agrees to pay each Stockholder
such excess for each Exercise Share purchased from such Stockholder.
Section 11. Termination. This Agreement will terminate (a) pursuant to
Section 6 or (b) upon the earliest of: (i) the Effective Time; (ii) termination
of the Merger Agreement other than upon, during the continuance of, or after, a
Trigger Event; or (iii) 90 days following any termination of the Merger
Agreement upon, during the continuance of or after a Trigger Event (or if, at
the expiration of such 90 day period the Purchase Option cannot be exercised by
reason of any applicable judgment, decree, order, injunction, law or regulation,
10 business days after such impediment to exercise has been removed or has
become final and not subject to appeal). Upon the giving by Purchaser or Merger
Sub to the Stockholder of the Exercise Notice and the tender of the aggregate
Exercise Price, Purchaser or Merger Sub, as the case may be, will be deemed to
be the holder of record of the Shares transferable upon such exercise,
notwithstanding that the stock transfer books of the Company are then closed or
that certificates representing such Shares have not been actually delivered to
Purchaser.
-9-
<PAGE> 11
Section 12. Conditions To Closing. The obligation of each Stockholder
to sell such Stockholder's Shares to Purchaser or Merger Sub hereunder is
subject to the conditions that (i) all waiting periods, if any, under the HSR
Act, applicable to the sale of the Shares or the acquisition of the Shares by
Purchaser or Merger Sub, as the case may be, hereunder have expired or have been
terminated; (ii) all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any court, administrative agency or
other Governmental Entity, if any, required in connection with the sale of the
Shares or the acquisition of the Shares by Purchaser or Merger Sub hereunder
have been obtained or made; and (iii) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such sale or acquisition is in effect.
Section 13. Closing. At any Closing with respect to Shares beneficially
owned by a Stockholder, (a) such Stockholder will deliver to Purchaser, Merger
Sub or their respective designee a certificate or certificates in definitive
form representing the number of the Shares designated by Purchaser or Merger
Sub, as the case may be, in its Exercise Notice, such certificate to be
registered in the name of Purchaser, Merger Sub or their respective designee and
(b) Purchaser or Merger Sub, as the case may be, will deliver to the Stockholder
the aggregate Exercise Price for the Shares so designated and being purchased by
wire transfer of immediately available funds.
Section 14. Fees and Expenses. Except as otherwise expressly provided
herein or in the Merger Agreement, whether of not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
Section 15. Further Assurances. Each party hereto will execute and
deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the transactions
contemplated hereby.
Section 16. Publicity. A Stockholder shall not issue any press release
or otherwise make any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Purchaser and Merger Sub, except as may be required by
Law or applicable stock exchange rules.
Section 17. Stockholder Capacity. No person executing this Agreement
makes any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the Company or any Subsidiary of the Company. Each
Stockholder signs solely in such Stockholder's capacity as the beneficial owner
of such
-10-
<PAGE> 12
Stockholder's Shares and nothing herein shall limit or affect any actions taken
by a Stockholder in such Stockholder's capacity as an officer or director of the
Company or any subsidiary of the Company to the extent specifically permitted by
the Merger Agreement.
Section 18. Enforcement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any Delaware Court, this being
in addition to any other remedy to which they are entitled at law or in equity.
Section 19. Miscellaneous.
(a) All representations and warranties contained herein will
survive for twelve months after the termination hereof. The covenants and
agreements made herein will survive in accordance with their respective terms.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among the parties with respect to such matters. This Agreement
may not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of
conflict of laws. Each of the Company, Purchaser and Merger Sub hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the Delaware Courts for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum.
-11-
<PAGE> 13
(e) The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa. Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be understood to be followed by the words "without
limitation."
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to Company to:
Marcam Solutions, Inc.
95 Wells Avenue
Newton, Massachusetts 02159
Attention: President
Facsimile: (617) 964-5614
With a Copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
Attention: Mark H. Burnett, Esq. and
Edwin L. Miller, Esq.
Facsimile: (617) 248-7100
-12-
<PAGE> 14
If to Purchaser or Merger Sub to:
Foxboro Company
33 Commercial Street
B52-SI
Foxboro, Massachusetts 02035-2099
Attention: Dr. George Sarney
Facsimile: (508) 549-6689
with copies to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Paul Reinstein
Facsimile: (212) 859-8586
and
Wonderware Corporation
100 Technology Drive
Irvine, California 92618
Attention: Philip Maynard
Facsimile: (949) 453-6543
If to a Stockholder, at the address set forth on Schedule A hereto or
to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(g) This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall be
an original. All such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Purchaser and Merger Sub will have the right to assign to any direct or
indirect wholly owned subsidiary or subsidiaries of Parent or Purchaser any and
all rights and obligations of Purchaser or Merger Sub under this Agreement,
provided that
-13-
<PAGE> 15
any such assignment will not relieve either Purchaser or Merger Sub from any of
its obligations hereunder.
(i) Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
-14-
<PAGE> 16
IN WITNESS WHEREOF, each of the Purchaser and Merger Sub has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Stockholder has signed this Agreement, all as of the date
first written above.
M ACQUISITION CORP.
By: /s/ George Sarney
---------------------------------------------
Name: George Sarney
Title: President
M MERGER SUB, INC.
By: /s/ Thomas G. Foley
---------------------------------------------
Name: Thomas G. Foley
Title: Vice President
STOCKHOLDERS:
/s/ Michael Quinlan
---------------------------------------------
Name: Michael Quinlan
/s/ John Campbell
---------------------------------------------
Name: John Campbell
/s/ Jonathan C. Crane
---------------------------------------------
Name: Jonathan C. Crane
/s/ E. Clark Grimes
---------------------------------------------
Name: E. Clark Grimes
/s/ Joe M. Henson
---------------------------------------------
Name: Joe M. Henson
/s/ Franchon M. Smithson
---------------------------------------------
Name: Franchon M. Smithson
/s/ William W. Wyman
---------------------------------------------
Name: William W. Wyman
/s/ Denis E. Liptak
---------------------------------------------
Name: Denis E. Liptak
/s/ Harlan Plumley
---------------------------------------------
Name: Harlan Plumley
/s/ Stephen R. Quehl
---------------------------------------------
Name: Stephen R. Quehl
/s/ Diane R. Tormey
---------------------------------------------
Name: Diane R. Tormey
/s/ Z. Alan Fink
---------------------------------------------
Name: Z. Alan Fink
GENERAL ATLANTIC PARTNERS 21, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ Thomas J. Murphy
---------------------------------------------
Name: Thomas J. Murphy
Title: Attorney-in-Fact
GENERAL ATLANTIC PARTNERS 32, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ Thomas J. Murphy
---------------------------------------------
Name: Thomas J. Murphy
Title: Attorney-in-Fact
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Thomas J. Murphy
---------------------------------------------
Name: Thomas J. Murphy
Title: Attorney-in-Fact
-1-
<PAGE> 17
SCHEDULE A
<TABLE>
<CAPTION>
Number Number Number of Number
Stockholder Address of Shares of Options Warrants of Rights
----------- ------- --------- ---------- -------- ---------
<S> <C> <C> <C> <C> <C>
John Campbell 99,403 13,000 -- 99,403
Jonathan C. Crane 20,000 296,270 -- 20,000
E. Clark Grimes 1,000 11,500 -- 1,000
Joe M. Henson 500 13,000 -- 500
Michael J. Quinlan 350 86,500 -- 350
Franchon M. Smithson** -- 13,000 -- --
William W. Wyman -- 11,500 -- --
Z. Alan Fink 210* 25,000 -- 210*
Denis E. Liptak 500 35,000 -- 500
Harlan B. Plumley 1,250* 22,000 -- 1,250*
Stephen Quehl -- 150,000 -- --
Diane R. Tormey 5,428 42,696 -- 5,428
General Atlantic Partners 32, c/o General Atlantic 431,595 -- 431,595 431,595
L.P. Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
</TABLE>
- --------------
*Currently participating in Employee Stock Purchase Plan
**Excluding shares held by General Atlantic Partners 32, L.P., General Atlantic
Partners 21, L.P. and GAP Coinvestment Partners, L.P.
-2-
<PAGE> 18
<TABLE>
<S> <C> <C> <C> <C> <C>
General Atlantic Partners 21, c/o General Atlantic 880,290 -- -- 880,290
L.P. Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
GAP Coinvestment Partners, L.P. c/o General Atlantic 188,115 -- 68,405 188,115
Service Corporation
3 Pickwick Plaza
Greenwich, CT 06830
</TABLE>
-3-
<PAGE> 1
BROADVIEW
EXHIBIT (c)(3)
May 17, 1999
CONFIDENTIAL
------------
Mr. Roy H. Slavin
President & Chief Executive Officer
Wonderware Corp., an Invensys Company
100 Technology Drive
Irvine, CA 92618
Dear Mr. Slavin:
In connection with your consideration of a possible transaction with Marcam
Solutions, Inc. (the "Company"), you have requested financial and other
information concerning the business and affairs of the Company. As a condition
to the Company's furnishing to you and your representatives financial and other
information which has not theretofore been made available to the public, you
agree to treat all such non-public information furnished to you in writing or
orally by the Company or its representatives on and after the date of this
agreement (herein collectively referred to as the "evaluation material"), as
follows:
(1) You recognize and acknowledge the competitive value and
confidential nature of the evaluation material and the damage
that could result to the Company if information contained
therein is disclosed to any third party. You also recognize and
acknowledge that the evaluation material is being provided to
you in reliance upon your acceptance of the terms of this
agreement.
(2) You agree that the evaluation material will be used solely for
the purpose of evaluating the proposed transaction. You also
agree that you, your directors, officers, employees and agents
and representatives of your advisors, herein collectively
referred to as "your representatives," will not disclose or
permit the disclosure of any of the evaluation material now or
hereafter received or obtained from the Company or its
representatives to any third party or otherwise use or permit
the use of the evaluation material in any way detrimental to the
Company, except as required by applicable law or legal process,
without the prior written consent of the Company, provided,
however, that any such information may be disclosed to such of
your representatives who need to know such information for
the purpose of
<PAGE> 2
Mr. Roy H. Slavin May 17, 1999
Page 2
evaluating the proposed transaction and who are advised of this
agreement and agree to keep such information confidential and to
be bound by this agreement to the same extent as if they were
parties hereto, it being understood that you shall be
responsible for any breach of this agreement by your
representatives.
(3) In the event that the transaction contemplated by this
agreement is not consummated, neither you nor any of your
representatives shall, without prior written consent of the
Company, use any of the evaluation material now or hereafter
received or obtained from the Company or its representatives for
any purpose.
(4) In the event that the transaction contemplated by this
agreement is not consummated, all evaluation material (and all
copies, summaries, and notes of the contents or parts thereof)
shall be returned upon the Company's request or destroyed and
not retained by you or your representatives in any form or for
any reason.
(5) You and your representatives shall have no obligation hereunder
with respect to any information in the evaluation materials to
the extent that such information has been made publicly
available nor any obligation with respect to information which
can be demonstrated by you to be already properly in your
possession on a non-confidential basis from sources other than
the Company, or its representatives other than by acts by you or
your representatives in violation of this agreement.
(6) You are aware, and will advise your representatives who are
informed of the matters that are the subject of this Agreement,
of the restrictions imposed by the United States securities laws
on the purchase or sale of securities by any person who has
received material, non-public information from the Company and
on the communication of such information to any other person who
may purchase or sell such securities in reliance upon such
information. You and your representatives will comply with all
applicable securities laws in connection with the purchase or
sale, directly or indirectly, of securities of the Company for
as long as you or your representatives are in possession of
material non-public information about the Company.
<PAGE> 3
Mr. Roy H. Slavin May 17, 1999
Page 3
(7) The provisions of this agreement relating to confidentiality
shall terminate three years from the date hereof. The invalidity
or unenforceability of any provision of this agreement shall not
affect the validity or enforceability of any other provision.
It is further agreed that the intention of Marcam Solutions, Inc. to engage in
these discussions, and the subsequent exercise of that intention shall be kept
confidential by you.
Acceptance of the above terms shall be indicated by having this letter
countersigned on your behalf and returning one original to Broadview.
Sincerely,
BROADVIEW INTERNATIONAL LLC
For: Marcam Solutions, Inc.
By: /s/ Scot Sedlacek
-------------------------------
Received and consented to this
17th day of May, 1999
Invensys plc
By: /s/ Roy H. Slavin
------------------------------------
