<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
---------------------
ACSYS, INC.
(Name of Subject Company (issuer))
VEDIOR N.V.
TIBERIA B.V.
PLATFORM PURCHASER INC.
(Names of Filing Persons (Offerors))
COMMON STOCK, NO PAR VALUE PER SHARE
(including associated Series A Junior Participating Preferred Stock Purchase
Rights)
(Title of Class of Securities)
00087X 103
(CUSIP Number of Class of Securities)
C.K. ZACHARY MILES
C/O SELECT APPOINTMENTS NORTH AMERICA INC.
60 HARVARD MILL SQUARE
WAKEFIELD, MA 01880
(781) 213-1500
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications
on Behalf of the Filing Persons)
------------------------------
COPY TO:
SCOTT J. DAVIS
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603-3441
(312) 782-0600
------------------------------
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
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<S> <C>
$84,182,055 $16,837
</TABLE>
- ------------------------
* Calculated solely for purposes of determining the filing fee, assuming the
purchase of 16,836,411 shares at the tender offer price of $5.00 per share
of common stock.
/ / Check the 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
Form or Registration No: N/A
Filing Party: N/A
Date filed: N/A
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
/X/ Third party tender offer subject to Rule 14d-1.
/ / Issuer tender offer subject to Rule 13e-4.
/ / Going-private transaction subject to Rule 13e-3.
/ / Amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: / /
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<PAGE>
This Tender Offer Statement on Schedule TO (this "Schedule TO") relates to
the tender offer by Platform Purchaser Inc., a Georgia corporation (the
"Purchaser") and an affiliate of Vedior N.V., a company organized under the laws
of the Netherlands ("Vedior") and to become, immediately prior to the initial
purchase of Shares (as defined below) under the Offer, a wholly owned subsidiary
of Tiberia B.V., a company organized under the laws of the Netherlands
("Parent"), to purchase all of the outstanding shares of common stock, no par
value per share (including the associated series A junior participating
preferred stock purchase rights, the "Shares"), of Acsys, Inc., a Georgia
corporation (the "Company"), at a purchase price of $5.00 per Share, upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
April 27, 2000, and the related Letter of Transmittal. This Schedule TO is being
filed on behalf of Vedior, Parent and the Purchaser.
The information in the Offer to Purchase and the related Letter of
Transmittal, copies of which are filed herewith as Exhibits (a)(1)(A) and
(a)(1)(B) hereto, respectively, is incorporated herein by reference in answer to
Items 1 through 11 of this Schedule TO.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(c)(3) and (4) During the last five years, none of the Purchaser, Parent or
Vedior nor, to the best knowledge of the Purchaser, Parent and Vedior, ING Groep
N.V., a company organized under the laws of the Netherlands, Stichting
Administratiekantoor van gewone aandelen Vedior, organized under the laws of the
Netherlands, Stichting Administratiekantoor ING Groep, organized under the laws
of the Netherlands or any of the persons listed on Schedule I of the Offer to
Purchase (i) has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) was a party to any judicial or
administrative proceeding (except for matters that were dismissed without
sanction or settlement) that resulted in a judgment, decree or final order
enjoining the person from future violations of, or prohibiting activities
subject to, federal or state securities laws, or a finding of any violation
under such laws.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) (2) Reference is made to the employment agreements and the amendments
thereto by and between the Company and certain of its executive officers and
related persons, and to the support agreements by and among Vedior, the
Purchaser and certain of its executive officers and related persons, copies of
which are filed as Exhibits (d)(2) through (d)(11) hereto, respectively, which
are incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The "Agreement in Principle between ING and VHBV Relating to the Acquisition
of Acsys, Inc.," among ING Bank Corporate Investment, B.V., Vedior Holding B.V.
and Vedior dated as of April 13, 2000, a copy of which is filed as Exhibit
(b) to this Schedule TO, is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
Not applicable.
2
<PAGE>
ITEM 12. EXHIBITS.
<TABLE>
<CAPTION>
ITEM DESCRIPTION
- ---------- ------------------------------------------------------------
<S> <C>
(a)(1)(A) Offer to Purchase dated April 27, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(1)(E) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(1)(F) Letter to Shareholders dated April 27, 2000, from the
Chairman of the Board and Chief Executive Officer of the
Company.
(a)(1)(G) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(H) Summary advertisement published April 27, 2000.
(a)(2)-(4) Not applicable.
(a)(5) Joint Press Release issued by Vedior and the Company on
April 17, 2000 (previously filed on Schedule TO filed by
Purchaser and Parent on April 17, 2000).
(b) Agreement in Principle between ING and VHBV Relating to the
Acquisition of Acsys, Inc., dated as of April 13, 2000,
among ING Bank Corporate, Vedior Holding B.V. and Vedior.
(d)(1) Agreement and Plan of Merger, dated as of April 16, 2000, by
and among Parent, the Purchaser, Vedior, Select Appointments
North America Inc. and the Company (incorporated by
reference to Exhibit 2.1 to the Current Report on Form 8-K
of the Company filed on April 18, 2000).
(d)(2) Employment Agreement, dated September 1997, by and among the
Company, ACSYS Resources, Inc. and Harry J. Sauer.
(d)(3) Amendment of Employment Agreement, dated as of April 16,
2000, by and among Harry J. Sauer, the Company and Acsys
Resources, Inc. (incorporated by reference to Exhibit 10.4
to the Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(4) Employment Agreement, dated May 16, 1997 and as amended on
May 16, 1997, by and between the Company and David C.
Cooper.
(d)(5) Amendment of Employment Agreement, dated as of April 16,
2000, by and between David C. Cooper and the Company
(incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
(d)(6) Employment Agreement, dated February 7, 2000, by and between
the Company and Patricia Kennedy (incorporated by reference
to Exhibit 10.29 of the Company's Annual Report on
Form 10-K for the year ended December 31, 1999).
(d)(7) Amendment of Employment Agreement, dated as of April 16,
2000, by and between Patricia Kennedy and the Company
(incorporated by reference to Exhibit 10.2 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
ITEM DESCRIPTION
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<S> <C>
(d)(8) Employment Agreement, dated August 21, 1998, between the
Company and Brady W. Mullinax, Jr. (incorporated by
reference to Exhibit 10.4 of the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1998).
(d)(9) Amendment of Employment Agreement, dated as of April 16,
2000, by and between Brady W. Mullinax, Jr. and the Company
(incorporated by reference to Exhibit 10.3 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
(d)(10) Support Agreement, dated as of April 16, 2000, by and among
Vedior, the Purchaser, David C. Cooper and Teri L. Cooper
(incorporated by reference to Exhibit 2.2 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
(d)(11) Support Agreement, dated as of April 16, 2000, by and among
Vedior, the Purchaser, Harry J. Sauer and The Sauer Family
Foundation (incorporated by reference to Exhibit 2.3 to the
Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(12) Confidentiality Agreement, dated May 21, 1999, as amended on
March 31, 2000, by and among the Company, Select
Appointments (Holdings) PLC and Vedior.
(g) Not applicable.
(h) Not applicable.
</TABLE>
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3
Not applicable.
4
<PAGE>
SIGNATURES
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.
<TABLE>
<S> <C> <C>
VEDIOR N.V.
By: /s/ C.K. ZACHARY MILES
-----------------------------------------
Name: C.K. Zachary Miles
Title: Chief Financial Officer
TIBERIA B.V.
By: /s/ A.W.M. GIESEN
-----------------------------------------
Name: A.W.M. Giesen
Title: Managing Director
PLATFORM PURCHASER INC.
By: /s/ C.K. ZACHARY MILES
-----------------------------------------
Name: C.K. Zachary Miles
Title: President
</TABLE>
Dated: April 27, 2000
5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
ITEM DESCRIPTION
- ---------- ------------------------------------------------------------
<S> <C> <C>
(a)(1)(A) Offer to Purchase dated April 27, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(1)(E) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(1)(F) Letter to Shareholders dated April 27, 2000, from the
Chairman of the Board and Chief Executive Officer of the
Company.
(a)(1)(G) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(H) Summary advertisement published April 27, 2000.
(a)(2)-(4) Not applicable.
(a)(5) Joint Press Release issued by Vedior and the Company on
April 17, 2000 (previously filed on Schedule TO filed by
Purchaser and Parent on April 17, 2000).
(b) Agreement in Principle between ING and VHBV Relating to the
Acquisition of Acsys, Inc., dated as of April 13, 2000,
among ING Bank Corporate, Vedior Holding B.V. and Vedior.
(d)(1) Agreement and Plan of Merger, dated as of April 16, 2000, by
and among Parent, the Purchaser, Vedior, Select Appointments
North America Inc. and the Company (incorporated by
reference to Exhibit 2.1 to the Current Report on Form 8-K
of the Company filed on April 18, 2000).
(d)(2) Employment Agreement, dated September 1997, by and among the
Company, ACSYS Resources, Inc. and Harry J. Sauer.
(d)(3) Amendment of Employment Agreement, dated as of April 16,
2000, by and among Harry J. Sauer, the Company and Acsys
Resources, Inc. (incorporated by reference to Exhibit 10.4
to the Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(4) Employment Agreement, dated May 16, 1997 and as amended on
May 16, 1997, by and between the Company and David C.
Cooper.
(d)(5) Amendment of Employment Agreement, dated as of April 16,
2000, by and between David C. Cooper and the Company
(incorporated by reference to Exhibit 10.1 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
(d)(6) Employment Agreement, dated February 7, 2000, by and between
the Company and Patricia Kennedy (incorporated by reference
to Exhibit 10.29 of the Company's Annual Report on
Form 10-K for the year ended December 31, 1999).
(d)(7) Amendment of Employment Agreement, dated as of April 16,
2000, by and between Patricia Kennedy and the Company
(incorporated by reference to Exhibit 10.2 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
ITEM DESCRIPTION
- ---------- ------------------------------------------------------------
<S> <C> <C>
(d)(8) Employment Agreement, dated August 21, 1998, between the
Company and Brady W. Mullinax, Jr. (incorporated by
reference to Exhibit 10.4 of the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1998).
(d)(9) Amendment of Employment Agreement, dated as of April 16,
2000, by and between Brady W. Mullinax, Jr. and the Company
(incorporated by reference to Exhibit 10.3 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
(d)(10) Support Agreement, dated as of April 16, 2000, by and among
Vedior, the Purchaser, David C. Cooper and Teri L. Cooper
(incorporated by reference to Exhibit 2.2 to the Current
Report on Form 8-K of the Company filed on April 18, 2000).
(d)(11) Support Agreement, dated as of April 16, 2000, by and among
Vedior, the Purchaser, Harry J. Sauer and The Sauer Family
Foundation (incorporated by reference to Exhibit 2.3 to the
Current Report on Form 8-K of the Company filed on
April 18, 2000).
(d)(12) Confidentiality Agreement, dated May 21, 1999, as amended on
March 31, 2000, by and among the Company, Select
Appointments (Holdings) PLC and Vedior.
(g) Not applicable.
(h) Not applicable.
</TABLE>
7
<PAGE>
Exhibit (a)(1)(A)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(and the accompanying Rights (as defined herein))
of
ACSYS, INC.
at
$5.00 Net per Share
by
PLATFORM PURCHASER INC.,
an affiliate of
VEDIOR N.V.
and to become a wholly owned subsidiary of
TIBERIA B.V.
- ------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, MAY 24, 2000, UNLESS THE OFFER IS
EXTENDED.
- --------------------------------------------------------------------------------
THE OFFER IS BEING MADE PURSUANT TO THE AGREEMENT AND PLAN OF MERGER DATED
AS OF APRIL 16, 2000 BY AND AMONG TIBERIA B.V., PLATFORM PURCHASER INC., VEDIOR
N.V., SELECT APPOINTMENTS NORTH AMERICA INC. AND ACSYS, INC. (THE "COMPANY").
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY ADOPTED AND APPROVED THE
MERGER AGREEMENT, THE OFFER, THE MERGER (EACH AS DEFINED HEREIN) AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT; HAS UNANIMOUSLY DETERMINED
THAT THE TERMS OF THE OFFER AND THE MERGER ARE IN THE BEST INTERESTS OF THE
SHAREHOLDERS OF THE COMPANY; AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER THEIR SHARES (AS DEFINED HEREIN) PURSUANT TO THE
OFFER. IN ANY JURISDICTION IN WHICH THE SECURITIES, BLUE SKY OR OTHER LAWS
REQUIRE THE OFFER TO BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER SHALL BE
DEEMED MADE ON BEHALF OF THE PURCHASER BY ROBERT W. BAIRD & CO. INCORPORATED,
THE DEALER MANAGER, OR BY ONE OR MORE REGISTERED BROKERS OR DEALERS THAT ARE
LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
THE OFFER IS CONDITIONED UPON THERE BEING VALIDLY TENDERED AND NOT WITHDRAWN
PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF SHARES THAT WOULD REPRESENT
AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS AND
CERTAIN OTHER CONDITIONS DESCRIBED IN SECTION 14 OF THIS OFFER TO PURCHASE.
IMPORTANT
Any shareholder desiring to tender all or any portion of such shareholder's
Shares should either (1) complete and sign the Letter of Transmittal (or
facsimile thereof) in accordance with the instructions in the Letter of
Transmittal, have such shareholder's signature thereon guaranteed if required by
Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such facsimile) and any other required documents to Wilmington
Trust Company (the "PAYING AGENT") and deliver the certificates for such Shares
to the Paying Agent along with the Letter of Transmittal (or such facsimile) or,
in the case of a book-entry transfer effected pursuant to the procedures
described in Section 2, deliver an Agent's Message (as defined herein) and any
other required documents to the Paying Agent and deliver such Shares pursuant to
the procedures for book-entry transfer described in Section 2, in each case
prior to the expiration of the Offer, or (2) request such shareholder's broker,
dealer, bank, trust company or other nominee to effect the transaction for such
shareholder. A shareholder having Shares registered in the name of a broker,
dealer, bank, trust company or other nominee must contact such broker, dealer,
bank, trust company or other nominee if such shareholder desires to tender such
Shares.
A shareholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply in a timely manner
with the procedure for book-entry transfer, or who cannot deliver all required
documents to the Paying Agent prior to the expiration of the Offer, may tender
such Shares by following the procedures for guaranteed delivery described in
Section 2.
Questions and requests for assistance may be directed to MacKenzie Partners,
Inc. (the "INFORMATION AGENT") or to Robert W. Baird & Co. Incorporated 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 or any other tender materials may
be obtained from the Information Agent or from brokers, dealers, banks, trust
companies or other nominees.
--------------------------
THE DEALER MANAGER FOR THE OFFER IS:
ROBERT W. BAIRD & CO.
April 27, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
SUMMARY TERM SHEET...................................................... 1
INTRODUCTION............................................................ 5
THE TENDER OFFER........................................................ 7
1. Terms of the Offer.......................................... 7
2. Procedures for Tendering Shares............................. 8
3. Withdrawal Rights........................................... 12
4. Acceptance for Payment and Payment.......................... 13
5. Certain U.S. Federal Income Tax Consequences................ 14
6. Price Range of the Shares; Dividends on the Shares.......... 15
7. Effect of the Offer on the Market for the Shares; AMEX
Listing; Exchange Act Registration; Margin Regulations...... 16
8. Certain Information Concerning the Company.................. 17
9. Certain Information Concerning the Purchaser, Parent and
Vedior...................................................... 19
10. Source and Amount of Funds; Vedior/ING Financing
Arrangements................................................ 21
11. Contacts and Transactions with the Company; Background of
the Offer................................................... 22
12. Purpose of the Offer; the Merger Agreement; the Support
Agreements; Plans for the Company........................... 27
13. Dividends and Distributions................................. 42
14. Certain Conditions of the Offer............................. 42
15. Certain Legal Matters....................................... 44
16. Fees and Expenses........................................... 47
17. Miscellaneous............................................... 47
SCHEDULE I-- DIRECTORS AND EXECUTIVE OFFICERS OF PARENT, VEDIOR, THE
PURCHASER, ING GROEP, THE ADMINISTRATOR, THE TRUST AND OTHER
POTENTIAL PROPOSED DESIGNEES................................ S-1
</TABLE>
<PAGE>
SUMMARY TERM SHEET
Platform Purchaser Inc. is offering to purchase all of the outstanding
common stock (including the associated series A junior participating preferred
stock purchase rights) of Acsys, Inc. for $5.00 per share in cash. The following
are some of the questions you, as a shareholder of Acsys, may have and answers
to those questions. We urge you to read carefully the remainder of this offer to
purchase and the letter of transmittal because the information in this summary
is not complete. Additional important information is contained in the remainder
of this offer to purchase and the letter of transmittal.
WHO IS OFFERING TO BUY MY SHARES?
Our name is Platform Purchaser Inc. We are a Georgia corporation formed for
the purpose of making a tender offer for all of the common stock (including the
associated rights) of Acsys. We are presently a wholly owned subsidiary of
Vedior N.V., a company organized under the laws of the Netherlands. Immediately
prior to our initial purchase of shares under the offer, we will become a wholly
owned subsidiary of Tiberia B.V., a company organized under the laws of the
Netherlands.
Tiberia is presently a wholly owned indirect subsidiary of ING Groep N.V., a
company organized under the laws of the Netherlands, and immediately prior to
our purchase of shares under the offer will become jointly owned by indirect
subsidiaries of Vedior and ING Groep. We intend, after we buy shares in the
offer, to merge Platform Purchaser into Acsys. Following that merger, Acsys will
be a wholly owned subsidiary of Tiberia. See "Introduction" and Section
9--"Certain Information Concerning the Purchaser, Parent and Vedior"--of this
offer to purchase.
WHAT SHARES ARE BEING SOUGHT IN THE OFFER?
We are seeking to purchase all of the outstanding common stock of Acsys. See
"Introduction" and Section 1--"Terms of the Offer"--of this offer to purchase.
HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I
HAVE TO PAY ANY FEES OR COMMISSIONS?
We are offering to pay $5.00 per share, net to you, in cash. If you are the
record owner of your shares and you tender your shares to us in the offer, you
will not have to pay brokerage fees or similar expenses. If you own your shares
through a broker or other nominee, and your broker tenders your shares on your
behalf, your broker or nominee may charge you a fee for doing so. You should
consult your broker or nominee to determine whether any charges will apply for
tendering your shares. See "Introduction" and Section 1--"Terms of the
Offer"--of this offer to purchase.
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Vedior and Select Appointments North America Inc., a wholly owned indirect
subsidiary of Vedior, have unconditionally guaranteed our and Tiberia's
obligations with respect to the offer and proposed merger. These guarantees will
terminate immediately prior to the consummation of the financing arrangements
between Vedior and ING Groep. Through these financing arrangements, Vedior and
ING Groep will provide Tiberia and us with sufficient funds to acquire all
tendered shares and any shares to be acquired in the merger that is expected to
follow the successful completion of the offer. The offer is not conditioned upon
any financing arrangements. See Section 10--"Source and Amount of Funds;
Vedior/ING Financing Arrangements"--of this offer to purchase.
1
<PAGE>
IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not think our financial condition is relevant to your decision whether
to tender shares and accept the offer because:
--the offer is being made for all outstanding shares solely for cash;
--the offer is not subject to any financing condition; and
--if we consummate the offer, we will acquire all remaining shares for the
same cash price in the merger.
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, New York City time, on May 24,
2000, to tender your shares in the offer. Further, if you cannot deliver
everything that is required in order to make a valid tender by that time, you
may be able to use a guaranteed delivery procedure, which is described later in
this offer to purchase. See Section 1--"Terms of the Offer"--and
Section 2--"Procedures for Tendering Shares"--of this offer to purchase.
CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
Subject to the terms of the merger agreement, we can extend the offer. We
have agreed in the merger agreement that we will extend the offer for a period
of time we believe necessary to cause the conditions to our offer to be
satisfied, if on any scheduled expiration date any of the conditions to our
offer are not satisfied. However, we are not required to, and without the
approval of the board of directors of Acsys we cannot, extend the offer beyond
September 29, 2000.
We will, if all conditions to the offer have been satisfied or waived prior
to its expiration date, provide a "subsequent offering period" for the offer. A
subsequent offering period will be an additional period of time, beginning after
we have purchased shares tendered during the offer, during which shareholders
may tender, but not withdraw, their shares and receive the offer consideration.
We will so provide for a subsequent offering period of 10 business days. We may
extend the subsequent offering period, but it will not last more than 20
business days in total. We may also decide not to provide for a subsequent
offering period, in which case we will disclose that fact at least five business
days before the expiration date of the offer.
See Section 1--"Terms of the Offer"--of this offer to purchase.
HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform Wilmington Trust Company, the paying
agent for the offer, of that fact and will make a public announcement of the
extension, not later than 9:00 a.m., New York City time, on the next business
day after the day on which the offer was scheduled to expire. See
Section 1--"Terms of the Offer"--of this offer to purchase.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
There is no financing condition to the offer. However:
--We are not obligated to purchase any tendered shares unless the number of
shares validly tendered and not withdrawn before the expiration date of the
offer, together with any shares we and
2
<PAGE>
our affiliates beneficially own, represents at least a majority of the shares of
Acsys outstanding on a fully diluted basis. We have agreed not to waive this
minimum tender condition without the consent of Acsys.
--We are not obligated to purchase any tendered shares if the applicable
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
has not expired or been terminated.
The offer is also subject to a number of other conditions. See
Section 14--"Certain Conditions of the Offer"--of this offer to purchase.
HOW DO I TENDER MY SHARES?
To tender shares, you must deliver the certificates representing your
shares, together with a completed letter of transmittal and any other documents
required, to Wilmington Trust Company, the paying agent for the offer, not later
than the time the tender offer expires. If your shares are held in street name,
the shares can be tendered by your nominee through The Depository Trust Company.
If you cannot deliver something that is required to be delivered to the paying
agent by the expiration of the tender offer, you may get a little extra time to
do so by having a broker, a bank or other fiduciary that is a member of the
Securities Transfer Agents Medallion Program or other eligible institution
guarantee that the missing items will be received by the paying agent within
three American Stock Exchange trading days. For the tender to be valid, however,
the paying agent must receive the missing items within that three trading day
period. See Section 2--"Procedures for Tendering Shares"--of this offer to
purchase.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw previously tendered shares at any time until the offer has
expired and, if we have not by June 25, 2000, agreed to accept your shares for
payment, you can withdraw them at any time after such time until we accept
shares for payment. This right to withdraw will not apply to any subsequent
offering period. See Section 1--"Terms of the Offer"--and
Section 3--"Withdrawal Rights"--of this offer to purchase.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw previously tendered shares, you must deliver a written notice of
withdrawal, or a facsimile of one, with the required information to the paying
agent while you still have the right to withdraw the shares. See
Section 1--"Terms of the Offer"--and Section 3--"Withdrawal Rights"--of this
offer to purchase.
WHAT DOES THE ACSYS BOARD OF DIRECTORS THINK OF THE OFFER?
We are making the offer pursuant to a merger agreement among us, Vedior,
Tiberia, Select Appointments North America and Acsys. The Acsys board of
directors unanimously adopted and approved the merger agreement, our tender
offer and our proposed merger with Acsys. The board of directors of Acsys has
determined that the offer and the merger are in the best interests of the
shareholders of Acsys and recommends that shareholders accept the offer and
tender their shares. See the "Introduction" to this offer to purchase.
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HAVE ANY SHAREHOLDERS AGREED TO TENDER THEIR SHARES?
Yes. Shareholders who own shares representing approximately 17% of the
outstanding common stock of Acsys have agreed to tender their shares in the
offer. See Section 12--"Purpose of the Offer; the Merger Agreement; the Support
Agreements; Plans for the Company--Support Agreements"--of this offer to
purchase.
WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE SHARES ARE NOT
TENDERED IN THE OFFER?
Yes. If we buy shares in the offer, we will then be merged with Acsys. If
that merger takes place, Tiberia will own all of the shares of Acsys, and all
other shareholders of Acsys (except Tiberia, Vedior, Acsys or any subsidiary of
Tiberia or Vedior and shareholders of Acsys who properly exercise their
dissenters' rights) will receive $5.00 per share in cash (or any higher price
per share that is paid in the offer).
There are no dissenters' rights available in connection with the offer.
However, if the merger takes place, shareholders who have not sold their shares
in the offer will have dissenters' rights under Georgia law. See
Section 12--"Purpose of the Offer; the Merger Agreement; the Support Agreements;
Plans for the Company--Dissenters' Rights"--of this offer to purchase.
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
If the merger takes place, shareholders who do not tender in the offer will
receive the same amount of cash per share that they would have received had they
tendered their shares in the offer, subject to their right to exercise their
dissenters' rights under Georgia law. Therefore, if the merger takes place and
you do not exercise your dissenters' rights, the only difference to you between
tendering your shares and not tendering your shares is that you will be paid
earlier if you tender your shares. However, if the merger does not take place,
the number of shareholders and of shares of Acsys that are still in the hands of
the public may be so small that there may no longer be an active public trading
market (or, possibly, any public trading market) for the shares. Also, the
shares may no longer be eligible to be traded on the American Stock Exchange or
any other securities exchange, and Acsys may cease making filings with the
Securities and Exchange Commission or otherwise cease being required to comply
with the Commission's rules relating to publicly held companies. See
Section 7--"Effect of the Offer on the Market for the Shares; AMEX Listing;
Exchange Act Registration; Margin Regulations"--and Section 12--"Purpose of the
Offer; the Merger Agreement; the Support Agreements; Plans for the Company"--of
this offer to purchase.
WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On April 14, 2000, the last trading day before Acsys and Vedior announced
that they had signed the merger agreement, the last sale price of the shares
reported on the American Stock Exchange was $2.75 per share. On April 26, 2000,
the last trading day before we commenced our tender offer, the last sale price
of the shares was $4.625 per share. We advise you to obtain a recent quotation
for shares of Acsys in deciding whether to tender your shares. See
Section 6--"Price Range of the Shares; Dividends on the Shares"--of this offer
to purchase.
TO WHOM CAN I TALK IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call MacKenzie Partners, Inc. at (800) 322-2885 (toll free) or
(212) 929-5500 (collect) or Robert W. Baird & Co. Incorporated at
(888) 224-7326. MacKenzie Partners, Inc. is acting as the information agent and
Robert W. Baird & Co. Incorporated is acting as the dealer manager for our
tender offer. See the back cover of this offer to purchase.
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To the Holders of Common Stock of
Acsys, Inc.:
INTRODUCTION
PLATFORM PURCHASER INC., a Georgia corporation (the "PURCHASER") and an
affiliate of VEDIOR N.V., a company organized under the laws of the Netherlands
("VEDIOR"), and to become, immediately prior to the initial purchase of Shares
(as defined below) under the Offer (as defined below), a wholly owned subsidiary
of TIBERIA B.V., a company organized under the laws of the Netherlands
("PARENT"), hereby offers to purchase all the outstanding shares of common
stock, no par value per share (together with the associated series A junior
participating preferred stock purchase rights, the "SHARES"), of ACSYS, INC., a
Georgia corporation (the "COMPANY"), at a price of $5.00 per Share, net to the
seller in cash, without interest thereon (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").
Tendering shareholders whose shares are registered in their own names and
who tender directly to the Paying Agent (as defined below) 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. Shareholders who hold their Shares through banks or brokers should
check with such institutions as to whether they charge any service fees. The
Purchaser will pay all fees and expenses of Robert W. Baird & Co. Incorporated,
which is acting as Dealer Manager (the "DEALER MANAGER"), Wilmington Trust
Company, which is acting as the Paying Agent (the "PAYING AGENT"), and MacKenzie
Partners, Inc., which is acting as the Information Agent (the "INFORMATION
AGENT"), incurred in connection with the Offer. See Section 16.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of April 16, 2000 (the "MERGER AGREEMENT"), by and among Parent, the
Purchaser, Vedior, Select Appointments North America Inc. and the Company,
pursuant to which, following the consummation of the Offer and the satisfaction
or waiver of certain conditions, the Purchaser will be merged with and into the
Company, with the Company surviving the merger as a wholly owned subsidiary of
Parent (the "MERGER"). In the Merger each outstanding Share (other than Shares
owned by Parent, Vedior or the Company or any subsidiary of Parent or the
Company and by shareholders, if any, who exercise their statutory dissenters'
rights under Georgia law) will be converted into the right to receive the price
per Share paid pursuant to the Offer in cash, without interest thereon.
Simultaneously with the execution of the Merger Agreement, Vedior and the
Purchaser entered into Support Agreements each dated as of April 16, 2000 (the
"SUPPORT AGREEMENTS"), with Harry J. Sauer, a director and Executive Vice
President--Professional Services of the Company, and The Sauer Family
Foundation, a family foundation controlled by Mr. Sauer (Mr. Sauer, together
with The Sauer Family Foundation, are referred to herein collectively as
"SAUER"), and David C. Cooper, the Company's Chief Executive Officer and the
Chairman of its Board of Directors, and Mr. Cooper's wife, Teri L. Cooper
(Mr. Cooper, together with his wife, are referred to collectively herein as
"COOPER") (collectively, the "PRINCIPAL SHAREHOLDERS"). The Principal
Shareholders have represented that they have voting and dispositive control over
2,451,685 Shares, which represented approximately 17% of the outstanding Shares
as of April 16, 2000. Pursuant to the Support Agreements, the Principal
Shareholders have agreed, among other things, to tender all such Shares pursuant
to the Offer.
The Merger Agreement and the Shareholders Agreements are more fully
described in Section 12.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY ADOPTED AND APPROVED
THE MERGER AGREEMENT, THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT; HAS UNANIMOUSLY DETERMINED THAT THE TERMS
OF THE OFFER AND THE MERGER ARE IN THE BEST INTERESTS OF
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THE SHAREHOLDERS OF THE COMPANY; AND RECOMMENDS THAT SHAREHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER. THE FACTORS
CONSIDERED BY THE BOARD OF DIRECTORS OF THE COMPANY IN ARRIVING AT ITS DECISION
TO ADOPT AND APPROVE THE MERGER AGREEMENT, THE OFFER, THE MERGER AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND TO RECOMMEND THAT
SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO
THE OFFER ARE DESCRIBED IN THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT
ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"), WHICH HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") AND IS BEING MAILED TO
SHAREHOLDERS OF THE COMPANY CONCURRENTLY HEREWITH.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION HAS ACTED AS THE
COMPANY'S FINANCIAL ADVISOR. THE OPINION OF DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION, DATED APRIL 16, 2000, THAT, AS OF SUCH DATE, BASED ON
AND SUBJECT TO THE ASSUMPTIONS, LIMITATIONS AND QUALIFICATIONS SET FORTH IN ITS
WRITTEN OPINION, THE CONSIDERATION TO BE RECEIVED IN THE OFFER AND THE MERGER BY
THE HOLDERS OF SHARES WAS FAIR TO SUCH HOLDERS FROM A FINANCIAL POINT OF VIEW IS
SET FORTH IN FULL AS AN ANNEX TO THE SCHEDULE 14D-9. SHAREHOLDERS ARE URGED TO,
AND SHOULD, READ THE SCHEDULE 14D-9 AND SUCH OPINION CAREFULLY IN THEIR
ENTIRETY.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 14 HEREOF) THAT NUMBER OF SHARES THAT WOULD REPRESENT AT LEAST A
MAJORITY OF THE FULLY DILUTED SHARES (AS DEFINED IN EXHIBIT 1 TO THE MERGER
AGREEMENT) ON THE DATE OF PURCHASE (THE "MINIMUM CONDITION") AND (B) ANY WAITING
PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS
AMENDED (THE "HSR ACT"), APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE
OFFER OR TO THE MERGER HAVING EXPIRED OR BEEN TERMINATED.
Consummation of the Merger is subject to a number of conditions, including
approval by shareholders of the Company, if such approval is required under
applicable law. In the event the Purchaser, Parent and any other affiliate of
Parent acquires 90% or more of the outstanding Shares pursuant to the Offer or
otherwise, the Purchaser may be able to effect the Merger pursuant to the
"short-form" merger provisions of the Georgia Business Corporations Code (the
"GBCC"), without prior notice to, or any action by, any other shareholder of the
Company. In such event, the Purchaser intends to effect the Merger without prior
notice to, or any action by, any other shareholder of the Company. See
Section 12.
The Company has informed the Purchaser that, as of April 16, 2000, there
were: (a) 14,499,400 Shares issued and outstanding; (b) 2,206,011 Shares
reserved for issuance upon the exercise of outstanding options to purchase
Shares from the Company; and (c) approximately 16,836,411 Fully Diluted Shares.
Based upon the foregoing and assuming that no Shares are otherwise issued after
April 16, 2000, the Minimum Condition will be satisfied if at least 8,418,206
Shares are validly tendered and not withdrawn prior to the Expiration Date. The
actual number of Shares required to be tendered to satisfy the Minimum Condition
will depend upon the actual number of Fully Diluted Shares on the date that the
Purchaser accepts Shares for payment pursuant to the Offer. If the Minimum
Condition is satisfied, and the Purchaser accepts for payment Shares tendered
pursuant to the Offer, the Purchaser will be able to elect a majority of the
members of the Company's Board of Directors and to effect the Merger without the
affirmative vote of any other shareholder of the Company. See Section 12 of this
Offer to Purchase.
Certain U.S. federal income tax consequences of the sale of Shares pursuant
to the Offer and the conversion of Shares pursuant to the Merger are described
in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY AND IN THEIR ENTIRETY BEFORE
ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
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THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term "EXPIRATION DATE" means 12:00 midnight, New York City time, on May 24,
2000, unless and until the Purchaser shall have extended the period of time
during which the Offer is open in accordance with the terms of Merger Agreement,
in which event the term "EXPIRATION DATE" shall mean the latest time and date on
which the Offer, as so extended by the Purchaser, will expire.
The Purchaser may, without the consent of the Company, and expressly
reserves the right (but shall not be obligated), to extend the Offer, and
thereby delay acceptance for payment of, and the payment for, any Shares, by
giving oral or written notice of such extension to the Paying Agent, for any
period required by any rule, regulation, interpretation or position of the
Commission or the staff thereof applicable to the Offer. If all of the
conditions to the Offer are not satisfied on an Expiration Date, then if all
such conditions are capable of being satisfied prior to September 29, 2000, the
Purchaser will extend the Offer for one or more periods of time (each not to
exceed 20 business days) until such conditions are satisfied or waived; PROVIDED
that the Purchaser will not be required to extend the Offer beyond, and without
the approval of the Company's board of directors the Offer will not be extended
beyond, September 29, 2000. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER,
WHETHER SUCH SHARES ARE PURCHASED DURING A SUBSEQUENT OFFERING PERIOD (AS
DEFINED BELOW) OR ANY DELAY IN PAYING FOR SUCH SHARES.
The Purchaser expressly reserves the right (but shall not be obligated), at
any time and from time to time, to waive any condition to the Offer or modify
the terms of the Offer, by giving oral or written notice of such waiver or
modification to the Paying Agent, except that, without the consent of the
Company, the Purchaser shall not (i) reduce the number of Shares subject to the
Offer, (ii) reduce the price per Share to be paid pursuant to the Offer, (iii)
waive the Minimum Condition or modify (in any manner adverse to the holders of
Shares) or add to the conditions of the Offer, (iv) except as provided above,
extend the Offer or (v) change the form of consideration payable in the Offer.
If by 12:00 midnight, New York City time, on May 24, 2000 (or any date or
time then set as the Expiration Date), any of or all the conditions to the Offer
have not been satisfied or waived, the Purchaser, subject to the terms of the
Merger Agreement and the applicable rules and regulations of the Commission,
reserves the right to (and in the case of clause (b) shall) (a) except as set
forth above with respect to the Minimum Condition, waive all the unsatisfied
conditions and accept for payment and pay for all Shares validly tendered prior
to the Expiration Date and not theretofore validly withdrawn, (b) as set forth
above, extend the Offer or (c) except as set forth above, amend the Offer.
Any extension, waiver, amendment or termination will be followed as promptly
as practicable by public announcement thereof. An announcement in the case of an
extension will be made no later than 9:00 a.m., Eastern time, on the next
business day after the previously scheduled Expiration Date. Without limiting
the manner in which the Purchaser may choose to make any public announcement,
subject to applicable law (including Rules 14d-4(d) and 14d-6(c) under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), which require
that material changes be promptly disseminated to holders of Shares), we will
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to the Dow Jones News
Service. As used in this Offer to Purchase, "BUSINESS DAY" has the meaning set
forth in Rule 14d-1 under the Exchange Act.
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If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
the Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(d), 14d-6(c) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of such offer or information concerning
such 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 shareholders.
Pursuant to Rule 14d-11 under the Exchange Act, the Purchaser will, in the
event that all conditions to the Offer have been satisfied or waived as of the
Expiration Date and, subject to the requirements of Rule 14d-11 described below,
provide for a subsequent offering period of 10 business days following the
expiration of the Offer on the Expiration Date and acceptance for payment of the
Shares tendered in the Offer (a "SUBSEQUENT OFFERING PERIOD"). The Purchaser may
extend (or re-extend) such Subsequent Offering Period up to an aggregate of 20
business days. The Purchaser may also elect not to provide for a Subsequent
Offering Period, in which case the Purchaser will disclose that fact at least
five business days prior to the Expiration Date. A Subsequent Offering Period is
an additional period of time, following the expiration of the Offer and the
purchase of Shares in the Offer, during which shareholders may tender Shares not
tendered in the Offer. A Subsequent Offering Period is not an extension of the
Offer, which already will have been completed.
During a Subsequent Offering Period, the Purchaser will promptly purchase
and pay for any Shares tendered at the same price paid in the Offer. Pursuant to
Rule 14d-7 under the Exchange Act, no withdrawal rights apply to Shares tendered
during a Subsequent Offering Period and no withdrawal rights apply during a
Subsequent Offering Period with respect to Shares tendered in the Offer and
accepted for payment. Rule 14d-11 provides that the Purchaser may provide a
Subsequent Offering Period so long as, among other things, (i) the initial
20-business day period of the Offer has expired, (ii) the Purchaser offers the
same form and amount of consideration for Shares in the Subsequent Offering
Period as in the initial Offer, (iii) the Purchaser immediately accepts and
promptly pays for all securities tendered during the Offer prior to its
expiration, (iv) the Purchaser announces the results of the Offer, including the
approximate number and percentage of Shares deposited in the Offer, no later
than 9:00 a.m., Eastern time, on the next business day after the Expiration Date
and immediately begins the Subsequent Offering Period and (v) the Purchaser
immediately accepts and promptly pays for Shares as they are tendered during the
Subsequent Offering Period.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This 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, banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the shareholder 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. PROCEDURES FOR TENDERING SHARES
VALID TENDER. For a shareholder validly to tender Shares pursuant to the
Offer, (a) the certificates for tendered Shares, together with a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, any
required signature guarantees and any other required documents, must, prior to
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the Expiration Date, be received by the Paying Agent at one of its addresses set
forth on the back cover of this Offer to Purchase; (b) in the case of a transfer
effected pursuant to the book-entry transfer procedures described under
"--Book-Entry Transfer," either a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, and any required signature guarantees, or
an Agent's Message (as defined below), and any other required documents, must be
received by the Paying Agent at one of such addresses, such Shares must be
delivered pursuant to the book-entry transfer procedures described below and a
Book-Entry Confirmation (as defined below) must be received by the Paying Agent,
in each case prior to the Expiration Date; or (c) the tendering shareholder
must, prior to the Expiration Date, comply with the guaranteed delivery
procedures described below under "--Guaranteed Delivery."
The valid tender of Shares pursuant to one of the procedures described above
will constitute a binding agreement between the tendering shareholder and the
Purchaser upon the terms and subject to the conditions of the Offer.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY
(AS DEFINED BELOW), IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER.
SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE PAYING AGENT
(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 Paying Agent will establish an account with
respect to the Shares at The Depository Trust Company (the "BOOK-ENTRY TRANSFER
FACILITY") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant of the
Book-Entry Transfer Facility's system may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the Paying
Agent's account in accordance with the Book-Entry Transfer Facility's procedures
for such transfer. However, although delivery of Shares may be effected through
book-entry transfer into the Paying Agent's account at the Book-Entry Transfer
Facility, the Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, or an Agent's
Message, and any other required documents, must be, in any case, received by the
Paying Agent at one of its addresses set forth on the back cover of this Offer
to Purchase prior to the Expiration Date for a valid tender of Shares by
book-entry. The confirmation of a book-entry transfer of Shares into the Paying
Agent's account at the Book-Entry Transfer Facility as described above is
referred to herein as a "BOOK-ENTRY CONFIRMATION." DELIVERY OF DOCUMENTS TO THE
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE PAYING AGENT.
The term "AGENT'S MESSAGE" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Paying Agent and forming a part of a
Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal if (a) the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section 2, includes any participant
in the Book-Entry Transfer Facility's system whose name appears on a security
position listing as the owner of the Shares) of Shares tendered therewith and
such registered holder has
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not completed either the box entitled "Special Delivery Instructions" or the box
entitled "Special Payment Instructions" on the Letter of Transmittal or
(b) such Shares are tendered for the account of a financial institution
(including most commercial banks, savings and loan associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion Program,
the New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program (such participant, an "ELIGIBLE INSTITUTION"). In all
other cases, all signatures on the 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
returned 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 aforesaid. See Instructions 1
and 5 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates for Shares are not immediately
available or the book-entry transfer procedures cannot be completed on a timely
basis or time will not permit all required documents to reach the Paying Agent
prior to the Expiration Date, such shareholder's tender may be effected if all
the following conditions are met:
(a) such tender is made by or through an Eligible Institution;
(b) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Paying Agent at one of its addresses set forth on the back cover of
this Offer to Purchase prior to the Expiration Date; and
(c) Either (i) the certificates for tendered Shares together with a
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, and any required signature guarantees, and any other required
documents are received by the Paying Agent at one of its addresses set forth
on the back cover of this Offer to Purchase within three trading days after
the date of execution of such Notice of Guaranteed Delivery or (ii) in the
case of a book-entry transfer effected pursuant to the book-entry transfer
procedures described above under "--Book-Entry Transfer," either a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed,
and any required signature guarantees, or an Agent's Message, and any other
required documents, is received by the Paying Agent at one of such
addresses, such Shares are delivered pursuant to the book-entry transfer
procedures above and a Book-Entry Confirmation is received by the Paying
Agent, in each case within three trading days after the date of execution of
such Notice of Guaranteed Delivery. A "TRADING DAY" is any day on which the
American Stock Exchange (the "AMEX") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Paying
Agent or transmitted by telegram, facsimile transmission or mail to the Paying
Agent and must include a guarantee by an Eligible Institution in the form set
forth in such Notice of Guaranteed Delivery.
OTHER REQUIREMENTS. Notwithstanding any provision hereof, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Paying Agent of (a) certificates for (or a timely
Book-Entry Confirmation with respect to) such Shares, (b) a Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message in lieu of the Letter of
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Transmittal) and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering shareholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Paying Agent. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID BY THE PURCHASER ON THE PURCHASE PRICE OF THE SHARES,
REGARDLESS OF ANY EXTENSION OF THE OFFER, WHETHER SUCH SHARES ARE PURCHASED
DURING A SUBSEQUENT OFFERING PERIOD OR ANY DELAY IN MAKING SUCH PAYMENT.
APPOINTMENT. By executing a Letter of Transmittal (or facsimile thereof),
(or, in the case of a book-entry transfer, by delivery of an Agent's Message, in
lieu of a Letter of Transmittal), a tendering shareholder will irrevocably
appoint designees of the Purchaser as such shareholder'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 shareholder's rights with
respect to the Shares tendered by such shareholder and accepted for payment by
the Purchaser 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 April 27,
2000. All such proxies will be considered coupled with an interest in the
tendered Shares. Such appointment will be effective when, and only to the extent
that, the Purchaser accepts for payment Shares tendered by such shareholder as
provided herein. Upon the effectiveness of such appointment, all prior powers of
attorney, proxies and consents given by such shareholder with respect to such
Shares or other securities or rights will, without further action, be revoked
and no subsequent powers of attorney, proxies, consents or revocations may be
given (and, if given, will not be effective). The designees of the Purchaser
will thereby be empowered to exercise all voting and other rights with respect
to such Shares and other securities or rights in respect of any annual, special
or adjourned meeting of the Company's shareholders, actions by written consent
in lieu of any such meeting or otherwise, as they in their sole discretion deem
proper. The Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, immediately upon the Purchaser's acceptance for
payment of such Shares, the Purchaser must be able to exercise full voting,
consent and other rights with respect to such Shares and other securities or
rights, including voting at any meeting of shareholders.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser 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 the Purchaser, be
unlawful. The Purchaser also reserves the absolute right to waive any defect or
irregularity in the tender of any Shares of any particular shareholder whether
or not similar defects or irregularities are waived in the case of other
shareholders. 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 the Purchaser, Vedior, Parent, the Company, the Paying Agent, the Information
Agent, the Dealer Manager 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. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto and any other related documents thereto) will be final and
binding.
BACKUP WITHHOLDING. In order to avoid "backup withholding" of U.S. federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Paying Agent
with such shareholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such Shareholder is not subject to backup withholding. If a
shareholder does not
11
<PAGE>
provide such shareholder's correct TIN or fails to provide the certifications
described above, the Internal Revenue Service (the "IRS") may impose a penalty
on such shareholder and payment of cash to such shareholder pursuant to the
Offer may be subject to backup withholding of 31%. All shareholders 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
the Purchaser and the Paying Agent). Certain shareholders (including, among
others, all corporations and certain foreign individuals and entities) are not
subject to backup withholding. Noncorporate foreign shareholders 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 Paying Agent, in order to avoid backup
withholding. See Instruction 9 to the Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, 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 theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after June 25, 2000. However,
pursuant to Rule 14d-7 under the Exchange Act, no withdrawal rights apply to
Shares tendered during a Subsequent Offering Period and no withdrawal rights
apply during a Subsequent Offering Period with respect to Shares tendered in the
Offer and accepted for payment.
For a withdrawal to be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Paying Agent 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
Paying Agent, then, prior to the physical release of such certificates, the
serial numbers shown on such certificates must be submitted to the Paying Agent
and, unless such Shares have been tendered by an Eligible Institution, any and
all signatures on the notice of withdrawal must be guaranteed by an Eligible
Institution. If Shares have been tendered pursuant to the book-entry transfer
procedures described in Section 2, any notice of withdrawal must also specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the Book-Entry
Transfer Facility's procedures. Withdrawals of tenders of Shares may not be
rescinded, and any Shares properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered by again following one of the procedures described in Section 2 at
any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be determined by the Purchaser in its sole discretion,
which determination will be final and binding. None of the Purchaser, Vedior,
Parent, the Company, the Paying Agent, the Information Agent, the Dealer Manager
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.
12
<PAGE>
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
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), the Purchaser 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 3 promptly after the Expiration Date. The Purchaser,
subject to the Merger Agreement, 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, including, without
limitation, the HSR Act. Any such delays will be effected in compliance with
Rule 14e-1(c) under the Exchange Act (relating to a bidder's obligation to pay
for or return tendered securities promptly after the termination or withdrawal
of such bidder's offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Paying Agent of (a) the
certificates for such Shares, together with a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, and any required
signature guarantees or (b) in the case of a transfer effected pursuant to the
book-entry transfer procedures described in Section 2, a Book-Entry Confirmation
and either a Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, and any required signature guarantees, or an Agent's Message,
and any other required documents. Accordingly, tendering shareholders may be
paid at different times depending upon when certificates for Shares or
Book-Entry Confirmations with respect to Shares actually received by the Paying
Agent.
The per Share consideration paid to any shareholder pursuant to the Offer
will be the highest per Share consideration paid to any other shareholder
pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered to the Purchaser and not
properly withdrawn as, if and when the Purchaser gives oral or written notice to
the Paying Agent of the Purchaser'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 Paying Agent, which will act as an agent for
tendering shareholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering shareholders whose Shares have been
accepted for payment. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER,
WHETHER SUCH SHARES ARE PURCHASED DURING A SUBSEQUENT OFFERING PERIOD OR ANY
DELAY IN PAYING FOR SUCH SHARES.
If the Purchaser 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 the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act
(relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer) and the
terms of the Merger Agreement (requiring that the Purchaser pay for Shares
accepted for payment as soon as practicable after the Expiration Date)), the
Paying Agent may, nevertheless, on behalf of the Purchaser, retain tendered
Shares, and such Shares may not be withdrawn except to the extent tendering
shareholders are entitled to do so as described in Section 3.
If any tendered Shares are not accepted for payment pursuant to the terms
and conditions of the Offer for any reason, the certificates for such Shares
will be returned (and, if certificates are submitted for more Shares than are
tendered, new certificates for the Shares not tendered will be sent) in each
case without expense to the tendering shareholder (or, in the case of Shares
delivered by book-entry
13
<PAGE>
transfer of such Shares into the Paying Agent's account at the Book-Entry
Transfer Facility pursuant to the book-entry transfer procedures described in
Section 2, such Shares will be credited to an account maintained at the
Book-Entry Transfer Facility), as promptly as practicable after the expiration
or termination of the Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to Vedior, or to any majority-owned subsidiary of Vedior,
the right to purchase Shares tendered pursuant to the Offer, but any such
transfer or assignment will not relieve the Purchaser of its obligations under
the Offer and will in no way prejudice the rights of tendering shareholders to
receive payment for Shares validly tendered and accepted for payment pursuant to
the Offer.
5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for U.S. federal income tax purposes under the Internal Revenue Code
of 1986, as amended (the "CODE"), and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for U.S.
federal income tax purposes, a tendering shareholder will recognize gain or loss
equal to the difference between the amount of cash received by the shareholder
pursuant to the Offer or Merger and the aggregate adjusted tax basis in the
Shares tendered by the shareholder and purchased pursuant to the Offer or
converted into cash in the Merger, as the case may be. Gain or loss will be
calculated separately for each block of Shares tendered and purchased pursuant
to the Offer or converted into cash in the Merger, as the case may be.
If tendered Shares are held by a tendering shareholder as capital assets,
gain or loss recognized by such shareholder will be capital gain or loss, which
will be long-term capital gain or loss if such shareholder's holding period for
the Shares exceeds one year. In the case of a tendering noncorporate
shareholder, long-term capital gains will be eligible for a maximum U.S. federal
income tax rate of 20%. In addition, there are limits on the deductibility of
capital losses.
A shareholder (other than certain exempt shareholders including, among
others, all corporations and certain foreign individuals) that tenders Shares
may be subject to 31% backup withholding unless the shareholder provides its TIN
and certifies that such number is correct (or properly certifies that it is
awaiting a TIN) and certifies as to no loss of exemption from backup withholding
and otherwise complies with the applicable requirements of the backup
withholding rules. A shareholder that does not furnish a required TIN or that
does not otherwise establish a basis for an exemption from backup withholding
may be subject to a penalty imposed by the IRS. See "Backup Withholding" under
Section 2. Each shareholder should complete and sign the Substitute Form W-9
included as part of the Letter of Transmittal so as to provide the information
and certification necessary to avoid backup withholding.
If backup withholding applies to a shareholder, the Paying Agent is required
to withhold 31% from payments to such shareholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the U.S. federal income tax liability of the person subject to the
backup withholding, provided that the required information is given to the IRS.
If backup withholding results in an overpayment of tax, a refund can be obtained
by the shareholder by filing a U.S. federal income tax return.
The foregoing discussion may not be applicable with respect to Shares
received pursuant to the exercise of employee stock options or otherwise as
compensation or with respect to holders of Shares who are subject to special tax
treatment under the Code--such as non-U.S. persons, life insurance
14
<PAGE>
companies, tax-exempt organizations and financial institutions--and may not
apply to a holder of Shares in light of individual circumstances, such as
holding Shares as a hedge or as part of a hedging, straddle, conversion or other
risk-reduction transaction. SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM (INCLUDING THE
APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN INCOME AND OTHER TAX LAWS)
OF THE OFFER AND THE MERGER.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
The Shares are listed on the AMEX under the symbol "AYS," and have been at
all times since September 7, 1999. Between February 6, 1998 and September 7,
1999, the Shares were quoted on the Nasdaq National Market under the symbol
"ACSY." The following table sets forth, for each of the periods indicated, the
high and low sales prices per Share on the Nasdaq National Market and the AMEX,
as applicable. The Company has never paid cash dividends on its common stock.
<TABLE>
<CAPTION>
HIGH LOW
------- --------
<S> <C> <C>
Fiscal Year Ended December 31, 1998:
First Quarter (from February 6, 1998)..................... $16.500 $11.063
Second Quarter............................................ 20.500 13.000
Third Quarter............................................. 13.750 6.250
Fourth Quarter............................................ 9.750 2.969
Fiscal Year Ended December 31, 1999:
First Quarter............................................. $ 5.000 $ 2.438
Second Quarter............................................ 4.500 3.000
Third Quarter............................................. 5.000 2.500
Fourth Quarter............................................ 2.625 1.313
Fiscal Year Ending December 31, 2000:
First Quarter............................................. $ 4.375 $ 1.250
Second Quarter (through April 26, 2000)................... 4.688 2.125
</TABLE>
On April 14, 2000, the last full trading day before the public announcement
of the execution of the Merger Agreement, the last reported sales price of the
Shares on the AMEX was $2.75 per Share. On April 26, 2000, the last full trading
day before commencement of the Offer, the last reported sales price of the
Shares on the AMEX was $4.625 per Share. SHAREHOLDERS ARE URGED TO OBTAIN
CURRENT MARKET QUOTATIONS FOR THE SHARES.
15
<PAGE>
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; AMEX LISTING; EXCHANGE ACT
REGISTRATION; MARGIN REGULATIONS
MARKET FOR THE SHARES. 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 held by the public.
AMEX LISTING. Depending upon the number of Shares purchased pursuant to the
Offer, the Shares may no longer meet the requirements for continued listing on
the AMEX. According to the AMEX's published guidelines, the AMEX would consider
delisting the Shares if, among other things, the number of publicly held Shares
falls below 200,000, the total number of holders of Shares falls below 300 or if
the aggregate market value of Shares publicly held is less than $1,000,000.
Shares held by officers or directors of the Company or their immediate families,
or by any controlling shareholder ordinarily will not be considered as being
publicly held for this purpose. According to the Company, as of April 24, 2000,
there were 14,499,400 shares of common stock outstanding. If, as a result of the
purchase of Shares pursuant to the Offer or otherwise, the Shares no longer meet
the requirements of the AMEX for continued listing and the Shares are no longer
listed, the market for Shares could be adversely affected.
If the AMEX were to delist the Shares, it is possible that the Shares would
continue to trade on other securities exchanges or in the over-the-counter
market and that price quotations would be reported by such exchanges. The extent
of the public market for the Shares and the availability of such quotations
would, however, depend upon the number of holders of Shares remaining at such
time, the interests in maintaining a market in Shares on the part of securities
firms, the possible termination of registration of the Shares under the Exchange
Act as described below, and other factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application of the
Company to the Commission if the Shares are 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 reduce the information
required to be furnished by the Company to its shareholders 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 and the requirement of furnishing a proxy
statement pursuant to Section 14(a) or 14(c) of the Exchange Act in connection
with shareholders' meetings and the related requirement of furnishing an annual
report to shareholders. 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 Rule 144A promulgated under the Securities
Act of 1933, as amended, may be impaired or eliminated. The Purchaser intends to
seek 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 termination are met.
MARGIN REGULATIONS. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"FEDERAL RESERVE BOARD"), which has the effect, among other things, of allowing
brokers or dealers to extend credit on the collateral of the Shares. Depending
upon factors similar to those described above regarding listing and market
quotations, it is possible that, following the Offer, the Shares would no longer
constitute "margin securities" for the purposes of the margin regulations of the
Federal Reserve Board and therefore their use as collateral for loans made by
brokers or dealers would be significantly restricted.
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<PAGE>
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Georgia corporation with its principal offices at 75 14th
Street, Suite 2200, Atlanta, Georgia 30309, telephone number (404) 817-9440.
According to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, the Company is one of the leading providers of specialty
professional staffing services in the United States.
Set forth below is certain selected consolidated financial information with
respect to the Company and its subsidiaries excerpted from the information
contained in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999. More comprehensive financial information is included in such
report and other documents filed by the Company with the Commission, and the
following summary is qualified in its entirety by reference to such report,
other documents and all the financial information (including any related notes)
contained therein. Such reports and other documents should be available for
inspection and copies thereof should be obtainable in the manner set forth below
under "--Available Information."
ACSYS, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, (1)
----------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Service revenues:
Temporary staffing...................... $135,851 $103,067 $ 60,057 $ 44,556 $ 28,215
Permanent placement..................... 30,475 26,831 18,071 12,186 8,269
-------- -------- -------- -------- --------
Total service revenues................ 166,326 129,898 78,128 56,742 36,484
Direct cost of services................... 92,771 72,170 42,583 30,616 18,284
-------- -------- -------- -------- --------
Gross profit.......................... 73,555 57,728 35,545 26,126 18,200
Selling, general and administrative
expenses................................ 61,392 48,260 29,979 20,769 13,893
Combination expenses...................... -- 1,730 1,797 -- --
Amortization and depreciation............. 3,288 1,658 715 693 682
Severance and franchise termination
costs................................... 5,479 650 682 567 166
-------- -------- -------- -------- --------
Operating income...................... 3,396 5,430 2,372 4,097 3,459
Other expense, net........................ 3,334 1,129 788 811 865
-------- -------- -------- -------- --------
Income before income taxes and
extraordinary item...................... 62 4,301 1,584 3,286 2,594
Income taxes (2).......................... 604 5,527 438 419 133
-------- -------- -------- -------- --------
Income (loss) before extraordinary item... (542) (1,226) 1,146 2,867 2,461
Extraordinary item (less income tax
benefit of $243)........................ (398) -- -- -- --
-------- -------- -------- -------- --------
Net income (loss)......................... $ (940) $ (1,226) $ 1,146 $ 2,867 $ 2,461
Basic and diluted net income (loss) per
share................................... $ (0.06) $ (0.09) $ 0.02 $ 0.27 $ 0.24
Shares used in computing basic net income
(loss) per share........................ 14,484 14,016 10,440 9,972 10,094
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, (1)
----------------------------------------------------
1999 1998 1997 1996 1995
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Shares used in computing diluted net
income (loss) per share................. 14,484 14,016 10,544 9,972 10,094
BALANCE SHEET DATA:
Working capital........................... $ 12,303 $ 15,366 $ 4,921 $ 4,309 $ 2,216
Total assets.............................. 87,524 86,363 33,352 18,167 14,503
Long-term debt, including current
maturities.............................. 38,717 38,320 11,754 8,847 8,905
Redeemable common stock................... -- -- 1,220 288 --
Shareholders' equity...................... 32,853 33,703 10,801 4,175 2,670
</TABLE>
- --------------------------
(1) All of the financial data presented has been restated to give effect to the
acquisitions of Infinity Enterprises, Inc.; David C. Cooper & Associates,
Inc.; DCAA Professional Temporaries, Inc.; EKT, Inc., Cama of Tampa, Inc.;
Rylan Forbes Consulting Group, Inc.; Acsys Resources, Inc.; and Icon Search
and Consulting, Inc. ("ICON"), which have been accounted for under the
pooling of interests method of accounting. Additionally, the financial data
presented includes results of operations of Infinity Enterprises, Inc., and
ICON from January 1, 1995, and of Cama of Tampa, Inc. from January 1, 1996.
The acquisitions of C.P.A. Staffing, Inc.; C.P.A. Search, Inc.; Career
Placement Associates in August 1997; TGS Resource Group, Inc. in March
1998; KPD Systems, Inc. in July 1998; and Staffing Edge, Inc. in August
1998 have been accounted for under the purchase method of accounting and
are included in the historical statements of operations from their
respective dates of acquisition. Prior to becoming a publicly traded
company in February 1998, the Company was an S-corporation, except for
ICON, which was a C-corporation; accordingly, certain financial data may
not be comparable to or indicative of the Company's post-initial public
offering results.
(2) Prior to the Company's initial public offering, the Company operated as an
S-corporation for income tax purposes, except for ICON, which was a
C-corporation. Accordingly, income tax expense prior to the Company's
initial public offering resulted from the operating earnings of ICON. In
connection with the initial public offering, the Company terminated its
S-corporation status and recorded a charge to income tax expense of
approximately $3,000,000 in 1998 representing the tax effect of differences
in the bases of assets and liabilities for financial reporting and income
tax purposes.
AVAILABLE INFORMATION. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file periodic reports and other information with the Commission relating to its
business, financial condition and other matters. Certain information as of
particular dates concerning the Company's directors and officers, their
remuneration, stock options and other matters, the principal holders of the
Company's common stock and any material interest of such persons in transactions
with the Company is required to be disclosed in the Company's proxy statements
distributed to the Company's shareholders 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 at 450 Fifth
Street, N.W., Washington, DC 20549, and at the regional offices of the
Commission located at Seven World Trade Center, 13th Floor, New York, NY 10048
and Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL
60661. Copies of such information 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, DC 20549. The Commission also
maintains a Web site on the Internet at http://www.sec.gov/ that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. Such information may
also be available for inspection at the offices of the AMEX, 86 Trinity Place,
New York, NY 10006-1881.
18
<PAGE>
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although Parent, Vedior and the Purchaser do not have any
knowledge that any such information is untrue, none of the Purchaser, Vedior or
Parent takes any responsibility for the accuracy or completeness of such
information or for any failure by the Company to disclose events that may have
occurred and may affect the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER, PARENT AND VEDIOR
The Purchaser, a Georgia corporation that is presently an affiliate of
Vedior, was organized to acquire the Company and has not conducted any unrelated
activities since its organization. All outstanding shares of capital stock of
the Purchaser are owned by Vedior. Prior to the initial purchase of shares under
the Offer, the Purchaser will become a wholly owned subsidiary of Parent. Parent
was organized in connection with the acquisition of the Company and has not
conducted any unrelated activities since its organization. Parent is presently a
wholly owned indirect subsidiary of ING (as defined below) and, at the time of
the initial purchase of Shares under the Offer, Parent's common equity will be
owned by Vedior, and Parent's preferred equity will be owned by ING Bank
Corporate Investments B.V. ("ING"), an investment company organized under the
laws of the Netherlands and an indirect subsidiary of ING Groep N.V. ("ING
Groep"), a holding company, organized under the laws of the Netherlands, with
subsidiaries primarily engaged in financial services. ING Groep's principal
office is located at Strawinskylaan 2631, 1077 ZZ, Amsterdam, the Netherlands,
telephone number (011) 31-20-541-5509. See Section 10--"Source and Amount of
Funds; Vedior/ING Financing Arrangements" for a description of the transactions
giving rise to this ownership structure.
Because the common and preferred equity of Parent is to have equal voting
rights (with a trust company organized under the laws of the Netherlands to be
appointed as Parent's sole managing director), Vedior and ING will initially
jointly control the affairs of Parent, with Vedior expected to have a
supervisory role with respect to the management of the Company following
completion of the Offer and the Merger. See Item 12-- "Purpose of the Offer; the
Merger Agreement; the Support Agreements; Plans for the Company--Plans for the
Company" in this Offer to Purchase.
Vedior is a company organized under the laws of the Netherlands and is an
international provider of temporary and contract staffing services. As of
April 16, 2000, Vedior beneficially owned 50,000 Shares. The principal office of
Vedior is located at Jachthavenweg 112, 1076 DC Amsterdam, the Netherlands,
telephone number (011) 31-20-573-5626. The principal office of Parent is located
at Bijlmerplein 888, 1102 MG, Amsterdam, the Netherlands, telephone number
(011) 31-20-652-3951. The principal office of the Purchaser is located at
c/o Select Appointments North America Inc., 60 Harvard Mill Square, Wakefield,
MA 01880, telephone (781) 213-1500.
Vedior has a supervisory board and a management board. The supervisory board
oversees and advises the management board and is charged with the responsibility
for safeguarding the overall interest of Vedior. The management board is
responsible for managing Vedior's operations and making policy decisions with
respect to them. The members of the management board are employees. Members of
the supervisory board and members of the management board are appointed at
Vedior's general meeting of shareholders by a majority of the votes cast upon
the binding proposal of the supervisory board.
Vedior's publicly traded ordinary share capital is held in the form of
Bearer Depositary Receipts ("BDRS") issued by an entity, Stichting
Administratiekantoor van gewone aandelen Vedior (the
19
<PAGE>
"ADMINISTRATOR"), organized under the laws of the Netherlands, which holds a
majority of the Vedior ordinary shares, which represent approximately 59% of
Vedior's currently outstanding share capital. Holders of the BDRs are the
beneficial owners of the ordinary shares represented by their BDRs. The
Administrator is required under its articles of association and the related
conditions of administration to exercise the voting and other rights attached to
the ordinary shares in the interests of Vedior, the enterprise associated
therewith and all parties concerned, so as to exclude, to the greatest possible
extent, influences that could threaten, among other things, the continuity,
independence and identity of Vedior contrary to such interests. The principal
office of the Administrator is Jachthavenweg 112, 1076 DC Amsterdam, the
Netherlands, telephone number (011) 31-20-573-5626.
ING Groep's ordinary share capital is held in the form of BDRs issued by an
entity, Stichting Administratiekantoor ING Groep ( the "Trust"), organized under
the laws of the Netherlands, which holds ING Groep ordinary shares, which
respresent approximately 99.9% of ING Groep's currently outstanding ordinary
shares. Holders of the BDRs are the beneficial owners of the ING Groep ordinary
shares, but while the Trust may consult with such holders as to the voting of
such ordinary shares to the degree and subject to the terms and conditions that
the Trust considers appropriate, such holders are not entitled to give binding
instructions to the Trust concerning its exercise of such voting rights, nor is
the Trust required to so consult with such holders. The Trust is required under
its articles of association and the related conditions of administration to
exercise such voting rights so as to serve the interests of ING Groep and of the
enterprises sustained by and affiliated with ING Groep, to safeguard as well as
possible the interests of ING Groep, those enterprises and all parties concerned
and to bar to the greatest extent possible influences which could violate the
independence, continuity or identity of ING Groep and those enterprises contrary
to such interests. The principal office of the Trust is located at
Strawinskylaan 2631, 1077 ZZ, Amsterdam, the Netherlands, telephone number
(011) 31-20-541-5509.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history of each of the directors and
executive officers of the Purchaser, Parent, Vedior, the Administrator and ING
Groep are set forth in Schedule I hereto.
Except as described in this Offer to Purchase, none of the Purchaser, Parent
or Vedior (together, the "CORPORATE ENTITIES") or, to the best knowledge of the
Purchaser, Parent and Vedior, ING Groep, the Administrator, the Trust, any of
the persons listed in Schedule I or any associate or majority-owned subsidiary
of the Purchaser, Parent, Vedior, ING Groep, the Administrator, the Trust or any
of the persons so listed, beneficially owns any equity security of the Company,
and none of the Corporate Entities or, to the best knowledge of the Purchaser,
Parent and Vedior, ING Groep, the Administrator, the Trust or any of the other
persons referred to above, or any of the respective directors, executive
officers or subsidiaries of any of the foregoing, has effected any transaction
in any equity security of the Company during the past 60 days.
Except as described in this Offer to Purchase or the Schedule TO (as defined
below), (a) there have not been any contacts, transactions or negotiations
between the Corporate Entities, any of their respective subsidiaries or, to the
best knowledge of the Purchaser, Parent and Vedior, ING Groep, the
Administrator, the Trust or any of the persons listed in Schedule I, on the one
hand, and the Company or any of its directors, officers or affiliates, on the
other hand, that are required to be disclosed pursuant to the rules and
regulations of the Commission and (b) none of the Corporate Entities or, to the
best knowledge of the Purchaser, Parent and Vedior, ING Groep, the
Administrator, the Trust or any of the persons listed in Schedule I has any
contract, arrangement, understanding or relationship with any person with
respect to any securities of the Company.
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Because the only consideration in the Offer and Merger is cash and the Offer
covers all outstanding Shares, and in view of the absence of a financing
condition, the commitment of Vedior and ING to the funding of Parent and the
Purchaser and the financial capacity of Vedior and ING, the Purchaser believes
the financial condition of Parent and its affiliates is not material to a
decision by a holder of Shares whether to sell, tender pursuant to the Offer or
hold Shares.
10. SOURCE AND AMOUNT OF FUNDS; VEDIOR/ING FINANCING ARRANGEMENTS
The Offer is not conditioned on any financing arrangements.
The total amount of funds required by the Purchaser to purchase all
outstanding Shares pursuant to the Offer, to pay the holders of Company Options
(as defined below) and to pay its fees and expenses related to the Offer and the
Merger is estimated to be approximately $77.5 million. Parent and the Purchaser
plan to obtain these funds through the financing arrangements described below.
Immediately prior to the initial purchase of Shares under the Offer, Parent
and the Purchaser are required by the Merger Agreement to cause ING Groep or one
of its affiliates to provide Parent or the Purchaser with $80 million in
exchange for debt or equity (or both) of Parent or the Purchaser. In connection
with the financing arrangements described below, Vedior will provide
$13 million of such $80 million in exchange for shares of Parent's common stock.
Any financing used to provide Parent or the Purchaser with the means to finance
the Offer or the Merger must not involve the pledge or use of the assets of
Company or its subsidiaries to finance the Offer or the Merger or to pay
dividends or distributions to the Company's shareholders prior to the effective
time of the Merger (the "Effective Time"). Following the initial purchase of
Shares under the Offer and prior to the Effective Time, Parent and the Purchaser
are required to maintain unencumbered cash funds in an amount sufficient to
consummate the Merger and to comply with the Merger Agreement.
Parent and the Purchaser will comply with these obligations through the
following arrangements. Immediately prior to the Purchaser's purchase of Shares
pursuant to the Offer, the Purchaser will become a wholly-owned subsidiary of
Parent, the common equity of which will be owned by Vedior and the preferred
equity of which will be owned by ING. Until immediately prior to the Purchaser's
initial purchase of Shares under the Offer, all of the outstanding equity of
Parent will be owned by ING. In connection with these financing arrangements
(i) the Purchaser will incur indebtedness owed to Parent and ING, each in the
amount of approximately $40 million, the proceeds of which will be used to
purchase the Shares pursuant to the Offer, and (ii) Parent will incur
indebtedness owed to ING in an amount of approximately $40 million. The
indebtedness to be owed by Parent to ING and the Parent preferred equity to be
owned by ING will each be exchangeable into Vedior common shares at a fixed
exchange rate, with a mandatory exchange to occur at such fixed exchange rate if
the market price of Vedior common shares equals or exceeds a certain value for
60 consecutive days. After 5 years, Vedior may purchase such exchangeable Parent
indebtedness and preferred equity for the amount originally paid for them by ING
(their "original cost"). If Vedior does not make such purchase, the holder of
such exchangeable indebtedness and preferred equity may (i) exchange its
holdings at their original cost for Vedior common shares at their then current
market price or (ii) cause Parent to sell its shares of the Purchaser's (which
pursuant to the Merger, will have become the Company's) common stock, and repay
the exchangeable debt at its original cost out of the proceeds of such sale,
with any remaining proceeds to be distributed first to the holder of Parent's
preferred equity and, if such remaining proceeds exceed the preferred equity's
original cost, such excess proceeds to be distributed to the holder of Parent's
common equity.
The foregoing description is qualified in its entirety by reference to the
Agreement in Principle between ING and VHBV relating to the Acquisition of
Acsys, Inc. (the "FINANCING AGREEMENT IN
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PRINCIPLE"), a copy of which is filed as Exhibit (b) to Amendment Number 1 to
the Tender Offer Statement on Schedule TO filed by Vedior, Parent and the
Purchaser with the Commission on the date hereof (the "SCHEDULE TO"). The
Financing Agreement in Principle should be read in its entirety for a more
complete description of the matters summarized above.
Pursuant to the Merger Agreement, each of Vedior and Select Appointments
North America Inc., a wholly owned indirect subsidiary of Vedior ("SANA"), has
unconditionally guaranteed the due and punctual payment and performance when due
of all of Parent and the Purchaser's obligations under the Merger Agreement,
including the obligation to obtain financing for the Offer and the Merger (the
"GUARANTEES"). However, aggregate amounts payable under the Guarantees by Vedior
and SANA will not exceed $80 million, and Vedior and SANA's obligations under
the Guarantees terminate immediately prior to the consummation of the financing
arrangements described in this Section 10.
Pursuant to the terms of the Merger Agreement, at the time of the initial
purchase of Shares under the Offer, Parent and the Purchaser are required to
repay, or cause to be repaid all of the obligations of the Company and its
subsidiaries under the Company's credit facility with Bank of America, N.A. and
the other lenders dated April 13, 1999 and as further amended on December 31,
1999 (the "CREDIT AGREEMENT") under such facility and to terminate such
facility. Parent and the Purchaser, however, have the right to negotiate with
Bank of America, N.A. and the other lenders to seek their approval for
postponing such repayment and termination. In addition, from and after the time
of the initial purchase of Shares under the Offer, Parent is obligated to either
make capital contributions or to arrange credit facilities with lenders (or
cause the existing facility to be maintained), so as to enable the Company to
meet its working capital, capital expenditure and operating expense requirements
for the fiscal year ending December 31, 2000 and beyond if the Effective Time
shall not have occurred by December 31, 2000. In connection with the foregoing
financing arrangements, subject to the fiduciary duties and reasonable judgment
of its Board of Directors, the Company has agreed to enter into a new credit
agreement arranged by Parent or the Purchaser that would become effective only
concurrently with the initial purchase of Shares under the Offer. Neither the
Company's existing credit facility, as it exists or as it may be amended, nor
any new facility will be used to finance the Offer or the Merger or to pay
dividends or distributions to the Company's shareholders prior to the Effective
Time.
11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
In December 1998, the Company announced that its financial results for 1998
would not meet the forecasted results made by securities analysts. In the period
that followed this announcement, the Company's common stock traded at prices
lower than the Company's initial public offering price of $8.50 in February
1998. The Company's stock price continued to decline in 1999, as the temporary
staffing services sector experienced difficult operating conditions. The Company
also faced challenges relating to integrating the companies that it acquired in
1997 and 1998 and the decrease in the Company's contract staffing business for
the implementation of Enterprise Resource Planning software due to clients'
allocating their resources away from implementing Enterprise Resource Planning
software in order to address Year 2000 issues.
In May 1999, senior management of the Company was approached by
representatives of Select Appointments (Holdings) PLC ("SELECT," now a
subsidiary of Vedior), at that time a publicly traded temporary services company
headquartered in England, regarding a possible business combination transaction
between Select and the Company. On May 11, 1999, David Cooper, the Company's
Chairman of the Board, and Timothy Mann, the Company's then Chief Executive
Officer, met in Chicago with Anthony Martin and Zachary Miles, the Chief
Executive Officer and Chief Financial
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Officer, respectively, of Select, and a representative of the investment banking
firm of Robert W. Baird & Co. Incorporated who was advising Select in its
discussions with the Company.
A week later, on May 18 and 19, 1999 in Palm Springs and San Francisco,
California, Messrs. Cooper and Mann again met with Mr. Martin, along with Jack
Unroe, a senior executive of Accountants Inc., a subsidiary of Select, for the
purpose of continuing discussions regarding the potential benefits from a
combination of both companies. On May 21, the Company and Select executed a
confidentiality agreement, and exchanged non-public financial and other
information.
On May 27, 1999, the Company held a special meeting of its Board of
Directors to apprise the directors of these business developments. The Company's
Board of Directors directed management to interview several investment banking
firms to assist the Company in a thorough evaluation of its various strategic
alternatives, including, but not limited to, a possible combination with Select.
Senior management of the Company interviewed several investment banking firms,
and on June 9, 2000, the Board met and authorized the Company to hire Donaldson,
Lufkin & Jenrette Securities Corporation ("DLJ") as the Company's financial
advisor to assist the Board in evaluating the Company's strategic alternatives.
Also, at the June 9, 1999 meeting, the Board created a Committee on Strategic
Planning (the "COMMITTEE") consisting of the Company's outside directors for the
purposes of considering, evaluating and advising the Board on the strategic
alternatives that might be available to the Company.
In June 1999, the senior management of the Company and representatives of
DLJ discussed various strategic alternatives for the Company, including the
following: (i) remaining as a stand-alone company and focusing on continued
internal growth with moderate external acquisition activity, (ii) a leveraged
recapitalization by the Company that would replace equity capital with debt
capital, (iii) some type of strategic business combination, possibly involving
the sale of the Company and (iv) other extraordinary corporate transactions.
On June 16, 1999, DLJ presented its analyses of the various alternatives to
the Board. After careful consideration, the Board concluded that the combination
of the Company with another company in the temporary services industry was
likely to result in the greatest shareholder value and involve the least amount
of execution risk relative to the various other strategic alternatives available
to the Company. The Board authorized senior management and DLJ to embark upon a
process of contacting companies that might be interested in a business
combination with the Company.
Also at the June 16, 1999 Board meeting, the Board discussed its ability to
respond to inadequate offers made by third parties, and on June 20, 1999, the
Company adopted the Rights Agreement (as defined below) as a mechanism that
would help ensure that potential third party acquirors negotiate with the Board
of Directors.
The Company's management, with the assistance of DLJ, then identified a
number of third parties in the temporary staffing services sector that might
have an interest in a business combination with the Company. Commencing in late
June 1999, representatives of DLJ contacted a number of third parties in an
effort to ascertain on a preliminary basis their level of interest in a business
combination with the Company. Through the period from late June 1999 to early
September 1999, the Company contacted 21 parties and entered into
confidentiality agreements with and furnished information to 11 parties that
expressed interest in a business combination with the Company. During this time,
the Company's management and representatives of DLJ held various meetings and
discussions with interested parties, including a meeting with representatives of
Select on June 23, 1999, regarding the Company's operations and the terms for a
possible transaction. The Committee was kept apprised of these discussions.
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On July 23, 1999, DLJ reviewed with the senior management of the Company the
indications of interest in acquiring the Company received prior to that time,
including the indication of interest received from Select on July 20, 1999. At a
meeting on July 27, 1999, the Board of Directors received an update on the
process, and after careful deliberation, the Board authorized management, the
Committee and DLJ to continue the process of soliciting indications of interests
from interested parties and to report back to the Board at an appropriate time.
The Company established a deadline of August 12, 1999 for receiving indications
of interests.
On August 17, 1999, the Company's management, the Committee and DLJ updated
the Board on the results of the Company's efforts to solicit indications of
interests as of the August 12, 1999 deadline and again reviewed the various
strategic alternatives available to the Company. After extensive discussion, the
Board again authorized the management, the Committee and DLJ to continue the
process of pursuing a possible business combination.
Discussions between the Company and Select continued through the third
quarter of 1999, with the primary open items being the amount and type of
consideration that Select would furnish. On September 1, 1999, Select announced
that it had reached an agreement to be bought by Vedior. On September 23 and 24,
1999, Messrs. Cooper and Mann traveled to Select's headquarters in England and
met with senior executives at Select to discuss whether the combined
Select/Vedior entity would have an interest in acquiring the Company and on what
basis.
On September 28, 1999, the Company sent Select a draft merger agreement that
contemplated an all-stock transaction, but discussions were then terminated in
early October 1999 after Select advised the Company that it needed to focus on
the successful completion of its transaction with Vedior before continuing
further the discussions with the Company.
At a meeting on October 26, 1999, the Board of Directors reviewed the
outcome of the process initiated in June 1999 and the status of recent
third-party discussions (including an all-cash indication of interest that had
been submitted in October 1999 by a financial buyer). After an evaluation of the
Company's current and prospective situation and its various strategic options,
the Board of Directors determined not to pursue discussions with any particular
prospective strategic partner at that time. In addition, at this October 26,
1999 meeting, Mr. Brady W. Mullinax, Jr., the Company's Executive Vice
President--Finance and Administration and Secretary, was appointed to the Board
of Directors.
In December 1999, the Company experienced significant changes in the
composition of its senior management, including the resignation of Mr. Mann as
the Company's Chief Executive Officer and subsequently the election of
Mr. Cooper to that office. In addition, three directors, including Mr. Mann,
resigned from the Board, and a new outside director, M. Faye Wilson, was elected
to the Board.
On February 1, 2000, Mr. Cooper received an unsolicited telephone call from
a senior executive of a publicly traded company (the "Other Bidder") that was
contacted by DLJ in June-July 1999 and that expressed interest in a possible
business combination with the Company. During February 2000, Messrs. Cooper and
Mullinax met several times with executives from the Other Bidder. These
discussions with the Other Bidder continued into March 2000. On March 14, 2000,
Mr. Cooper and Mr. Mullinax made telephone calls to other Board members
informing them of the serious nature of the Other Bidder's interest. On
March 16, 2000, counsel for the Other Bidder sent a draft merger agreement to
the Company that contemplated an all-stock merger with various purchase price
caps, or collars, and rights of the Other Bidder to terminate the agreement
based on the Other Bidder's stock price.
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Negotiations between the Other Bidder and the Company intensified in mid- to
late-March 2000. DLJ was asked to perform various financial analyses, and at a
special meeting of the Board on March 26, 2000, DLJ made a presentation to the
Board regarding the Other Bidder's proposal. In addition, representatives of the
Company's legal counsel, Alston & Bird LLP ("Alston & Bird"), made a
presentation regarding the directors' fiduciary duties under Georgia law.
At that meeting, the Board of Directors instructed DLJ and senior management
to approach those parties from the summer of 1999 who had expressed a serious
interest in a business combination with the Company and who the Board and DLJ
considered likely to be able to effect a business combination. DLJ then
contacted each of these parties, which included Vedior (as noted above, the new
parent company of Select), and asked that they respond as soon as possible with
a specific proposal.
Due to fluctuations in the Company's stock price, increased trading volume
and rumors in the marketplace, on March 29, 2000, the Company issued a press
release stating that it was in preliminary business combination discussions.
As a result of DLJ's contacting Robert W. Baird & Co. Incorporated and
subsequent discussions between DLJ and Robert W. Baird & Co. Incorporated,
Vedior expressed an interest in having an opportunity to further evaluate a
business combination with the Company. On March 29, 2000, following a series of
discussions between DLJ and Vedior's financial advisors and after consultation
with DLJ and Alston & Bird, the Company distributed a draft merger agreement
contemplating an all-cash transaction with Vedior. Also, over the weekend of
March 31, 2000, representatives of Vedior conducted additional due diligence
with respect to the Company, and on April 3, 2000, Vedior presented the Company
with a proposal to acquire the Company at a price of $5.00 per Share. At an
April 3, 2000 meeting of the Board, the Board was provided with detailed
information regarding the Other Bidder's proposal. The Other Bidder's proposal
provided for a stock-for-stock pooling transaction in which each share of the
Common Stock would be exchanged for an amount of the Other Bidder's common stock
that varied depending upon the average stock price of the Other Bidder prior to
closing. The Board was also given information with respect to Vedior's proposal.
Under the Other Bidder's proposal, the maximum dollar value of the stock
consideration to be received by the Company's shareholders for the common stock
was capped at $5.02, but there was no minimum dollar value that the Company's
shareholders were assured of receiving. If the value of consideration to be
received by the Company's shareholders was less than $4.12, however, both the
Other Bidder and the Company had the right to terminate the transaction. The
terminating party would be required to reimburse the other party for its
expenses in an amount not to exceed $1.0 million.
With the assistance of DLJ and Alston & Bird, the Company then engaged in
simultaneous negotiations with the Other Bidder and Vedior. The Committee met
separately on April 5, 2000 to evaluate the two alternative transactions and was
regularly provided updates on the negotiations by Mr. Cooper. Based on the Other
Bidder's proposal as of April 5, 2000, the Committee determined that the Other
Bidder's proposal was inadequate compared to Vedior's offer and directed
management to advise the Other Bidder of this fact and to afford the Other
Bidder an opportunity to improve its proposal. The Committee reached this
conclusion based on a number of factors, including that the consideration
offered by the Other Bidder was common stock rather than cash and the resulting
relative uncertainty of the value of the Other Bidder's offer due to the
volatility in the Other Bidder's common stock price as well as the various
purchase price caps, or collars, and rights to terminate the agreement based on
the Other Bidder's stock price and the risk allocation provisions of certain
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portions of the draft merger agreement. The Committee also considered the fact
that, because the Other Bidder's offer contemplated an all-stock merger rather
than a cash tender offer for all of the Shares, the Company's shareholders would
be required to wait longer to receive the transaction consideration as compared
to the tender offer proposed by Vedior.
During the week of April 3, 2000, Vedior provided the Company with proposed
support agreements to be executed with Mr. Cooper and Harry J. Sauer, the
Executive Vice President--Professional Services, a director and 5.5% shareholder
of the Company. In addition, as a condition to Vedior agreeing to acquire the
Company, Vedior insisted on amendments to the existing employment agreements
with Messrs. Cooper, Sauer and Mullinax and Ms. Kennedy, the Executive Vice
President--Information Technology, which would govern the continued employment
of these executives with the Company after the closing of the Offer. Counsel for
these executives and counsel for Vedior separately negotiated the terms of these
arrangements, although Alston & Bird and members of the Committee were kept
apprised of the negotiations and reviewed drafts of the agreements as
negotiations progressed.
On April 11, 2000, Mr. Cooper telephoned the lead negotiator of the Other
Bidder to inform him that the Other Bidder's proposal was inadequate when
compared to the other offer being considered by the Company and to invite the
Other Bidder to improve its proposal. On April 13, 2000, the lead negotiator of
the Other Bidder telephoned Mr. Cooper and informed him that the Other Bidder
would not increase or otherwise improve its proposed amount of consideration to
be paid to the Company's shareholders. The Other Bidder further informed
Mr. Cooper that in light of the other offer being considered by the Company, the
Other Bidder was withdrawing its proposal.
On April 16, 2000, the Board held a special meeting to discuss the proposed
transaction with Vedior and the terms of the Merger Agreement and the other
related agreements. Messrs. Cooper and Mullinax, with the assistance of
representatives from Alston & Bird and DLJ, reviewed the proposed transaction.
In addition, DLJ made a financial presentation and orally delivered its fairness
opinion, which it subsequently confirmed in writing, to the effect that, as of
that date and based upon and subject to the assumptions, limitations and
qualifications set forth in its written opinion, the consideration to be
received by the Company's shareholders in the Offer and the Merger was fair from
a financial view to such shareholders. In addition, representatives of Alston &
Bird summarized the terms and conditions of the Merger Agreement, the Support
Agreements and the employment agreement amendments, and reviewed again with the
directors their fiduciary duties under Georgia law.
After discussion and consideration of the factors and reasons described
under Item 4--"The Solicitation or Recommendation-- Reasons for the
Recommendation of the Board of Directors" in the Schedule 14D-9, the Board
unanimously determined that the Offer and the Merger are in the best interests
of the Company's shareholders, and unanimously adopted and approved the Merger,
the Offer, the Merger Agreement, and the other transactions contemplated by the
Merger Agreement and recommended that the Company's shareholders accept the
Offer and tender their Shares pursuant to the Offer. In addition, the Board
unanimously approved the terms of the Support Agreements, the employment
agreement amendments and an amendment to the Rights Agreement.
Following the meeting of the Board, on April 16, 2000, the Company, Parent,
the Purchaser, Vedior and SANA executed the Merger Agreement, Messrs. Cooper and
Sauer and their affiliates executed the Support Agreements and Messrs. Cooper,
Sauer and Mullinax and Ms. Kennedy executed the amendments to their respective
employment agreements with the Company.
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On April 17, 2000, prior to the opening of the financial markets in Europe,
Vedior and the Company issued a joint press release announcing the execution of
the Merger Agreement and the related documents.
On April 27, 2000, Parent and the Purchaser commenced the Offer.
12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; THE SUPPORT AGREEMENTS; PLANS
FOR THE COMPANY
PURPOSE
The purpose of the Offer is to enable Parent to acquire control of the
Company and to acquire the outstanding Shares. The Offer, as the first step in
the acquisition of the Company, is intended to facilitate the acquisition of all
the outstanding Shares. The purpose of the Merger is to acquire all outstanding
Shares not tendered and purchased pursuant to the Offer.
THE MERGER AGREEMENT
The Merger Agreement provides that, following the satisfaction or waiver of
the conditions described below under "--Conditions to the Merger," the Purchaser
will be merged with and into the Company in accordance with the GBCC, with the
Company being the surviving corporation and a wholly owned subsidiary of Parent,
and each issued Share not tendered pursuant to the Offer (other than Shares
owned by Parent, Vedior or the Company or any subsidiary of Parent or the
Company or by shareholders, if any, who are entitled to and who exercise their
statutory dissenters' rights under the GBBC) will be converted into the right to
receive the price per Share paid pursuant to the Offer in cash, without interest
thereon.
VOTE REQUIRED TO APPROVE MERGER. The GBCC requires, among other things,
that any plan of merger or plan of share exchange of the Company must be adopted
by the Board of Directors of the Company and, if the "short-form" merger
procedure described below is not available, approved by the holders of a
majority of the Company's outstanding voting securities. The Board of Directors
of the Company has adopted and approved the Offer, the Merger and the Merger
Agreement; consequently, the only additional action of the Company that may be
necessary to effect the Merger is approval of the Merger Agreement by the
Company's shareholders if a "short-form" merger procedure is not available. If
required by the GBCC, the Company will call and hold a special meeting of its
shareholders as promptly as practicable following the consummation of the Offer
for the purposes of considering and voting upon the adoption of the Merger
Agreement. At any such meeting all Shares then owned by Vedior, Parent or the
Purchaser or any other subsidiary of Parent will be voted in favor of adopting
the Merger Agreement. If the Purchaser acquires through the Offer voting power
with respect to at least a majority of the outstanding Shares on a fully diluted
basis (which would be the case if the Minimum Condition were satisfied and the
Purchaser were to accept for payment Shares tendered pursuant to the Offer), the
Purchaser would have sufficient voting power to effect the Merger without the
affirmative vote at a meeting of the Company's shareholders of any other
shareholder of the Company.
The GBCC also provides that, if a parent company owns at least 90% of the
outstanding shares of each class of stock of a subsidiary, the parent company
may merge that subsidiary into the parent company, or the parent company may
merge itself into that subsidiary, pursuant to "short-form" merger procedures
without prior notice to, or the approval of, the other shareholders of the
subsidiary. In order to consummate the Merger pursuant to these provisions of
the GBCC, the Purchaser would need to own at least 90% of the outstanding
Shares. Accordingly, if, as a result of the Offer or otherwise, the Purchaser
acquires or controls the voting power of at least 90% of the outstanding
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Shares, the Purchaser intends to effect the Merger without prior notice to, or
any action by, any other shareholder of the Company.
CONDITIONS TO THE MERGER. The Merger Agreement provides that the respective
obligations of each party to perform the Merger Agreement and to consummate the
Merger are subject to the satisfaction or waiver of the following conditions:
(a) the Company's shareholders shall have approved the Merger Agreement,
as and to the extent required by applicable law;
(b) no court or international, federal, state, county, local or other
governmental or regulatory agency or authority (including self-regulatory
authorities), instrumentality, commission, board, or body (namely the
Commission, the AMEX, the Federal Trade Commission and the U.S. Department
of Justice) of competent jurisdiction (a "GOVERNMENTAL ENTITY") shall be
seeking or have enacted, issued, promulgated, enforced or entered any law or
order (whether temporary, preliminary or permanent) or taken any other
action which prohibits, restricts or makes illegal the consummation of the
Merger;
(c) Parent, the Purchaser or their affiliates shall have purchased
Shares pursuant to the Offer; PROVIDED that neither Parent nor the Purchaser
may invoke this condition if the Purchaser shall have failed to purchase
Shares pursuant to the Offer in breach of its obligations under the Merger
Agreement or the Offer; and
(d) all consents of, filings and registrations with, and notifications
to, all Governmental Entities required for consummation of the Merger (other
than consents and filing, registration and notice requirements which if not
obtained, made or complied with are not reasonably likely to have,
individually or in the aggregate, a material adverse effect on the Company,
Parent or Vedior as applicable) shall have been obtained or made and shall
be in full force and effect and all waiting periods required by law shall
have expired or been earlier terminated (other than waiting periods with
which the failure to comply is not reasonably likely to have a material
adverse effect on the Company, Parent or Vedior as applicable).
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
and the Merger abandoned at any time prior to the Effective Time, whether before
or after approval of the Merger Agreement by the shareholders of the Company:
(a) by mutual consent of Parent and the Company;
(b) by either Parent or the Company:
(i) if the Purchaser has not accepted for payment any Shares pursuant
to the Offer prior to September 29, 2000; PROVIDED that this right to
terminate the Merger Agreement is not available to any party whose
failure to fulfill any obligation under the Merger Agreement has been the
cause of, or resulted in, either Parent's or the Purchaser's failure to
purchase the Shares by such date; or
(ii) if any Governmental Entity shall have issued an order,
injunction or other decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the
acceptance for payment of, or payment for the Shares pursuant to the
Offer or the Merger and such order or other action shall have become
final and nonappealable; or
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(c) by the Company:
(i) if Parent, the Purchaser or any of their affiliates shall have
failed to commence the Offer as provided in the Merger Agreement,
PROVIDED that the Company may not terminate the Merger Agreement under
these circumstances if such failure to commence the Offer shall have been
caused by (A) the Company's failure in any material respect to perform
its obligations under the Merger Agreement or (B) facts or circumstances
that constitute a breach of any of the Company's representations or
warranties contained in the Merger Agreement; or
(ii) if Parent or the Purchaser shall have breached in any material
respect any of their respective representations, warranties, covenants or
other agreements contained in the Merger Agreement, which breach or
failure to perform is reasonably likely to prevent Parent and Purchaser's
consummation of the Offer and such breach is incapable of being cured or
has not been cured by the date that is 15 business days following written
notice thereof to Parent from the Company; or
(iii) if prior to the date that the Purchaser initially purchases
Shares under the Offer (the "PURCHASE DATE"), the Board of Directors of
the Company shall have finally determined to approve, endorse or
recommend an Acquisition Proposal (as defined below) to the Company's
shareholders after complying with the provisions described under
"--Acquisition Proposals"; and concurrently with or prior to such
termination, the Company (or its designee) has made payment of the
Termination Fee (as defined under "--Fees and Expenses; Termination Fee"
below); or
(d) by Parent or Purchaser:
(i) if prior to the Purchase Date, the Board of Directors of the
Company or any committee thereto shall have withdrawn, or modified or
changed, or publicly proposed to withdraw, modify or change, in a manner
adverse to Parent or Purchaser its approval or recommendations of the
Offer, the Merger Agreement or the Merger or shall have approved,
endorsed or recommended or publicly proposed to approve, endorse or
recommend an Acquisition Proposal (as defined under "--Acquisition
Proposals"), or if the Board of Directors of the Company or any committee
thereof fails to reaffirm publicly and unconditionally its recommendation
to the Company's shareholders that they tender their Shares in the Offer,
which public reaffirmation must be made within 10 days after Parent's
written request to do so and must also include the unconditional
rejection of such Acquisition Proposal (to the extent not previously
withdrawn); or
(ii) if the Company shall have breached any of its representations or
warranties contained in the Merger Agreement which breach would give rise
to the failure of the conditions set forth in clauses (f) and (g) of
Section 14 of this Offer to Purchase to be satisfied or if, prior to
consummation of the Offer, the Company shall have failed to perform its
covenants or other agreements contained in the Merger Agreement which
failure to perform would give rise to the failure of the condition set
forth in clause (h) of Section 14 of this Offer to Purchase to be
satisfied, which breach or failure to perform is incapable of being cured
or has not been cured by the date that is 15 business days following
written notice thereof to the Company from Parent or the Purchaser.
ACQUISITION PROPOSALS. The Merger Agreement provides that the Company will
not, nor will it permit any of its subsidiaries to, nor will it authorize or
permit any investment banker, financial advisor, attorney, accountant,
consultant or other representative of, the Company or any of its subsidiaries
to, directly or indirectly, solicit, initiate or encourage the making of any
Acquisition Proposal (as defined below) by any person; PROVIDED that (a) the
Company and its Board of Directors
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are permitted, to the extent applicable, to comply with Rule 14d-9 and
Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition
Proposal and (b) at any time prior to the Purchase Date, the Company and its
Board of Directors may engage in discussions or negotiations with, or provide
information to, any person in response to an unsolicited written Acquisition
Proposal if the Board of Directors of the Company determines in good faith,
(i) after consulting with its independent financial advisors, that such person
is reasonably capable of consummating such Acquisition Proposal, taking into
account the legal, financial, regulatory and other aspects of such Acquisition
Proposal as well as the person making such Acquisition Proposal and that such
Acquisition Proposal could reasonably be expected to result in a Superior
Proposal (as defined below) and, (ii) after consultation with its outside legal
counsel, that the failure to take such action would be inconsistent with the
Board of Director's fiduciary duties under applicable law, subject to compliance
with the confidentiality and notification obligations described below.
"SUPERIOR PROPOSAL" means any Acquisition Proposal which is on terms which
the Board of Directors of the Company in good faith concludes would, if
consummated, result in a transaction that is more favorable to its shareholders
than the transactions contemplated by the Merger Agreement and is reasonably
capable of being completed.
"ACQUISITION PROPOSAL" means any proposal or offer (whether or not in
writing or delivered to the Company's shareholders) to acquire in any manner,
directly or indirectly, all or a substantial portion of the assets of the
Company or a greater than 20% equity interest in the Company or any of its
subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or
similar transactions involving the Company or any subsidiary, division or
operating or principal business unit of the Company, other than pursuant to the
transactions contemplated by the Merger Agreement.
The Merger Agreement further provides that, except as described below,
neither the Company nor its Board of Directors may withdraw (or modify in a
manner adverse to Parent or the Purchaser) or following the public announcement
of an Acquisition Proposal fail at Parent's request to reaffirm the approval by
such Board of Directors of the Merger Agreement, the Offer or the Merger or the
favorable recommendation of such Board of Directors with respect thereto.
Notwithstanding the foregoing, if at any time prior to the Purchase Date,
the Company receives an Acquisition Proposal that was not solicited in violation
of the Merger Agreement and the Board of Directors of the Company determines
(after consultation with outside legal counsel) that the failure to take the
following action would be inconsistent with its fiduciary duties under
applicable laws, the Board may: (a) withdraw or modify its approval or
recommendation of the Merger Agreement, the Offer or the Merger and disclose to
the Company's shareholders a position contemplated by Rule 14d-9 or
Rule 14e-2(a) promulgated under the Exchange Act or otherwise make disclosure to
them or (b) approve or recommend such an Acquisition Proposal that is a Superior
Proposal; PROVIDED that either such action may only be taken after the third
business day following Parent's receipt of written notice advising Parent that
the Board intends to take such action.
In addition to the obligations of the Company described in the preceding
paragraphs, the Merger Agreement provides that, prior to providing any
information or data to any person or entering into discussions or negotiations
with any person, the Company must execute a confidentiality agreement containing
customary confidentiality and standstill provisions with such party and promptly
(and in no event later than 24 hours after receipt thereof) notify Parent of the
receipt of an Acquisition Proposal and in such notice indicate in reasonable
detail the identity of the offeror and the material terms and conditions of any
such proposal and shall keep Parent promptly advised of the status and material
terms of any such proposal.
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FEES AND EXPENSES; TERMINATION FEE. The Merger Agreement provides that
except as set forth below, all fees and expenses incurred in connection with the
transactions contemplated by the Merger Agreement shall be paid by the party
incurring such fees or expenses.
In the event that (a) Parent or the Purchaser terminates the Merger
Agreement as described above in paragraph (d)(i) under "--Termination of the
Merger Agreement," or (b) the Company terminates the Merger Agreement as
described above in paragraph (c)(iii) under "Termination of the Merger
Agreement" or (c) either the Company or Parent and the Purchaser terminates the
Merger Agreement as described above in paragraph (b)(i) under "Termination of
the Merger Agreement" and in the case of a termination under such paragraph
(b)(i) at any time after April 16, 2000 and, prior to such termination, an
Acquisition Proposal shall have been publicly announced or otherwise publicly
communicated to the Company's shareholders generally and prior to the first
anniversary of such termination, the Company shall enter into a definitive
agreement with respect to an Acquisition Proposal or an Acquisition Proposal is
consummated, then the Company shall pay to the Purchaser a termination fee equal
to the sum of $5,700,000 plus out-of-pocket expenses incurred by Parent or the
Purchaser, not to exceed $500,000 (collectively, the "TERMINATION FEE"). In the
case of a payment as a result of any event referred to in subsection (a) above,
the Termination Fee should be paid not later than one business day following
such termination. In the case of a payment as a result of any event referred to
in subsection (b) above, the Termination Fee should be paid prior to or
concurrently with such termination. In the case of a payment as a result of any
event referred to in subsection (c) above, the Termination Fee should be paid
not later than one business day following the earlier of the entering into of a
definitive agreement with respect to, or the consummation of, an Acquisition
Proposal prior to the first anniversary of such termination, as applicable.
CONDUCT OF BUSINESS. The Merger Agreement provides that from the date of
the Merger Agreement until the earlier of the Effective Time or the termination
of the Merger Agreement or the time the designees of Parent have been elected to
and constitute a majority of the Board of Directors of the Company (the
"APPOINTMENT DATE"), except (i) as consented to in writing by the Parent, (ii)
as contemplated by the Merger Agreement, or (iii) as disclosed in the Company's
disclosure memorandum to the Merger Agreement, the Company shall, and shall
cause each of its subsidiaries to, carry on its respective businesses in the
ordinary course and consistent with past practice, use its reasonable efforts to
preserve its relationships with principal customers, suppliers and other persons
with which it has business dealings, comply in all material respects with all
laws applicable to it or any of its assets or businesses and maintain in full
force and effect all the material permits necessary for such businesses. Under
the Merger Agreement, the Company and each of its subsidiaries may not take
action which would (a) materially adversely affect the ability of any party to
the Merger to obtain consents necessary for the transaction, (b) except as
contemplated by the Merger Agreement cause any conditions of the Offer or the
Merger not to be satisfied or (c) materially adversely affect the ability of any
party to the Merger Agreement to perform its covenants and agreements. Without
limiting the generality of the foregoing, the Company shall not, and shall not
permit any of its subsidiaries to:
(i) amend its articles of incorporation or bylaws (or similar
organizational documents);
(ii) incur any debt obligations in excess of $45 million in the
aggregate or impose on any asset of the Company any new liens that
materially impair the use or title to such Company asset; PROVIDED that for
purposes of calculating debt obligations, all costs, fees and expenses
attributable to the Merger Agreement and the transactions contemplated
thereby (including severance costs, management contract payments and
investment banking, legal and accounting costs, fees and expenses and the
borrowing of funds to make such payments) are excluded;
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(iii) repurchase, redeem or otherwise acquire or exchange (other than
exchanges in the ordinary course under employee benefit plans), directly or
indirectly, any shares, or any securities convertible into any shares, of
its capital stock, or declare or pay any dividend or make any other
distribution in respect of its capital stock;
(iv) issue, sell, pledge, encumber or otherwise transfer any shares of
its capital stock, any other equity or voting interests or any securities
convertible into, or exchangeable for, or any options, warrants, calls or
rights to acquire, any such shares, voting securities or convertible
securities or any stock appreciation rights or other rights that are linked
to the price of the Shares (other than the issuance of Shares upon the
exercise of options to purchase capital stock of the Company or its
subsidiaries outstanding and effective immediately before the Effective Time
("COMPANY OPTIONS") that were in existence on April 16, 2000 or that were
disclosed in the Company's disclosure memorandum to the Merger Agreement);
(v) adjust, split, combine or reclassify its capital stock or issue or
authorize the issuance of any other securities in respect of or in
substitution for Shares, or sell, lease, mortgage or otherwise dispose of or
otherwise encumber any shares of its capital stock or any assets,
individually or aggregate, having a book value in excess of $250,000 other
than in the ordinary course of business for reasonable and adequate
consideration;
(vi) except for purchases of U.S. Treasury securities or U.S. Government
agency securities, which in either case have maturities of three years or
less, purchase any securities or make any material investment, either by
purchase of stock or securities, contributions to capital, asset transfers,
or purchase of any assets, in any person other than a wholly owned
subsidiary, or otherwise acquire direct or indirect control over any person,
other than in connection with (A) the creation of new wholly owned
subsidiaries organized to conduct or continue activities otherwise permitted
by the Merger Agreement, or (B) investments in connection with cash
management activities consistent with past practices;
(vii) (A) grant any increase in compensation or benefits to the employees
or officers of the Company or any of its subsidiaries, except as disclosed
in the Company's disclosure memorandum to the Merger Agreement or as
required by law; (B) accelerate the vesting of any Company Option (other
than by its terms); (C) enter into or amend any severance agreements with
any of its officers; or (D) grant any increase in fees or other increases in
compensation or other benefits to any of its directors except as disclosed
in the Company's disclosure memorandum to the Merger Agreement or as
required by law;
(viii) enter into or amend any employment contract with any person having
a salary thereunder in excess of $100,000 per year (unless such amendment is
required by law) that it does not have the unconditional right to terminate
without liability (other than liability for services already rendered), at
any time on or after the Effective Time;
(ix) adopt any new employee benefit plan or terminate or withdraw from,
or make any material change in or to, any existing employee benefit plans
other than any such change that is required by law or that, in the opinion
of counsel, is necessary or advisable to maintain the tax qualified status
of any such plan, or make any distributions from such employee benefit
plans, except as required by law or the terms of such plans;
(x) make any material tax election or significant change in any tax or
accounting methods or systems of internal accounting controls, except as may
be appropriate to conform to changes in tax laws or generally accepted
accounting principles, file any amended tax returns that may have a
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material adverse effect on its tax position or settle or compromise any
material federal, state, local or foreign tax liability or refund;
(xi) settle or compromise any pending suit, action, audit or claim
against it by any Governmental Entity, or which is material to it and its
subsidiaries, taken as a whole, or which relates to the transactions
contemplated by the Merger Agreement unless such action has been disclosed
in the Company's disclosure memorandum to the Merger Agreement or as
required by law;
(xii) adopt a plan of complete or partial liquidation or dissolution
(other than the Merger);
(xiii) (A) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction (1) in the
ordinary course of business and consistent with past practice or in
accordance with their terms, of liabilities reflected or reserved against in
its most recent consolidated financial statements included in its filings
with the Commission prior to the date of the Merger Agreement or (2) of
liabilities incurred in the ordinary course of business and consistent with
past practice, (B) cancel any material indebtedness (individually or in the
aggregate) or waive any claims or rights of substantial value or (C) waive
the benefits of, or agree to modify in any manner, any confidentiality,
standstill or similar agreement to which it or any of its subsidiaries is a
party;
(xiv) sell, lease (as lessor), license or otherwise dispose of or subject
to any lien or encumbrance any assets, except sales of excess or obsolete
assets in the ordinary course of business and consistent with past practice;
(xv) enter into any "non-compete" or similar agreements;
(xvi) except in the ordinary course of business and consistent with past
practice, enter into, modify, amend or terminate any material contract or
waive, release, compromise or assign any material rights or claims
thereunder; or
(xvii) take, or propose to take, or agree to take in writing or otherwise,
any of the foregoing or any action that would result in any of the
conditions to consummation of the Offer set forth in the Merger Agreement
not being satisfied.
BOARD OF DIRECTORS. The Merger Agreement provides that promptly after (i)
the Purchaser purchases and pays for that number of Shares which together with
any Shares beneficially owned (within the meaning of Rule 13d-3 under the
Exchange Act) by Parent, the Purchaser and their respective affiliates,
represents at least a majority of the Fully Diluted Shares and (ii) compliance
with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder,
whichever shall occur later, Parent shall be entitled to designate such number
of directors (the "DESIGNEES"), rounded up to the next whole number, on the
Board of Directors of the Company as is equal to the product of the total number
of directors on such Board of Directors (giving effect to the directors
designated by Parent pursuant to this sentence) multiplied by the percentage
that the number of Shares so accepted for payment by the Purchaser bears to the
total number of Shares then outstanding. In furtherance thereof, the Company
shall, upon the request of Parent (subject to applicable law, including
applicable fiduciary duties), use reasonable efforts either to increase the size
of the Board of Directors of the Company or secure the resignations of such
number of its incumbent directors, or both, as is necessary to enable the
Designees to be so elected to such Board of Directors, and shall take all
actions reasonably available to the Company to cause the Designees to be so
elected. At such time, the Company shall, if requested by Parent (subject to
applicable law, including applicable fiduciary duties), also cause persons
designated
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by Parent to constitute at least the same percentage (rounded up to the next
whole number) as is on Board of Directors of the Company, of each committee of
such Board of Directors, each board of directors of each subsidiary of the
Company and each committee (or similar body) of any such subsidiary's board of
directors. In the event that the Designees are elected to Board of Directors of
the Company, until the Effective Time, such Board of Directors shall have at
least three directors who are directors on the date hereof and who would
constitute "continuing directors" under the GBCC (the "INDEPENDENT DIRECTORS").
In the event that the Designees are elected to the Board of Directors of the
Company, after the acceptance for payment of Shares pursuant to the Offer and
prior to the Effective Time, in addition to any other applicable requirements,
the affirmative vote of a majority of the Independent Directors shall be
required to amend or terminate the Merger Agreement by the Company, exercise or
waive any of the Company's rights, benefits or remedies under the Merger
Agreement, take any other action by Board of Directors of the Company under or
in connection with the Merger Agreement, borrow money, amend the Credit
Agreement, pledge or otherwise encumber any of the assets of the Company or its
subsidiaries or effect a dividend or distribution of assets of the Company or
its subsidiaries.
STOCK OPTIONS. The Merger Agreement provides that (i) prior to the Purchase
Date (or in the case of the Company Options granted after such time, the
Effective Time), Parent and the Purchaser shall offer to each holder of a vested
Company Option that has an exercise price that is less than the Offer Price
("VESTED IN THE MONEY OPTION"), the right to receive in exchange for each such
option an amount in cash, payable in a lump sum promptly following the initial
purchase of Shares under the Offer, equal to the excess of (A) the Offer Price
multiplied by the number of Shares subject to such Vested in the Money Option
over (B) the exercise price of such Vested in the Money Option multiplied by the
number of Shares subject to such Vested in the Money Option, and (ii) prior to
the Purchase Date, Parent and the Purchaser shall offer to each holder of a
vested Company Option that has an exercise price that is equal to or exceeds the
Offer Price and to each holder of an unvested Company Option, irrespective of
the exercise price thereof, the right to receive in exchange for each such
option an amount equal to one dollar multiplied by the number of Shares subject
to such option (the "OPTION PAYMENT"). Fifty percent of the Option Payment shall
be paid to the former holder of such option promptly following the initial
purchase of Shares under the Offer (or in the case of Company Options granted
after such time, the Effective Time), except that if the option holder is not
and has not been an employee of the Company or its subsidiaries, then one
hundred percent of the Option Payment amount shall be made promptly following
the initial purchase of Shares under the Offer (or in the case of Company
Options granted after such time, the Effective Time). The balance of the Option
Payment shall be paid to the former holder of such option on the second
anniversary of the initial consummation of the Offer (the "SECOND INSTALLMENT
DATE"); PROVIDED that the former holder is then employed by the Company or its
subsidiaries or an affiliate of Vedior. If the former holder's employment is
terminated prior to the Second Installment Date, his or her right to receive the
second installment of the Option Payment shall be forfeited as of the date of
such termination of employment.
BENEFITS MATTERS. The Merger Agreement provides that for the first year
following the Effective Time, each employee of the Company or its subsidiaries
shall be eligible for benefits that in the aggregate are no less favorable than
the employee benefits available to such employee under existing plans of the
Company or its subsidiaries. For purposes of such benefit plans, programs,
policies and arrangements, Parent agreed to treat the prior service of such
employees with the Company and its ERISA Affiliates, including all periods of
service recognized under the Acsys, Inc. 401(k) Savings Plan (the "COMPANY
401(k) PLAN"), as service rendered to Parent or its ERISA Affiliate (as defined
in the Merger Agreement) for eligibility and vesting purposes and, solely with
regard to vacation and sick
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leave programs, for benefit accrual purposes thereunder. In the event of any
termination of the Company 401(k) Plan during the first year following the
Effective Time, Parent or its ERISA Affiliate shall maintain a tax-qualified
retirement plan that, at the request of an employee of the Company and its
subsidiaries, accepts a rollover of such employee's account from the Company
401(k) Plan.
The Merger Agreement provides that no employee of the Company or its
subsidiaries (or eligible dependent thereof) who is eligible for and elects to
be covered under any medical or disability insurance plan of Parent or its ERISA
Affiliate, shall be excluded from coverage under such plan on the basis of a
pre-existing condition that was not also excluded under the applicable medical
or disability insurance plan of the Company or its subsidiaries. To the extent
that an employee of the Company or its subsidiaries has satisfied in whole or in
part any annual deductible or paid any out-of-pocket or co-payment expenses
under a medical insurance plan of the Company or its ERISA Affiliates for a plan
year, such individual shall be credited therefor under the corresponding
provisions of the corresponding plan of Parent or its ERISA Affiliate in which
such individual participates after the Effective Time.
The Merger Agreement provides that Parent shall honor, and shall cause the
surviving corporation in the Merger and its subsidiaries to honor in accordance
with their terms, all employment, severance, consulting and other compensation
contracts between the Company and its subsidiaries and any current or former
director, officer, or employee thereof that are disclosed in the Company's
disclosure memorandum to the Merger Agreement, and all provisions for vested
amounts earned or accrued through the Effective Time under the Company's
employee benefit plans.
RIGHTS AGREEMENT AND RIGHTS. The Company has taken or will take all
necessary action, including amending its Shareholder Rights Protection
Agreement, dated as of June 20, 1999 between the Company and SunTrust Bank
Atlanta, as Rights Agent (the "RIGHTS AGREEMENT") with respect to all of its
outstanding series A junior participating preferred stock purchase rights (the
"RIGHTS"), (a) to render the Rights Agreement inapplicable to the Merger
Agreement, the Offer, the Merger and the other transactions contemplated by the
Merger Agreement (including the execution of the Support Agreements), (b) to
ensure that in connection with the Merger, the Offer and such other transactions
that (i) Parent and the Purchaser, or either of them, are not deemed to be an
Acquiring Person (as defined in the Rights Agreement) pursuant to the Rights
Agreement and (ii) no "Stock Acquisition Date" or "Flip-in Date" (as such terms
are defined in the Rights Agreement) occurs by reason of the execution and
delivery of the Merger Agreement or the consummation of the Offer, the Merger or
such other transactions and (c) so that the Company will have no obligations
under the Rights or the Rights Agreement in connection with the Offer, the
Merger or such other transactions and the holders of Shares and the associated
Rights will have no rights under the Rights or the Rights Agreement in
connection with the Offer, the Merger or such other transactions.
INDEMNIFICATION AND INSURANCE. The articles of incorporation and bylaws of
the surviving corporation in the Merger are required to contain indemnification
provisions that are substantially similar to the indemnification provisions in
the Company's articles of incorporation and bylaws as of April 16, 2000. These
provisions may not be amended, modified or otherwise repealed for a period of
six years after the Effective Time in any manner that adversely affects the
rights of the Company's directors, officers, employees or agents unless such
modification is required after the Effective Time by law.
Parent has agreed to cause the surviving corporation in the Merger to
indemnify, defend and hold harmless the present and former directors, officers,
employees and agents of the Company and its
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subsidiaries (each, an "INDEMNIFIED PARTY") against all liabilities arising out
of actions or omissions arising out of the Indemnified Party's service or
services as directors, officers, employees or agents of the Company or, at the
Company's request, of another corporation, partnership, joint venture, trust or
other enterprise occurring at or prior to the Effective Time (including
transactions contemplated by the Merger Agreement) to the fullest extent
permitted under Georgia law and by the articles of incorporation and the bylaws
of the Company as in effect on April 16, 2000, and any applicable
indemnification contracts, including provisions relating to advances of expenses
incurred in the defense of any litigation and whether or not the Parent or its
subsidiaries are insured against any such matter. Without limiting the
foregoing, in any case in which approval by the surviving corporation in the
Merger is required to effectuate any indemnification, the surviving corporation
in the Merger shall direct, at the election of an Indemnified Party, that the
determination of any such approval shall be made by independent counsel mutually
agreed upon between Parent and such Indemnified Party.
Pursuant to the terms of the Merger Agreement, the Company is required to
purchase (i) a new insurance policy or (ii) an endorsement under the Company's
existing directors, officers and corporate liability policy in a form acceptable
to the Company, which shall provide Indemnified Parties with coverage for seven
years after the Effective Time of not less than the existing coverage under, and
have other terms with respect to such coverage and amounts no less favorable in
any material respect to such directors and officers than those of such policy
maintained by the Company in effect on the date of the Merger Agreement;
PROVIDED that (i) in no event shall Parent or the surviving corporation in the
Merger be required to pay aggregate premiums for insurance described in this
paragraph in excess of 175% of the amount of the aggregate premiums paid by the
Company for 1999 for such purpose, but in such case Parent shall nevertheless be
obligated to provide such coverage as may be obtained for such 175% amount, and
(ii) the provisions of this paragraph shall be deemed to have been satisfied if
prepaid policies have been obtained by the Company prior to the Effective Time,
which policies provide such directors and officers with coverage as described in
this paragraph for an aggregate period of seven years with respect to claims
arising from facts or events that occurred on or before the Effective Time, but
with the aggregate premium for such policies not exceeding $400,000. The Company
shall give Parent the opportunity to negotiate with insurers over the amount of
such premium, and the Company shall purchase such policies for the Indemnified
Parties unless Parent consents otherwise.
In the event of any such litigation (whether arising before or after the
Effective Time), (i) Parent or the surviving corporation in the Merger shall
have the right to assume the defense thereof and neither Parent nor the
surviving corporation in the Merger shall be liable to such Indemnified Party
for any legal expenses of other counsel or any other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof,
except that if Parent or the surviving corporation in the Merger elects not to
assume such defense, or counsel for such Indemnified Party advises that there
are substantive issues which raise conflicts of interest between Parent or the
surviving corporation in the Merger and such Indemnified Party, such Indemnified
Party may retain counsel satisfactory to it, and Parent or the surviving
corporation in the Merger shall pay all reasonable fees and expenses of such
counsel for such Indemnified Party promptly as statements therefor are received
(PROVIDED that Parent and the surviving corporation in the Merger shall be
obligated to pay for only one firm of counsel for all Indemnified Parties in any
jurisdiction, unless such Indemnified Parties shall have been advised in writing
by counsel that there exist conflicts of interest among such Indemnified Parties
that preclude one firm of counsel from representing the interests of all such
Indemnified Parties), (ii) Parent, the surviving corporation in the Merger and
such Indemnified Party will cooperate in the defense of any such litigation, and
(iii) neither Parent nor the surviving corporation in the Merger shall be liable
for
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any settlement effected without its prior written consent, which consent shall
not be unreasonably withheld. Neither Parent nor the surviving corporation in
the Merger have any obligation to any Indemnified Party when and if a court of
competent jurisdiction determines, and such determination shall have become
final and non-appealable, that the indemnification of such Indemnified Party is
prohibited by applicable law.
If Parent or the surviving corporation in the Merger or any successors or
assigns consolidate with or merge into any other person and are not the
continuing or surviving person of such consolidation or merger, or transfer all
or substantially all of its assets to any person, then and in each case, proper
provision shall be made so that the successors and assigns of Parent or the
surviving corporation in the Merger shall assume the obligations set forth in
this section "--Indemnification and Insurance."
REASONABLE EFFORTS. The Merger Agreement provides that each of the parties
agrees to use, and cause its subsidiaries to use, its reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things that are necessary, proper or advisable under applicable laws to
consummate and make effective the Offer, the Merger and the other transactions
contemplated by the Merger Agreement and the Support Agreements (as described
below), including using reasonable efforts to (i) lift or rescind any order
adversely affecting their ability to consummate the Merger Agreement and the
transactions contemplated thereby, (ii) cause to be satisfied the conditions to
the Offer and the Merger, (iii) obtain all necessary consents, approvals,
authorizations, clearances, exemptions and waivers from Governmental Entities.
In connection with and without limiting the foregoing, the Company and its
subsidiaries agree to promptly take all necessary steps to exempt the
transactions contemplated by the Merger Agreement or the Support Agreements
from, or if necessary to challenge the applicability of, any applicable state
takeover statute or similar statute.
NOTIFICATION. Each party to the Merger Agreement has agreed to give written
notice promptly to the others upon becoming aware of the occurrence or impending
occurrence of any event or circumstance relating to it or any of its
subsidiaries which (i) is reasonably likely to have a material adverse effect or
to prevent or materially delay the obligation of Parent and the Purchaser to
consummate the Offer and the Merger, (ii) would cause or constitute a material
breach of any of its representations, warranties or covenants contained in the
Merger Agreement or (iii) causes any condition to consummation of the Offer set
forth in the Merger Agreement to be unsatisfied in any material respect at any
time from April 16, 2000 to the date the Purchaser purchases Shares pursuant to
the Offer. No such notice limits or otherwise affects the remedies available to
Parent or the Company under the Merger Agreement. In addition, each party to the
Merger Agreement has agreed to give prompt notice to the others of any written
notice or other written communication from any third party alleging that the
consent of such third party is or may be required in connection with the
transactions contemplated thereunder.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains various
customary representations and warranties, including representations relating to
corporate existence and power; capitalization; corporate authorizations;
subsidiaries; Commission filings; financial statements; absence of certain
changes; contracts; absence of undisclosed liabilities; government
authorizations; legal proceedings; compliance with laws; employment agreements;
labor relations; employee benefit plans; environmental matters; taxes;
intellectual property; accuracy of certain disclosures; the opinion of the
Company's financial advisor; state takeover laws; amendments to the Rights
Agreement; and the Company's total debt.
Certain representations and warranties in the Merger Agreement made by the
Company and Parent are qualified as to "materiality" or "material adverse
effect". For purposes of the Merger
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Agreement and the Offer, the term "MATERIAL ADVERSE EFFECT", as applied to the
Company, means an event, change or occurrence which (i) has a material adverse
impact on (A) the condition (financial or otherwise), business, or results of
operations of the Company and its subsidiaries, taken as a whole, or (B) the
ability of the Company to perform its obligations under the Merger Agreement or
to consummate the Merger or the other transactions contemplated by the Merger
Agreement or (ii) is reasonably likely to prevent the consummation of the Offer
and the Merger or delay the consummation of the Offer beyond September 29, 2000.
Such term does not include the impact of (i) actions and omissions of the
Company or any of its subsidiaries taken with the prior informed written consent
of Parent in contemplation of the transactions contemplated under the Merger
Agreement, (ii) the effects of compliance with the Merger Agreement on the
operating performance of the Company, including expenses incurred by the Company
in connection with consummation of the transactions contemplated by the Merger
Agreement, (iii) changes, events or occurrences in the United States securities
markets which are not specific to the Company, (iv) changes, events or
occurrences in the world economy which are not specific to the Company,
(v) changes, events or occurrences relating to the executive search, temporary
staffing and IT consulting industries in general, and not specifically to the
Company, (vi) any adverse change in the price of the Company common stock, as
quoted on the AMEX and (vii) failure to obtain consents with respect to payment
for the Company Options, or claims with respect thereto.
PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. The Merger
Agreement may be amended by a subsequent writing signed by each of the parties
at any time, whether before or after shareholder approval of the Merger
Agreement has been obtained; PROVIDED that after shareholder approval has been
obtained, there shall be made no amendment that by law requires further approval
by the Company's shareholders unless such an amendment is approved by the
Company's shareholders. Following the election or appointment of the Purchaser's
designees to the Company's Board of Directors as described above and prior to
the Effective Time, the affirmative vote of a majority of the Independent
Directors then in office shall be required by the Company to (i) amend or
terminate the Merger Agreement by the Company or (ii) exercise or waive any of
the Company's rights, benefits or remedies under or in connection with the
Merger Agreement.
At any time prior to the Effective Time, the parties may waive any default
in the performance of any term of the Merger Agreement, waive or extend the time
for the compliance or fulfillment of any and all of the obligations of the
parties under the Merger Agreement, and to waive any or all of the conditions
precedent to the obligations of the parties, under the Merger Agreement
(including the conditions to consummation of the Offer set forth in the Merger
Agreement), except any condition which, if not satisfied, would result in the
violation of any law. Any agreement on the part of a party to any such extension
or waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same or any other provision of the Merger
Agreement. No waiver of any condition or of the breach of any term contained in
the Merger Agreement in one or more instances shall be deemed to be or construed
as a further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of the Merger Agreement.
The foregoing summary of the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement, a copy of which is filed as
Exhibit (d)(1) to the Schedule TO. The Merger Agreement should be read in its
entirety for a more complete description of the matters summarized above.
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THE SUPPORT AGREEMENTS. Pursuant to the Support Agreements, the Principal
Shareholders have agreed:
(a) On or prior to the expiration date of the Offer, each of the
Principal Shareholders will tender, or cause to be tendered, to the
Purchaser in the Offer, all of the 1,656,164 Shares held by Cooper and all
of the 795,521 Shares held by Sauer, including Shares acquired through the
exercise of Company Options, immediately prior to the expiration of the
Offer. If a Principal Shareholder withdraws any tender of such Shares in the
Offer, such Principal Shareholder shall immediately, but in no event later
than the expiration date of the Offer, re-tender such Shares to the
Purchaser in the Offer.
(b) Each of the Principal Shareholders shall not sell, transfer or
encumber its Shares (except in the Offer).
(c) In the event that a Principal Shareholder does not tender its Shares
pursuant to its Support Agreement and the Purchaser completes the Offer, at
any meeting of shareholders of the Company, such Principal Shareholder has
agreed to vote all of its Shares, and any other common shares of the Company
which such Principal Shareholder may own, or have the power to vote, in
favor of the Merger. Each Principal Shareholder revokes any and all previous
proxies with respect to any of its Shares and grants to the Purchaser and
such individual or entities as the Purchaser may designate an irrevocable
proxy to vote all of the Shares owned by such Principal Shareholder in favor
of the Merger. In addition, each Principal Shareholder has agreed to execute
such additional documents as the Purchaser, or Vedior, may reasonably
request to effectuate the Purchaser's voting rights described in this
paragraph.
(d) The Support Agreements may be terminated at any time (i) by mutual
written consent of the parties, or (ii) by any party if the Merger Agreement
has been terminated in accordance with its terms. Such right of termination
is not available to any party whose breach of any obligation thereunder has
been the cause of or resulted in the failure of the Offer or the
transactions contemplated by the Merger Agreement or the Support Agreements
to be consummated. No such termination shall relieve any party from
liability for any breach of the Support Agreements.
The foregoing summary of the Support Agreements are qualified in its
entirety by reference to the Support Agreements, copies of which are filed as
Exhibit (d)(10) and Exhibit (d)(11) to the Schedule TO. The Support Agreements
should be read in their entirety for a more complete description of the matters
summarized above.
AMENDMENTS TO THE EMPLOYMENT AGREEMENTS. In connection with the execution
of the Merger Agreement, Mr. David C. Cooper, Chairman of the Board and Chief
Executive Officer of the Company, Mr. Brady W. Mullinax, Jr., Executive Vice
President--Finance and Administration, Secretary and a director of the Company,
Mr. Harry J. Sauer, Executive Vice President--Professional Services and a
director of the Company, and Ms. Patricia Kennedy, Executive Vice President--
Information Technology of the Company, have each entered into amendments to
their respective existing employment agreements with the Company, the terms of
which will take effect at the time of the initial purchase of Shares under the
Offer. The principal provisions of the amendments to the employment agreements
are described below.
Mr. Cooper entered into an employment agreement with the Company on May 16,
1997 which was to expire on May 16, 2000 (which expiration date the Company
anticipates extending until the date of the initial purchase of Shares under the
Offer). Under the terms of that agreement, Mr. Cooper's compensation was a base
salary of $200,000 at January 1, 2000 plus a bonus to be determined based on the
Company's performance. Also, Mr. Cooper was eligible to receive three times his
base salary plus
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bonus upon severance after a change in control of the Company. The amendment
provides for a continuation of the employment agreement until (and including the
date of) the two-year anniversary of the initial purchase of Shares under the
Offer. The amendment also provides for a base salary of $300,000 with a bonus
based on the Company's performance. In addition, in lieu of the severance
benefit upon a change in control of the Company, Mr. Cooper will receive
$300,000 upon the initial purchase of Shares under the Offer and a second
payment of $300,000 if either he (i) is employed by the Company on the two-year
anniversary of such date, (ii) resigns for good reason after such date but prior
to the two-year anniversary of such date, or (iii) is terminated without cause
after such date but prior to the two-year anniversary of such date. The
amendment to Mr. Cooper's employment agreement also requires Mr. Cooper to
continue to comply with certain non-solicitation, non-competition and
confidentiality covenants in the event that he is terminated from employment
with the Company for any reason.
Mr. Mullinax entered into an employment agreement with the Company on
August 21, 1998 which was to expire on December 31, 2000. Under the terms of
that agreement, Mr. Mullinax's compensation was a base salary of $240,000 at
January 1, 2000 plus a bonus to be determined at the discretion of the Chief
Executive Officer of the Company, PROVIDED that such bonus would be at least 20%
of his base salary then in effect. Also, Mr. Mullinax was eligible to receive
three times his base salary plus a bonus upon severance after a change in
control of the Company. The amendment provides for a continuation of the
employment agreement until (and including the date of) the two-year anniversary
of the initial purchase of Shares under the Offer. The amendment also provides
for a base salary of $240,000 with a bonus to be determined at the discretion of
the Chief Executive Officer of the Company, PROVIDED that such bonus would be at
least 20% of his base salary then in effect. In addition, in lieu of the
severance benefit upon a change in control of the Company, Mr. Mullinax will
receive $535,000 upon the initial purchase of Shares under the Offer and a
second payment of $535,000 if either he (i) is employed by the Company on the
two-year anniversary of such date, (ii) resigns for good reason after such date
but prior to the two-year anniversary of such date, or (iii) is terminated
without cause after such date but prior to the two-year anniversary of such
date. The amendment to Mr. Mullinax's employment agreement also eliminates the
requirement that the Company pay Mr. Mullinax $200,000 as compensation for his
complying with certain non-competition, non-solicitation and confidentiality
covenants for two years following his employment with the Company.
Mr. Sauer entered into an employment agreement with the Company and Acsys
Resources Inc. on September 3, 1997 which was to expire on September 3, 2000.
Under the terms of that agreement, Mr. Sauer's compensation was a base salary of
$225,000 at January 1, 2000 plus a bonus to be determined by the Board of
Directors of the Company, based on the Company's performance. Also, Mr. Sauer
was eligible to receive three times his base salary plus bonus upon severance
after a change in control of the Company. The amendment provides for a
continuation of the employment agreement until (and including the date of) the
two-year anniversary of the initial purchase of Shares under the Offer. The
amendment also provides for a base salary of $225,000 with a bonus to be
determined based on the Company's performance, PROVIDED that such bonus would be
at least $75,000. In addition, in lieu of the severance benefit upon a change in
control of the Company, Mr. Sauer will receive $487,500 upon the initial
purchase of Shares under the Offer and a second payment of $487,500 if either he
(i) is employed by the Company on the two-year anniversary of such date, (ii)
resigns for good reason after such date but prior to the two-year anniversary of
such date, or (iii) is terminated without cause after such date but prior to the
two-year anniversary of such date. The amendment to Mr. Sauer's employment
agreement also requires Mr. Sauer to comply with certain non-solicitation,
non-competition and confidentiality covenants in the event that he is terminated
from employment with the Company for any reason.
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Ms. Kennedy entered into an employment agreement with the Company on
February 7, 2000 which was to expire on February 7, 2003. Under the terms of
that agreement, Ms. Kennedy's compensation was a base salary of $250,000 plus a
bonus to be determined by the Chief Executive Officer of the Company, based on
the performance of Ms. Kennedy and the Company, PROVIDED that such bonus would
be at least $50,000. Also, Ms. Kennedy was eligible to receive three times her
base salary plus a bonus upon severance after a change in control of the
Company. The amendment does not impact the duration of Ms. Kennedy's employment
agreement or her compensation thereunder. The amendment provides, in lieu of the
severance benefit upon a change in control of the Company, Ms. Kennedy will
receive $532,013 upon the initial purchase of Shares under the Offer and a
second payment of $532,013 if either she (i) is employed by the Company on the
two-year anniversary of such date, (ii) resigns for good reason after, but prior
to the two-year anniversary of, such date, or (iii) is terminated without cause
after such date but prior to the two-year anniversary of such date. The
amendment also requires the Company to pay Ms. Kennedy 50% of the value of her
unvested Company Options at the Effective Time of the Merger and 50% of the
value of her unvested Company Options on the second anniversary of the Effective
Time of the Merger. The amendment to Ms. Kennedy's employment agreement also
requires Ms. Kennedy to continue to comply with certain non-competition
restrictions in the event that she is terminated from employment with the
Company for cause resulting from her failure to meet certain performance
expectations.
THE CONFIDENTIALITY AGREEMENT. Pursuant to the Confidentiality Agreement,
the Company, Select Appointments (Holdings) PLC and Vedior agreed to keep
confidential certain information provided by the Company or its representatives.
The Confidentiality Agreement also contains provisions prohibiting Vedior or its
affiliates from acquiring Shares without the consent of the Company's Board of
Directors. The Merger Agreement provides that certain information exchanged
pursuant to the Merger Agreement will be subject to the Confidentiality
Agreement.
The foregoing summary of the Confidentiality Agreement is qualified in its
entirety by reference to the Confidentiality Agreement, a copy of which is filed
as Exhibit (d)(12) to the Schedule TO. The Confidentiality Agreement should be
read in its entirety for a more complete description of the matters summarized
above.
PLANS FOR THE COMPANY. If a majority of the outstanding Shares are
purchased by the Purchaser pursuant to the Offer, Parent will designate its
representatives to be a majority of the Company's Board of Directors. Parent
presently intends to designate five board members from among the individuals
described in Schedule I to this Offer to Purchase under the captions "Directors
and Executive Officers of Vedior" and "Other Potential Proposed Designees."
Parent intends to provide financing to the Company and its subsidiaries as
described in Section 10--"Source and Amount of Funds; Vedior/ING Financing
Arrangements."
Following completion of the Offer and the Merger, Parent intends, in
conjunction with the Company's management, to continue to review the Company and
its assets, corporate structure, dividend policy, capitalization, operations,
properties, policies, management and personnel and to consider, subject to the
terms of the Merger Agreement, what, if any, changes would be desirable in light
of the circumstances then existing, and reserves the right to take such actions
or effect such changes as it deems desirable. Such changes could include changes
in the Company's corporate structure, operational headquarters, capitalization,
management or dividend policy. Vedior is expected to have a supervisory role
with respect to the management of the Company following completion of the Offer
and the Merger.
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DISSENTERS' RIGHTS
The holders of Shares do not have dissenters' rights as a result of the
Offer. However, if the Merger is consummated, holders of Shares at the Effective
Time will have certain rights pursuant to the provisions of Article 13 of the
GBCC to dissent and obtain payment of the fair value of their Shares. Under
Article 13 of the GBCC, dissenting shareholders who comply with the applicable
statutory procedures will be entitled to receive a judicial determination of the
fair value of their Shares (excluding any appreciation or depreciation in
anticipation of corporate action) and to receive payment of such fair value in
cash, together with interest, if any. Any such judicial determination of the
fair value of Shares could be based upon factors other than, or in addition to,
the price per Share to be paid in the Merger or the market value of the Shares.
The value so determined could be more or less than the price per Share to be
paid in the Merger.
The foregoing summary of Article 13 of the GBCC does not purport to be
complete and is qualified in its entirety by reference to Article 13 of the
GBCC. FAILURE TO FOLLOW THE STEPS REQUIRED BY ARTICLE 13 OF THE GBCC FOR
EXERCISING DISSENTERS' RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
GOING-PRIVATE TRANSACTIONS
The Commission has adopted Rule 13e-3 under the Exchange Act, which is
applicable to certain "going private" transactions. Because the shareholders of
the Company will receive the same per Share price as paid in the Offer, the
Purchaser does not believe that Rule 13e-3 will be applicable to the Merger
unless the Merger is consummated more than one year after the termination of the
Offer. If applicable, Rule 13e-3 requires, among other things, that certain
financial information concerning the fairness of the Merger and the
consideration offered to minority shareholders in the Merger be filed with the
Commission and disclosed to shareholders prior to the consummation of the
Merger.
13. DIVIDENDS AND DISTRIBUTIONS
The Merger Agreement provides that from April 16, 2000 to the Effective
Time, without the prior approval of Parent, the Company may not declare, set
aside or pay any dividends on, or make any other distributions (whether in cash,
stock or property) in respect of, any of its capital stock except for cash
dividends by a direct or indirect wholly owned subsidiary of the Company
organized under the laws of any jurisdiction to its parent.
14. CERTAIN CONDITIONS OF THE OFFER
The Merger Agreement provides that the Purchaser shall not be required to
accept for payment or, subject to any applicable rules and regulations of the
Commission, including Rule 14e-1(c) under the Exchange Act (relating to the
Purchaser's obligation to pay for or return tendered Shares promptly after
termination or withdrawal of the Offer), pay for any Shares tendered pursuant to
the Offer, and may postpone the acceptance for payment or payment for any Shares
tendered pursuant to the Offer, and may amend or terminate the Offer (subject to
the provisions relating to modification or termination of the Offer described in
Section 1--"Terms of the Offer") as to any Shares not then paid for if
(i) there shall not have been validly tendered and not withdrawn, prior to the
expiration of the Offer, that number of Shares which, together with any Shares
beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by
Parent, the Purchaser, Vedior and their respective Affiliates, would represent
at least a majority of the Fully Diluted Shares (the "MINIMUM TENDER
CONDITION"), (ii) any waiting period under the HSR Act applicable to the
purchase of Shares pursuant to the Offer shall not have expired or been
terminated or (iii) at any time on or after April 16, 2000 and prior to
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the initial time of acceptance for payment of Shares or the payment therefor,
any of the following conditions exists:
(a) there shall have been any action taken by any Governmental Entity,
or any statute, rule, regulation or order, proposed, sought, promulgated,
enacted, entered, enforced, issued, amended or deemed applicable by any
Governmental Entity to Parent, the Purchaser, Vedior, the Company, any of
their respective subsidiaries or affiliates, the Offer or the Merger (other
than the application of the waiting period provisions of the HSR Act to the
Offer or the Merger), that would or is reasonably likely, directly or
indirectly, to (i) make the acceptance for payment of, or payment for or
purchase of all or a substantial number of the Shares pursuant to the Offer
illegal, or otherwise restrict in a manner adverse to Parent or Vedior or
prohibit the making of the Offer or the consummation of the Offer or the
Merger, (ii) result in a material delay in or restrict the ability of the
Purchaser or render the Purchaser unable to accept for payment, pay for or
purchase all or a substantial number of the Shares pursuant to the Offer or
to effect the Merger, (iii) impose material limitations on the ability of
Parent, the Purchaser, Vedior or any of their respective subsidiaries or
affiliates to acquire or hold, transfer or dispose of, or effectively to
exercise all rights of ownership of, all or a substantial number of the
Shares, including without limitation the right to vote the Shares purchased
by it pursuant to the Offer on an equal basis with all other Shares on all
matters properly presented to the shareholders of the Company, (iv) require
the divestiture by Parent, the Purchaser, Vedior or any of their respective
subsidiaries of any Shares, or require the Purchaser, Parent, Vedior, the
Company or any of their respective subsidiaries or affiliates to dispose of
or hold separate all or any material portion of their respective businesses,
assets or properties or impose any material limitations on the ability of
any of such entities to conduct their respective businesses or own such
assets or Shares or on the ability of Parent, the Purchaser, Vedior or their
respective subsidiaries or affiliates to conduct the business of the Company
and its subsidiaries and own assets or the Company and its subsidiaries or
affiliates, in each case taken as a whole or (v) impose any material
limitations on the ability of Parent, the Purchaser, Vedior or any of their
respective subsidiaries or affiliates effectively to control the business or
operations of the Company, Parent, the Purchaser, Vedior or any of their
respective subsidiaries or affiliates;
(b) there shall have been instituted or pending any Litigation (as
defined in the Merger Agreement) challenging the making of the Offer or the
consummation of the Merger, or seeking, directly or indirectly, any of the
consequences referred to in clause (a)(i)-(v) above, that in the reasonable
judgment of Parent, has a reasonable probability of success;
(c) there shall have been threatened any action, proceeding or
counterclaim by any Governmental Entity, challenging the making of the Offer
or the acquisition by the Purchaser of the Shares pursuant to the Offer or
the consummation of the Merger or seeking, directly or indirectly, any of
the consequences referred to in clauses (a)(i)-(v) above that, in the
reasonable judgment of Parent, has a reasonable probability of success;
(d) the Merger Agreement shall have been terminated in accordance with
its terms; or
(e) since April 16, 2000 there shall have occurred any event, change,
effect or development that, individually or when considered together with
any other event, change, effect or development, has had or would reasonably
be expected to have a material adverse effect of the Company, which has not
been cured prior to the expiration of the Offer;
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(f) certain of the representations and warranties of the Company
contained in the Merger Agreement shall not be true and accurate in all
respects as of the date made and as of the date of consummation of the Offer
as though made on or as of such date (except for those representations and
warranties that address matters only as of a particular date or only with
respect to a specific period of time which need only be true and accurate as
of such date or with respect to such period), (without giving effect to any
limitation as to "materiality" or the absence of a material adverse effect
set forth therein), except for such failure to be true and correct as would
not, individually or in the aggregate, reasonably be expected to have a
material adverse effect of the Company and the truth or inaccuracy shall not
have been cured prior to the expiration of the Offer;
(g) all other representations and warranties of the Company contained in
the Merger Agreement shall not be true and accurate in all material respects
as of the date made and as of the date of the consummation of the Offer as
though made on or as of such date and the untruth or inaccuracy shall not
have been cured prior to the expiration of the Offer;
(h) the Company shall have failed to perform in any material respect any
material obligation or to comply in any material respect with any material
agreement or material covenant of the Company to be performed or complied
with by it under the Merger Agreement and the breach or failure shall not
have been cured prior to the expiration of the Offer; or
(i) the Board of Directors or any committee thereof shall have (i)
withdrawn, or modified or changed in a manner adverse to Parent or the
Purchaser (including by amendment of the Schedule 14D-9) its approval or
recommendation of the Merger Agreement or the transactions contemplated
thereby, including the Offer or the Merger, (ii) recommended, endorsed or
approved an Acquisition Proposal or (iii) adopted any resolution to effect
any of the foregoing.
The foregoing conditions are for the sole benefit of Parent and the
Purchaser and may (except for the Minimum Tender Condition, which cannot be
waived without the consent of the Company, Parent and the Purchaser) be waived
by Parent or the Purchaser in whole or in part, at any time and from time to
time, in the sole discretion of Parent or the Purchaser. The failure by Parent
or Purchaser at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any right and each right shall be deemed an ongoing right
which may be asserted at any time and from time to time.
15. CERTAIN LEGAL MATTERS
Except as described in this section, based on a review of publicly available
filings made by the Company with the Commission and other publicly available
information concerning the Company and discussions of representatives of Parent
with representatives of the Company, none of the Purchaser, Parent or the
Company 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 Purchaser's acquisition of Shares (and the
indirect acquisition of the stock of the Company's subsidiaries) as contemplated
herein or of any approval or other action by any Governmental Entity that would
be required or desirable for the acquisition or ownership of Shares by the
Purchaser as contemplated herein. Should any such approval or other action be
required or desirable, Parent and the Purchaser currently contemplate that such
approval or other action will be sought, except as described below under
"--State Takeover Laws." While the Purchaser does not presently 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
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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, the Purchaser could, subject to the terms and conditions of the Merger
Agreement, decline to accept for payment or pay for any Shares tendered. See
Section 14 for a description of 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, shareholders, 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 potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining shareholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of U.S. federal courts
ruled that various state takeover statutes were unconstitutional insofar as they
apply to corporations incorporated outside the state of enactment.
Pursuant to the Company's bylaws, the Company is subject to the fair price
requirements of the GBCC. Section 14-2-1112 of the GBCC, in general, prohibits a
Georgia corporation such as the Company from engaging in a "BUSINESS
COMBINATION" (defined generally as a merger with an "INTERESTED SHAREHOLDER"
(defined generally as a person that is the beneficial owner of 10% or more of a
corporation's outstanding voting stock)) unless, among other things, the
business combination is approved by (i) all the "continuing directors" (defined
generally as a member of the board of directors of the corporation who is not
affiliated or associated with the interested shareholder or any of its
affiliates and was a director of the corporation prior to the date on which the
shareholder first became an interested shareholder), provided that the
continuing directors constitute at least three members of the board of directors
of the corporation at the time of such approval or (ii) at least two-thirds of
the continuing directors and a majority of Shares, other than Shares
beneficially owned by the interested shareholder, who is or whose affiliate is,
a party to the business combination. The Company's Board of Directors has
unanimously approved the Merger Agreement, the Support Agreements, the Offer,
the Merger and the other transactions contemplated by the Merger Agreement and
the Support Agreements prior to the time at which any party to such transactions
became an interested shareholder, thereby satisfying the unanimous approval
requirements for "continuing directors" under Section 14-2-1111 of the GBCC and
thus avoiding the necessity of compliance with the fair pricing and procedural
requirements contained in Section 14-2-1112 of the GBCC.
Based on information supplied by the Company, the Purchaser does not believe
that any other state takeover statutes or similar laws purport to apply to the
Offer or the Merger. Neither the Purchaser nor Parent has currently complied
with any state takeover statute or regulation. The Purchaser 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, the Purchaser might be required to file certain information with, or to
receive approvals from, the relevant state authorities,
45
<PAGE>
and the Purchaser might be unable to accept for payment or pay for Shares
tendered pursuant to the Offer, or be delayed in consummating the Offer or the
Merger. In such case, the Purchaser may not be obligated to accept payment or
pay for any Shares tendered pursuant to the Offer. See Section 14.
ANTITRUST
UNITED STATES ANTITRUST LAW. Under the provisions of the HSR Act applicable
to the Offer, the acquisition of Shares under the Offer may be consummated after
the expiration of a 15-calendar day waiting period commenced by the filing by
Vedior and ING Groep of a Notification and Report Form with respect to the
Offer, unless Vedior, ING Groep or the Company receives a request for additional
information or documentary material from the Antitrust Division of the
Department of Justice or the Federal Trade Commission (the "FTC") or unless
early termination of the waiting period is granted. Vedior and ING Groep are in
the process of preparing such filing. If, within the initial 15-day waiting
period, either the Antitrust Division or the FTC requests additional information
from Vedior, ING Groep or the Company concerning the Offer, the waiting period
will be extended and would expire at 11:59 p.m., New York City time, on the
tenth calendar day after the date of substantial compliance by Vedior and ING
Groep with such request. Only one extension of the waiting period pursuant to a
request for additional information is authorized by the HSR Act. Thereafter,
such waiting period may be extended only by court order or with the consent of
Vedior and ING Groep. In practice, complying with a request for additional
information or material can take a significant amount of time. In addition, if
the Antitrust Division or the FTC raises substantive issues in connection with a
proposed transaction, the parties frequently engage in negotiations with the
relevant governmental agency concerning possible means of addressing those
issues and may agree to delay consummation of the transaction while such
negotiations continue. Expiration or termination of the applicable waiting
period under the HSR Act is a condition to the Purchaser's obligation to accept
for payment and pay for Shares tendered pursuant to the Offer.
The Merger will not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of the
Company. At any time before or after the acquisition 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 the
Purchaser or the divestiture of substantial assets of the Company or its
subsidiaries or Vedior 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 result thereof.
EUROPEAN ANTITRUST LAWS. Vedior conducts substantial operations in the
European Economic Area. Counsel Regulation (EEC) 4064/89, as amended, and
Article 57 of the European Economic Area Agreement require that concentrations
with a "Community or EFTA dimension" be notified in prescribed form to the
Commission of the European Communities for review and approval. However, Parent
and the Company have determined that the Offer and the Merger do not have a
"Community dimension," and thus do not intend to file notification in the
prescribed form with the European Commission.
46
<PAGE>
16. FEES AND EXPENSES
Robert W. Baird & Co. Incorporated is acting as Dealer Manager for the Offer
and is providing certain financial advisory services to Vedior, Parent and the
Purchaser in connection with the Offer, for which services Robert W. Baird & Co.
Incorporated will receive customary compensation. Parent also has agreed to
reimburse Robert W. Baird & Co. Incorporated for reasonable travel and other
out-of-pocket expenses, including reasonable fees and expenses of its legal
counsel, and to indemnify Robert W. Baird & Co. Incorporated and certain related
parties against certain liabilities, including liabilities under the federal
securities laws, arising out of its engagement. In the ordinary course of
business, Robert W. Baird & Co. Incorporated and its affiliates may actively
trade or hold the securities of Vedior, ING Groep or the Company for their own
account and for the accounts of customers and, accordingly, may at any time hold
a long or short position in such securities.
Parent and the Purchaser have retained MacKenzie Partners, Inc. to act as
the Information Agent and Wilmington Trust Company to serve as the Paying Agent
in connection with the Offer. The Information Agent and the Paying Agent each
will receive reasonable and customary compensation for their services, be
reimbursed for certain reasonable out-of-pocket expenses and be indemnified
against certain liabilities and expenses in connection therewith, including
certain liabilities and expenses under the federal securities laws.
Neither the Purchaser nor Parent will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager) in connection
with the solicitation of tenders of Shares pursuant to the Offer. Brokers,
dealers, banks, trust companies and other members will be reimbursed by the
Purchaser 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 the Purchaser nor Parent is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. To the extent the Purchaser or
Parent becomes aware of any state law that would limit the class of offerees in
the Offer, the Purchaser will amend the Offer and, depending on the timing of
such amendment, if any, will extend the Offer to provide adequate dissemination
of such information to holders of Shares prior to the expiration of the Offer.
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 is being made on
behalf of the Purchaser 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 THE 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.
Parent and the Purchaser have filed with the Commission the Schedule TO
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, 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,
47
<PAGE>
should be available for inspection and copies should be obtainable in the manner
set forth in Section 8 (except that such material will not be available at the
regional offices of the Commission).
PLATFORM PURCHASER INC.
April 27, 2000
48
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT, VEDIOR,
THE PURCHASER, ING GROEP, THE ADMINISTRATOR, THE TRUST AND
OTHER POTENTIAL PROPOSED DESIGNEES
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The name, age, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the directors and executive officers of Parent are set forth below. The business
address of each such director or executive officer is Bijlmerplein 888, 1102 MG
Amsterdam Zuid Oost, HG 04.06, P.O. Box 1800, 1000 BV Amsterdam, the
Netherlands.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH PARENT MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
Entero B.V. Not applicable.
Managing Director
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name, age,
citizenship, business address, present principal occupation or employment and
material occupations, positions, offices or employment for the past five years
of each of the directors and executive officers of the Purchaser are set forth
below. The business address of each such director and executive officer is
Platform Purchaser Inc., in care of Select Appointments North America Inc., 60
Harvard Mill Square, Wakefield, MA 01880.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH PURCHASER MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
Charles Kenneth Zachary Miles, 50 Chief Financial Officer of Vedior N.V.
Director, President, Treasurer and since December 1999. Group Finance Director
Secretary of Select Appointments (Holdings) PLC from
British 1988 to date.
</TABLE>
3. DIRECTORS AND EXECUTIVE OFFICERS OF VEDIOR. The name, age, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the directors and executive officers of the Vedior are set forth below. Unless
otherwise indicated, the business address of each such director and executive
officer is Jachthavenweg 112, 1076 DC Amsterdam, the Netherlands.
S-1
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH VEDIOR MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
Gerardus Hendrik Smit, 52 Chairman of Management Board since 1997.
Chairman of Management Board Director of Vendex KBB N.V. from 1990 to
Dutch 1997.
Anthony Victor Martin, 61 Vice Chairman of Management Board since
Vice Chairman of Management Board December 1999. Chairman of Select
British Appointments (Holdings) PLC since 1992
Obe Kuipers, 51 Member of Management Board since 1997.
Member of Management Board Chairman of the Board of Abilis from 1991
Dutch to 1997.
Charles Kenneth Zachary Miles, 50 Chief Financial Officer since December
Chief Financial Officer 1999. Group Finance Director of Select
British Appointments (Holdings) PLC from 1988 to
date.
Arnold Joannes Marie van der Ven, 41 Member of Management Board since 1997.
Member of Management Board Chief Financial Officer of Axxicon Group
Dutch N.V. from 1991 to 1997.
Adrianus Gerardus Jacobs, 63 Chairman of Management Board of ING Groep
Member of Supervisory Board from 1992 to mid-1998.
Dutch
Wilhelmus Cornelis Johann Angenent, 59 Chairman of Management Board of Laurus N.V.
Member of Supervisory Board since 1998. Chief Financial Officer of
Dutch Vendex KBB N.V. from 1992 to October 1998
Irene Petronella Asscher-Vonk, 55 Professor at Law, Catholic University of
Member of Supervisory Board Nijmegen since 1994. Mr. Asscher-Vonk's
Dutch address is Thomas van Aquinostraat 6,
Nijmegen.
Remmert Laan, 57 Partner, Lazard Freres et Cie. since 1979.
Member of Supervisory Board Mr. Laan's business address is 121
French Boulevard Hausmann, Paris, France.
Adrianus Johannes Scheepbouwer, 55 Chairman of Management Board of TNT Post
Member of Supervisory Board Group N.V. since 1998. Member of the Board
Dutch of Koninklyke PTT Nederland N.V. from 1992
to 1998. Mr. Scheepbouwer's business
address is Neptunusstraat 41-63, Hoofddorp.
</TABLE>
S-2
<PAGE>
4. DIRECTORS AND EXECUTIVE OFFICERS OF ING GROEP. The name, age,
citizenship, business address, present principal occupation or employment and
material occupations, positions, offices or employment for the past five years
of each of the directors and executive officers of ING Groep are set forth
below. The business address of each such director and executive officer is
Strawinskylaan 2631, 1077 ZZ Amsterdam, the Netherlands.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH ING GROEP MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
G.J.A. van der Lugt, 60 Chairman of Executive Board since 1998, and
Chairman of Executive Board Vice-Chairman of the Executive Board from
Dutch 1992 to 1998.
E. Kist, 56 Vice-Chairman of Executive Board since
Vice-Chairman of Executive Board April 1, 1999, and member of Executive
Dutch Board since 1993.
J.H.M. Lindenbergh, 67 Member of Executive Board since 1995. Vice-
Member of Executive Board Chairman of the Executive Committee of ING
Dutch Nederland since 1988.
C. Maas, 53 Chief Financial Officer of the Executive
Chief Financial Officer of Executive Board since 1996, and member of the
Board Executive Board since 1992.
Dutch
A.H.G. Rinnooy Kan, 51 Member of Executive Board since
Member of Executive Board September 1996. President of the VNO-NCW
Dutch Federation from 1995 to 1996.
M. Tilmant, 48 Member of Executive Board since 1998.
Member of Executive Board Chairman of Executive Board of Bank
Belgian Brussels Lambert from 1997 to 1998.
Employed by Bank Brussels since 1992, where
he was appointed Chairman of its Executive
Board in 1997.
F. S. Hubbell, 49 Chairman of Executive Committee of ING
Member of Executive Board as of Financial Services International since
May 2, 2000 October 1, 1999. President and CEO of ING
American Retail Financial Services in the U.S. from
1998 until the spring of 1999. Previously
Chief Executive Officer of Equitable of
Iowa.
D. Robins, 51 Chairman of ING Baring since January 1,
Member of Executive Board as of 2000, and Chief Executive Officer of ING
May 2, 2000 Baring since October 1, 1998. CEO Europe of
British UBS Group from 1997 to 1998.
</TABLE>
S-3
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH ING GROEP MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
C.A.J. Herkstroter, 63 Chairman of Supervisory Board since May 7,
Chairman of Supervisory Board 1999 and member since May 8, 1998.
Dutch President of N.V. Koninklijke Nederlandsche
Petroleum Maatschappij and Chairman of the
Committee of Managing Directors of the
Royal Dutch/Shell Group from 1993 to 1998.
G. Verhagen, 71 Vice-Chairman of Supervisory Board since
Vice-Chairman of Supervisory Board 1996 and member since 1994.
Dutch
M. Ververs, 67 Vice-Chairman of Supervisory Board since
Vice-Chairman of Supervisory Board May 1996 and member since 1994.
Dutch
L.A.A. van der Berghe, 49 Member of the Supervisory Board since 1994.
Member of Supervisory Board Partner in the De Vlerick Louvain Ghent
Belgian Management School and Professor of
Financial Conglomerates at Erasmus
University, Rotterdam.
J.W. Berghuis, 66 Member of Supervisory Board since 1987.
Member of Supervisory Board Vice-Chairman of the Executive Board of
Dutch Koninklijke Pakhoed N.V. from 1991 to 1996.
P.F. van der Heijden, 51 Member of the Supervisory Board since 1995.
Member of the Supervisory Board Director and Professor of the Hugo
Dutch Sinzheimer Institute for Labour and Law at
the University of Amsterdam.
Adrianus Gerardus Jacobs, 63 Member of Supervisory Board since 1998.
Member of Supervisory Board Chairman of Executive Board from 1992 to
Dutch 1998.
J. Kamminga, 53 Queen's Commissioner for the Province of
Member of Supervisory Board Gelderland since 1997. Chairman of SME-
Dutch Nederland until 1996.
P.J.A. baron de Meester, 65 Member of the Supervisory Board since 1998.
Member of Supervisory Board Chairman of the Executive Board of Besix
Belgian N.V. Chairman of Belgische Beton
Maatschappij. Professor by Special
Appointment to the St. Ignatius University
Faculties, Antwerp and the Catholic
University of Leuven.
O.H.A. van Royen, 70 Member of Supervisory Board since 1994.
Member of Supervisory Board
Dutch
</TABLE>
S-4
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH ING GROEP MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
J. Stekelenburg, 59 Member of Supervisory Board since 1997.
Member of Supervisory Board President of the Industrial Union and the
Dutch Trade Union Federation of FNV from 1988 to
1997.
J.D. Timmer, 67 Member of Supervisory Board since
Member of Supervisory Board October 1, 1996. Retired as President and
Dutch Chairman of the Executive Board and Group
Board of Phillips Electronics in
September 1996.
</TABLE>
5. DIRECTORS AND EXECUTIVE OFFICERS OF STICHTING ADMINISTRATIEKANTOOR VAN
GEWONE AANDELEN VEDIOR (THE "ADMINISTRATOR"). The name, age, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the directors and executive officers of the Administrator are set forth below.
Unless otherwise indicated, the business address of each such director and
executive officer is Jachthavenweg 112, 1076 DC Amsterdam, the Netherlands.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH THE MATERIAL POSITIONS HELD DURING THE PAST
ADMINISTRATOR AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
Dick Sinninghe Damste, 60 Member since May 27, 1997. Member of
Chairman, "A" Member Management Board of Hollandsche Beton Groep
Dutch N.V. since 1988. Mr. Damste's business
address is Generaal Spoorlaan 489,
Rijswijk.
Willem de Vlugt, 57 Member since May 27, 1997. Chairman and
"A" Member Chief Executive Officer of Koninklijke
Dutch Emballage Industrie Van Leer N.V. from 1992
to 1998.
Pierre Joseph Andreas Maria Nijnens, 46 Member since May 27, 1997. Partner of De
"A" Member Brauw Blackstone Westbroek Linklaters &
Dutch Alliance since 1985.
Adrianus Gerardus Jacobs, 63 Chairman of Management Board of ING Groep
"B" Member from 1992 to mid-1998.
Dutch
Gerardus Hendrik Smit, 52 Chairman of Management Board Vedior since
"B" Member 1997. Director of Vendex KBB N.V. from 1990
Dutch to 1997.
</TABLE>
S-5
<PAGE>
6. DIRECTORS AND EXECUTIVE OFFICERS OF STICHTING ADMINISTRATIEKANTOOR ING
GROEP (THE "TRUST"). The name, age, citizenship, business address, present
principal occupation or employment and material occupations, positions, offices
or employment for the past five years of each of the directors and executive
officers of the Trust are set forth below. The business address of each such
director or executive officer is Strawinskylaan 2631, 1077 ZZ Amsterdam, the
Netherlands.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME, AGE AND POSITION WITH THE MATERIAL POSITIONS HELD DURING THE PAST
ADMINISTRATOR AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
J.H. Hulshof, 68 Member since January 22, 1991. Previously
"B" Member Chairman of the Management Board of
Dutch Unilever Bedrijven B.V.
H. de Korver, 68 Member since May 13, 1995. Previously Vice
"B" Member Chairman of the Management Board of
Dutch Koninklijke Nederlandse papierfabrieken
N.V.
M. Ververs, 67 Member since November 21, 1996. Previously
"A" Member Chairman of the Management Board of Wolters
Duthch Kluwer N.V.
J.W.M. Simons, 65 Member since September 22, 1998. Previously
"B" Member Chairman of the Management Board of
Dutch Bouwfonds Nederlandse Gemeenten.
T. Regtuijt, 62 Member since February 1, 1999. Previously a
"B" Member Member of the Management Board of
Dutch Nederlandse Spoorwegen.
H.J. Blaisse, 47 Member since December 14, 1999. Partner of
"B" Member Schut & Grosheide.
Dutch
C.A.J. Herkstroter, 62 Member since December 14, 1999. Previously
"A" Member Chairman of the Management Board of Royal
Dutch Dutch Shell Petroleum Company.
</TABLE>
S-6
<PAGE>
7. OTHER POTENTIAL PROPOSED DESIGNEES. The name, age, citizenship,
business address, present principal occupation or employment and material
occupations, positions, offices or employment for the past five years of each of
the other potential proposed Designees are set forth below.
<TABLE>
<CAPTION>
NAME, AGE AND POSITION PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
WITH THE COMPANY MATERIAL POSITIONS HELD DURING THE PAST
AND CITIZENSHIP FIVE YEARS
- ----------------------------------------- -------------------------------------------
<S> <C>
Rene Diderik Emile den Hertog, 53 Legal Director of Vedior since 1997.
Potential designee Executive Director of the Legal and Tax
Dutch Department of Vendex KBB N.V. since 1991.
The business address of Mr. den Hertog is
Jachthavenweg 112, Amsterdam, the
Netherlands.
James King, 39 Group Legal Advisor for Select Appointments
Potential designee (Holdings) PLC since 1999. Legal Director
British and Company Secretary of M.W. Kellogg
Limited from 1995 to 1999. Legal advisor
for Eagle Star Holdings Limited from 1991
to 1995. The business address of Mr. King
is Ziggurat Grosvenor Road, St. Albans,
Hertsfordshire, England AL13HW.
</TABLE>
S-7
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each shareholder of the
Company or such shareholder's broker, dealer, bank, trust company or other
nominee to the Paying Agent at one of its addresses set forth below.
THE PAYING AGENT FOR THE OFFER IS
WILMINGTON TRUST COMPANY
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE BY HAND/OVERNIGHT
Corporate Trust TRANSMISSION: COURIER:
Operations (For Eligible Wilmington Trust Company
Wilmington Trust Company Institutions only) 1105 North Market
1100 North Market Street (302) 651-1079 Street,
Rodney Square North CONFIRM FACSIMILE First Floor
Wilmington, DE 19801 TRANSMISSION: Wilmington, DE 19890
By telephone only Attn: Corporate Trust
(302) 651-8869 Operations
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and locations
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal, the Notice of Guaranteed Delivery or any other tender offer
materials may be obtained from the Information Agent. You may also contact your
broker, dealer, bank, trust company or other nominee for assistance concerning
the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
(800) 322-2885 (Toll Free)
THE DEALER MANAGER FOR THE OFFER IS:
ROBERT W. BAIRD & CO.
777 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202
(888) 224-7326
<PAGE>
Exhibit (a)(1)(B)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(including associated Series A Junior Participating
Preferred Stock Purchase Rights)
OF
ACSYS, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED APRIL 27, 2000
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY MAY 24, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE PAYING AGENT FOR THE OFFER IS:
WILMINGTON TRUST COMPANY
<TABLE>
<S> <C> <C>
BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT COURIER:
Corporate Trust Operations (FOR ELIGIBLE INSTITUTIONS Wilmington Trust Company
Wilmington Trust Company ONLY) 1105 North Market Street,
1100 North Market Street (302) 651-1079 First Floor
Rodney Square North CONFIRM FACSIMILE TRANSMISSION Wilmington, DE 19890
Wilmington, DE 19801 BY TELEPHONE ONLY: Attn: Corporate Trust
(302) 651-8869 Operations
</TABLE>
- --------------------------------------------------------------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, DOES NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS SET FORTH IN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<TABLE>
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- -----------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
SHARES TENDERED
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
APPEAR(S) ON SHARE CERTIFICATE(S))
- -----------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF
SHARES
REPRESENTED BY
SHARE CERTIFICATE SHARE NUMBER OF SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
TOTAL SHARES
- -----------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed if transfer is made by book-entry transfer.
<PAGE>
** Unless otherwise indicated, it will be assumed that all Shares described
above are being tendered. See Instruction 4. IF ANY OF THE CERTIFICATES
REPRESENTING SHARES THAT YOU OWN HAVE BEEN LOST OR DESTROYED, SEE
INSTRUCTION 11.
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined in Section 2 of the Offer to Purchase (as defined below)) is
utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Paying Agent at the Book-Entry Transfer Facility (as
defined in and pursuant to the procedures set forth in Section 2 of the Offer to
Purchase). Shareholders whose certificates for Shares are not immediately
available or who cannot deliver either the certificates for, or a Book-Entry
Confirmation (as defined in the Offer to Purchase) with respect to, their Shares
and all other documents required hereby to the Paying Agent prior to the
Expiration Date (as defined in the Offer to Purchase) must tender their Shares
in accordance with the guaranteed delivery procedures set forth in Section 2 of
the Offer to Purchase. See Instruction 2. Delivery of documents to a Book-Entry
Transfer Facility does not constitute delivery to the Paying Agent.
- --------------------------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE PAYING AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY 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 ____________________________________________________________
Transaction Code Number ___________________________________________________
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE PAYING AGENT, ENCLOSE A
PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s) ____________________________________________
Date of Execution of Notice of Guaranteed Delivery ________________________
Name of Institution that Guaranteed Delivery ______________________________
If delivered by book-entry transfer, check box: / /
- --------------------------------------------------------------------------------
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Platform Purchaser Inc., a Georgia
corporation (the "Purchaser") and an affiliate of Vedior N.V., a company
organized under the laws of the Netherlands ("Vedior"), and to become,
immediately prior to the initial purchase of Shares (as defined below) under the
Offer, a wholly owned subsidiary of Tiberia B.V., a company organized under the
laws of the Netherlands, the above-described shares of common stock, no par
value per share (together with the associated series A junior participating
preferred stock purchase rights, the "Shares"), of Acsys, Inc., a Georgia
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Purchaser's Offer to Purchase dated April 27, 2000 (the "Offer to
Purchase"), and this Letter of Transmittal (which, together with any amendments
or supplements thereto or hereto, collectively constitute the "Offer"), receipt
of which is hereby acknowledged.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser 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 or rights issued in respect thereof on or after April 27, 2000) and
irrevocably constitutes and appoints Wilmington Trust Company (the "Paying
Agent"), the true and lawful agent and attorney-in-fact of the undersigned, with
full power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest), to the full extent of the
undersigned's rights with respect to such Shares (and any such other Shares or
securities or rights) (a) to deliver certificates for such Shares (and any such
other Shares or securities or rights) or transfer ownership of such Shares (and
any such other Shares or securities or rights) on the account books maintained
by the Book-Entry Transfer Facility together, in any such case, with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Purchaser, (b) to present such Shares (and any such other Shares or
securities or rights) for transfer on the Company's books and (c) to receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and any such other Shares or securities or rights), all in accordance
with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the tendered Shares
(and any and all other Shares or other securities or rights issued or issuable
in respect of such Shares on or after April 27, 2000) and, when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good title
thereto, free and clear of all liens, restrictions, claims and encumbrances and
the same will not be subject to any adverse claim. The undersigned will, upon
request, execute any additional documents deemed by the Paying Agent or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the tendered Shares (and any such other Shares or other securities
or rights).
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned hereby irrevocably appoints C.K. Zachary Miles and Rene den
Hertog, and each of them, and any other designees of the Purchaser, the
attorneys-in-fact and proxies of the undersigned, each with full power of
substitution, to vote at any annual, special or adjourned meeting of the
Company's shareholders or otherwise in such manner as each such attorney-in-fact
and proxy or his or her substitute
3
<PAGE>
shall in his or her sole discretion deem proper with respect to, to execute any
written consent concerning any matter as each such attorney-in-fact and proxy or
his or her substitute shall in his or her sole discretion deem proper with
respect to, and to otherwise act as each such attorney-in-fact and proxy or his
or her substitute shall in his sole discretion deem proper with respect to, the
Shares tendered hereby that have been accepted for payment by the Purchaser
prior to the time any such action is taken and with respect to which the
undersigned is entitled to vote (and any and all other Shares or other
securities or rights issued or issuable in respect of such Shares on or after
April 27, 2000). This appointment is effective when, and only to the extent
that, the Purchaser accepts for payment such Shares as provided in the Offer to
Purchase. This power of attorney and proxy are irrevocable and are granted in
consideration of the acceptance for payment of such Shares in accordance with
the terms of the Offer. Upon such acceptance for payment, all prior powers of
attorney, proxies and consents given by the undersigned with respect to such
Shares (and any such other Shares or securities or rights) will, without further
action, be revoked and no subsequent powers of attorney, proxies, consents or
revocations may be given (and, if given, will not be deemed effective) by the
undersigned.
The undersigned understands that the valid tender of Shares pursuant to any
of the procedures described in Section 2 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or accepted for payment in the name(s) of the registered
holder(s) appearing under "Description of Shares Tendered." Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered." In the event that both the "Special Delivery Instructions" and the
"Special Payment Instructions" are completed, please issue the check for the
purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and any accompanying documents, as appropriate) in the
name of, and deliver such check and/or return such certificates (and any
accompanying documents, as appropriate) to, the person or persons so indicated.
Please credit any Shares tendered herewith by book-entry transfer that are not
accepted for payment by crediting the account at the Book-Entry Transfer
Facility designated above. The undersigned recognizes that the Purchaser has no
obligation pursuant to the "Special Payment Instructions" to transfer any Shares
from the name of the registered holder thereof if the Purchaser does not accept
for payment any of the Shares so tendered.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
NUMBER, CLASS AND SERIES OF SHARES REPRESENTED BY THE LOST OR DESTROYED
CERTIFICATES: _____________________________________________________________
4
<PAGE>
<TABLE>
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- ---------------------------------------------- ----------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if certificates for To be completed ONLY if certificates for
Shares not tendered or not accepted for Shares not tendered or not accepted for
payment and/or the check for the purchase payment and/or the check for the purchase
price of Shares accepted for payment are to be price of Shares accepted for payment are to be
issued in the name of someone other than the sent to someone other than the undersigned or
undersigned. to the undersigned at an address other than
that above.
Issue / / Check / / Certificate(s) to: Mail / / Check / / Certificate(s) to:
Name _______________________________ Name _______________________________
(PLEASE PRINT) (PLEASE PRINT)
Address _____________________________ Address _____________________________
____________________________________ ____________________________________
(INCLUDE ZIP CODE) (INCLUDE ZIP CODE)
____________________________________ ____________________________________
(EMPLOYER IDENTIFICATION OR (EMPLOYER IDENTIFICATION OR
SOCIAL SECURITY NUMBER) SOCIAL SECURITY NUMBER)
- ---------------------------------------------- ----------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
________________________________________________________________________________
________________________________________________________________________________
(SIGNATURE(S) OF SHAREHOLDER(S))
Dated: ________________________ 2000
(Must be signed by registered holder(s) as name(s) appear(s) on the
certificate(s) for the Shares or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, please provide the following information
and see Instruction 5.)
Name(s) ________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Capacity (Full Title) __________________________________________________________
Address ________________________________________________________________________
(INCLUDE ZIP CODE)
________________________________________________________________________________
Daytime Area Code and Telephone Number _________________________________________
Taxpayer Identification or Social Security Number ______________________________
(SEE SUBSTITUTE FORM W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
Authorized Signature ___________________________________________________________
Name ___________________________________________________________________________
(PLEASE PRINT)
Title __________________________________________________________________________
Name of Firm ___________________________________________________________________
Address ________________________________________________________________________
(INCLUDE ZIP CODE)
Daytime Area Code and Telephone Number _________________________________________
Dated: ________________________ 2000
- --------------------------------------------------------------------------------
5
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Instruction, includes any
participant in the Book-Entry Transfer Facilities' system whose name appears on
a security position listing as the owner of the Shares) of Shares tendered
herewith, unless such registered holder(s) has completed either the box entitled
"Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of a firm that is a participant in the Security Transfer Agents
Medallion Program or the New York Stock Exchange Medallion Signature Guarantee
Program or the Stock Exchange Medallion Program or by any other "eligible
guarantor institution," as such term is defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended (each, an "Eligible Institution").
In all other cases, all signatures on this Letter of Transmittal must be
guaranteed by an Eligible Institution. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed
by shareholders either if certificates are to be forwarded herewith or, unless
an Agent's Message (as defined below) is utilized, if delivery of Shares is to
be made pursuant to the procedures for book-entry transfer set forth in
Section 2 of the Offer to Purchase. For a shareholder validly to tender Shares
pursuant to the Offer, either (a) a Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees or, in the case of a book-entry transfer, an Agent's
Message, and any other required documents, must be received by the Paying Agent
at one of its addresses set forth herein prior to the Expiration Date (as
defined in the Offer to Purchase) and either certificates for tendered Shares
must be received by the Paying Agent at one of such addresses or Shares must be
delivered pursuant to the procedures for book-entry transfer set forth herein
(and a Book-Entry Confirmation (as defined in the Offer to Purchase) must be
received by the Paying Agent), in each case, prior to the Expiration Date, or
(b) the tendering shareholder must comply with the guaranteed delivery
procedures set forth below and in Section 2 of the Offer to Purchase.
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Paying Agent or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 2 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 the Purchaser must be received by the
Paying Agent prior to the Expiration Date and (c) the certificates for all
tendered Shares in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Paying Agent within three
trading days after the date of execution of such Notice of Guaranteed Delivery
as provided in Section 2 of the Offer to Purchase. A "trading day" is any day on
which the American Stock Exchange is open for business.
"Agent's Message" means a message transmitted by the Book-Entry Transfer
Facility to, and received by, the Paying Agent and forming a part of a
Book-Entry Confirmation, that states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against such participant.
6
<PAGE>
THE METHOD OF DELIVERY OF SHARES, THIS 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 SHAREHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE PAYING AGENT (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.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
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 (APPLICABLE TO CERTIFICATE SHAREHOLDERS ONLY). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares that are to be tendered in the box entitled "Number
of Shares Tendered." In any such case, new certificate(s) for the remainder of
the Shares that were evidenced by the old certificate(s) will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the acceptance of payment
of, and payment for the Shares tendered herewith. All Shares represented by
certificates delivered to the Paying Agent 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 of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the certificate(s) without any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to or
certificates for Shares not tendered or accepted for payment are to be issued to
a person other than the registered owner(s). Signatures on 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 owner(s) of certificates listed, the certificates must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name or names of the registered owner or owners appear on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution.
7
<PAGE>
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. It will not be necessary for transfer tax stamps to be affixed to the
certificates listed in this Letter of Transmittal.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued
in the name of, and/or certificates for Shares not accepted for payment are to
be returned to, a person other than the signer of this Letter of Transmittal or
if a check is to be sent and/or such certificates are to be returned to a person
other than the signer of this Letter of Transmittal or to an address other than
that shown above, the appropriate boxes on this Letter of Transmittal should be
completed.
8. WAIVER OF CONDITIONS. The Purchaser reserves the absolute right in its
sole discretion to waive any of the specified conditions (other than the Minimum
Condition (as defined in the Offer to Purchase)) of the Offer, in whole or in
part, in the case of any Shares tendered.
9. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of U.S.
federal income tax on payments of cash pursuant to the Offer, a shareholder
surrendering Shares in the Offer must, unless an exemption applies, provide the
Paying Agent with such shareholder's correct taxpayer identification number
("TIN") on Substitute Form W-9 below in this Letter of Transmittal and certify
under penalties of perjury that such TIN is correct and that such shareholder is
not subject to backup withholding. If a shareholder does not provide such
shareholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such
shareholder and payment of cash to such shareholder pursuant to the Offer may be
subject to backup withholding of 31%.
Backup withholding is not an additional tax. Rather, the amount of the
backup withholding can be credited against the Federal income tax liability of
the person subject to the backup withholding, provided that the required
information is given to the IRS. If backup withholding results in an overpayment
of tax, a refund can be obtained by the shareholder upon filing an income tax
return.
The shareholder is required to give the Paying Agent the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held 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 guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
shareholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Paying Agent will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Paying Agent. However, such amounts will be refunded to such
shareholder if a TIN is provided to the Paying Agent within 60 days.
Certain shareholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign shareholders 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 Paying Agent, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance may be directed to MacKenzie Partners, Inc. (the "Information
Agent") or to Robert W. Baird & Co. Incorporated (the "Dealer Manager") at their
respective addresses listed below. Additional copies of the Offer to
8
<PAGE>
Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and the
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 may be obtained from the Information Agent or from brokers, dealers,
banks, trust companies or other nominees.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate
representing Shares has been lost, destroyed or stolen, the shareholder should
promptly notify the Paying Agent by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares so lost, destroyed or stolen, or call the Paying Agent. The shareholder
will then be instructed by the Paying Agent as to the steps that must be taken
in order to replace the certificate. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
THEREOF) TOGETHER WITH ANY SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-
ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE
RECEIVED BY THE PAYING AGENT PRIOR TO THE EXPIRATION DATE AND EITHER
CERTIFICATES FOR TENDERED SHARES MUST BE RECEIVED BY THE PAYING AGENT OR SHARES
MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH
CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY WITH
THE PROCEDURES FOR GUARANTEED DELIVERY.
9
<PAGE>
PAYOR'S NAME: WILMINGTON TRUST COMPANY
<TABLE>
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- -----------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX SOCIAL SECURITY NUMBER(S) OR
FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING EMPLOYER IDENTIFICATION
BELOW NUMBER
--------------------------------------------------------------------------
DEPARTMENT OF THE TREASURY PART 2--CERTIFICATION UNDER PENALTIES OF PERJURY, I CERTIFY THAT
INTERNAL REVENUE SERVICE (1) the number shown on this form is my correct Taxpayer Identification
PAYOR'S REQUEST FOR TAXPAYER Number (or I am waiting for a number to be issued for me) and
IDENTIFICATION NUMBER (TIN) (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 (the "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.
--------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross PART 3--
out item (2) in Part 2 above if you have Awaiting TIN / /
been notified by the IRS that you are ----------------------------
subject to backup withholding because of PART 4--
underreporting interest or dividends on your Exempt TIN / /
tax returns. However, if after being
notified by the IRS that you are subject to
backup withholding, you received another
notification from the IRS stating that you
are no longer subject to backup withholding,
do not cross out such item (2). If you are
exempt from backup withholding, check the
box in Part 4.
--------------------------------------------------------------------------
Signature: _______________________________
Date: ____________________________________
- -----------------------------------------------------------------------------------------------------------
</TABLE>
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
INFORMATION.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I understand
that if I do not provide a taxpayer identification number to the Paying Agent,
31% percent of all reportable payments made to me will be withheld, but will be
refunded to me if I provide a certified taxpayer identification number within 60
days.
Signature _____________________________________ Date ___________________
- --------------------------------------------------------------------------------
10
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each shareholder of the
Company or such shareholder's broker, dealer, commercial bank, trust company or
other nominee to the Paying Agent at one of its addresses set forth below.
THE PAYING AGENT FOR THE OFFER IS:
WILMINGTON TRUST COMPANY
<TABLE>
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BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT COURIER:
Corporate Trust Operations (FOR ELIGIBLE INSTITUTIONS Wilmington Trust Company
Wilmington Trust Company ONLY) 1105 North Market Street,
1100 North Market Street (302) 651-1079 First Floor
Rodney Square North CONFIRM FACSIMILE TRANSMISSION: Wilmington, DE 19890
Wilmington, DE 19801 BY TELEPHONE ONLY Attn: Corporate Trust
(302) 651-8869 Operations
</TABLE>
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses set forth below.
Additional copies of the Offer to Purchase, this Letter of Transmittal and the
Notice of Guaranteed Delivery may be obtained from the Information Agent. You
may also contact your broker, dealer, bank, trust company or other nominee for
assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
(800) 322-2885 (Toll Free)
THE DEALER MANAGER FOR THE OFFER IS:
ROBERT W. BAIRD & CO.
777 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202
(888) 224-7326
<PAGE>
Exhibit(a)(1)(C)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING ASSOCIATED SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK PURCHASE RIGHTS)
OF
ACSYS, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form, or a form substantially equivalent to this form, must be used to accept
the Offer (as defined below) if certificates for the shares of common stock, no
par value per share (together with the associated series A junior participating
preferred stock purchase rights, the "Shares") of Acsys, Inc., a Georgia
corporation, are not immediately available, if the procedure for book-entry
transfer cannot be completed on a timely basis, or if time will not permit all
other documents required by the Letter of Transmittal to be delivered to the
Paying Agent prior to the Expiration Date (as defined in Section 1 of the Offer
to Purchase). This form may be delivered by hand or transmitted by telegram,
mail or overnight courier or, for Eligible Institutions (as defined below),
facsimile transmission, to the Paying Agent and must include a guarantee by an
Eligible Institution. See Section 2 of the Offer to Purchase.
THE PAYING AGENT FOR THE OFFER IS:
WILMINGTON TRUST COMPANY
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BY MAIL: BY FACSIMILE TRANSMISSION: BY HAND/OVERNIGHT DELIVERY:
Corporate Trust Operations (For Eligible Institutions Only) Wilmington Trust Company
Wilmington Trust Company (302) 651-1079 1105 North Market Street, First
1100 North Market Street CONFIRM RECEIPT OF Floor
Rodney Square North FACSIMILE BY TELEPHONE: Wilmington, Delaware 19890
Wilmington, Delaware 19801 (302) 651-8869 Attn: Corporate Trust Operations
</TABLE>
--------------------------
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A
VALID DELIVERY.
This form 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 GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Platform Purchaser Inc., a Georgia
corporation, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated April 27, 2000, and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"), receipt of which is hereby acknowledged, the number of Shares set
forth below, pursuant to the guaranteed delivery procedure set forth in
Section 2 of the Offer to Purchase.
- -------------------------------------------
NUMBER OF SHARES: __________________________________________________________
CERTIFICATE NOS. (IF AVAILABLE):
____________________________________________________________________________
____________________________________________________________________________
Name(s)
____________________________________________________________________________
Area Code(s) and Telephone Number(s)
- -------------------------------------------
SHAREHOLDER MUST SIGN HERE
____________________________________________________________________________
____________________________________________________________________________
Signature(s)
Dated: _______________________________________________________________, 2000
- -------------------------------------------
- -------------------------------------------
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Address(es)
- -------------------------------------------
If shares will be tendered by book-entry transfer, enter The Depository
Trust Company Account Number below:
Account
Number: ____________________________________________________________________
- -------------------------------------------
THE METHOD OF DELIVERY OF THIS DOCUMENT IS AT THE ELECTION AND RISK OF THE
TENDERING SHAREHOLDERS. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ASSURE DELIVERY.
------------------------
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a participant in the Security Transfer
Agents Medallion Program, the New York Stock Exchange Medallion Signature
Guarantee Program or the Stock Exchange Medallion Program or an "eligible
guarantor institution," as such term is defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934, hereby guarantees to deliver to the Paying
Agent either the certificate(s) representing the Shares tendered hereby, in
proper form for transfer, or a Book-Entry Confirmation (as defined in the Offer
to Purchase) with respect to such Shares, in any such case together with a
properly completed and duly executed Letter of Transmittal (or a facsimile
thereof), with any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase), and any other required documents, all within
three American Stock Exchange trading days (as defined in the Letter of
Transmittal) after the date hereof.
THE ELIGIBLE INSTITUTION THAT COMPLETES THIS FORM MUST COMMUNICATE THE
GUARANTEE TO THE PAYING AGENT AND MUST DELIVER THE LETTER OF TRANSMITTAL AND
CERTIFICATES FOR SHARES TO THE PAYING AGENT WITHIN THE TIME SHOWN HEREIN.
FAILURE TO DO SO COULD RESULT IN A FINANCIAL LOSS TO SUCH ELIGIBLE INSTITUTION.
<TABLE>
<S> <C>
- -------------------------------------------- --------------------------------------------
AUTHORIZED SIGNATURE ADDRESS
- -------------------------------------------- --------------------------------------------
NAME (PLEASE PRINT)
- -------------------------------------------- --------------------------------------------
TITLE (INCLUDING ZIP CODE)
- -------------------------------------------- --------------------------------------------
NAME OF FIRM AREA CODE AND TELEPHONE NUMBER
DATE:-------------------------, 2000
</TABLE>
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS FORM. YOUR SHARE CERTIFICATES
MUST BE SENT WITH THE LETTER OF TRANSMITTAL.
2
<PAGE>
Exhibit (a)(1)(D)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(including associated Series A Junior Participating
Preferred Stock Purchase Rights)
of
ACSYS, INC.
at
$5.00 Net Per Share
by
PLATFORM PURCHASER INC.,
an affiliate of
VEDIOR N.V.
and to become a wholly owned
subsidiary of
TIBERIA B.V.
- ---------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, MAY 24, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
To Brokers, Dealers, Banks,
Trust Companies and other Nominees:
We have been engaged by Platform Purchaser Inc., a Georgia corporation (the
"Purchaser") and an affiliate of Vedior N.V., a company organized under the laws
of the Netherlands ("Vedior"), and to become, immediately prior to the initial
purchase of Shares (as defined below) under the Offer, a wholly owned subsidiary
of Tiberia B.V., a company organized under the laws of the Netherlands
("Parent"), to act as Dealer Manager in connection with the Purchaser's offer to
purchase all outstanding shares of common stock, no par value per share
(together with the associated series A junior participating preferred stock
purchase rights, the "Shares"), of Acsys, Inc., a Georgia corporation (the
"Company"), at $5.00 per Share, net to the seller in cash, without interest
thereon (the "Offer Price"), upon the terms and subject to the conditions set
forth in the Purchaser's Offer to Purchase dated April 27, 2000 (the "Offer to
Purchase"), and in the related Letter of Transmittal (which, together with any
amendments or supplements thereto, collectively constitute the "Offer"). Please
furnish copies of the enclosed materials to those of your clients for whom you
hold Shares registered in your name or in the name of your nominee.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated April 27, 2000;
2. Letter of Transmittal to be used by shareholders of the Company in
accepting the Offer (facsimile copies of the Letter of Transmittal may be
used to tender the Shares);
<PAGE>
3. The Letter to Shareholders of the Company from the Chairman of the Board
and Chief Executive Officer of the Company accompanied by the Company's
Solicitation/ Recommendation Statement on Schedule 14D-9;
4. A printed form of letter that may be sent to your clients for whose
account you hold shares in your name or in the name of a nominee, with
space provided for obtaining such clients' instructions with regard to
the Offer;
5. Notice of Guaranteed Delivery with respect to Shares;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to Wilmington Trust Company, as Paying Agent.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT VALIDLY WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1 OF THE OFFER TO PURCHASE) THAT NUMBER OF SHARES THAT WOULD REPRESENT
AT LEAST A MAJORITY OF THE FULLY DILUTED SHARES (AS DEFINED IN EXHIBIT 1 TO THE
MERGER AGREEMENT (AS DEFINED BELOW)) ON THE DATE OF PURCHASE AND (B) 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 OR TO THE
MERGER HAVING EXPIRED OR BEEN TERMINATED.
We urge you to contact your clients promptly. Please note that the Offer and
withdrawal rights will expire at 12:00 midnight, New York City Time, on May 24,
2000, unless extended.
The Board of Directors of the Company has unanimously adopted and approved
the Merger Agreement, the Offer, the Merger and the transactions contemplated by
the Merger Agreement and determined that the Offer and the Merger are in the
best interests of the Company's shareholders and recommends that shareholders of
the Company accept the Offer and tender their Shares pursuant to the Offer.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of April 16, 2000 (the "Merger Agreement"), by and among Parent, the
Purchaser, Vedior, Select Appointments North America Inc. and the Company,
pursuant to which, following the consummation of the Offer and the satisfaction
or waiver of certain conditions, the Purchaser will be merged with and into the
Company, with the Company surviving the Merger as a wholly owned subsidiary of
Parent (the "Merger"). At the effective time of the Merger, each outstanding
Share (other than Shares owned by Parent, Vedior or the Company, or any
subsidiary of Parent or the Company, and by shareholders, if any, who exercise
their statutory dissenters' rights under Georgia law) will be converted into the
right to receive the price per Share paid pursuant to the Offer in cash, without
interest thereon, as set forth in the Merger Agreement and described in the
Offer to Purchase. The Merger Agreement provides that Parent and the Purchaser
may assign any or all of their rights and obligations (including the right to
purchase Shares in the Offer) to Vedior or any majority-owned subsidiary of
Vedior or, following the consummation of the Offer, Parent, but no such
assignment shall relieve the assigning party of its obligations under the Merger
Agreement.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Paying Agent of (a) certificates
for or a timely Book-Entry Confirmation (as defined in the Offer to Purchase)
with respect to such Shares, (b) a Letter of Transmittal (or a facsimile
thereof), properly completed, and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer effected pursuant to the
procedure set forth in Section 2 of the Offer to Purchase, an Agent's Message
(as defined in the Offer to Purchase), and (c) any other documents required by
the Letter of Transmittal. Accordingly, tendering shareholders may be paid at
2
<PAGE>
different times depending upon when certificates for Shares or Book-Entry
Confirmations with respect to Shares are actually received by the Paying Agent.
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.
None of the Purchaser, Parent or Vedior 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. You will be reimbursed by the Purchaser
upon request for customary mailing and handling expenses incurred by you in
forwarding the enclosed offering materials to your customers.
Questions and requests for additional copies of the enclosed material may be
directed to the Information Agent or the Dealer Manager at their respective
addresses and telephone numbers set forth on the back cover of the enclosed
Offer to Purchase.
Very truly yours,
ROBERT W. BAIRD & CO. INCORPORATED
- --------------------------------------------------------------------------------
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, PARENT, VEDIOR, THE PAYING AGENT,
THE INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER
PERSON TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF
THEM WITH RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE
LETTER OF TRANSMITTAL.
- --------------------------------------------------------------------------------
3
<PAGE>
Exhibit (a)(1)(E)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(including associated Series A Junior Participating
Preferred Stock Purchase Rights)
of
ACSYS, INC.
at
$5.00 Net Per Share
by
PLATFORM PURCHASER INC.,
an affiliate of
VEDIOR N.V.
and to become a wholly owned
subsidiary of
TIBERIA B.V.
- ---------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, MAY 24, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated April 27, 2000
(the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to the Offer by Platform Purchaser Inc., a Georgia corporation
(the "Purchaser") and an affiliate of Vedior N.V., a company organized under the
laws of the Netherlands ("Vedior"), and to become, immediately prior to the
initial purchase of Shares (as defined below) under the Offer, a wholly owned
subsidiary of Tiberia B.V., a company organized under the laws of the
Netherlands ("Parent"), to purchase all outstanding shares of common stock, no
par value per share (together with the associated series A junior participating
preferred stock purchase rights, the "Shares"), of Acsys, Inc., a Georgia
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Offer. Also enclosed is the Letter to Shareholders of the Company
from the Chairman of the Board and Chief Executive Officer of the Company
accompanied by the Company's Solicitation/Recommendation Statement on
Schedule 14D-9.
WE (OR OUR NOMINEES) ARE 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 TO TENDER SHARES HELD BY US FOR
YOUR ACCOUNT.
We request instructions as to whether you wish to tender any of or all the
Shares held by us for your account pursuant to the terms and conditions set
forth in the Offer.
<PAGE>
Your attention is directed to the following:
1. The Offer price is $5.00 per Share net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions of the Offer.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously adopted and
approved the Merger Agreement (as defined below), the Offer and the Merger (as
defined below) and determined that the terms of the Offer and the Merger are in
the best interests of the Company's shareholders and recommends that
shareholders of the Company accept the Offer and tender their Shares.
4. The Offer is being made pursuant to the Agreement and Plan of Merger
dated as of April 16, 2000 (the "Merger Agreement"), by and among Parent, the
Purchaser, Vedior, Select Appointments North America Inc. and the Company,
pursuant to which, as soon as practicable following the consummation of the
Offer and the satisfaction or waiver of certain conditions, the Purchaser will
be merged with and into the Company with the Company surviving the merger as a
wholly owned subsidiary of Parent (the "Merger"). At the effective time of the
Merger, each outstanding Share (other than Shares owned by Parent, Vedior or the
Company or any subsidiary of Parent or the Company and by shareholders, if any,
who exercise their statutory dissenters' rights under Georgia law) will be
converted into the right to receive the price per Share paid pursuant to the
Offer in cash, without interest, as set forth in the Merger Agreement and
described in the Offer to Purchase. The Merger Agreement provides that Parent
and the Purchaser may assign any or all of their rights and obligations
(including the right to purchase Shares in the Offer) to Vedior or any
majority-owned subsidiary of Vedior or, following the consummation of the Offer,
Parent, but no such assignment shall relieve any assigning party of its
obligations under the Merger Agreement.
5. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON WEDNESDAY, MAY 24, 2000 (THE "EXPIRATION DATE"), UNLESS THE OFFER IS
EXTENDED BY THE PURCHASER, IN WHICH EVENT THE TERM "EXPIRATION DATE" SHALL MEAN
THE LATEST TIME AT WHICH THE OFFER, AS SO EXTENDED BY THE PURCHASER, WILL
EXPIRE.
6. The Offer is conditioned upon, among other things, (a) there being
validly tendered and not validly withdrawn prior to the Expiration Date that
number of Shares that would represent at least a majority of the Fully Diluted
Shares (as defined in Exhibit 1 to the Merger Agreement) on the date of purchase
and (b) 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 or to the Merger having expired or been terminated.
7. Any stock transfer taxes applicable to a sale of Shares to the Purchaser
will be borne by the Purchaser, as provided in Instruction 6 of the Letter of
Transmittal.
8. Tendering shareholders will not be obligated to pay brokerage fees or
commissions to the Dealer Manager, the Paying Agent or the Information Agent or,
except as set forth in Instruction 6 of the Letter of Transmittal, transfer
taxes on the purchase of Shares by the Purchaser pursuant to the Offer. However,
federal income tax backup withholding at a rate of 31% may be required, unless
an exemption is provided or unless the required taxpayer identification
information is provided. See Instruction 9 of the Letter of Transmittal.
Your instructions to us should be forwarded promptly to permit us to submit
a tender on your behalf prior to the Expiration Date.
2
<PAGE>
If you wish to have us tender any of or all the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form on the detachable part hereof. An envelope to return
your instructions to us is enclosed. If you authorize the tender of your Shares,
all such Shares will be tendered unless otherwise specified on the detachable
part hereof. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT
US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE.
Payment for Shares accepted for payment pursuant to the Offer will in all
cases be made only after timely receipt by Wilmington Trust Company (the "Paying
Agent") of (a) certificates for (or a timely Book-Entry Confirmation (as defined
in the Offer to Purchase) with respect to such) Shares, (b) a Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or, in the case of a book-entry transfer
effected pursuant to the procedures set forth in Section 2 of the Offer to
Purchase, an Agent's Message, and (c) any other documents required by the Letter
of Transmittal. Accordingly, tendering shareholders may be paid at different
times depending upon when certificates for Shares or Book-Entry Confirmations
with respect to Shares are actually received by the Paying Agent. 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, WHETHER SUCH
SHARES ARE PURCHASED DURING A SUBSEQUENT OFFERING PERIOD (AS DEFINED IN THE
OFFER TO PURCHASE) OR ANY DELAY IN MAKING SUCH PAYMENT.
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. 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 is being
made on behalf of the Purchaser by Robert W. Baird & Co. Incorporated, the
Dealer Manager for the Offer, or one or more registered brokers or dealers that
are licensed under the laws of such jurisdiction.
3
<PAGE>
INSTRUCTION FORM
with respect to the
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(including associated Series A Junior Participating
Preferred Stock Purchase Rights)
of
ACSYS, INC.
The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase
of Acsys, Inc., dated April 27, 2000 (the "Offer to Purchase"), and the related
Letter of Transmittal relating to shares of common stock, no par value per share
(together with the associated series A junior participating preferred stock
purchase rights, the "Shares"), of Acsys, Inc., a Georgia corporation.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, on the terms and subject to the
conditions set forth in the Offer to Purchase and related Letter of Transmittal.
NUMBER OF SHARES TO BE TENDERED(1):
- ------------------- SHARES
SIGN HERE
--------------------------------------
Signature(s)
--------------------------------------
--------------------------------------
Please Type or Print Name(s)
--------------------------------------
--------------------------------------
Please Type or Print Address(es)
--------------------------------------
--------------------------------------
Area Code and Telephone Number
--------------------------------------
Taxpayer Identification or Social
Security No.
--------------------------------------
Dated: ___________________, 2000
- ------------------------
(1) Unless otherwise indicated, it will be assumed that all your Shares are to
be tendered.
4
<PAGE>
[LOGO]
April 27, 2000
Dear Fellow Shareholders:
We are pleased to inform you that on April 16, 2000, Acsys, Inc. (the
"Company") entered into a Merger Agreement (the "Merger Agreement") with Tiberia
B.V., a company organized under the laws of the Netherlands ("Parent"), Vedior
N.V., a company organized under the laws of the Netherlands ("Vedior"), Platform
Purchaser Inc., a Georgia corporation and an affiliate of Vedior (the
"Purchaser"), and Select Appointments North America Inc., a Delaware corporation
and wholly owned indirect subsidiary of Vedior, pursuant to which the Purchaser
has today commenced a tender offer (the "Offer") to purchase all of the
outstanding shares of the Company's common stock, no par value per share (the
"Common Stock"), together with the associated series A junior participating
preferred stock purchase rights issued pursuant to the Shareholder Protection
Rights Agreement, dated June 20, 1999, between the Company and SunTrust Bank,
Atlanta, as Rights Agent, as amended by the Amendment No. 1 thereto, dated
April 16, 2000 (together with the Common Stock, the "Shares"), for $5.00 per
Share in cash. Immediately prior to the initial purchase of Shares in the Offer,
the Purchaser will become a wholly owned subsidiary of Parent and Parent will
become an affiliate of Vedior. Under the Merger Agreement and subject to the
terms thereof, following the Offer, the Purchaser will be merged with and into
the Company (the "Merger") and all Shares not purchased in the Offer (other than
Shares owned by Parent, Vedior, the Company or any subsidiary of Parent or the
Company, and by shareholders, if any, who exercise their statutory dissenters'
rights under Georgia law) will be converted into the right to receive $5.00 per
Share in cash. Following the Merger, the Company will be a subsidiary of Parent.
YOUR BOARD OF DIRECTORS HAS UNANIMOUSLY (1) DETERMINED THAT THE OFFER AND
THE MERGER ARE IN THE BEST INTERESTS OF THE SHAREHOLDERS OF THE COMPANY AND
(2) ADOPTED AND APPROVED THE MERGER AGREEMENT, THE OFFER, THE MERGER AND THE
OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT. THE COMPANY'S BOARD OF
DIRECTORS RECOMMENDS THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER AND TENDER
THEIR SHARES PURSUANT TO THE OFFER.
In arriving at its recommendation, the Company's Board gave careful
consideration to a number of factors described in the attached Schedule 14D-9,
which has been filed today with the Securities and Exchange Commission,
including, among other things, the opinion, dated April 16, 2000, of Donaldson,
Lufkin & Jenrette Securities Corporation, the Company's financial advisor, to
the effect that, as of such date, based on and subject to the assumptions,
limitations and qualifications set forth in its written opinion, the
consideration to be received by holders of Shares pursuant to the Merger
Agreement was fair to such shareholders from a financial point of view. In
addition to the attached Schedule 14D-9 relating to the Offer, also enclosed is
the Offer to Purchase, dated April 27, 2000, of the Purchaser, together with
related materials, including a Letter of Transmittal to be used by you to tender
your Shares. These documents set forth the terms and conditions of the Offer and
the Merger and provide instructions as to how to tender your Shares. We urge you
to read the enclosed materials carefully.
Sincerely,
/s/ David C. Cooper
David C. Cooper
Chairman of the Board and
Chief Executive Officer
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYOR.--Social Security numbers have nine digits separated by two hyphens: e.g.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: e.g., 00-0000000. The table below will help determine the number to
give the payor.
<TABLE>
<CAPTION>
- -----------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- -----------------------------------------------------
<S> <C> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner of the
(joint account) account or, if combined
funds, the first
individual on the
account(1)
3. Husband and wife The actual owner of the
(joint account) account or, if joint
funds, either person(1)
4. Custodian account of a The minor(2)
minor
(Uniform Gift to Minors
Act)
5. Adult and minor (joint The adult, or if the
account) minor is the only
contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee incompetent person(3)
for a designated ward,
minor, or incompetent
person
7. a. The usual revocable The grantor-trustee(1)
savings trust
account (grantor is
also trustee)
b. So-called trust The actual owner(1)
account that is not a
legal or valid trust
under State law
8. Sole proprietorship The owner(4)
account
<CAPTION>
- -----------------------------------------------------
GIVE THE EMPLOYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- -----------------------------------------------------
<S> <C> <C>
9. Sole proprietorship The owner(4)
account
10. A valid trust, estate, The legal entity (Do
or pension trust not furnish the
identifying number of
the persona
representative or
trustee unless the
legal entity itself is
not designated in the
account title.)(5)
11. Corporate account The corporation
12. Religious, charitable, The organization
or educational
organization account
13. Partnership account The partnership
held in the name of the
business
14. Association, club, or The organization
other tax-exempt
organization
15. A broker or registered The broker or nominee
nominee
16. Account with the The public entity
Department of
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 but you may also enter your business or "doing
business as" name. You may use either your social security number or your
employer identification number (if you have one).
(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>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't 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 United
States or a possession of the United States.
- 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.
- 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 United
States and which have at least one nonresident alien partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
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 payor's trade or business and you have not
provided your correct taxpayer identification number to the payor.
- 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 made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYOR, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYOR. 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, 6045,
and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payors
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payors must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1984, payors 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 payor. 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 payor, 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 includible 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>
Exhibit 99(a)(1)(H)
================================================================================
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES (AS DEFINED BELOW). THE OFFER (AS DEFINED BELOW) IS MADE SOLELY
BY THE OFFER TO PURCHASE, DATED APRIL 27, 2000, AND THE RELATED LETTER OF
TRANSMITTAL AND ANY AMENDMENTS OR SUPPLEMENTS THERETO AND 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. IN ANY JURISDICTION IN
WHICH THE SECURITIES, BLUE SKY OR OTHER LAWS REQUIRE THE OFFER TO BE MADE BY A
LICENSED BROKER OR DEALER, THE OFFER SHALL BE DEEMED MADE ON BEHALF OF THE
PURCHASER (AS DEFINED BELOW) BY ROBERT W. BAIRD & CO. INCORPORATED, THE DEALER
MANAGER (AS DEFINED BELOW), OR BY ONE OR MORE REGISTERED BROKERS OR DEALERS THAT
ARE LICENSED UNDER THE LAWS OF SUCH JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(AND THE ACCOMPANYING RIGHTS (AS DEFINED BELOW))
OF
ACSYS, INC.
AT
$5.00 NET PER SHARE
BY
PLATFORM PURCHASER INC.
AN AFFILIATE OF
VEDIOR N.V.
AND TO BECOME A WHOLLY OWNED SUBSIDIARY OF
TIBERIA B.V.
Platform Purchaser Inc., a Georgia corporation (the "Purchaser"), an
affiliate of Vedior N.V., a company organized under the laws of the Netherlands
("Vedior"), and to become, immediately prior to the purchase of shares under the
Offer, a wholly owned subsidiary of Tiberia B.V., a company organized under the
laws of the Netherlands ("Parent"), is offering to purchase all outstanding
shares of common stock, no par value per share (together with the associated
series A junior participating preferred stock purchase rights (the "Rights"),
the "Shares"), of Acsys, Inc., a Georgia corporation (the "Company"), at $5.00
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 April 27,
2000, and in the related Letter of Transmittal (which, together with any
amendments or supplements thereto, collectively constitute the "Offer").
Tendering shareholders who have Shares registered in their names and who tender
directly to Wilmington Trust Company (the "Paying Agent") will not be obligated
to pay brokerage fees or commissions or, except as set forth in the Letter of
Transmittal, transfer taxes on the purchase of Shares by the Purchaser pursuant
to the Offer. Shareholders who hold their Shares through a broker or bank should
consult with such institution as to whether it charges any service fees. The
purpose of the Offer is to enable Parent to acquire control of the Company
through the acquisition of all of the outstanding Shares. The Offer, as the
first step in the acquisition of the Company, is intended to facilitate the
acquisition of all the outstanding Shares. The purpose of the Merger (as defined
below) is to acquire all outstanding Shares not tendered and purchased pursuant
to the Offer. Following the consummation of the Offer, the Purchaser intends to
effect the Merger.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON WEDNESDAY, MAY 24, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Offer is conditioned upon (1) there being validly tendered and not
withdrawn prior to the Expiration Date (as defined below) that number of Shares
that would represent at least a majority of the outstanding Shares on a fully
diluted basis on the date of purchase, (2) 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 or the Merger having expired or
been terminated and (3) the satisfaction or waiver of the other conditions set
forth in the Merger Agreement and described in the Offer to Purchase.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of April 16, 2000 (the "Merger Agreement"), among Parent, the Purchaser,
Vedior, Select Appointments North America Inc. and the Company, pursuant to
which, following the consummation of the Offer and the satisfaction or waiver of
certain conditions, the Purchaser will be merged with and into the Company, with
the Company surviving the merger as a wholly owned subsidiary of Parent (the
"Merger"). In the Merger, each outstanding Share (other than Shares owned by
Parent, Vedior or the Company, or any subsidiary of Parent or the Company, or by
shareholders, if any, who perfect their statutory dissenters' rights under
Georgia law), will be converted into the right to receive the price per Share
paid pursuant to the Offer in cash, without interest, as set forth in the Merger
Agreement and described in the Offer to Purchase. The Merger Agreement provides
that Parent and the Purchaser may assign any or all of their rights and
obligations (including the right to purchase Shares in the Offer) to Vedior or
any wholly owned subsidiary of Vedior or, following the consummation of the
Offer, Parent, but no such assignment shall relieve the assigning party of its
obligations under the Merger Agreement.
The Board of Directors of the Company has unanimously adopted and approved
the Offer and the Merger and determined that the terms of the Offer and the
Merger are in the best interests of the shareholders of the Company and
unanimously recommends that shareholders of the Company accept the Offer and
tender their Shares.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment pursuant to the Offer, and thereby purchased, Shares properly
tendered to the Purchaser and not properly withdrawn as, if and when the
Purchaser gives oral or written notice to the Paying Agent of the Purchaser'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 Paying
Agent, which will act as agent for tendering shareholders for the purpose of
receiving payment from the Purchaser and transmitting payment to tendering
shareholders. In all cases, payment for Shares accepted for payment pursuant to
the Offer will be made only after timely receipt by the Paying Agent of (a) the
certificates for such Shares or timely confirmation of book-entry transfer of
such Shares into the Paying Agent's account at the Book-Entry Transfer Facility
(as defined in the Offer to Purchase) pursuant to the procedures set forth in
Section 2 of the Offer to Purchase, (b) a Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees or, in the case of a book-entry transfer, an Agent's Message (as
defined in the Offer to Purchase) and (c) any other documents required by the
Letter of Transmittal. 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 paying for such Shares.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Wednesday, May 24, 2000, unless and until the Purchaser (pursuant 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 the Purchaser, will
expire. The Purchaser may, without the consent of the Company, and expressly
reserves the right to, extend the Offer, and thereby delay acceptance for
payment of, and the payment for, any Shares, by giving oral or written notice of
such extension to the Paying Agent, for any period required by any rule,
regulation, interpretation or position of the Securities and Exchange Commission
(the "Commission") or the staff thereof applicable to the Offer. If all of the
conditions to the Offer are not satisfied on the Expiration Date, then if all
such conditions are capable of being satisfied prior to September 29, 2000, the
Purchaser will extend the Offer for one or more periods of time (each not to
exceed 20 business days) until such conditions are satisfied or waived; provided
that the Purchaser will not be required to extend the Offer beyond, and without
the approval of the Company's Board of Directors the Offer will not be extended
beyond, September 29, 2000. Any such extension will be followed by a public
announcement thereof no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. During any such
extension, all Shares previously tendered and not withdrawn will remain subject
to the Offer, subject to the right of a tendering shareholder to withdraw such
shareholder's Shares.
Except as otherwise provided below, 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
theretofore accepted for payment and paid for by the Purchaser pursuant to the
Offer, may also be withdrawn at any time after Sunday, June 25, 2000. For a
withdrawal to be effective, a written or facsimile transmission notice of
withdrawal must be timely received by the Paying Agent at one of its addresses
set forth on the back cover of the 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
Paying Agent, then prior to the physical release of such certificates, the
serial numbers shown on such certificates must be submitted to the Paying Agent
and, unless such Shares have been tendered by an Eligible Institution (as
defined in the Offer to Purchase), any and all signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution. If Shares have been
delivered pursuant to the procedure for book-entry transfer as set forth in
Section 2 of the Offer to Purchase, any notice of withdrawal must also specify
the name and number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with the Book-Entry
Transfer Facility's procedures. Withdrawals of tenders of Shares may not be
rescinded, and any Shares properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn shares may be
retendered by again following one of the procedures described in Section 2 of
the Offer to Purchase at any time prior to the Expiration Date. Under the Merger
Agreement and pursuant to Rule 14d-11 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Purchaser may, subject to certain conditions, elect to provide a subsequent
offering period following the Expiration Date. The Purchaser will, in the event
that all conditions to the Offer have been satisfied or waived as of Expiration
Date, provide a subsequent offering period of 10 business days following the
expiration of the Offer on the Expiration Date and acceptance for payment of the
Shares tendered in the Offer. The Purchaser reserves the right to determine at a
later date not to include such a subsequent offering period, in which case the
Purchaser will notify shareholders at least 5 business days prior to the
Expiration Date. Under the Exchange Act, no withdrawal rights apply to Shares
tendered during a subsequent offering period and no withdrawal rights apply
during the subsequent offering period with respect to Shares tendered in the
Offer and accepted for payment. See Section 1 of the Offer to Purchase. All
questions as to the form and validity (including time of receipt) of notices of
withdrawal will be determined by the Purchaser, in its sole discretion, which
determination will be final and binding. None of the Purchaser, Vedior, Parent,
the Company, the Paying Agent, the Information Agent, the Dealer Manager 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.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase and the related Letter of Transmittal
and other relevant materials will be mailed to record holders of Shares and
furnished to brokers, dealers, banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the Company's shareholder
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.
The receipt of cash in exchange for shares pursuant to the Offer or the
Merger will be a taxable transaction for U.S. federal income tax purposes and
may also be a taxable transaction under applicable state, local or foreign tax
laws. In general, a shareholder who receives cash in exchange for Shares
pursuant to the Offer or the Merger will recognize gain or loss for U.S. federal
income tax purposes equal to the difference, if any, between the amount of cash
received and such shareholder's adjusted tax basis in the Shares exchanged
therefor. Provided that such Shares constitute capital assets in the hands of
the shareholder, such gain or loss will be capital gain or loss, and will be
long-term capital gain or loss if the holder has held the Shares for more than
one year at the time of sale. The maximum U.S. federal income tax rate
applicable to individual taxpayers on long-term capital gains is 20%, and the
deductibility of capital losses is subject to limitations. All shareholders
should consult with their own tax advisors as to the particular tax consequences
of the Offer and the Merger to them, including the applicability and effect of
the alternative minimum tax and any state, local or foreign income and other tax
laws and of changes in such tax laws. For a more complete description of certain
U.S. federal income tax consequences of the Offer and the Merger, see Section 5
of the Offer to Purchase.
The Purchaser expressly reserves the right to waive any condition to the
Offer or modify the terms of the Offer, subject to (a) the terms of the Merger
Agreement, which contains certain conditions that may not be waived and
modifications that may not be made without the consent of the Company, and (b)
the rules and regulations of the Commission.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6
of the General Rules and Regulations under the Exchange Act is contained in the
Offer to Purchase and is incorporated herein by reference.
The Offer to Purchase and Letter of Transmittal contain important
information and should be read carefully and in their entirety before any
decision is made with respect to the Offer.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager, as set forth below. Requests for copies of the
Offer to Purchase, the Letter of Transmittal and all other tender offer
materials may be directed to the Information Agent as set forth below, or
brokers, dealers, banks, trust companies or other nominees, and copies will be
furnished promptly at the Purchaser's expense. No fees or commissions will be
payable to brokers, dealers or other persons (other than the Dealer Manager) for
soliciting tenders of Shares pursuant to the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[MACKENZIE LOGO]
156 FIFTH AVENUE
NEW YORK, NEW YORK 10010
(212) 929-5500 (CALL COLLECT)
OR
CALL TOLL-FREE (800) 322-2885
THE DEALER MANAGER FOR THE OFFER IS:
ROBERT W. BAIRD & CO.
777 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202
(888) 224-7326
April 27, 2000
================================================================================
<PAGE>
Exhibit(b)
AGREEMENT IN PRINCIPLE BETWEEN ING AND VHBV RELATING TO THE ACQUISITION OF
ACSYS, INC.
ING will establish BidCo BV in the Netherlands and VHBV will establish BidCo
US in the United States.
BidCo US will make the cash Tender Offer for Falcon (the "Offer"). The Offer
will be for approximately $80 million in cash including expenses.
ON THE OFFER BECOMING UNCONDITIONAL BUT PRIOR TO THE ACCEPTANCE OF THE SHARES
TENDERED, THE FOLLOWING STEPS WILL OCCUR (SIMULTANEOUSLY IN ONE DAY)
- - ING will fund BidCo BV with $40 million in debt which is convertible into
shares of Vedior NV and which bears an interest rate of 9.5%.
- - BidCo US will be transferred to ING and BidCo US will be funded by ING,
initially with $5,000 of equity and approximately $40 million of debt which
will subsequently be converted into common equity and a loan of $40 million
from BidCo BV. These funds will be distributed to Falcon's shareholders and
used to meet expenses.
- - ING will contribute its BidCo US shares to BidCo BV in exchange for $13
million common shares and $27 million preferred shares which carry a
cumulative preferred dividend of 8%.
- - ING will sell the common shares in BidCo BV to VHBV, a Dutch company which
is unrelated to ING.
AFTER THESE STEPS:
- - BidCo US will owe the $40 million debt to its parent. We assume the loan to
BidCo US bears a rate of interest of approximately 9.5%.
- - VHBV will own common shares of BidCo BV which represent approximately $13
million of BidCo BV's value ($13 million of $80 million) and ING will own
all the preferred shares (which represent $27 million) and the convertible
loan of $40 million.
- - Both the preferred and common shares will carry equal voting rights such
that VHBV does not control BidCo BV, and VHBV will not control BidCo BV's
Board of Directors. A trust-company will be appointed as director.
Under the terms of the Falcon acquisition agreement, BidCo US may be required
to repay Falcon's existing indebtedness which will by then amount to
approximately $45 million. It is proposed that this debt would be refinanced
locally, if necessary with an ING guarantee backed by a counter indemnity
from VHBV.
THE TERMS OF THE PREFERRED SHARES AND THE CONVERTIBLE DEBT OF BIDCO BV WILL
BE AS FOLLOWS:
- - Exchangeable into shares in Vedior NV at a fixed price of EUR 16 through a
conversion agreement with VNV.
- - Mandatory conversion at a fixed price of EUR 16 if Vedior share price equals
or exceeds EUR 20 for 60 consecutive days.
- - After 5 years, VHBV may purchase all the convertible loan and the preferred
shares for cash at original cost.
- - In the event that VHBV does not elect to purchase the shares and convertible
debt after 5 years, the holders of the convertible loan and preferred
shares may elect (i) to exchange their interests at original cost for
shares in VNV at the then ruling market price or (ii) sell or float BidCo
US, repay the convertible debt and distribute the remaining proceeds to the
preferred (first) and common shareholders of BidCo BV (thereafter).
<PAGE>
- - In the event of default by VHBV, ING may exercise its right to
convert/exchange into shares in VNV at cost plus accrued interest and
dividends.
- - Agreements to be governed by Dutch law.
VHBV will provide a warranty in respect of capital taxes (if any) arising on
the contribution of BidCo US in exchange for shares of BidCo BV.
EVENTS OF DEFAULT:
- - Change of ownership of VHBV/VNV
- - Failure to pay interest and/or dividend on preferred shares and
convertible debt
- - Insolvency of VHBV or VNV
- - Change or termination of activities of VNV or VHBV
Agreed by ING and VHBV/VNV on 13 April 2000.
/s/ A.W.M. Giesen /s/ A.J.M. van der Ven
---------------------------------- ----------------------------------
ING Bank Corporate Vedior Holding B.V.
Investments B.V.
By: A.W.M. Giesen By: A.J.M. van der Ven
/s/ C.K.Z. Miles
----------------------------------
Vedior N.V., for the
conversion agreement
By: C.K.Z. Miles
<PAGE>
EXHIBIT (d)(2)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of September,
1997 (the "Effective Date"), by and between ICCE, Inc. ("ICCE"), a Georgia
corporation, ACSYS Resources, Inc. (the "Company"), a Pennsylvania
corporation and a wholly owned subsidiary of the Company, and Harry J. Sauer,
an individual resident of Pennsylvania (the "Executive").
WHEREAS, Executive was an executive officer and shareholder of ACSYS
prior to its merger with a subsidiary of the Company (the "Merger");
WHEREAS, the Company recognizes the contributions of the Executive in
such capacity;
WHEREAS, Executive is expected to make a significant contribution to the
success and development of the Company; and
WHEREAS, Executive is willing to render services to the Company and/or
one or more of its subsidiaries on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive and the Company
including, without limitation, the promises and covenants of the parties set
forth herein, the parties hereto, intending to be legally bound, hereby agree
as follows:
ARTICLE I
EMPLOYMENT
Section 1.1 TERM OF EMPLOYMENT. The term of Executive's employment
hereunder shall commence on the Effective Date hereof and continue for a
period of three (3) years, unless earlier terminated as provided in this
Agreement. At the end of the initial three-year term, this Agreement shall
automatically renew for consecutive one-year terms unless either party hereto
gives written notice to the other of its intent to terminate sixty (60) days
prior to the end of any term.
Section 1.2 DUTIES AND RESPONSIBILITIES OF EXECUTIVE. Executive is
hereby employed full time as the President of the Company. Executive shall
devote his full time, energy, and skill to such office and shall do and
perform all services and acts necessary or advisable to fulfill the duties of
such office. In his capacity as an officer of the Company, Executive shall
report to the Chief Operating Officer of ICCE, and shall conduct and perform
such additional services and activities as may be determined from time to
time by such superior officer which are normal and customary for a similar
executive of a similarly situated company. Executive's authority and
responsibility in the Company shall at all times be subject to the review and
discretion of the Board of Directors, who shall have the final authority to
make decisions regarding the business of the Company. Executive acknowledges
that he has a duty of loyalty to the Company and shall not engage in,
directly and indirectly, any other business or activity that could materially
and adversely affect the Company's business or the Executive's ability to
perform his duties under this Agreement, provided, however, that the
Executive shall be free to participate in board, civic and charitable
activities so long as such activities do not interfere with his duties and
responsibilities hereunder.
Section 1.3 COMPENSATION. For services to be rendered by Executive under
this Agreement, the Company shall pay Executive a base salary of $150,000 per
annum payable in bi-weekly installments. The Executive shall also be paid a
bonus as determined by the Board of Directors of the Company from time to
time such bonus compensation shall be determined based on the performance of
the Company and ICCE as a whole and the success of the integration of such
businesses as the Company may acquire. At the sole discretion of the Board of
Directors of the Company, Executive's annual gross salary may be increased
from time to time throughout the term of this Agreement. At no time during
the term hereof shall the Executive's base salary be decreased from the
amount of the base salary then in effect.
Section 1.4 BENEFITS.
<PAGE>
(a) VACATION. Executive shall be entitled to six (6) weeks paid
vacation annually during his employment by the Company hereunder. Any
vacation not used during any calendar year shall be forfeited, except that
one week's unused vacation may be carried forward to the year following the
year in which such vacation entitlement accrued.
(b) LIFE, DISABILITY AND RETIREMENT PROGRAMS. Executive shall be
entitled to participate in any life, disability and retirement programs that
are generally offered to or provided for the senior management personnel of
the Company and its subsidiaries.
(c) GROUP INSURANCE. Executive shall be entitled to participate
in such group health and dental insurance programs (including spouse
coverage) as may from time to time be offered generally to all of the other
members of the senior management personnel of the Company and its
subsidiaries.
Section 1.5 BUSINESS EXPENSES. Executive shall be entitled to
reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, communications (including cell phones and
pager), entertainment and meals in connection with the performance of
Executive's duties under this Agreement in accordance with the Company's
established policies for reimbursement of business expenses. The Company
expects Executive to attend and participate in continuing education seminars
and courses with respect to the staffing industry and business management
related to his duties, and the Company will reimburse all ordinary and
necessary expenses of such attendance and participation. Such continuing
education courses and seminars will be scheduled in conjunction with the
other officers of the Company to assure coordination of schedules.
ARTICLE II
COVENANTS OF EXECUTIVE
Section 2.1 CONFIDENTIALITY. Executive recognizes the interest of the
Company in maintaining the confidential nature of its proprietary and other
business and commercial information. In connection therewith, Executive
covenants that during the term of his employment with Company under this
Agreement, and for a period of one (1) year thereafter, Executive shall not,
directly or indirectly, except as authorized by the Board of Directors,
publish, disclose or use for his own benefit or for the benefit of a business
or entity (other than the Company or its subsidiaries) or otherwise, any
secret or confidential matter, or proprietary or other information not in the
public domain that was acquired by Executive during his employment, relating
to the Company's, ICCE's or any of their respective subsidiaries' businesses,
operations, customers, suppliers, products, employees, financial affairs or
industry practices, technology, know-how or intellectual property or other
similar information (the "Proprietary Information"). If and to the extent
that Proprietary Information also is a Trade Secret (as defined under
applicable law), the time limit provided in Section 2.5 shall apply to the
disclosure of such Proprietary Information.
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems,
methods, personnel, technology and other materials relating to the Company or
its affiliated entities shall be and remain the sole property of the Company
and/or such affiliated entity and shall, upon the request of the Company,
turn over all copies of such Proprietary Information to the Company (together
with a written statement certifying as to his compliance with the foregoing).
Section 2.2 NON-SOLICITATION OF CUSTOMERS. During the term of
Executive's employment with the Company, and for a period of one (1) year
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive
shall not directly or indirectly, through one or more intermediaries or
otherwise, solicit or attempt to solicit Customers, in the Restricted
Territory, to induce or encourage them to acquire or obtain from anyone other
than the Company, service competitive with or substitiute for any Company
Service. For purposes of this Section, a "Customer" refers to any person or
group of persons with whom Employee has direct material contact with regard
to selling, delivery or support of Company Services, including servicing such
person's or group's account, during the period of two (2) years preceding
termination of Employee's employment; and "Company Services" refers to the
services that the Company offered or sold within six (6) months prior to the
date of termination of Employee's employment. For purposes of this Article
II, the "Restricted Territory" shall be the area that is
<PAGE>
within a thirty (30) mile radius of the city of Philadelphia, or such other
city in which the Company maintains an office at which Executive is located
on the date of termination of Executive's employment with the Company and
such other cities in which the Company maintains offices at which Executive
had material customer contacts within the year preceding the termination of
Executive's employment with the Company.
Section 2.3 NON-COMPETE. During the term of Executive's employment with
the Company, and for a period of two (2) years thereafter, unless Executive
is terminated other than for Cause (as defined below) or Executive resigns
for Good Reason (as defined below), Executive shall not, without the prior
written consent of the Board of Directors, which consent may be withheld at
the sole discretion of the Board of Directors, engage or participate in, as a
business executive or equity owner of any business or enterprise that
directly competes in the Restricted Area with any line of business in which
(i) the Company was engaged at the time of termination of Executive's
employment with the Company and (ii) Executive was materially involved with
regard to the selling, delivery or support of services within such line of
business; provided, however, that nothing in this Section 2.3 shall prohibit
Executive from acquiring or holding, for investment purposes only, less than
five percent (5%) of the outstanding publicly traded securities of any
corporation which may compete directly or indirectly with the Company or any
of its subsidiaries.
Section 2.4 NON-SOLICITATION OF EMPLOYEES. During the term of his
employment with the Company, and for a period of one (1) year thereafter,
unless Executive is terminated other than for Cause (as defined below) or
Executive resigns for Good Reason (as defined below), Executive shall not,
directly or indirectly, through one or more intermediaries or otherwise,
employ, induce, solicit for employment, or assist others in employing,
inducing or soliciting for employment any individual who is at any time
during such period an employee of the Company for the purpose of providing
services that are the same or similar to the types of services offered or
engaged in by the Company, ICCE or any of their respective subsidiaries with
the Executive providing services at the time of termination of Executive's
employment with the Company.
Section 2.5 TRADE SECRETS. The Executive shall not, at any time, either
during the term of his employment or after any termination of employment, use
or disclose any Trade Secrets (as defined under applicable law) of the
Company, ICCE, or any of their respective subsidiaries, except in fulfillment
of his duties as the Executive during his employment, for so long as the
pertinent information or data remain Trade Secrets, whether or not the Trade
Secrets are in written or tangible form.
Section 2.6 CONSIDERATION. Executive acknowledges that his agreement to
the covenants provided in this Article II constitutes a major portion of the
consideration for the entry by the Company into this Agreement, and that the
Company's covenants under this Agreement is of direct and material benefit to
Executive and is good and adequate consideration for the covenants given
herein. Executive also acknowledges that the Company has a present and future
expectation of business within the geographic areas served by the Company and
from the present and proposed customers of the Company. Executive
acknowledges the reasonableness of the term, geographic area and scope of the
covenants set forth in this Agreement, and agrees that he will not, in any
action, suit or other proceeding, deny the reasonableness of, or assert the
unreasonableness of, the premises, consideration or scope of the covenants
set forth herein. Executive further acknowledges that complying with the
provisions contained in this Agreement will not preclude him from engaging in
a lawful profession, trade or business, or from becoming gainfully employed.
ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.1 TERMINATION BY COMPANY. Executive's employment may be
terminated by the Company by giving notice during the term of this Agreement
upon the occurrence of one or more of the following events:
(a) Executive's death or disability which renders Executive
incapable of performing his duties for more than one hundred twenty (120)
calendar days (termination under this Section 3.1(a) shall be deemed
termination without Cause);
(b) for any reason following a determination by the Board of
Directors to terminate Executive's employment (termination under this Section
3.1(b) shall be deemed termination without Cause); or
(c) "for Cause", which for purposes of this Agreement shall mean
that the Executive shall have:
<PAGE>
(i) committed an intentional act of fraud, embezzlement or
theft in connection with his duties or in the course of his employment with
the Company which has a material adverse effect upon the Company;
(ii) inflicted intentional wrongful material damage to any
material asset of the Company or the Company;
(iii) intentionally and wrongfully violates Article II of
this Agreement, which violation has a material adverse effect upon the
Company;
(iv) been convicted of a felony or any similar crime
carrying a prison term of at least one year (regardless of whether
imprisonment is actually imposed);
(v) a habitual and debilitating use of alcohol or drugs; or
(vi) failed to meet performance expectations, as determined
by the Company's Board of Directors, PROVIDED, however, that in the event of
this subsection (vi) being the sole reason for termination for Cause,
Executive shall have the cure provisions and rights provided for in Section
3.1(d) hereof.
(d) In the event of a determination by the Company's Board of
Directors that the Executive has failed to meet performance expectations, the
Company shall furnish to Executive in writing a notice of proposed
termination setting forth a specific statement of the deficiencies in his
performance. Executive shall then have a period of ninety (90) days after the
giving of such written notice of proposed termination by the Company in which
to attempt to effect a cure of the specified deficiencies. If at the end of
such ninety (90) day period no such cure has been effected to the reasonable
satisfaction of the Board of Directors of the Company, then Executive's
employment shall be terminated as of the end of such ninety (90) day period.
The Company shall be obligated to provide to Executive only one such notice
of proposed termination, and if subsequent to effecting a cure of specified
deficiencies the Executive is determined by the Board of Directors to have
again failed to meet performance expectations, then his employment may be
terminated immediately upon the Company's giving of notice of termination to
Executive which specifies his deficiencies in performance.
Section 3.2 GOOD REASON. For purposes of this Agreement, "Good Reason"
shall mean, without the express written consent of Executive, the occurrence
of any of the following events unless such events are fully corrected within
thirty (30) days following written notification by Executive to the Company
that he intends to terminate his employment hereunder for one of the reasons
set forth below:
(a) a material breach by the Company of any material provision
of this Agreement or the Registration Rights Agreement, dated as of May
16, 1997, to which Executive is a party, including, but not limited to,
the assignment to Executive of any duties inconsistent with Executive's
position in the Company or a material adverse alteration in the nature
or status of Executive's responsibilities;
(b) relocation of Executive out of the metropolitan Philadelphia
area provided, however, that the Executive shall from time to time, as
may be necessary to facilitate the Company's business, be required to
render a portion of his services hereunder at the Company's corporate
headquarters in Washington D.C.; or
(c) the occurrence of a "Change in Control" as defined below.
For purposes of this Agreement a "Change in Control" shall mean an event
as a result of which: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 30% of the total voting power of
the voting stock of the Company; (ii) the Company consolidates with, or
merges with or into another corporation or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets (or substantially all of the assets of, or of the ICCE's interest in,
the Company) to any person or any corporation consolidates with, or merges
with or into, the Company, in any such event pursuant to a transaction in
which the outstanding voting stock of the Company is changed into or
exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding voting stock of the Company is changed
into or exchanged for (x) voting stock of the surviving or transferee
corporation or
<PAGE>
(y) cash, securities (whether or not including voting stock) or other
property, and (B) the holders of the voting stock of the Company immediately
prior to such transaction own, directly or indirectly, not less than 30% of
the voting power of the voting stock of the surviving corporation immediately
after such transaction; or (iii) individuals who at the date of the Merger
constitute the Board of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders
of the Company was approved by a vote of 66-2/3% of the directors then still
in office who were directors at the date of the Merger or whose election or
nomination for election was previously so approved) ceased for any reason to
constitute a majority of the Board of the Company then in office; or (iv) the
Company is liquidated or dissolved or adopts a plan of liquidation.
Section 3.3 SEVERANCE. For purposes of this Agreement, Executive's
entitlement to any severance payments upon termination of his employment
shall be as set forth below:
(a) TERMINATION WITHOUT CAUSE.
(i) Executive may not be terminated prior to a firm
commitment underwritten public offering of the
Company's equity securities;
(ii) If Executive is terminated without Cause or resigns
for Good Reason at any time, Executive shall be
entitled to severance pay of a lump sum equal to
three times the sum of (i) his annual salary then
in effect plus (ii) the amount of his bonus as
calculated based on the results of operations for
the twelve months prior to such termination.
(b) VOLUNTARY TERMINATION. If Executive voluntarily resigns for
reason other than Good Cause, Executive shall receive a lump sum severance
payment equal to his then current annual salary. Executive shall provide a
minimum of thirty (30) days prior notice to the President of his resignation.
In the event Executive shall provide thirty (30) days prior written notice of
his intent to resign, the Company may accept such resignation effective as of
any date during such thirty (30) day period as the Company deems appropriate,
provided that Executive shall receive from the Company his salary and be
entitled to participate at the Company's expense in any Company sponsored
benefit programs in which he was a participant as of the effective date of
his resignation for the duration of such thirty (30) day period.
(c) FOR CAUSE. Executive shall not be entitled to any severance
pay whatsoever if his employment is terminated "for Cause" pursuant to
Section 3.1(c) of this Agreement, unless severance pay is approved by the
Board of Directors of the Company in its sole discretion, provided, however,
that the Executive shall receive such annual salary that is accrued but
unpaid up to the date of such termination for Cause. If termination is for
Cause pursuant to Section 3.1(c)(vi), then Executive shall be entitled to
severance equal to pay for the remainder of the then current term of this
Agreement, or equal to one year's salary at his then current rate, whichever
is greater.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 WITHHOLDING OF TAXES. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes
and withholdings as shall be required pursuant to any applicable law, rule or
regulation.
Section 4.2 NOTICE. For purposes of this Agreement, all communications
including, without limitation, notices, consents, requests or approvals,
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or five (5) business days after having been
mailed by United States registered mail or certified mail, return receipt
requested, postage prepaid, addressed to the Company (to the attention of the
Secretary of the Company) at its principal executive office or to Executive
at his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except the
notices of change of address shall be effective only upon receipt.
Section 4.3 VALIDITY; SEVERABILITY. The covenants set forth in this
Agreement are and shall be deemed and construed as separate and independent
covenants. It is not the intent of any party hereto to violate any public
policy of any jurisdiction in which this Agreement may be enforced. If any
term, covenant,
<PAGE>
condition or provision of this Agreement, or the application thereof to any
person or circumstance, shall to any extent be held invalid or unenforceable
by a court of competent jurisdiction because its duration, the territory
and/or the restricted activities are invalid or unreasonable in scope, (i)
each such term, covenant or provision of this Agreement shall be valid and be
enforced to the fullest extent permitted by law, shall be reformed to the
extent (and only to the extent) necessary to make it valid, enforceable and
legal taking into consideration the reasonable concerns and needs of the
Company's business interests such that the intent of the Company, in
consummating the transactions contemplated by the Agreement, will not be
impaired, provided that such invalid or unenforceable term, covenant,
condition or provision shall be curtailed, limited or eliminated only to the
extent necessary to remove such invalidity or unenforceability with respect
to the applicable law as it shall then be applied, and (ii) the remainder of
this Agreement or the application of such term, covenant, condition or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable shall not be affected thereby.
Section 4.4 REMEDIES. The restrictions contained in Article II of this
Agreement are considered by the parties hereto to be fair and reasonable and
necessary for the protection of the legitimate business interests of the
Company. It is recognized that damages in the event of breach of the
provisions of this Agreement by Executive would be difficult, if not
impossible, to ascertain, and it is therefore agreed that the Company, in
addition to and without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach. The existence of this
right shall not preclude any other rights and remedies at law or in equity
which the Company may have. Any violation of the restrictions contained in
Article II of this Agreement shall automatically toll and suspend the period
of restraint for the amount of time that the violation continues, provided
that the Company seeks enforcement of such restraint promptly after discovery
of the violation. Executive agrees to indemnify and hold harmless the Company
from and against any loss, damage, liability, cost or expense, including but
not limited to reasonable attorneys fees, suffered or incurred by the Company
as and when incurred, by reason of, or arising out of, any breach of the
covenants contained in this Agreement.
Section 4.5 ENTIRE AGREEMENT. This Agreement supersedes any other
agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between
the parties with respect to the employment of Executive by the Company. Any
waiver or modification of any term of this Agreement shall be effective only
if it is set forth in a writing signed by both parties hereto.
Section 4.6 SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any Successor of or to the Company, but shall not
otherwise be assignable or delegable by the Company. "Successor" shall mean
any successor in interest, including, without limitation, any entity,
individual or group of persons acquiring directly or indirectly all or
substantially all of the business or assets of the Company, as the case may
be, whether by sale, merger, consolidation, reorganization or otherwise.
(b) The Company shall require any Successor to agree at the time
of becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
(c) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, heirs, distributes and legatees.
(d) This Agreement is personal in nature and neither of the
parties shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in this Section 4.6.
Section 4.7 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with the laws of the Commonwealth of
Pennsylvania without regard to the choice of law rules utilized in that
jurisdiction.
Section 4.8 CAPTIONS. The captions in this Agreement are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
Section 4.9 MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in a writing signed by Executive and the Company.
<PAGE>
No waiver by a party hereto at any time of any breach by another party hereto
or compliance with any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provision or conditions at the same or at any prior or subsequent
time. Failure by the Company to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed to be a waiver of
such term, covenant or condition, nor shall any relinquishment of any right
of power hereunder by the Company any one or more times be deemed a waiver or
relinquishment of such right or power by the Company at any other time or
times.
Section 4.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICCE, Inc. "Executive"
By: /s/ Mark Strassman /s/ Harry J. Sauer
----------------------------- -----------------------------
Signature Harry J. Sauer
Mark Strassman Print Residence Address:
- ---------------------------------
Print Name
1079 Victor Lane
-----------------------------
President
- ---------------------------------
Print Title Bryn Mawr, PA 19010
-----------------------------
<PAGE>
EXHIBIT (d)(4)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of May 16, 1997 (the
"Effective Date"), by and between ICCE, Inc., a Georgia corporation, (the
"Company"), and David C. Cooper, an individual resident of Georgia (the
"Executive").
WHEREAS, Executive was an executive officer and shareholder of David C.
Cooper & Associates, Inc. ("Cooper") and DCCA Professional Temporaries, Inc.
("DCCA"), each of which was merged with and has become a subsidiary of the
Company;
WHEREAS, the Company recognizes the contributions of Executive in such
capacity;
WHEREAS, Executive is expected to make a significant contribution to the
success and development of the Company; and
WHEREAS, Executive is willing to render services to the Company and/or
one or more of its subsidiaries on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by Executive and the Company
including, without limitation, the promises and covenants of the parties set
forth herein, the parties hereto, intending to be legally bound, hereby agree
as follows:
ARTICLE I
EMPLOYMENT
Section 1.1 TERM OF EMPLOYMENT. The term of Executive's employment
hereunder shall commence on the Effective Date hereof and continue for a
period of three (3) years, unless earlier terminated as provided in this
Agreement. At the end of the initial three year term, this Agreement shall
automatically renew for consecutive one year terms unless either party hereto
gives written notice to the other of its intent to terminate sixty (60) days
prior to the end of any term.
Section 1.2 DUTIES AND RESPONSIBILITIES OF EXECUTIVE. Executive is
hereby employed full time as the Chairman of the Board of the Company.
Executive shall devote his full time, energy, and skill to such office and
shall do and, perform all services and acts necessary or advisable to fulfill
the duties of such office. In his capacity as an officer of the Company,
Executive shall report to the Board of Directors of the Company, and shall
conduct and perform such additional services and activities as may be
determined from time to time by the Board of Directors which are normal and
customary for the Chairman of the Board of a similarly situated Company.
Executive's authority and responsibility in the Company shall at all times be
subject to the review and discretion of the Board of Directors, who shall
have the final authority to make decisions regarding the business of the
Company. Executive acknowledges that he has a duty of loyalty to the Company
and shall not engage in, directly and indirectly, any other business or
activity that could materially and adversely affect the Company's business or
the Executive's ability to perform his duties under this Agreement, provided,
however, that the Executive shall be free to participate in board, civic and
charitable activities so long as such activities do not interfere with his
duties and responsibilities hereunder.
Section 1.3 COMPENSATION. For services to be rendered by Executive under
this Agreement, Company shall pay Executive as follows: Prior to any firm
commitment underwritten public offering of the Company's equity securities
(an "IPO"), Executive shall be paid a monthly base salary of 100% of the cash
basis earnings of Cooper and DCCA for the previous month, adjusted for
non-deductible items and corporate level taxes payable, if any. Such salary
shall be reduced by the Executive's allocable percentage (based on his equity
interest in the Company) of the aggregate of such amounts as in the Board of
Directors' judgment are necessary to operate the Company. Such salary shall
be paid at times during the year to be designated by the Company's Board of
Directors. Subsequent to an IPO, Executive shall be paid an annual base
salary of $200,000. In addition, subsequent to an IPO, the Executive shall
receive bonus compensation in an amount to be agreed upon. Such bonus
compensation shall be based on (1) the year-to-year growth in earnings before
interest, taxes, depreciation and amortization of Cooper and DCCA and (2) the
success of the Company's acquisition program.
<PAGE>
Section 1.4 Benefits.
(a) VACATION. Executive shall be entitled to six weeks paid
vacation annually during his employment by the Company hereunder. Any
vacation not used during any calendar year shall be forfeited, except that
one week's unused vacation may be carried forward to the year following the
year in which such vacation entitlement accrued.
(b) LIFE, DISABILITY AND RETIREMENT PROGRAMS. Executive shall be
entitled to participate in any life, disability and retirement programs that
are generally offered to or provided for the senior management personnel of
the Company and its subsidiaries.
(c) GROUP INSURANCE. Executive shall be entitled to participate
in such group health and dental insurance programs (including spouse
coverage) as may from time to time be offered generally to all of the other
members of the senior management personnel of the Company and its
subsidiaries.
Section 1.5 BUSINESS EXPENSES. Executive shall be entitled to
reimbursement of all ordinary and necessary business expenses reasonably
incurred for business travel, communications (including cell phones and
pager), entertainment and meals in connection with the performance of
Executive's duties under this Agreement in accordance with the Company's
established policies for reimbursement of business expenses. The Company
expects Executive to attend and participate in continuing education seminars
and courses with respect to the staffing industry and business management
related to his duties, and the Company will reimburse all ordinary and
necessary expenses of such attendance and participation. Such continuing
education courses and seminars will be scheduled in conjunction with the
other officers of the Company to assure coordination of schedules.
ARTICLE II
COVENANTS OF EXECUTIVE
Section 2.1 CONFIDENTIALITY. Executive recognizes the interest of the
Company in maintaining, the confidential nature of its proprietary and other
business and commercial information. In connection therewith, Executive
covenants that during the term of his employment with Company under this
Agreement, and for a period of one (1) year thereafter, Executive shall not,
directly or indirectly, except as authorized by the Board of Directors,
publish, disclose or use for his own benefit or for the benefit of a business
or entity other than the Company or otherwise, any secret or confidential
matter, or proprietary or other information not in the public domain that was
acquired by Executive during his employment, relating to the Company's, or
any of its subsidiaries' businesses, operations, customers, suppliers,
products, employees, financial affairs or industry practices, technology,
know-how or intellectual property or other similar information (the
"Proprietary Information").
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems,
methods, personnel, technology and other materials relating to the Company or
its affiliated entities shall be and remain the sole property of the Company
and/or such affiliated entity and shall, upon the request of the Company,
turn over all copies of such Proprietary Information to the Company (together
with a written statement certifying as to his compliance with the foregoing).
Section 2.2 NON-SOLICITATION OF CUSTOMERS. During the term of his
employment with the Company, and for a period of one (1) year thereafter,
unless Executive is terminated other than for Cause (as defined below) or
Executive resigns for Good Reason (as defined below), Executive shall not
directly or indirectly, through one or more intermediaries or otherwise,
solicit, direct or appropriate, or attempt to solicit, direct or appropriate
any individual or entity which was, at the time of termination of Executive's
employment, a customer or client of the Company for the purpose of providing
a service or product to such customer or client which is the same type of
service or product offered or provided by the Company at the time of
termination of Executive's employment, with the Company.
Section 2.3 NON-COMPETE. During the term of his employment with the
Company, and for a period of two (2) years thereafter, unless Executive is
terminated other than for Cause (as defined below) or Executive
<PAGE>
resigns for Good Reason (as defined below), Executive shall not, without the
prior written consent of the Board of Directors, which consent may be
withheld at the sole discretion of the Board of Directors, engage or
participate in, as a business executive or equity owner of any business or
enterprise that directly competes in any geographical area with any line of
business in which the Company was engaged in at the time of termination of
Executive's employment with the Company; provided, however, that nothing in
this Section 2.3 shall prohibit Executive from acquiring or holding, for
investment purposes only, less than five percent (5 %) of the outstanding
publicly traded securities of any corporation which may compete directly or
indirectly with the Company.
Section 2.4 NON-SOLICITATION OF EMPLOYEES. During the term of his
employment with the Company, and for a period of one (1) year thereafter,
unless Executive is terminated other than for Cause (as defined below) or
Executive resigns for Good Reason (as defined below), Executive shall not,
directly or indirectly, through one or more intermediaries or otherwise,
employ, induce, solicit for employment, or assist others in employing,
inducing or soliciting for employment any individual who is at any time
during such period an employee of the Company for the purpose of providing
services that are the same or similar to the types of services offered or
engaged in by the Company at the time of termination of Executive's
employment with the Company.
Section 2.5 TRADE SECRETS. The Executive shall not, at any time, either
during the term of his employment or after any termination of employment, use
or disclose any Trade Secrets (as defined under applicable law) of the
Company or its subsidiaries, except in fulfillment of his duties as the
Executive during his employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form.
ARTICLE III
TERMINATION OF EMPLOYMENT
Section 3.1 TERMINATION BY COMPANY. Executive's employment may be
terminated by the Company by giving notice during the term of this Agreement
upon the occurrence of one or more of the following events:
(a) Executive's death or disability which renders Executive
incapable of performing his duties for more than one hundred twenty (120)
calendar days (termination under this Section 3.1 (a) shall be deemed
termination without Cause);
(b) for any reason following a determination by the Board of
Directors to terminate Executive's employment (termination under this Section
3. 1(b) shall be deemed termination without Cause); or
(c) "for Cause", which for purposes of this Agreement shall mean
that the Executive shall have:
(i) committed an intentional act of fraud, embezzlement or
theft in connection with his duties or in the course of his employment with
the Company which has a material adverse effect upon the Company;
(ii) inflicted intentional wrongful material damage to any
material asset of the Company or the Company;
(iii) intentionally and wrongfully violates Article II of
this Agreement, which violation has a material adverse effect upon the
Company;
(iv) been convicted of a felony or any similar crime
carrying a prison term of at least one year (regardless of whether
imprisonment is actually imposed);
(v) a habitual and debilitating use of alcohol or drugs; or
(vi) failed to meet performance expectations, as determined
and articulated by the Company's Board of Directors; PROVIDED, HOWEVER, that
in the event of this subsection (vi) being the sole reason for a termination
for Cause, Executive shall have the cure provisions and rights provided for
in Section 3. 1 (d) hereof.
<PAGE>
(d) In the event of a determination by the Company's Board of
Directors that the Executive has failed to meet performance expectations, the
Company shall furnish to Executive in writing a notice of proposed
termination setting forth a specific statement of the deficiencies in his
performance. Executive shall then have a period of ninety (90) days after the
giving of such written notice of proposed termination by the Company in which
to attempt to effect a cure of the specified deficiencies. If at the end of
such ninety (90) day period no such cure has been effected to the reasonable
satisfaction of the Board of Directors of the Company, then Executive's
employment shall be terminated as of the end of such ninety (90) day period.
The Company shall be obligated to provide to Executive only one such notice
of proposed termination, and if subsequent to effecting a cure of specified
deficiencies the Executive is determined by the Board of Directors to have
again failed to meet performance expectations, then his employment may be
terminated immediately upon the Company's giving of notice of termination to
Executive which specifies his deficiencies in performance.
Section 3.2 GOOD REASON. For purposes of this Agreement, "Good Reason"
shall mean, without the express written consent of Executive, the occurrence
of any of the following events unless such events are fully corrected within
thirty (30) days following written notification by Executive to the Company
that he intends to terminate his employment hereunder for one of the reasons
set forth below:
(a) a material breach by the Company of any material provision
of this Agreement, the Registration Rights Agreement to which Executive is a
party of even date herewith, or the Shareholders Agreement to which Executive
is a party of even date herewith, including, but not limited to, the
assignment to Executive of any duties inconsistent with Executive's position
in the Company or a material adverse alteration in the nature or status of
Executive's responsibilities;
(b) the relocation of Executive out of the Atlanta area; or
(c) the occurrence of a "Change in Control" as defined below.
For purposes of this Agreement a "Change in Control" shall mean an event
as a result of which: (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 30% of the total voting power of
the voting stock of the Company; (ii) the Company consolidates with, or
merges with or into another corporation or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets, or substantially all of the assets of or all of the Company's
interest in Cooper or DCCA, to any person or any corporation consolidates
with, or merges with or into, the Company, in any such event pursuant to a
transaction in which the outstanding voting stock of the Company is changed
into or exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding voting stock of the Company is changed
into or exchanged for (x) voting stock of the surviving or transferee
corporation or (y) cash, securities (whether or not including voting stock)
or other property, and (B) the holders of the voting stock of the Company
immediately prior to such transaction own, directly or indirectly, not less
than 30% of the voting power of the voting stock of the surviving corporation
immediately after such transaction; or (iii) individuals who at the date of
the Merger constitute the Board of the Company (together with any new
directors whose election by such Board or whose nomination for election by
the stockholders of the Company was approved by a vote of 66-2/3% of the
directors then still in office who were directors at the date of the Merger
or whose election or nomination for election was previously so approved)
ceased for any reason to constitute a majority of the Board of the Company
then in office; or (iv) the Company is liquidated or dissolved or adopts a
plan of liquidation; provided, however, that a Change in Control shall not
include the Merger.
Section 3.3 SEVERANCE. For purposes of this Agreement, Executive's
entitlement to any severance payments upon termination of his employment
shall be as set forth below:
(a) TERMINATION WITHOUT CAUSE.
(i) Executive may not be terminated prior to the IPO;
(ii) If Executive is terminated without Cause or resigns
for Good Reason at any time, Executive shall be entitled to severance pay of
a lump sum equal to three times the sum of (i) his annual salary then in
effect plus (ii) the amount of his bonus as calculated based on the results
of operations for the twelve months prior to such termination.
<PAGE>
(b) VOLUNTARY TERMINATION. If Executive voluntarily resigns for
reason other than Good Cause, Executive shall receive a lump sum severance
payment equal to his then current annual salary. Executive shall provide a
minimum of thirty (30) days prior notice to the Chief Executive Officer of
his resignation. In the event Executive shall provide thirty (30) days prior
written notice of his intent to resign, the Company may accept such
resignation effective as of any date during such thirty (30) day period as
the Company deems appropriate, provided that Executive shall receive from the
Company his salary and be entitled to participate at the Company's expense in
any Company sponsored benefit programs in which he was a participant as of
the effective date of his resignation for the duration of such thirty (30)
day period.
(c) FOR CAUSE. Executive shall not be entitled to any severance
pay whatsoever if his employment is terminated "for Cause" pursuant to
Section 3.1(c) of this Agreement, unless severance pay is approved by the
Board of Directors of the Company in its sole discretion, provided, however,
that the Executive shall receive such annual salary that is accrued but
unpaid up to the date of such termination for Cause. If termination is for
Cause pursuant to Section 3. 1 (c)(vi), then Executive shall be entitled to
severance equal to pay for the remainder of the then current term of this
Agreement, or equal to one year's salary at his then current rate, whichever
is greater.
ARTICLE IV
GENERAL PROVISIONS
Section 4.1 WITHHOLDING OF TAXES. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or other taxes
and withholdings as shall be required pursuant to any applicable law, rule or
regulation.
Section 4.2 NOTICE. For purposes of this Agreement, all communications
including, without limitation, notices, consents, requests or approvals,
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered or five (5) business days after having been
mailed by United States registered mail or certified mail, return receipt
requested, postage prepaid, addressed to the Company (to the attention of the
Secretary of the Company) at its principal executive office or to Executive
at his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except the
notices of change of address shall be effective only upon receipt.
Section 4.3 VALIDITY. It is not the intent of any party hereto to
violate any public policy of any jurisdiction in which this Agreement may be
enforced. If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or circumstances shall not
be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent (and only to the extent)
necessary to make it valid, enforceable and legal; provided, however, if the
provision so held to be invalid, unenforceable or otherwise illegal
constituted a material inducement to a party's execution and delivery of this
Agreement, then such provision shall not be reformed unless prior to any
reformation that party agrees to be bound by the reformation.
Section 4.4 ENTIRE AGREEMENT. This Agreement supersedes any other
agreements, oral or written, between the parties with respect to the subject
matter hereof, and contains all of the agreements and understandings between
the parties with respect to the employment of Executive by the Company. Any
waiver or modification of any term of this Agreement shall be effective only
if it is set forth in a writing signed by both parties hereto.
Section 4.5 SUCCESSORS AND BINDING AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of the Company and any Successor of or to the Company, but shall not
otherwise be assignable or delegable by the Company. "Successor" shall mean
any successor in interest, including, without limitation, any entity,
individual or group of persons acquiring directly or indirectly all or
substantially all of the business or assets of the Company, as the case may
be, Whether by sale, merger, consolidation, reorganization or otherwise.
(b) The Company shall require any Successor to agree at the time
of becoming a Successor to perform this Agreement to the same extent as the
original parties would be required if no succession had occurred.
<PAGE>
(c) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives, executors,
administrators, heirs, distributee and legatees.
(d) This Agreement is personal in nature and neither of the
parties shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in this Section 4.5.
Section 4.6 CAPTIONS. The captions in this Agreement are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
Section 4.7 MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge
is agreed to in a writing signed by Executive and the Company. No waiver by a
party hereto at any time of any breach by another party hereto or compliance
with any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provision or
conditions at the same or at any prior or subsequent time.
Section 4.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICCE, Inc. "Executive"
By: /S/ TIMOTHY MANN /S/ DAVID C. COOPER
--------------------------------- ---------------------------------
Signature David C. Cooper
TIMOTHY MANN Print Residence Address:
- ------------------------------------
Print Name
---------------------------------
PRESIDENT
- ------------------------------------
Print Title ---------------------------------
<PAGE>
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (the "Amendment") is made
as of May 16, 1997 (the "Effective Date"), by and between ICCE, Inc., a
Georgia corporation, (the "Company"), and David C. Cooper, an individual
resident of Georgia ("Executive").
WHEREAS, Executive is an executive officer and shareholder of the
Company; and
WHEREAS, Executive and the Company entered into that certain Employment
Agreement dated as of May 16, 1997 (the "Agreement"); and
NOW, THEREFORE, for $10.00 in hand paid by the Company to Executive and
for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by Executive and the Company including, without
limitation, the promises and covenants of the parties set forth herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
AMENDMENTS TO
EMPLOYMENT AGREEMENT
Section 1.1 AMENDMENT TO ARTICLE I. Section 1.3 of the Agreement is
hereby deleted and replaced with the following:
"Section 1.3 COMPENSATION. For services to be rendered by Executive
under this Agreement, Company shall pay Executive as follows: Executive shall
be paid an annual base salary of $200,000, plus bonus compensation in an
amount to be agreed upon by Company and Executive. At the sole discretion of
the Board of Directors of the Company, Executive's annual salary may be
increased from time to time."
Section 1.2 AMENDMENTS TO ARTICLE II. Sections 2.1, 2.2, 2.3, 2.4 and
2.5 of the Agreement are hereby deleted and replaced with the following:
"Section 2.1 CONFIDENTIALITY. Executive recognizes the interest of the
Company in maintaining the confidential nature of its proprietary and other
confidential business and commercial information. In connection therewith,
Executive covenants that during the term of Executive's employment with
Company under this Agreement, and for a period of two (2) years thereafter,
Executive shall not, directly or indirectly, except as authorized by the
Board, publish, disclose or use for Executive's own benefit or for the
benefit of a business or entity (other than the Company) or otherwise, any
secret or confidential matter, or proprietary or other information not in the
public domain that was acquired by Executive during Executive's employment,
relating to the Company's or any of its subsidiaries' businesses, operations,
customers, suppliers, products, employees, financial affairs or industry
practices, technology, know-how or intellectual property or other similar
information (the "Proprietary Information").
Notwithstanding the foregoing, to the extent Proprietary Information
constitutes a Trade Secret (as that term is defined below, or otherwise
defined under applicable law), then Executive shall not, at any time, either
during the term of Executive's employment or after any termination of
employment, use or disclose any Trade Secrets of the Company or any of its
subsidiaries, except in fulfillment of Executive's duties as the Executive
during Executive's employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form. As used herein, "Trade Secret" means information which derives
economic value, actual or potential, from not being generally known to, or
readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and which is subject to reasonable
efforts by the Company to maintain the secrecy thereof.
Executive will abide by the Company's policies and regulations, as
established from time to time, for the protection of its Proprietary
Information. Executive acknowledges that all records, files, data, documents
and the like relating to suppliers, customers, costs, prices, systems,
methods, personnel, technology and other materials relating to the Company or
its affiliated entities shall be and remain the sole property of the Company
and/or such affiliated entity and shall, upon the request of the Company,
turn over all copies of such Proprietary
<PAGE>
Information to the Company (together with a written statement certifying as
to Executive's compliance with the foregoing).
Section 2.2 NON-SOLICITATION OF CUSTOMERS. During the term of
Executive's employment with the Company, and for a period of two (2) years
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive
shall not directly or indirectly, through one or more intermediaries or
otherwise, solicit or attempt to solicit Customers to induce or encourage
them to acquire or obtain from anyone other than the Company, service
competitive with or substitute for any Company Service. For purposes of this
Section, a "Customer" refers to any person or group of persons with whom
Employee had direct material contact with regard to the selling, delivery or
support of Company Services, including servicing such person's or group's
account, during the two (2) year period preceding termination of Executive's
employment; and "Company Services" refers to the services that the Company or
any of its subsidiaries offered or sold within six (6) months prior to the
date of termination of Executive's employment. For purposes of this Article
II the "Restricted Territory" shall be the area that is within thirty (30)
miles of the city limits of Atlanta, Georgia. In the event Executive manages
additional offices for the Company, the Executive and the Company agree to
amend this Agreement, by execution of an amendment pursuant to Section 4.5
hereof, to change the Restricted Territory accordingly.
Section 2.3 NON-COMPETE. During the term of Executive's employment with
the Company, and for a period of two (2) years thereafter, unless Executive
is terminated other than for Cause (as defined below) or Executive resigns
for Good Reason (as defined below), Executive shall not, without the prior
written consent of the Board of Directors, which consent may be withheld at
the sole discretion of the Board of Directors, engage or participate within
the Restricted Territory, as a business executive, employee, consultant, or
equity owner of any business or enterprise that directly competes with any
line of business (i) in which the Company or any of its subsidiaries was
engaged at the time of termination of Executive's employment with the Company
and (ii) in which Executive was materially involved or responsible for;
provided, however, that nothing in this Section 2.3 shall prohibit Executive
from acquiring or holding, for investment purposes only, five percent (5%) or
less of the outstanding publicly traded securities of any corporation.
Section 2.4 NON-SOLICITATION OF EMPLOYEES. During the term of
Executive's employment with the Company, and for a period of two (2) years
thereafter, unless Executive is terminated other than for Cause (as defined
below) or Executive resigns for Good Reason (as defined below), Executive
shall not, directly or indirectly, through one or more intermediaries or
otherwise, employ, induce, solicit for employment, or assist others in
employing, inducing or soliciting for employment any individual who is at any
time during such period an employee of the Company or any of its subsidiaries
for the purpose of providing services within the Restricted Area that are the
same or similar to the types of services offered or engaged in by the Company
or any of its subsidiaries at the time of termination of Executive's
employment with the Company.
Section 2.5 Intentionally Omitted.
ARTICLE II
GENERAL PROVISIONS
Section 2.1 WAIVER. Executive hereby waives any "change in control" as
that term is defined in the Employment Agreement which occurs due to any
transaction between the Company and Acsys Resources, Inc.
Section 2.2 VALIDITY. It is not the intent of any party to this
Amendment to violate any public policy of any jurisdiction in which the
Agreement, as amended hereby, may be enforced. If any provision of this
Amendment or the application of any provision hereof to any person or
circumstances is held invalid, unenforceable or otherwise illegal, the
remainder of this Amendment and the application of such provision to any
other person or circumstances shall not be affected, and the provision so
held to be invalid, unenforceable or otherwise illegal shall be reformed to
the extent (and only to the extent) necessary to make it valid, enforceable
and legal; provided, however, if the provision so held to be invalid,
unenforceable or otherwise illegal constituted a material inducement to a
party's execution and delivery of this Amendment, then such provision shall
not be reformed unless prior to any reformation that party agrees to be bound
by the reformation.
Section 2.3 ENTIRE AGREEMENT. The Agreement, as amended hereby,
supersedes any other agreements, oral or written, between the parties with
respect to the subject matter hereof, and contains all of the agreements and
understandings between the parties with respect to the employment of
Executive by the Company. Any waiver or modification of any term of the
Agreement, as amended hereby, shall be effective only if it is set forth
<PAGE>
in a writing signed by both parties hereto. Except as amended and modified by
this Amendment, the Agreement remains in full force and effect and is hereby
ratified and affirmed by the parties hereto.
Section 2.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
"Company":
ICCE, Inc. "Executive"
By: /S/ Mark Strassman /S/ David C. Cooper
----------------------------- ------------------------------------
Signature David C. Cooper
Mark Strassman
- ---------------------------------
Print Name
President
- ---------------------------------
Print Title
<PAGE>
Exhibit (d)(12)
ACSYS, INC.
75 14th Street
Suite 2200
Atlanta, Georgia 30309
March 31, 2000
Mr. C K Z Miles
Select Appointments (Holdings) Plc
Ziggurat
Grosvenor Raod
St Albans
Herts. AL1 3HW
United Kingdom
Dear Zach:
This letter agreement is intended to amend the Confidentiality Agreement between
Acsys, Inc. (the "Company") and Select Appointments (Holdings) Plc ("Select")
dated May 21, 1999, a copy of which is attached hereto as Appendix A (the
"Agreement"). This letter agreement is also intended to serve as a joinder
agreement whereby Vedior N.V. ("Vedior") becomes a party to the Agreement as
amended hereby. Additionally, this letter agreement is intended to extend the
time periods in the employee non-solicitation and standstill provisions to March
31, 2002 and March 31, 2001, respectively. Accordingly, the parties hereto agree
as follows:
1. References to the word "you" shall be read to mean each of
Vedior and Select.
2. The term "the date hereof" in all places in the second and
third paragraphs on Page 3 of the Agreement shall be hereby
replaced with the term "March 31, 2000."
3. Except as amended hereby, the Agreement shall remain in full
force and effect and the parties hereto hereby confirm its
effectiveness and application to each of them.
Sincerely,
Acsys, Inc.
By: /s/ Brady W. Mullinax, Jr.
--------------------------------------
Name: Brady W. Mullinax, Jr.
------------------------------------
Title: EVP - Finance & Admin.
-----------------------------------
Date: March 31, 2000
[SIGNATURES CONTINUED ON NEXT PAGE]
<PAGE>
Select Appointments (Holdings) Plc
By: /s/ C K Z Miles
--------------------------------------
Name: C K Z Miles
------------------------------------
Title: Finance Director
-----------------------------------
Date: March 31, 2000
Vedior N.V.
By: /s/ C K Z Miles
--------------------------------------
Name: C K Z Miles
------------------------------------
Title: Chief Financial Officer
-----------------------------------
Date: March 31, 2000
[SIGNATURE PAGE TO AMENDMENT TO CONFIDENTIALITY AGREEMENT BETWEEN ACSYS,
INC. AND SELECT APPOINTMENTS (HOLDINGS) PLC DATED MAY 21, 1999]
2
<PAGE>
ACSYS, INC. APPENDIX A
75 14th Street
Suite 2200
Atlanta, Georgia 30309
May 21, 1999
STRICTLY CONFIDENTIAL
Mr. C K Z Miles
Select Appointments (Holdings) Plc
Ziggurat
Grosvenor Road
St Albans
Herts. AL1 3HW
United Kingdom
Dear Zach:
You have requested information from Acsys, Inc. (the "Company") in connection
with your consideration of a possible transaction between the Company or its
shareholders and you. As a condition to your being furnished such information,
you agree to treat any information (whether prepared by the Company, its
advisors or otherwise, and whether oral, computerized or written) that is
furnished (whether before or after the date hereof) to you or your
representatives (which term shall include your directors, officers, partners,
employees, agents, advisors, accountants, consultants, attorneys and potential
financing sources) by or on behalf of the Company and all analyses,
compilations, forecasts, summaries, notes, data and other documents and
materials in whatever form or medium, whether prepared by you or your
representatives (herein collectively referred to as the "Evaluation Material")
In accordance with the provisions of this letter and to take or abstain from
taking certain other actions herein set forth. The term "Evaluation Material"
does not include information which (i) as shown by written records is already
lawfully in your possession, provided that such information is not known by you
to be subject to another confidentiality agreement with or other obligation of
secrecy to the Company or another party, or (ii) is or becomes generally
available to the public other than as a result of disclosure by you, your
representatives or anyone acting on your or their behalf or (iii) becomes
available to you on a non-confidential basis from a source other than the
Company or its advisors, provided that such source is not known by you to be
bound by a confidentiality agreement with or other obligation of secrecy to the
Company or another party.
<PAGE>
Select Appointments (Holdings) Plc
May 21, 1999
Page 2
You hereby agree that all Evaluation Material is and shall remain the
property of the Company (unless otherwise agreed in writing), that the
Company is only loaning the Evaluation Material to you, and that you have not
received and will not receive any rights or claims with respect to the
Evaluation Material. You further agree that the Evaluation Material will be
used solely for the purpose of evaluating a possible transaction between the
Company or its shareholders and you, will not be used in any way detrimental
to the Company, and will be kept confidential by you and your
representatives. You further agree the Evaluation Material will not be
provided, disclosed or otherwise made directly or indirectly available to any
person or entity other than those individuals who need to know such
information for the sole purpose of evaluating any such possible transaction
between the Company or its shareholders and you. It is understood and agreed
that each of your representatives shall be informed of the confidential
nature of the Evaluation Material prior to delivery thereof to such
representative and that, by receiving such materials, such representative
will be deemed to have agreed to be bound by this letter agreement. In any
event, you shall be responsible for any breach of this letter agreement by
any of your representatives, and you agree, at your sole expense, to take all
reasonable measures (including, without limitation, court proceedings) to
restrain your representatives from prohibited or unauthorized disclosure or
use of the Evaluation Material.
You hereby acknowledge that you are aware, and that you will advise your
representatives who are informed as to the matters which are the subject of
this letter, that the United States and English securities laws prohibit any
person who has received material, non-public information concerning the
matters which are the subject of this letter from purchasing or selling
securities of such issuer or from communicating such information to any other
person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities.
Notwithstanding any provision of this letter agreement to the contrary, in
the event you or your representatives are requested or required in a
judicial, administrative or governmental proceeding, or required pursuant to
any rule or regulation promulgated by the Securities and Exchange Commission,
the Panel On Takeovers And Mergers, the New York Stock Exchange, the London
Stock Exchange or the Nasdaq Stock Market (collectively, the "Rules and
Regulations"), to disclose any Evaluation Material or the existence, content
or status of negotiations relating to the possible transaction, you agree to
provide the Company with prompt written notice of such circumstances and all
related proceedings and information so that the Company may seek an
appropriate protective order, take other action deemed advisable by the
Company or waive your compliance that the confidentiality provisions of this
letter agreement. If, as a result of any such request or requirement, you or
your representatives are, in the written opinion of your outside counsel
("Counsel"), compelled to disclose Evaluation Material or the existence,
content or status of negotiations relating to the possible transaction (i) to
any tribunal or else stand liable for contempt or other censure or penalty,
or (ii) pursuant to the Rules and Regulations, you may disclose that portion
of the Evaluation Material to such tribunal or pursuant to the Rules and
Regulations which your Counsel advises in writing that you or your
representatives are compelled to disclose without liability hereunder,
provided that you comply with the notice provisions of this paragraph and
apply for confidential treatment under the Rules and Regulations and that you
exercise your best efforts to preserve the confidentiality of the Evaluation
Material, including, without limitation, by cooperating with the Company in
attempting to obtain an appropriate protective order or other reliable
assurance that such tribunal will accord the Evaluation Material confidential
treatment.
<PAGE>
Select Appointments (Holdings) Plc
May 21, 1999
Page 3
You agree that you will not, and will cause your representatives not to,
disclose to any person (i) the fact that you or your representatives are or have
been receiving and reviewing Evaluation Material, (ii) the fact that discussions
or negotiations are taking place concerning a possible transaction between the
Company or its shareholders and you, (iii) that this agreement exists or was
entered into or (iv) any of the terms, conditions or other facts with respect to
any such possible transactions, including the status thereof, except that
disclosure of such information may be made to the extent required by applicable
law, including applicable Rules and Regulations if and to the extent, in the
written opinion of your Counsel, you are required to make such disclosure
pursuant to applicable law, including applicable Rules and Regulations; provided
that prior to any such disclosure, you shall first give the Company a reasonable
opportunity to review the proposed disclosure and to comment thereon. The term
"person" as used in this letter agreement shall be broadly interpreted to
include the media and any individual, corporation, partnership, group or other
entity.
You agree that for a period of two (2) years from the date hereof, you will
not solicit or entice or approach any of the current officers or employees of
the Company or its affiliates identified by you during your evaluation of the
Company to leave his or her employment, without the prior written consent of the
Company; provided, however, that this prohibition shall not apply either to
situations in which the Company's employee made the initial contact with you
or to employment solicitations made independently by recruiters without your
specific direction or to the ongoing execution of your general, non-directed
recruiting advertising programs in the ordinary course of business.
You hereby represent and warrant to the Company that as of the date hereof
neither you nor any of your affiliates (as defined below) holds any
securities of the Company, other than 50,000 shares of the Company's Common
Stock held by you. You hereby acknowledge that the Evaluation Material is
being furnished to you in consideration of your agreement that for a period
of one year from the date hereof you and your affiliates (as defined in Rule
12b-2 under the Securities Exchange Act of 1934 (the "Exchange Act")) will
not (and you and they will not assist, provide or arrange financing to or for
others or encourage others to), directly or indirectly, acting alone or in
concert with others, unless specifically requested in writing in advance by
the Board of Directors of the Company:
(i) acquire or agree, offer, seek or propose to acquire (or request
permission to do so), ownership (including, but not limited to,
beneficial ownership as defined in Rule 13d-3 under the Exchange
Act) of any of the assets or businesses of the Company or any
securities issued by the Company, or any rights or options to
acquire such ownership (including from a third party), or make any
public announcement (or request permission to make any such
announcement) with respect to any of the foregoing, provided,
however, that the provisions of this sub-paragraph (i) shall not
apply to any acquisition of, or any agreement or offer seeking or
proposing to acquire (or requesting permission to do so), any
securities issued by the Company by your directors or officers in an
aggregate amount of up to ten per cent (10%) of the issued and
outstanding shares of capital stock of the Company, provided that
such acquisition or agreement or offer is in the ordinary course of
business and not in connection with any change of control, or
contemplated change of control, of the Company or any subsidiary
thereof, or
<PAGE>
Select Appointments (Holdings) Plc
May 21, 1999
Page 4
(ii) participate in any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with respect to the
Company or any of its subsidiaries, or
(iii) seek or propose to influence or control the management or the
policies of the Company or to obtain representation on the Company's
Board of Directors, or solicit, or participate in the solicitation
of, any proxies or consents with respect to any securities of
the Company, or make any public announcement with respect to any
of the foregoing or request permission to do any of the foregoing,
or
(iv) enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to any of the
foregoing, or
(v) take any action which might force the Company to make a public
announcement regarding any of the types of matters set forth above.
Although the Company has endeavored to include in the Evaluation Material
information which it believes to be relevant for the purpose of your
investigation, you understand that except as specifically provided hereafter in
a definitive, written agreement providing for a negotiated transaction, neither
the Company nor any of its representatives or advisors have made or make any
representation or warranty as to the accuracy or completeness of the Evaluation
Material. Except as may be specifically provided hereafter in a definitive,
written agreement providing for a negotiated transaction, you agree that neither
the Company nor its representatives or advisors shall have any liability to you
or any of your representatives resulting from the use or contents of the
Evaluation Material or from any action taken or any inaction occurring in
reliance on the Evaluation Material.
At the request of the Company or in the event that you do not proceed with a
transaction which is the subject of this letter, you and your representatives
shall promptly redeliver to the Company all written Evaluation Material and any
other written material containing or reflecting any information in the
Evaluation Material (whether prepared by the Company, its advisors, agents or
otherwise) that was delivered to you by the Company or its representatives and
will not retain any copies, extracts or other reproductions in whole or in part
of any such written material. At the request of the Company or in the event that
you do not proceed with a transaction which is the subject of this letter, all
documents, memoranda, notes and other writings whatsoever prepared by you or
your representatives based on the Evaluation Material shall be destroyed, and
such destruction shall be certified in writing to the Company by an authorized
officer supervising such destruction. The term "writing" shall include data in
computer format. Notwithstanding the return or destruction of the Evaluation
Material, you and your representatives will continue to be bound by your
obligations of confidentiality and other obligations hereunder.
<PAGE>
Select Appointments (Holdings) Plc
May 21, 1999
Page 5
You shall not knowingly export, directly or indirectly, any United States
source technical data, acquired from the Company or any company affiliated
with it or any direct product of that data, to any country for which the
United States government or any agency of that government, at the time of
export, requires an export license or other governmental approval without
first obtaining that license or approval when required by applicable United
States law. This obligation shall survive any termination or expiration of
this letter, and shall be independent of any other obligations, any
limitations thereon, and any exceptions thereto, which may be stated
elsewhere in this letter.
It is further understood and agreed that no failure or delay by the Company
in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
You understand and agree that no contract or agreement providing for any
transaction involving the Company shall be deemed to exist between you or
your shareholders and the Company unless and until a final definitive
agreement has been executed and delivered, and hereby waive, in advance, any
claims (including, without limitation, claims of breach of contract) in
connection with any transactions involving the Company unless and until you
or your shareholders and the Company shall have entered into a final
definitive agreement. You also agree that unless and until a definitive
agreement regarding a transaction between the Company and you or your
shareholders has been executed and delivered, neither the Company nor you or
your shareholders will be under any obligation of any kind whatsoever with
respect to such a transaction by virtue of this letter agreement except for
the matters specifically agreed to herein. You further acknowledge and agree
that the Company reserves the right, in its sole discretion, to reject any
and all proposals made by you or any of your representatives with regard to a
transaction between the Company and you, and to terminate discussions and
negotiations with you at any time. You further understand that (i) the
Company and its representatives shall be free to conduct any process for any
transaction involving the Company, if and as they in their sole discretion
shall determine (including, without limitation, negotiating with any other
interested parties and entering into a definitive agreement without prior
notice to you or any other person), (ii) any procedures relating to such
process or transaction may be changed at any time without notice to you or
any other person, and (iii) you shall not have any claims whatsoever against
the Company, its representatives or any of their respective directors,
officers, stockholders, owners, affiliates or agents arising out of or
relating to any transaction involving the Company (other than those as
against the parties to a definitive agreement with you in accordance with the
terms thereof) nor, unless a definitive agreement is entered into with you,
against any third party with whom a transaction is entered into. Neither this
paragraph nor any other provision in this agreement can be waived or amended
except by written consent of the Company, which consent shall specifically
refer to this paragraph (or such provision) and explicitly make such waiver
or amendment.
<PAGE>
Select Appointments (Holdings) Plc
May 21, 1999
Page 6
The parties hereto acknowledge that money damages are inadequate to protect
against any actual or threatened breach of this letter agreement because of
the difficulty of ascertaining the amount of damage that will be suffered by
the Company in the event that this agreement is breached.
Therefore, you, on behalf of yourself and your affiliates, acknowledge and
agree that in the event of any actual or threatened breach of this agreement
by you or your affiliates, and without prejudice to any rights and remedies
otherwise available to the Company, the Company shall be entitled (i) to
equitable relief by way of injunction and (ii) to compel specific performance
without the need of proof of actual damages. You and your affiliates further
agree to waiver, and upon being deemed to be a party to this agreement your
representatives will have agreed to waive, any requirement for the securing
or posting of any bond in connection with such remedies. In the event of
litigation relating to this letter agreement, if a court of competent
jurisdiction determines that you or any of your representatives have breached
this letter agreement, then you shall be liable and pay to the Company the
reasonable legal fees incurred by the Company in connection with such
litigation, including any appeal therefrom. If any term, provision, covenant
or restriction of this letter agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
This agreement shall be governed by, and construed in accordance with, the
laws of the State of Georgia, without regard to principles of conflicts of
laws.
Sincerely,
Acsys, Inc.
/s/ Brady W. Mullinax, Jr.
By: Brady W. Mullinax, Jr.
Title: Chief Financial Officer
AGREED AND ACCEPTED this
21st day of May, 1999
Select Appointments (Holdings) Plc
/s/ C. K. Z. Miles
By: C. K. Z. Miles
Title: Director
