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Exhibit (a)(1)
Offer to Purchase for Cash
Up to 21,627 Trust Units
(representing 50% of Trust Units)
of
CAPITAL PARTNERS II, LTD. LIQUIDATING TRUST
(successor in interest to Renaissance Capital Partners II, Ltd.)
at
$1,387.12 NET PER TRUST UNIT
by
SULZER MEDICA USA HOLDING CO.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, DECEMBER 26, 2000, UNLESS THE OFFER IS EXTENDED
THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT DATED AS OF NOVEMBER 17,
2000 (THE "AGREEMENT") BETWEEN SULZER MEDICA USA HOLDING CO. ("PURCHASER") AND
THOMAS W. PAUKEN, IN HIS CAPACITY AS LIQUIDATING TRUSTEE (THE "LIQUIDATING
TRUSTEE") OF CAPITAL PARTNERS II, LTD. LIQUIDATING TRUST (THE "TRUST"). THE
OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE HAVING BEEN VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST 8,651
TRUST UNITS (AS DEFINED HEREIN). THE OFFER IS ALSO SUBJECT TO CERTAIN OTHER
CONDITIONS CONTAINED IN THIS OFFER TO PURCHASE. SEE SECTIONS 1 AND 14, WHICH
SET FORTH IN FULL THE CONDITIONS TO THE OFFER.
----------------
THE BOARD OF TRUSTEES OF THE TRUST HAS UNANIMOUSLY DETERMINED THAT THE
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER (AS
DEFINED HEREIN), ARE IN THE BEST INTEREST OF THE BENEFICIARIES OF THE TRUST AND
APPROPRIATE FOR THE MANAGEMENT, CONSERVATION AND PROTECTION OF THE TRUST ESTATE
(AS DEFINED HEREIN), HAS APPROVED, ADOPTED AND DECLARED ADVISABLE THE AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER, AND HAS
RESOLVED TO RECOMMEND THAT THE BENEFICIARIES OF THE TRUST WHO DESIRE TO OBTAIN
LIQUIDITY FOR ALL OR A PORTION OF THEIR INVESTMENT ACCEPT THE OFFER AND TENDER
TRUST UNITS PURSUANT TO THE OFFER.
----------------
IMPORTANT
Any beneficiary of the Trust desiring to tender all or any portion of such
beneficiary's Trust Units should complete and sign the accompanying Transfer
Agreement (or a manually signed facsimile thereof) in accordance with the
instructions to the Transfer Agreement and mail or deliver it together with any
other required documents to the Depositary.
Questions or requests for assistance may be directed to the Information
Agent at its address and telephone numbers set forth on the back cover of this
Offer to Purchase. Additional copies of this Offer to Purchase and the Transfer
Agreement may also be obtained from the Information Agent.
----------------
November 28, 2000
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TABLE OF CONTENTS
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Page
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SUMMARY TERM SHEET................................................... i
INTRODUCTION......................................................... 1
1. Terms of the Offer; Expiration Date............................ 2
2. Acceptance for Payment and Payment for Trust Units............. 3
3. Procedures for Accepting the Offer and Tendering Trust Units... 4
4. Withdrawal Rights.............................................. 5
5. Certain U.S. Federal Income Tax Consequences................... 6
6. Price Range of Trust Units..................................... 7
7. Certain Information Concerning the Trust and the Company....... 7
8. Certain Information Concerning Purchaser....................... 10
9. Financing of the Offer and the Transactions.................... 10
10. Business Relationships and Related Agreements; Background of
the Offer and Contacts with the Trust and Related Parties; the
Agreement...................................................... 10
11. Purpose of the Offer; Plans for the Trust After the Offer and
the Transactions............................................... 16
12. Distributions.................................................. 17
13. Possible Effects of the Offer on the Market for Trust Units and
Exchange Act Registration...................................... 17
14. Certain Conditions of the Offer................................ 18
15. Certain Legal Matters and Regulatory Approvals................. 19
16. Fees and Expenses.............................................. 20
17. Miscellaneous.................................................. 20
SCHEDULES
Schedule I. Directors and Executive Officers of Purchaser
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SUMMARY TERM SHEET
This summary term sheet highlights selected information from this Offer to
Purchase, and may not contain all of the information that is important to you.
To better understand our offer to you and for a complete description of the
legal terms of the offer, you should read this entire Offer to Purchase and the
accompanying Transfer Agreement carefully. Questions or requests for assistance
may be directed to the Information Agent at its address and telephone number on
the last page of this Offer to Purchase.
WHO IS OFFERING TO BUY MY SECURITIES?
. We are Sulzer Medica USA Holding Co., a Delaware corporation. Our principal
business is the design, development, manufacture and marketing of a broad
range of orthopedic and cardiovascular products, with a focus on implantable
medical products and materials technology. We are a wholly owned subsidiary
of Sulzer Medica Ltd., which is 74% owned by Sulzer AG. We were formed for
the purpose of holding the securities of Sulzer Medica Ltd.'s U.S.
operations. See Section 8.
WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THIS OFFER?
. We are seeking to purchase up to 21,627 Trust Units of Capital Partners II,
Ltd. Liquidating Trust. The Trust was created solely for the purposes of
facilitating the liquidation of Renaissance Capital Partners II, Ltd., a
Texas limited partnership, and was established on November 17, 2000 upon an
election of the partners of the Partnership and the transfer to Capital
Partners II, Ltd. Liquidating Trust of substantially all of the assets of
the Partnership. These assets include 7,202,408 shares of the common stock,
par value $.01, of Tutogen Medical, Inc., a Florida corporation, warrants
and options to purchase an additional 703,500 shares of Tutogen's common
stock and all of the cash and other securities of the Partnership. Following
the transfer of the Partnership's assets, each holder of Partnership Units
is deemed to own the same number of Trust Units as Partnership units held by
them on the date of the transfer. See the "Introduction" and Section 1.
HOW MUCH ARE YOU OFFERING TO PAY AND WHAT IS THE FORM OF PAYMENT?
. We are offering to pay $1,387.12 per Trust Unit, net to each seller in cash
and without interest thereon. See the "Introduction" and Section 1.
. If more than 21,627 Trust Units are tendered, we will accept and purchase at
least 21,627 Trust Units from tendering beneficiaries of the Trust on a pro
rata basis, with such adjustments to eliminate fractions as we, in our sole
discretion, shall determine.
. If you tender your Trust Units in the offer, you will not be obligated to
pay brokerage fees, commissions or stock transfer taxes with respect to the
sale of your Trust Units pursuant to the offer. See the "Introduction."
WHAT ARE THE MOST SIGNIFICANT CONDITIONS OF THE OFFER?
. We are not obligated to purchase any Trust Units unless at least 8,651 Trust
Units (representing 20% of the total number of Trust Units) are validly
tendered and not withdrawn prior to the expiration of the offer. See Section
1 and Section 14.
. This and other conditions to our obligations to purchase Trust Units
tendered in the offer are described in greater detail in Sections 1 and 14.
DO YOU HAVE FINANCIAL RESOURCES TO MAKE PAYMENT?
. We have the funds necessary to purchase the Trust Units in the offer based
on our existing capital resources. See Section 9.
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IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
. Because the form of payment consists solely of cash and all of the funds
which will be needed are available, and also because Purchaser's
representation on the Trust's Board of Trustees will be limited, we do not
think the financial condition of Sulzer Medica USA Holding Co. is relevant
to your decision to tender in the offer.
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 Tuesday,
December 26, 2000, to decide whether to tender your Trust Units of Capital
Partners II, Ltd. Liquidating Trust. See Section 3.
CAN THE OFFER BE EXTENDED, AND UNDER WHAT CIRCUMSTANCES?
. We expressly reserve the right, in our sole discretion but subject to the
terms of the Agreement and applicable law, to extend the period of time
during which the offer remains open. We may extend the offer if the
conditions to the offer have not been satisfied. See Section 1.
HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
. If we decide to extend the offer, we will inform Citibank, N.A., the
Depositary, of that fact, and will issue a press release giving the new
expiration date no later than 9:00 a.m., New York City time, on the day
after the day on which the offer was previously scheduled to expire. See
Section 1.
HOW DO I TENDER MY TRUST UNITS?
. To tender your Trust Units in the offer, you must complete and sign the
accompanying Transfer Agreement (or a manually signed facsimile of the
Transfer Agreement) in accordance with the instructions to the Transfer
Agreement and mail or deliver it together with any other required documents
to the Depositary.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED TRUST UNITS?
. You may withdraw previously tendered Trust Units any time prior to the
expiration of the offer, and, unless we have accepted the Trust Units
pursuant to the offer, you may also withdraw any tendered Trust Units at any
time after January 26, 2001. See Section 4.
HOW DO I WITHDRAW PREVIOUSLY TENDERED TRUST UNITS?
. To withdraw previously tendered Trust Units, you must deliver a written or
facsimile notice of withdrawal with the required information to Citibank,
N.A. while you still have the right to withdraw. See Section 4.
WHAT DOES CAPITAL PARTNERS II, LTD. LIQUIDATING TRUST'S BOARD OF TRUSTEES THINK
OF THE OFFER?
. The Board of Trustees of Capital Partners II, Ltd. Liquidating Trust has
unanimously determined that the Agreement and the transactions contemplated
thereby, including the Offer, are in the best interests of the beneficiaries
of the Trust and appropriate for the management, conservation and protection
of the Trust Estate, has approved, adopted and declared advisable the
Agreement and the transactions contemplated thereby, including the Offer,
and has resolved to recommend that the beneficiaries of the Trust who desire
to obtain liquidity for all or a portion of their investment tender Trust
Units pursuant to the offer.
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY TRUST UNITS?
. As there is currently no trading market for the Trust Units and the trust
agreement governing the Trust prohibits transfer of the interests of
beneficiaries in the Trust without consent of the Liquidating Trustee, we do
not expect this offer or the transactions contemplated by the offer to cause
any changes in the ability to transfer or trade the Trust Units.
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. As a result of the transfer of substantially all the assets of the
Partnership into the Trust, we have been advised by the Liquidating Trustee
that the Trust is a successor in interest to the Partnership and the Trust
Units are deemed to be registered pursuant to the Securities and Exchange
Act of 1934. If we purchase 21,627 Trust Units in the offer, we expect that
there will still be more than 300 remaining beneficiaries in the Trust.
Therefore, we understand that the Trust will be subject to the reporting
requirements of the Securities and Exchange Act of 1934 and we believe that,
until the completion of the liquidation, the Trust will continue to file
Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, reporting on
financial and other material information about the Trust.
WITH WHOM MAY I TALK IF I HAVE QUESTIONS ABOUT THE OFFER?
. You can call Innisfree M&A Incorporated, the Information Agent, at (212)
750-5833 or (888) 750-5834. See the back cover of this Offer to Purchase.
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To the Holders of Trust Units of
Capital Partners II, Ltd. Liquidating Trust:
INTRODUCTION
Sulzer Medica USA Holding Co., a Delaware corporation ("Purchaser"), hereby
offers to purchase 21,627 trust units ("Trust Units") (representing 50% of the
Trust Units), of Capital Partners II, Ltd. Liquidating Trust (successor in
interest to Renaissance Capital Partners II, Ltd.), a liquidating trust (the
"Trust"), created pursuant to the Liquidating Trust Agreement (the "Trust
Agreement") dated November 17, 2000 among Thomas W. Pauken, as liquidation
trustee of Renaissance Capital Partners II, Ltd., a Texas limited partnership
(the "Partnership" or "RCP"), the Liquidating Trustee and Ken Reimer and Robert
Farone, as supervising trustees under the Trust Agreement (each a "Supervising
Trustee"), for $1,387.12 per Trust Unit, net to the seller in cash, without
interest, upon the terms and subject to the conditions set forth in this Offer
to Purchase and in the related Transfer Agreement (which, together with this
Offer to Purchase and any amendments or supplements hereto or thereto,
collectively constitute the "Offer"). See Section 8 for additional information
concerning Purchaser.
The Trust was created on November 17, 2000, pursuant to a vote of the
limited partners of RCP at a Special Meeting of Limited Partners held on
November 17, 2000. The Trust was created solely for the purpose of facilitating
the liquidation of the Partnership and, pursuant to the Trust Agreement,
substantially all of the Partnership's assets were transferred into the Trust.
The Trust assets include 7,202,408 shares of common stock ("Company Common
Stock"), par value $.01, of Tutogen Medical, Inc. (the "Company" or "Tutogen"),
warrants and options to purchase an additional 703,500 shares of Company Common
Stock and all of the cash and other securities of the Partnership
(collectively, the "Trust Estate"). Following the transfer of the Partnership
assets, each holder of Partnership units is deemed to own an equivalent number
of Trust Units. The Liquidating Trustee has advised Purchaser that as of
November 17, 2000, 43,254 Trust Units were outstanding.
Tendering Trust beneficiaries (the "Beneficiaries") will not be obligated to
pay brokerage fees, commissions or stock transfer taxes with respect to the
purchase of Trust Units by Purchaser pursuant to the Offer. However, any
tendering Beneficiary or other payee who fails to complete and sign the
Substitute Form W-9 that is included in the Transfer Agreement may be subject
to required back-up withholding of U.S. federal income tax at a 31% rate in
respect of the gross proceeds payable to such Beneficiary or other payee
pursuant to the Offer. See Section 5. Purchaser will pay all charges and
expenses of Citibank, N.A. (the "Depositary") and Innisfree M&A Incorporated
(the "Information Agent") incurred in connection with the Offer. See
Section 16.
THE BOARD OF TRUSTEES OF THE TRUST (THE "BOARD") HAS UNANIMOUSLY DETERMINED
THAT THE AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE
OFFER, ARE IN THE BEST INTEREST OF THE BENEFICIARIES OF THE TRUST AND
APPROPRIATE FOR THE MANAGEMENT, CONSERVATION AND PROTECTION OF THE TRUST
ESTATE, HAS APPROVED, ADOPTED AND DECLARED ADVISABLE THE AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER, AND HAS RESOLVED TO
RECOMMEND THAT BENEFICIARIES OF THE TRUST WHO DESIRE TO OBTAIN LIQUIDITY FOR
ALL OR A PORTION OF THEIR INVESTMENT ACCEPT THE OFFER AND TENDER TRUST UNITS
PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE HAVING BEEN VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST 8,651
TRUST UNITS (REPRESENTING 20% OF THE TOTAL NUMBER OF TRUST UNITS) (THE "MINIMUM
CONDITION"). THE OFFER IS ALSO SUBJECT TO CERTAIN OTHER CONDITIONS CONTAINED IN
THIS OFFER TO PURCHASE. SEE SECTIONS 1 AND 14, WHICH SET FORTH IN FULL THE
CONDITIONS TO THE OFFER.
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The Offer is being made pursuant to an Agreement dated as of November 17,
2000 (the "Agreement") between Purchaser and the Liquidating Trustee. The
Agreement is more fully described in Section 10. Certain U.S. federal income
tax consequences of the sale of Trust Units pursuant to the Offer and the
transactions contemplated by the Agreement and the Transfer Agreements (the
"Transactions"), as the case may be, are described in Section 5.
The Agreement provides that, promptly upon the purchase by Purchaser of
Trust Units pursuant to the Offer and from time to time thereafter, for so long
as Purchaser owns at least 35% of the then outstanding Trust Units, Purchaser
shall be entitled to designate supervising trustees constituting one-third of
the Board of Trustees, rounded up to the next whole number. In the Agreement,
the Board, including the Liquidating Trustee, has agreed, at such time, to
promptly take all actions necessary to cause Purchaser's designees to be
elected as supervising trustees of the Trust, including increasing the size of
the Board or securing the resignations of incumbent supervising trustees, or
both.
THIS OFFER TO PURCHASE AND THE RELATED TRANSFER AGREEMENT AND INSTRUCTIONS
THERETO CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION
IS MADE WITH RESPECT TO THE OFFER.
1. Terms of the Offer; Expiration Date.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of such extension or
amendment), Purchaser will accept for payment and pay for up to 21,627 Trust
Units validly tendered (and not withdrawn in accordance with the procedures set
forth in Section 4) on or prior to the Expiration Date. "Expiration Date" means
12:00 midnight, New York City time, on Tuesday, December 26, 2000, unless and
until Purchaser (subject to the terms and conditions of the Agreement) shall
have extended the period during which the Offer is open, in which case
Expiration Date shall mean the latest time and date at which the Offer, as may
be extended by Purchaser, shall expire.
The Offer is subject to the conditions set forth under Section 14, including
the satisfaction of the Minimum Condition. Subject to the applicable rules and
regulations of the Securities and Exchange Commission (the "Commission") and
subject to the terms and conditions of the Agreement, Purchaser expressly
reserves the right to waive any such condition in whole or in part, in its sole
discretion. Subject to the applicable rules and regulations of the Commission
and subject to the terms and conditions of the Agreement, Purchaser also
expressly reserves the right to increase the price per Trust Unit payable in
the Offer and to make any other changes in the terms and conditions of the
Offer; provided, however, that the Purchaser may not, without the prior consent
of the Liquidating Trustee, decrease the price per Trust Unit payable in the
Offer, reduce the number of Trust Units to be purchased in the Offer or impose
conditions to the Offer in addition to those set forth in Section 14.
The Agreement provides that Purchaser may, without the consent of the
Liquidating Trustee, (i) extend the Offer beyond the scheduled expiration date,
which shall be 20 business days following the commencement of the Offer, if, at
the scheduled expiration of the Offer, any of the conditions to Purchaser's
obligation to accept for payment Trust Units, shall not be satisfied or waived,
or (ii) extend the Offer for any period required by any rule, regulation or
interpretation of the Commission, or the staff thereof, applicable to the
Offer.
Purchaser shall pay for up to 21,627 Trust Units validly tendered and not
withdrawn promptly following the acceptance of Trust Units for payment pursuant
to the Offer. If more than 21,627 Trust Units are so tendered, the Purchaser
shall accept and purchase at least 21,627 Trust Units from the tendering
Beneficiaries on a pro rata basis, with such adjustments to eliminate fractions
as the Purchaser, in its sole discretion, shall determine. Notwithstanding the
immediately preceding sentence and subject to the applicable rules of the
Commission and the terms and conditions of the Offer, Purchaser also expressly
reserves the right to delay payment for Trust Units in order to comply in whole
or in part with applicable laws (any such delay shall be
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effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), which requires Purchaser to pay the
consideration offered or to return Transfer Agreements deposited by or on
behalf of Beneficiaries promptly after the termination or withdrawal of the
Offer).
Any such extension, delay, termination, waiver or amendment will be followed
as promptly as practicable by public announcement thereof, such announcement in
the case of an extension to be made no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
Subject to applicable law (including Rules 14d-4(d), 14d-6(c) and 14e-1 under
the Exchange Act, which require that material changes be promptly disseminated
to Beneficiaries in a manner reasonably designed to inform them of such
changes) and without limiting the manner in which Purchaser may choose to make
any public announcement, Purchaser will have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a press release to the Dow Jones News Service or the Public Relations
Newswire.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, Purchaser will extend the Offer to the extent required by Rules l4d-
4(d), l4d-6(c) and 14e-1 under the Exchange Act. Subject to the terms of the
Agreement, if, prior to the Expiration Date, Purchaser should decide to
decrease the number of Trust Units being sought or to increase or decrease the
consideration being offered in the Offer, such decrease in the number of Trust
Units being sought or such increase or decrease in the consideration being
offered will be applicable to all Beneficiaries whose Trust Units are accepted
for payment pursuant to the Offer and, if at the time notice of any such
decrease in the number of Trust Units being sought or such increase or decrease
in the consideration being offered is first published, sent or given to holders
of such Trust Units, the Offer is scheduled to expire at any time earlier than
the period ending on the tenth business day from and including the date that
such notice is first so published, sent or given, the Offer will be extended at
least until the expiration of such ten business day period.
For purposes of the Offer, a "business day" means any day on which the
principal offices of the Commission in Washington, D.C. are open to accept
filings, or, in the case of determining a date when any payment is due, any day
on which banks are not required or authorized to close in The City of New York,
and consists of the time period from 12:01 a.m. through 12:00 midnight, New
York City time.
The Trust has provided Purchaser with the Trust's Beneficiary list and Trust
Unit position listings, including the most recent list of names, addresses and
Trust Unit positions for the purpose of disseminating the Offer to
Beneficiaries of the Trust. This Offer to Purchase and the related Transfer
Agreement will be mailed by Purchaser to record Beneficiaries whose names
appear on the Trust's Beneficiary list.
2. Acceptance for Payment and Payment for Trust Units.
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), Purchaser will accept for payment up to 21,627 Trust Units validly
tendered (and not properly withdrawn in accordance with Section 4) prior to the
Expiration Date promptly after the occurrence of the Expiration Date. If more
than 21,627 Trust Units are so tendered, the Purchaser shall accept and
purchase at least 21,627 Trust Units from such Beneficiaries on a pro rata
basis, with such adjustments to eliminate fractions as the Purchaser, in its
sole discretion, shall determine. Purchaser shall pay for such Trust Units
promptly following the acceptance of Trust Units for payment pursuant to the
Offer. Notwithstanding the immediately preceding sentence and subject to
applicable rules and regulations of the Commission and the terms of the
Agreement, Purchaser expressly reserves the right to delay payment for Trust
Units in order to comply in whole or in part with applicable laws. See Sections
1 and 15.
In all cases, payment for Trust Units tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of the Transfer Agreements (or a manually signed facsimile thereof), properly
completed and duly executed, with any required signature guarantees and any
other documents required under the Transfer Agreement.
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For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) up to 21,627 Trust Units validly tendered and
not properly withdrawn as, if and when Purchaser gives oral or written notice
to the Depositary of Purchaser's acceptance for payment of such Trust Units
pursuant to the Offer. Upon the terms and subject to the conditions of the
Offer, payment for Trust Units accepted for payment pursuant to the Offer will
be made by deposit of the purchase price therefor with the Depositary, which
will act as agent for tendering Beneficiaries for the purpose of receiving
payments from Purchaser and transmitting such payments to tendering
Beneficiaries whose Trust Units have been accepted for payment. Under no
circumstances will interest on the purchase price for Trust Units be paid,
regardless of any delay in making such payment. The Depositary will also notify
each tendering Beneficiary of the total number of Trust Units accepted for
payment by the Purchaser and the total number of untransferred Trust Units
which continue to be held by the Beneficiary.
Purchaser reserves the right to transfer or assign, in whole or from time to
time in part, to one or more of its affiliates, the right to purchase all or
any portion of the Trust Units tendered pursuant to the Offer, but any such
transfer or assignment will not relieve Purchaser of its obligations under the
Offer and will in no way prejudice the rights of tendering Beneficiaries to
receive payment for Trust Units validly tendered and accepted for payment
pursuant to the Offer.
3. Procedures for Accepting the Offer and Tendering Trust Units.
In order for a Beneficiary validly to tender Trust Units pursuant to the
Offer, the Transfer Agreement (or a manually signed facsimile thereof),
properly completed and duly executed, together with any required signature
guarantees and any other documents required by the Transfer Agreement, must be
received by the Depositary at its address set forth on the back cover of this
Offer to Purchase.
THE METHOD OF DELIVERY OF TRANSFER AGREEMENTS AND ALL OTHER REQUIRED
DOCUMENTS IS AT THE OPTION AND RISK OF THE TENDERING BENEFICIARY, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. 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.
Signature Guarantees. Signatures on all Transfer Agreements must be
guaranteed by a firm which is a member of the Security Transfer Agent Medallion
Signature Program, or by any other "eligible guarantor institution," as such
term is defined in Rule 17Ad-15 under the Exchange Act (each of the foregoing
being referred to as an "Eligible Institution"), except in cases where Trust
Units are tendered for the account of an Eligible Institution. See Instructions
1 and 5 of the Transfer Agreement.
In all cases, payment for Trust Units tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of the Transfer Agreements properly completed and duly executed, together with
any required signature guarantees and any other documents required by the
Transfer Agreement.
Determination of Validity. All questions as to the form of documents and the
validity, form, eligibility (including time of receipt) and acceptance for
payment of any tender of Trust Units will be determined by Purchaser, in its
sole discretion, which determination shall be final and binding on all parties.
Purchaser reserves the absolute right to reject any and all tenders determined
by it not to be in proper form or the acceptance for payment of which may, in
the opinion of its counsel, be unlawful. Purchaser also reserves the absolute
right to waive any condition of the Offer to the extent permitted by applicable
law and the Agreement or any defect or irregularity in the tender of any Trust
Units of any particular Beneficiary, whether
or not similar defects or irregularities are waived in the case of other
Beneficiaries. No tender of Trust Units will be deemed to have been validly
made until all defects and irregularities have been cured or waived. None of
Purchaser or any of its respective affiliates or assigns, the Depositary, the
Information Agent or
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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. Purchaser's interpretation of the terms and conditions of the
Offer (including the Transfer Agreement and the Instructions thereto) will be
final and binding.
A tendering Beneficiary will have represented and warranted, pursuant to its
Transfer Agreement, that such Beneficiary (i) has the full power and authority
to tender, sell, assign and transfer the tendered Trust Units and (ii) when the
same are accepted for payment by Purchaser, Purchaser will acquire good and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and not subject to any adverse claims.
Because the Trust is a successor entity to the Partnership, and the Trust
Units may be deemed to be distributions to the holders of Partnership units, a
lien, restriction, charge or encumbrance existing on November 17, 2000 on a
Partnership unit may also attach to the related Trust Unit. Any tendering
Beneficiary who holds any Partnership units that are subject to any lien,
restriction, charge or encumbrance should seek legal advice regarding its
ability to make the above representations.
A tendering Beneficiary will also agree, pursuant to its Transfer Agreement
that it will indemnify and hold harmless each of the Purchaser and the
Depositary against any and all losses, claims, liabilities, expenses and
damages (including any and all investigative, legal and other expenses incurred
in connection with, and any amount paid in settlement of, any action, suit or
proceeding, or any claim asserted) arising, in whole or in part, from any
inaccuracy in the representations of the tendering Beneficiary in such
Beneficiary's Transfer Agreement.
The acceptance for payment by Purchaser of Trust Units pursuant to the
procedures described above will constitute a binding agreement between the
tendering Beneficiary and Purchaser upon the terms and subject to the
conditions of the Offer.
Under the "backup withholding" provisions of U.S. federal income tax law,
the Depositary may be required to withhold 31% of any payments of cash pursuant
to the Offer. To prevent such backup withholding with respect to payment to
certain Beneficiaries of the purchase price of Trust Units pursuant to the
Offer, each such Beneficiary must provide the Depositary with such
Beneficiary's correct taxpayer identification number and certify that such
Beneficiary is not subject to backup withholding by completing the Substitute
Form W-9 in the Transfer Agreement. See Instruction 9 of the Transfer
Agreement.
4. Withdrawal Rights.
Tender of Trust Units made pursuant to the Offer are irrevocable except that
such Trust Units may be withdrawn at any time prior to the Expiration Date and,
unless theretofore accepted for payment by Purchaser pursuant to the Offer, may
also be withdrawn at any time after January 26, 2001. If Purchaser extends the
Offer, is delayed in its acceptance for payment of Trust Units or is unable to
accept Trust Units for payment pursuant to the Offer for any reason, then,
without prejudice to Purchaser's rights under the Offer, the Depositary may,
nevertheless, on behalf of Purchaser, retain tendered Trust Units, and such
Trust Units may not be withdrawn except to the extent that tendering
Beneficiaries are entitled to withdrawal rights as described in this Section 4,
subject to Rule 14e-1(c) under the Exchange Act. Any such delay will be by an
extension of the Offer to the extent required by law.
For a withdrawal to be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Depositary at its address set
forth on the back cover page of this Offer to Purchase. Any such notice of
withdrawal must specify the name of the person who tendered the Trust Units to
be withdrawn, the number of Trust Units to be withdrawn and the name of the
registered holder of such Trust Units. If Transfer Agreements evidencing Trust
Units to be withdrawn have been delivered or otherwise identified to the
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Depositary, then, prior to the transfer of such Trust Units to the withdrawing
Beneficiary, the signature(s) on the notice of withdrawal must be guaranteed by
an Eligible Institution, unless such Trust Units have been tendered for the
account of an Eligible Institution.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination will be final and binding. None of Purchaser or any of its
respective affiliates or assigns, the Depositary, the Information Agent or any
other person will be under any duty to give any notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure
to give any such notification.
Withdrawals of Trust Units may not be rescinded. Any Trust Units properly
withdrawn will thereafter be deemed not to have been validly tendered for
purposes of the Offer. However, withdrawn Trust Units may be re-tendered at any
time prior to the Expiration Date by following one of the procedures described
in Section 3.
5. Certain U.S. Federal Income Tax Consequences.
The following is a summary of the principal U.S. federal income tax
consequences of the Offer and the Transactions to Beneficiaries whose Trust
Units are purchased pursuant to the Offer. The discussion applies only to
Beneficiaries that are citizens or residents of the United States, and that
acquired their Trust Units from the Partnership in connection with the initial
formation of the Trust. The discussion does not purport to address all of the
U.S. federal income tax consequences that may be relevant to the particular
circumstances of Beneficiaries, and it may not apply to Beneficiaries subject
to special rules under U.S. federal income tax law.
The discussion set forth below is included for general information purposes
only and is based upon present U.S. federal income tax law. Because individual
circumstances may differ, each Beneficiary should consult such Beneficiary's
own tax advisor in order to determine the applicability of the rules discussed
below to such Beneficiary and the particular tax effects of the Offer and the
Transactions, including the application and effect of state, local and other
tax laws.
The Trust is intended to be classified as a grantor trust under current U.S.
federal income tax law. As such, for U.S. federal income tax purposes, each of
the Beneficiaries would be treated as directly owning a proportionate interest
in the assets comprising the Trust Estate (primarily shares of Company Common
Stock and warrants to purchase additional shares of such stock). The Trust has
not obtained, and may not apply for, a ruling from the U.S. Internal Revenue
Service (the "IRS") regarding its status as a grantor trust, and no assurance
can be given that the IRS would not be able to successfully assert an
alternative characterization of the Trust.
Assuming that the Trust is a grantor trust for U.S. federal income tax
purposes, the sale of Trust Units by a Beneficiary pursuant to this Offer would
be treated as a taxable sale of such Beneficiary's proportionate interest in
the assets comprising the Trust Estate. As a result of such sale, a Beneficiary
generally would recognize gain or loss in an amount equal to the difference
between the cash paid for the tendered Trust Units and the Beneficiary's
adjusted tax basis therein. Such gain or loss generally would be capital gain
or loss, except to the extent attributable to certain assets within the Trust
Estate that previously were held by the Partnership as other than capital
assets.
Certain Beneficiaries (including individuals) are eligible for preferential
rates of U.S. federal income taxation in respect of capital gains derived from
the sale or other assets that have been held from more than 12 months. For this
purpose, assets within the Trust Estate generally would have a holding period
that includes the period during which such assets were owned by the
Partnership. The deduction of capital losses is subject to certain limitations
under U.S. federal income tax law.
Beneficiaries are urged to consult their own tax advisors regarding the
classification of the Trust and the consequences of tendering Trust Units for
sale pursuant to this Offer under U.S. federal income tax law, as well as under
the tax laws of any state, local and other relevant jurisdiction.
6
<PAGE>
Payments in connection with the Offer may be subject to backup withholding
at a 31% rate. Backup withholding generally applies if a tendering Beneficiary
(i) fails to furnish such tendering Beneficiary's social security number or
taxpayer identification number ("TIN"), (ii) furnishes an incorrect TIN, (iii)
fails properly to report interest or dividends or (iv) under certain
circumstances, fails to provide a certified statement, signed under penalties
of perjury, that such tendering Beneficiary is not subject to backup
withholding. Certain persons, including corporations and financial
institutions, generally are exempt from backup withholding. Backup withholding
is not an additional tax but merely an advance payment, which may be refunded
to the extent it results in an overpayment of tax. Certain penalties apply for
failure to furnish correct TINs or other information, and for failure to
include reportable payments in income. Beneficiaries should consult with their
own tax advisors as to eligibility for exemption from backup withholding and
the procedure for obtaining such exemption.
6. Price Range of Trust Units.
The Trust Units are not listed or traded on any exchange. The Liquidating
Trustee has advised Purchaser that as of November 17, 2000, 43,254 Trust Units
were issued and outstanding.
7. Certain Information Concerning the Trust and the Company.
Except as otherwise set forth in this Offer to Purchase, all of the
information concerning the Trust and the Company contained in this Offer to
Purchase, including financial information, has been furnished by the
Liquidating Trustee or has been taken from or based upon publicly available
documents and records on file with the Commission and other public sources.
Purchaser does not assume any responsibility for the accuracy or completeness
of the information concerning the Trust and the Company furnished by the
Liquidating Trustee or contained in such documents and records or for any
failure by the Liquidating Trustee to disclose events which may have occurred
or may affect the significance or accuracy of any such information but which
are unknown to Purchaser.
General. The Trust is a liquidating trust with its principal executive
offices located at 5646 Milton Street, Suite 900, Dallas, Texas 75206,
telephone number: (214) 378-9340. The Trust is a liquidating trust created on
November 17, 2000, pursuant to a vote of the limited partners of RCP at a
Special Meeting of Limited Partners held on November 17, 2000. The trust was
created solely for purposes of facilitating the liquidation of the Partnership
and, pursuant to the Trust Agreement, substantially all of the assets of the
Partnership were transferred into the Trust. The Trust's principal assets are
7,202,408 shares of Company Common Stock (which is a majority of the
outstanding Company Common Stock) and warrants and options to purchase an
additional 703,500 shares of Company Common Stock. The Liquidating Trustee has
advised Purchaser that as of November 17, 2000, 43,254 Trust Units were
outstanding, and there is currently no trading market for the Trust Units.
Purchaser has been advised that the Partnership has not made any distributions
since 1998 when $1.0 million was distributed to the limited partners, and in
light of the liquidation of the Partnership, it is unlikely that there will be
any distributions to the Beneficiaries until the assets of the Trust have been
liquidated.
As the Trust is a newly constituted entity, no meaningful financial
information regarding the Trust is available at this time. However, given that
the principal assets of the Trust are the Company Common Stock and warrants and
options to purchase Company Common Stock, we have provided financial
information regarding the Company. Tutogen is located at 925 Allwood Road,
Clifton, New Jersey 07012, telephone number: (973) 365-2799. As of June 30,
2000 there were outstanding 13,337,134 shares of Company Common Stock.
Financial Information. Set forth below is certain selected consolidated
financial information relating to the Company and its subsidiaries which has
been excerpted or derived from the audited financial statements contained in
the Company's Annual Report on Form 10-K for the fiscal year ended September
30, 1999 ("Form 10-K") and the unaudited financial statements contained in the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2000
("Form 10-Q"). Such Form 10-K and Form 10-Q are each incorporated herein by
reference. More comprehensive financial information is included in the Form 10-
K, the
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<PAGE>
Form 10-Q and other documents filed by the Company with the Commission. The
summary financial information that follows is qualified in its entirety by
reference to such reports and other documents, including the financial
statements and related notes contained therein. Such reports and other
documents may be examined and copies may be obtained from the offices of the
Commission in the manner set forth below.
The financial information as of and for the nine-month period ended June 30,
2000 has not been audited and, in the opinion of management of the Company,
reflects all adjustments (consisting of normal recurring adjustments) which are
necessary for a fair presentation of such information. Results for the nine-
month periods are not necessarily indicative of results for the full year.
Tutogen and subsidiaries
Selected Consolidated Financial Information
(in thousands, except per share data)
Consolidated Balance Sheets
<TABLE>
<CAPTION>
As of
---------------------------------------
September 30, September 30, June 30,
1999 1998 2000
------------- ------------- -----------
(unaudited)
<S> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents........... $ 376 $ 357 $ 3,928
Accounts receivable................. 2,020 1,685 2,137
Inventories......................... 5,354 4,435 5,536
Other current assets................ 533 173 721
------- ------- -------
8,283 6,650 12,322
Property, plant and equipment, net.... 2,655 2,995 3,021
Intangible and other assets, net...... 182 596 49
------- ------- -------
TOTAL ASSETS.......................... $11,120 $10,241 $15,392
======= ======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable.................... $ 874 $ 1,010 $ 835
Other liabilities................... -- 189 635
Other accrued expenses.............. 897 953 992
Revolving credit arrangements....... 1,149 895 --
Current portion of long-term debt... 136 162 20
------- ------- -------
3,056 3,209 2,482
Other Liabilities
Long-term debt...................... 1,404 3,644 1,114
Other long-term obligations......... 46 17 41
Shareholders' Equity.................. 6,614 3,371 11,755
------- ------- -------
TOTAL LIABILITIES AND SHAREHOLDERS'
EQUITY............................... $11,120 $10,241 $15,392
======= ======= =======
</TABLE>
8
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Consolidated Statements of Operations
<TABLE>
<CAPTION>
Years Ended Nine Months Ended
September 30, June 30,
----------------------- -----------------------
1999 1998 2000 1999
---------- ----------- ----------- ----------
<S> <C> <C> <C> <C>
Revenue..................... $ 11,464 $ 8,912 $ 12,165 $ 7,822
Cost of Revenue............. 6,009 4,545 6,421 4,506
---------- ----------- ----------- ----------
Gross margin.............. 5,455 4,367 5,744 3,316
Operating Expenses:
General and
administrative........... 2,210 2,017 1,745 1,564
Distribution and
marketing................ 2,114 1,456 1,964 1,489
Research and development.. 418 292 191 279
Depreciation and
amortization............. 473 644 172 361
---------- ----------- ----------- ----------
Total operating expenses.... 5,215 4,409 4,072 3,693
---------- ----------- ----------- ----------
OPERATING INCOME (LOSS)..... 240 (42) 1,672 (377)
Other Income (expense)...... (455) (526) -- --
Distribution fee income... -- -- (1,000) --
Loss on Conversion of
Debt..................... 187 -- -- 187
Other (income) expense.... -- -- (126) (133)
Interest Expense.......... 241 362 162 183
---------- ----------- ----------- ----------
Income Before Income Taxes.. 267 122 2,636 (614)
Income Tax.................. (147) -- 111 --
---------- ----------- ----------- ----------
NET INCOME (LOSS)........... 414 122 2,525 (614)
Other Comprehensive Income:
Foreign currency
translation adjustments.. (338) 219 -- --
---------- ----------- ----------- ----------
Comprehensive Income........ $ 76 $ 341 $ -- $ --
========== =========== =========== ==========
Average Shares Outstanding
for Basic Earnings Per
Share...................... 9,418,384 5,017,178 11,349,134 8,925,453
========== =========== =========== ==========
Basic Earnings Per Share.... $ 0.04 $ 0.02 $ 0.22 $ (0.07)
========== =========== =========== ==========
Average Shares Outstanding
for Diluted Earnings Per
Share...................... 9,508,607 10,794,554 13,471,418 7,972,909
========== =========== =========== ==========
Diluted Earning Per Share... $ 0.04 $ 0.01 $ 0.19 $ (0.06)
========== =========== =========== ==========
</TABLE>
Available Information. The Partnership and Company are subject to the
informational filing requirements of the Exchange Act and, in accordance
therewith, are required to file periodic reports, proxy statements and/or other
information with the Commission relating to each of their respective business,
financial condition and other matters. As a successor in interest to the
Partnership, the Trust will also be subject to the reporting requirements of
the Exchange Act. Information as of particular dates concerning the Company's
directors and officers, their remuneration, stock options granted to them, the
principal holders of the Company's securities and any material interest of such
persons in transactions with the Company is required to be disclosed in proxy
statements distributed to the Company's stockholders and filed with the
Commission. Such reports, proxy statements and other information should be
available for inspection at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and also should be available for inspection at the Commission's regional
offices located at Seven World Trade Center, 13th Floor, New York, New York
10048 and the Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such materials may also be obtained by
mail, upon payment of the Commission's customary fees, by writing to its
principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. The Commission also maintains a World Wide Website on the Internet at
http://www.sec.gov that contains reports and other information regarding
issuers that file electronically with the Commission.
9
<PAGE>
8. Certain Information Concerning Purchaser.
General. Purchaser is a Delaware corporation. Its principal offices are
located at 3 Greenway Plaza, Suite 1600, Houston, Texas 77046-0391, telephone
number: (713) 561-6300. Purchaser's principal business is the design,
development, manufacture and marketing of a broad range of orthopedic and
cardiovascular products, with a focus on implantable medical products and
materials technology. Purchaser is a wholly owned subsidiary of Sulzer Medica
Ltd., which is 74% owned by Sulzer AG. Purchaser was formed for the purpose of
holding the securities of Sulzer Medica Ltd.'s U.S. operations.
The name, citizenship, business address, business telephone number,
principal occupation or employment, and five-year employment history for each
of the directors and executive officers of Purchaser, Sulzer Medica Ltd. and
Sulzer AG and certain other information are set forth in Schedule I hereto.
Except as described in this Offer to Purchase and in Schedule I hereto, neither
Purchaser nor, to the best knowledge of Purchaser, any of the persons listed on
Schedule I to the Offer of Purchase has during the last five years (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to 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 finding any violation of such laws.
Except as described in this Offer to Purchase, (i) neither of Purchaser nor,
to the best knowledge of Purchaser, any of the persons listed in Schedule I to
this Offer to Purchase or any associate or majority owned subsidiary of
Purchaser or any of the persons so listed, beneficially owns or has any right
to acquire any Trust Units or Partnership Units and (ii) neither of Purchaser
nor, to the best knowledge of, any of the persons or entities referred to above
nor any director, executive officer or subsidiary of any of the foregoing has
affected any transaction in the Trust Units or Partnership Units during the
past 60 days.
Except as provided in the Agreement and as otherwise described in this Offer
to Purchase, neither Purchaser nor Parent, to the best knowledge of Purchaser,
any of the persons listed in Schedule I to this Offer to Purchase, has any
agreement, arrangement, understanding or relationship, whether or not legally
enforceable, with any other person with respect to any securities of the Trust,
the Partnership or Tutogen, including, but not limited to, the transfer or
voting of such securities, joint ventures, loan or option arrangements, puts or
calls, guaranties of loans, guaranties against loss or the giving or
withholding of proxies, consents or authorizations. Except as set forth in this
Offer to Purchase, since January 1, 1997, neither Purchaser nor, to the best
knowledge of Purchaser, any of the persons listed on Schedule I hereto, has had
any transaction with the Trust or the Partnership or any of its executive
officers, directors or affiliates that is required to be reported under the
rules and regulations of the Commission applicable to the Offer. Except as set
forth in this Offer to Purchase, since January 1, 1997, there have been no
negotiations, transactions or material contacts between any of Purchaser or any
of its respective subsidiaries or, to the best knowledge of Purchaser, any of
the persons listed in Schedule I to this Offer to Purchase, on the one hand,
and the Trust, the Partnership, the Company, or their respective affiliates, on
the other hand, concerning a merger, consolidation or acquisition, tender offer
for or other acquisition of any class of any of their securities, an election
of any of their directors or Trustees or a sale or other transfer of a material
amount of any of their assets of the Trust.
9. Financing of the Offer and the Transactions.
The total amount of funds required by Purchaser to consummate the Offer and
the transactions thereby and to pay related fees and expenses is estimated to
be approximately $30.4 million. Purchaser will obtain all of such funds from
available cash. Purchaser has no alternative financing arrangements or
financing plans.
10. Business Relationships and Related Agreements; Background of the Offer and
Contacts with the Trust and Related Parties; the Agreement.
Business Relationship and Related Agreements.
Purchaser has a strategic business relationship with Tutogen and its
subsidiaries through Purchaser's Spine Care and Dental Care businesses. In
March 2000, one of Purchaser's affiliates in the Spine Care business and
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<PAGE>
Purchaser's parent company entered into four agreements with Tutogen, agreeing
to pay $3.0 million in connection therewith. These agreements were (i) a U.S.
Service Agreement, pursuant to which Purchaser's affiliate has the exclusive
right to provide marketing and support services for Tutogen's distribution of
processed allograft and xenograft tissue products for spine fusion applications
in the United States; (ii) an International Distribution Agreement, pursuant to
which Purchaser's affiliate has the exclusive right to distribute Tutogen's
processed allograft and xenograft tissue products for spine fusion applications
outside the United States; (iii) a Processed Tissue Development and License
Agreement, pursuant to which the parties collaborate on the development of
specialized allograft and xenograft tissue products for spine fusion
applications and pursuant to which Tutogen licenses to Purchaser related
intellectual property; and (iv) an option agreement pursuant to which Tutogen
granted Purchaser's affiliates exclusive distribution rights of Tutogen's
allograft and xenograft products in certain dental, fracture care and joint
care applications. At the same time, Purchaser's affiliates entered into an
Umbrella Agreement with affiliates of the Company in order to establish an
order of precedence among the above agreements.
Most recently, in September 2000, another affiliate of Purchaser in the
Dental Care business entered into three agreements with Tutogen, agreeing to
pay $1.0 million in connection therewith. These agreements were (i) a U.S.
Service Agreement, pursuant to which Purchaser's affiliate has the exclusive
right to provide marketing and support services for Tutogen's distribution of
processed allograft and xenograft tissue products for dental applications in
the United States; (ii) a Xenograft Distribution Agreement, pursuant to which
Purchaser's affiliate has the exclusive right to distribute Tutogen's xenograft
tissue products for dental applications outside of the United States; and (iii)
a Processed Tissue Development and License Agreement, pursuant to which the
parties collaborate on the development of specialized allograft and xenograft
tissue products for dental applications and pursuant to which Tutogen licenses
to Purchaser related intellectual property.
Other than the amounts set forth above, there have been no material payments
under any of the above agreements. Because all of the agreements discussed
above were negotiated and entered into prior to the acquisition by Purchaser or
any of its affiliates of any substantial equity interest in the Company, the
terms of these agreements were established on the basis of arms-length
negotiations between non-affiliated parties and, as such, are no less favorable
to the Purchaser or the Company than either could have obtained in non-
affiliated third-party transactions.
Background of the Offer and Contacts with the Trust and Related Parties.
In June 2000, Manfred Krueger, Tutogen's chief executive officer called
David Wise, general counsel of Purchaser, regarding a possible equity
investment in Tutogen. Mr. Krueger described RCP's relationship to Tutogen and
stated that he believed that some of the Partnership's limited partners wanted
to sell their interests.
In June 2000, Mr. Wise traveled with Mr. Krueger and Tom Pauken, the
liquidation trustee of RCP and chairman of the board of directors of Tutogen to
Switzerland, where Mr. Pauken introduced the possibility of Purchaser acquiring
an interest in RCP to Sulzer Medica Ltd.
In June 2000, Andre Buchel, a director and the president of Purchaser, Mr.
Wise, Mr. Krueger and Mr. Pauken further discussed a possible acquisition of an
interest in the Partnership. During this meeting, Mr. Pauken offered to sell to
Purchaser a warrant to purchase 250,000 shares of common stock of Tutogen owned
by RCP and expiring on June 30, 2000. Purchaser accepted the offer, purchased
and exercised the warrant.
In July 2000, Mr. Pauken and Mr. Wise discussed a proposal by Mr. Pauken
that Purchaser acquire a 50% interest in RCP, with the possibility that the
other 50% of the limited partners would hold their interests for a period of
two years. Mr. Pauken advised that RCP had a number of limited partners who
were interested in liquidating their investments and that RCP had a number of
other limited partners who wished to retain a stake in the future of Tutogen
during the term of the Partnership. Mr. Pauken expressed an interest for an
11
<PAGE>
arrangement that would allow those limited partners who wanted to liquidate
their interests to do so and those limited partners who wanted to keep their
investment to continue to hold it.
In August 2000, Purchaser and Mr. Pauken had various discussions regarding a
possible purchase by Purchaser of an interest in RCP and the purchase price for
such an acquisition. Purchaser conducted some basic due diligence of RCP and
Tutogen, however, in September 2000, Purchaser advised Mr. Pauken that the
regulation of the Partnership under the Investment Company Act made it
difficult to structure a deal. Therefore, in late September 2000, Mr. Wise and
Mr. Pauken agreed to terminate discussions. Mr. Pauken advised Mr. Wise that
RCP intended to solicit proxies from its limited partners consenting to, among
other things, RCP's withdrawal of its election to be regulated under the
Investment Company Act of 1940.
In October 2000, Mr. Pauken advised Mr. Wise that the Commission had
approved RCP's proxy statement and that it was being mailed to the limited
partners.
In early November 2000, Mr. Pauken advised Mr. Wise that RCP had received
proxies from a majority of the holders of the Partnership units approving RCP's
withdrawal of its election to be regulated under the Investment Company Act of
1940 and that RCP expected that it would withdraw its election to be regulated
under the Investment Company Act of 1940 and transfer substantially all of its
assets to a liquidating trust on November 17, 2000. Mr. Pauken inquired whether
Purchaser had an interest in acquiring Trust Units, and Mr. Wise indicated that
Purchaser would have such an interest.
On November 14, 2000, Purchaser provided Mr. Pauken with a draft agreement
with respect to a tender offer of Trust Units.
On November 17, 2000, the Liquidating Trustee advised Purchaser that the
vote regarding RCP's withdrawal of its election to be regulated under the
Investment Company Act of 1940 and the transfer of the Partnership's assets
into the Trust had passed and that the Trust Agreement had been signed.
On November 17, 2000, the Board unanimously (i) determined that the
Agreement and the transactions contemplated thereby, including the Offer, are
in the best interest of the Beneficiaries and appropriate for the management,
conservation and protection of the Trust Estate, (ii) approved, adopted and
declared advisable the Agreement and the transactions contemplated thereby,
including the Offer, and (iii) resolved to recommend that the Beneficiaries of
the Trust who desire to obtain liquidity for all or a portion of their
investment accept the Offer and tender Trust Units pursuant to the Offer.
On November 17, 2000, the Agreement was executed by the Purchaser and the
Liquidating Trustee.
The Agreement.
The following is a summary of certain provisions of the Agreement. This
summary is qualified in its entirety by reference to the Agreement, which is
incorporated herein by reference, and a copy of which has been filed as an
Exhibit to the Tender Offer Statement on Schedule TO (the "Schedule TO") filed
by Purchaser with the Commission in connection with the Offer. The Agreement
may be examined and copies may be obtained at the places set forth in Section
7. Defined terms used herein and not defined herein shall have the respective
meanings assigned to those terms in the Agreement.
The Offer. The Agreement provides for the commencement of the Offer as
promptly as reasonably practicable. The obligation of Purchaser to accept for
payment Trust Units tendered pursuant to the Offer is subject to the
satisfaction of the Minimum Condition and certain other conditions that are
described in Section 14 hereof. Purchaser has agreed that no change in the
Offer may be made which decreases the price per Trust Units payable in the
Offer, which reduces the maximum number of Trust Units to be purchased in the
Offer or which imposes conditions to the Offer in addition to those set forth
in Section 14 hereof without the prior consent of the Liquidating Trustee.
12
<PAGE>
Conduct of the Trust Pending the Offer. Under the Agreement, the Liquidating
Trustee has agreed that until the consummation of the Offer, unless Purchaser
has otherwise agreed in writing, not to (i) permit any transfers or assignment
of Trust Units or any other interests of Beneficiaries ("Interests"), (ii)
amend or otherwise change the Trust Agreement, (iii) sell, assign, pledge,
dispose of, distribute, transfer or encumber, or authorize the sale,
assignment, pledge, disposition, distribution, transfer or encumbrance of, any
portion of the Trust Estate, (iv) declare, set aside, make or pay any
distribution, payable in cash, stock, property or otherwise, with respect to
any of the Trust Units or any Interests; (v) make any Tax election or settle or
compromise any Tax liability; (vi) commence or settle any Action; or (vii)
announce an intention, enter into any formal or informal agreement or otherwise
make a commitment, to do any of the foregoing.
Right of First Refusal. The Liquidating Trustee has also agreed that until
the termination of the Trust in accordance with the terms of the Trust
Agreement, if the Liquidating Trustee receives a bona fide offer to purchase
any of the Trust's shares of Company Common Stock, any other equity securities
of the Company or any warrants, options or other securities exercisable for, or
exchangeable or convertible into, Company Common Stock or other equity
securities of the Company, and if the Liquidating Trustee determines that
acceptance of such offer is in the best interests of the Beneficiaries, the
Liquidating Trustee shall give the Purchaser prompt written notice of such
offer, including all the terms thereof (the "Sale Notice"), and Purchaser shall
be entitled, for a period of 30 days after receipt of such Sale Notice, to
purchase all of such shares of Company Common Stock or other securities at the
same price per security and on the same terms as set forth in the Sale Notice;
provided, however, that if the Purchaser does not exercise, or waives, such
rights, the Liquidating Trustee shall be entitled consummate the transaction as
set forth in the Sale Notice, at the same or any higher price per security, so
long as such sale is consummated within the 20-day period following the earlier
of (i) receipt of Purchasers' written waiver of such rights and (ii) the
expiration of the above 30-day period.
Rights of First Offer. The Purchaser agreed that, until the termination of
the Trust in accordance with the terms of the Trust Agreement, if the Purchaser
intends to purchase any shares of Company Common Stock, any other equity
securities of the Company or any warrants, options or other securities
exercisable for, or exchangeable or convertible into, Company Common Stock or
other equity securities of the Company from any person other than the Trust,
the Purchaser shall give the Liquidating Trustee prompt written notice of such
intention, including the terms thereof (the "Purchase Notice"), and the
Liquidating Trustee shall be entitled, for a period of 15 days after receipt of
such Purchase Notice, to sell to Purchaser the same number of such shares of
Company Common Stock or other securities at the same price per security and on
the same terms as set forth in the Purchase Notice; provided, however, that if
the Liquidating Trustee does not exercise, or waives, such rights, the
Purchaser shall be entitled to purchase such shares or other securities, at the
same or any lower price per security, so long as such purchase is consummated
within the 20-day period following the earlier of (i) receipt of Liquidating
Trustee's written waiver of such rights and (ii) the expiration of the 15-day
period described above.
Trust Board Representation. The Agreement provides that, promptly upon the
purchase by Purchaser of Trust Units pursuant to the Offer, and from time to
time thereafter, for so long as Purchaser owns at least 35% of the then
outstanding Trust Units, Purchaser shall be entitled to designate supervising
trustees constituting one-third of the Board of Trustees, rounded up to the
next whole number, and the other members of the Board of Trustees, including
Liquidating Trustee shall, at such time, promptly take all actions necessary to
cause Purchaser's designees to be elected as supervising trustees of the Trust,
including increasing the size of the Board or securing the resignations of
incumbent supervising trustees, or both.
Limitation on the Liquidating Trustee's Resignation. In addition, until the
termination of the Trust in accordance with the terms of the Trust Agreement,
unless Purchaser shall otherwise agree in writing, the Liquidating Trustee
acting in such capacity on the date of the Agreement shall not resign as
liquidating trustee of the Trust and shall not take any action to increase the
number of the Board to greater than three or change the constituency of the
Board other than as contemplated pursuant to the Agreement.
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Access to Information. Pursuant to the Agreement, until the consummation of
the Offer, the Liquidating Trustee shall, and shall cause the Company and the
officers, directors, employees, auditors and agents of the Company to, afford
the officers, employees and agents of Purchaser complete access at all
reasonable times to the officers, employees, agents, properties, offices,
plants and other facilities, books and records of the Trust and the Company,
and shall furnish Purchaser with such financial, operating and other data and
information as Purchaser, through its officers, employees or agents, may
reasonably request.
No Solicitation of Transactions. The Trust has agreed that neither the
Liquidating Trustee nor any supervising trustee shall, directly or indirectly,
through any officer, director, agent or otherwise, solicit, (i) initiate or
encourage the submission of, any Acquisition Proposal or (ii) except as
required by the fiduciary duties of the Liquidating Trustee or the Board under
the terms of the Trust Agreement and applicable law after having received
advice from outside legal counsel and after giving prior written notice to
Purchaser and entering into a customary confidentiality agreement on terms no
less favorable to the Trust and the Company than those contained in the
Agreement, participate in any discussions or negotiations regarding, or furnish
to any person, any information with respect to, or otherwise cooperate in any
way with respect to, or assist or participate in, facilitate or encourage, any
unsolicited proposal that constitutes, or may reasonably be expected to lead
to, an Acquisition Proposal.
The Trust has also agreed that neither the Liquidating Trustee or the Board
shall (i) withdraw or modify, or propose to withdraw or modify, in a manner
adverse to Purchaser, the approval or recommendation by the Board of the
Agreement, the Offer, or any other Transaction contemplated thereby
(ii) approve or recommend, or propose to approve or recommend, any Acquisition
Proposal or (iii) enter into any agreement with respect to any Acquisition
Proposal. Notwithstanding the foregoing, in the event that, prior to the time
of acceptance for payment of Trust Units pursuant to the Offer, the Liquidating
Trustee or the Board determines in good faith that it is required to do so by
its fiduciary duties under the Trust Agreement and applicable law after having
received advice from outside legal counsel, the Board or the Liquidating
Trustee may withdraw or modify its approval or recommendation of the Offer, but
only to terminate the Agreement in accordance with its terms (and, concurrently
with such termination, cause the Liquidating Trustee to enter into an agreement
with respect to a Superior Proposal).
The Liquidating Trustee has agreed to, and will direct or cause its
directors, officers, employees, representatives and agents to, immediately
cease and cause to be terminated any discussions or negotiations with any
parties that may be ongoing with respect to any Acquisition Proposal. The
Liquidating Trustee has also agreed to promptly advise Purchaser orally and in
writing of (i) any Acquisition Proposal or any request for information with
respect to any Acquisition Proposal, the material terms and conditions of such
Acquisition Proposal or request and the identity of the person making such
Acquisition Proposal or request and (ii) any changes in any such Acquisition
Proposal or request.
Further Action; Reasonable Best Efforts. The Agreement provides that,
subject to its terms and conditions, each of the parties thereto shall use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
Transactions including, without limitation, using its reasonable best efforts
to obtain all permits, consents, approvals, authorizations, qualifications and
orders of Governmental Authorities and parties to contracts with the
Liquidating Trustee, the Trust or the Company as are necessary for the
consummation of the Transactions and to fulfill the conditions to the Offer;
provided that Purchaser will not be required to take any action, including
entering into a consent decree, hold separate orders or other arrangements,
that (i) requires the divestiture of any assets of any of the Trust, Purchaser
or any of their respective subsidiaries, the Company or the Trust or (ii)
limits Purchaser's freedom of action with respect to, or its ability to retain
its indirect interest in, the Trust and or any portion thereof or any of
Purchaser's or its affiliates' or the Trust's assets or businesses. In case, at
any time after the consummation of the Offer, any further action is necessary
or desirable to carry out the purposes of the Agreement, the proper officers
and directors of each party to the Agreement are required to use their
reasonable best efforts to take all such action.
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The Agreement also provides that each of the parties thereto will cooperate
and use its reasonable best efforts to vigorously contest and resist any
Action, including administrative or judicial Action, and to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or other order
(whether temporary, preliminary or permanent) that is in effect and that
restricts, prevents or prohibits consummation of the Transactions including,
without limitation, by vigorously pursuing all available avenues of
administrative and judicial appeal.
Loan to Trust. Purchaser has agreed, upon written request of the Liquidating
Trustee, to make available (or cause to be made available) to the Trust from
time to time such funds in an aggregate principal amount equal to the exercise
price of the Trust's options and warrants for shares of Company Common Stock or
other equity securities of the Company pursuant to mutually agreed upon loan
documentation to be entered into at or prior to the extension of such funds;
provided, however, that any such loan (a) will be secured by such options,
warrants and shares of Company Common Stock or other equity securities of the
Company purchased upon the exercise thereof, (b) will accrue interest at a
fixed rate per annum equal to the lesser of (i) the rate of one-year LIBOR (as
reported in the Wall Street Journal on the date of the funding of such loan)
and (ii) the maximum rate permissible by law on the date of such loan (the laws
of the State of Texas shall be deemed to be the laws relating to permissible
rates of interest on commercial loans), calculated on the basis of a 365/366-
day year for the actual number of days elapsed and compounded annually, and
such interest rate shall be adjusted on each anniversary of the date of such
loan to be the lesser of such rates provided above; (c) shall be due and
payable in full, together with accrued interest thereon, on the second
anniversary of the date of the Trust Agreement; and (d) shall be subject to
customary closing conditions, including the lender having a perfected security
interest and receiving other documents customary for secured financings.
Transfers of Interests. In exercising its discretion under the Trust
Agreement, the Liquidating Trustee has agreed in the Agreement to limit
transfers of Interests in the Trust each year as necessary or appropriate to
ensure that, if the Trust were treated as a partnership for U.S. federal income
tax purposes, it would not constitute a "publicly traded partnership" under
Section 7704 of the Internal Revenue Code of 1986, as amended.
Representations and Warranties. The Agreement contains various customary
representations and warranties of the parties thereto including representations
by the Liquidating Trustee concerning the Trust's and/or the Liquidating
Trustee's creation, power, interest, authority, compliance with law, taxes,
title to assets, the absence of certain changes or events concerning the
Trust's or the Company's financial statements, litigation and brokers.
Termination. The Agreement provides that it may be terminated and the
Transactions may be abandoned at any time prior to the consummation of the
Offer, (a) by mutual written consent of each of Purchaser and the Liquidating
Trustee duly authorized by the their respective board of director or Board of
Trustees, as applicable; or (b) by either Purchaser or the Liquidating Trustee
if (i) the consummation of the Offer shall not have occurred on or before March
31, 2001; provided, however, that the right to terminate the Agreement under
(b)(i) shall not be available to any party whose failure to fulfill any
obligation under the Agreement has been the cause of, or resulted in, the
failure of the consummation of the Offer to occur on or before such date or
(ii) any Governmental Authority in the United States shall have enacted,
issued, promulgated, enforced or entered any injunction, order, decree or
ruling (whether temporary, preliminary or permanent) (A) which has become final
and nonappealable and has the effect of making consummation of the Offer
illegal or otherwise preventing or prohibiting consummation of the Offer; (B)
which would cause the Trust to no longer be treated as a grantor trust that is
disregarded for U.S. federal income tax purposes; or (c) by Purchaser if (i)
due to an occurrence or circumstance that would result in a failure to satisfy
any condition set forth in Section 14 hereto, Purchaser shall have (A)
terminated the Offer without having accepted any Trust Units for payment
thereunder or (B) failed to accept Trust Units for payment pursuant to the
Offer within 90 days following the commencement of the Offer, unless such
action or inaction under (A) or (B) shall have been caused by or resulted from
the failure of Purchaser to perform, in any material respect, any of their
material covenants or agreements contained in the Agreement, or the material
breach by Purchaser of any of its material representations or warranties
contained in the Agreement or (ii) prior to the purchase of Trust Units
pursuant to the Offer, the Board or the Liquidating Trustee shall have
withdrawn or modified in a manner adverse to
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Purchaser its approval or recommendation of the Agreement, the Offer or any
other Transaction, or shall have recommended or approved any Acquisition
Proposal, or shall have resolved to do any of the foregoing; or (d) by the
Liquidating Trustee, upon approval of the Board, if (i) Purchaser shall have
(A) terminated the Offer without having accepted any Trust Units for payment
thereunder or (B) failed to accept Trust Units for payment pursuant to the
Offer within 90 days following the commencement of the Offer, unless such
action or inaction under (A) or (B) shall have been caused by or resulted from
the failure of the Liquidating Trustee or the Board to perform, in any material
respect, any of its material covenants or agreements contained in the Agreement
or the material breach by the Liquidating Trustee or the Board of any of its
material representations or warranties contained in the Agreement or (ii) prior
to the purchase of Trust Units pursuant to the Offer, the Liquidating Trustee
or the Board determines in good faith that it is required to do so by its
fiduciary duties under the Trust Agreement or applicable law, after having
received advice from outside legal counsel, in order to enter into a definitive
agreement with respect to a Superior Proposal, upon five business days' prior
written notice to Purchaser, setting forth in reasonable detail the identity of
the person making, and the final terms and conditions of, the Superior Proposal
and after duly considering any proposals that may be made by Purchaser during
such five business day period.
Effect of Termination. In the event of the termination of the Agreement, the
Agreement shall forthwith become void, and there shall be no liability on the
part of any party thereto, except (i) that certain provisions described above
under "Right of First Refusal," "Right of First Offer," and "Limitation on the
Liquidating Trustee's Resignation" shall survive any termination of the
Agreement and (ii) nothing in the Agreement shall relieve any party from
liability for any breach thereof prior to the date of such termination,
provided, however, that the confidentiality provisions of the Agreement shall
survive any termination of the Agreement.
Confidentiality. The Agreement provides that Purchaser shall, and shall
cause its respective affiliates and directors, officers, employees and agents
to, keep confidential, not disclose in any manner and use only in connection
with the Transactions all data and information obtained by them from the
Liquidating Trustee and the Company and their respective directors, officers,
employees, auditors and agents (other than data or information that is or
becomes ascertainable from public or published information or trade sources,
except as a result of disclosure by Purchaser in violation of its
confidentiality arrangement) ("Confidential Information") and shall insure that
such directors, officers, employees and agents do not disclose Confidential
Information to third parties without the prior written consent of the
Liquidating Trustee or the Company, respectively, unless disclosure of
Confidential Information is required by law.
The Agreement further provides that in the event of the termination of the
Agreement, Purchaser shall, and shall use its reasonable best efforts to cause
its respective affiliates and their respective officers, directors, employees
and agents to, (i) return promptly every document furnished to them by the
Liquidating Trustee or the Company, or any officer, director, employee, auditor
or agent of the Liquidating Trustee or the Company, in connection with the
Transactions and containing Confidential Information and all copies thereof in
their possession, and cause any other parties to whom such documents may have
been furnished promptly to return such documents and all copies thereof, other
than such documents as may have been filed with the Commission or otherwise be
publicly available, and (ii) destroy promptly all documents created by them
from any Confidential Information and all copies thereof in their possession,
and cause any other parties to whom such documents may have been furnished to
destroy promptly such documents and any copies thereof.
11. Purpose of the Offer; Plans for the Trust After the Offer and the
Transactions.
Purpose of the Offer. The Offer is being made pursuant to the Agreement. The
purpose of the Offer and the transactions contemplated thereby is for Purchaser
to acquire an indirect equity interest in Tutogen.
The Board has unanimously determined that the Agreement and the transactions
contemplated thereby, including the Offer, are in the best interests of the
Beneficiaries and appropriate for the management, conservation and protection
of the Trust Estate, has approved, adopted and declared advisable the Agreement
and the transactions contemplated thereby, including the Offer, and has
resolved to recommend that Beneficiaries who desire to obtain liquidity for all
or a portion of their investment accept the Offer and tender their Trust Units
pursuant to the Offer.
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The Agreement provides that, promptly upon the purchase by Purchaser of
Trust Units pursuant to the Offer, Purchaser will be entitled to designate
supervising trustees constituting one-third of the Board to serve on the Board.
See Section 10. Because the supervising trustees have only limited authority
under the Trust Agreement and any action based by the Board would require a
majority vote among the Liquidating Trustee and supervising trustees under the
Trust Agreement, Purchaser expects that its representation on the Board would
permit it to exert only limited influence over the Trust's activities.
Plans for the Trust. Except as indicated in this Offer to Purchase,
Purchaser does not have any present plans or proposals which relate to or would
result in (i) any extraordinary corporate transaction, such as a merger or
reorganization of the Trust or any of its subsidiaries, (ii) any material
change in the Trust's present indebtedness, capitalization or dividend policy,
(iii) any change in the present Board or management of the Trust, (iv) any
other material change in the Trust's corporate structure or business, (v) any
Trust Units or other interests in the Trust becoming eligible for termination
of registration under Section 12(g)(4) of the Exchange Act, (vi) the suspension
of the Trust's obligation to file reports under Section 15(d) of the Exchange
Act, (vii) the acquisition by any person of additional Trust Units or other
interests in the Trust, or the disposition of Trust Units or other interests in
the Trust, or (viii) any changes in the Trust Agreement or other actions that
could impede the acquisition of control of the Trust.
12. Distributions.
The Agreement provides that the Trust shall not, between the date of the
Agreement and the consummation of the Offer, unless specifically permitted
under the Agreement or with prior written consent of Purchaser, (a) permit any
transfers or assignment of Trust Units or any other Interests, (ii) amend or
otherwise change the Trust Agreement, (iii) sell, assign, pledge, dispose of,
distribute, transfer or encumber, or authorize the sale, assignment, pledge,
disposition, distribution, transfer or encumbrance of, any portion of the Trust
Estate, (iv) declare, set aside, make or pay any distribution, payable in cash,
stock, property or otherwise, with respect to any of the Trust Units or any
Interests; (v) make any tax election or settle or compromise any United States
federal, state, local or non-United States income tax liability; (vi) commence
or settle any Action; or (vii) announce an intention, enter into any formal or
informal agreement or otherwise make a commitment, to do any of the foregoing.
Purchaser has been advised that the Partnership has not made any
distributions since 1998 when $1.0 million was distributed to the limited
partners and, in light of the liquidation of the Partnership, it is unlikely
that there will be any distributions to the Beneficiaries prior to any
liquidation of the assets of Trust.
13. Possible Effects of the Offer on the Market for Trust Units and Exchange
Act Registration.
Possible Effects of the Offer on the Market for the Trust Units. As there is
currently no trading market for the Trust Units and the Trust Agreement
prohibits transfer of the Beneficiaries' interests in the Trust without consent
of the Liquidating Trustee, Purchaser does not expect this Offer or the
transactions contemplated thereby to cause any changes in the ability to
transfer or trade the Trust Units.
Exchange Act Registration. The Partnership Units are currently registered
under Section 12(g) of the Exchange Act. Purchaser has been advised by the
Liquidating Trustee that, as a result of the transfer of substantially all of
the assets of the Partnership into the Trust, the Trust is a successor in
interest to the Partnership and the Trust Units are deemed to be registered
pursuant to Rule 12(g)-3(a) under the Exchange Act. Purchaser expects that the
Trust Units will continue to be held by greater than 300 holders after the
consummation of the Offer. Therefore, Purchaser understands that the Trust will
be subject to reporting requirements of the Exchange Act and believes, until
the completion of the liquidation, the Trust will continue to file Annual
Reports on Form 10-K and Quarterly Reports on Form 10-Q, reporting on financial
and other material information about the Partnership.
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14. Certain Conditions of the Offer.
Notwithstanding any other provision of the Offer, but subject to the terms
of the Agreement, Purchaser shall not be required to accept for payment any
Trust Units tendered pursuant to the Offer, and may extend, terminate or amend
the Offer if immediately prior to the expiration of the Offer, the Minimum
Condition shall not have been satisfied or at any time on or after the date of
Agreement and prior to the Expiration Date, any of the following conditions
shall exist:
(a) there shall have been instituted or be pending any Action before any
Governmental Authority, (i) challenging or seeking to make illegal,
materially delay, or otherwise, directly or indirectly, restrain or
prohibit or make materially more costly, the making of the Offer, the
acceptance for payment of any Trust Units by Purchaser or any affiliate of
Purchaser, or the consummation of any other Transaction contemplated, or
seeking to obtain damages in connection with any Transaction; (ii) seeking
to prohibit or limit the ownership or operation by the Liquidating Trustee,
Purchaser or any of its subsidiaries of all or any of the business or
assets of the Trust, Purchaser or any of their subsidiaries or to compel
the Liquidating Trustee, Purchaser or any of their subsidiaries as a result
of the Transactions, to dispose of or to hold separate all or any portion
of the business or assets of the Trust, Purchaser or any of their
subsidiaries; (iii) seeking to impose or confirm any limitation on the
ability of Purchaser or any affiliate of Purchaser to exercise effectively
full rights of ownership of any Trust Units, including, without limitation,
the right to receive distributions with respect to or to vote any Trust
Units acquired by Purchaser pursuant to the Offer or otherwise on all
matters properly presented to the Beneficiaries; (iv) seeking to require
divestiture by Purchaser or any affiliate of Purchaser of any Trust Units;
or (v) which otherwise would prevent or materially delay consummation of
the Offer or otherwise prevent or materially delay the Liquidating Trustee
from performing its obligations under the Agreement or would have a
Material Adverse Effect;
(b) there shall have been any statute, rule, regulation, legislation or
interpretation enacted, promulgated, amended, issued or deemed applicable
to (i) Purchaser, the Liquidating Trustee, the Trust or any subsidiary or
affiliate thereof or (ii) any Transactions by any United States or non-
United States legislative body or Governmental Authority with appropriate
jurisdiction, that is reasonably likely to result, directly or indirectly,
in any of the consequences referred to in clauses (i) through (v) of
paragraph (a) above;
(c) any Material Adverse Effect shall have occurred;
(d) there shall have occurred (i) any general suspension of trading in,
or limitation on prices for, securities on the American Stock Exchange
(other than a shortening of trading hours or any coordinated trading halt
triggered solely as a result of a specified increase or decrease in a
market index), (ii) a declaration of a banking moratorium or any suspension
of payments in respect of banks in the United States, (iii) any limitation
(whether or not mandatory) by any government or Governmental Authority on
the extension of credit by banks or other lending institutions, or (iv) in
the case of any of the foregoing existing on November 17, 2000, a material
acceleration or worsening thereof;
(e) (i) it shall have been publicly disclosed, or Purchaser shall have
otherwise learned, that beneficial ownership (determined for the purposes
of this paragraph as set forth in Rule 13d-3 promulgated under the Exchange
Act) of 15% or more of the then outstanding shares of Company Common Stock,
on a fully diluted basis, or 15% or more of the Partnership Units in the
partnership or the Trust Units or other Interests in the Trust has been
acquired by any person, other than Purchaser or any of its affiliates, or
(ii) (A) the Board or the Liquidating Trustee, shall have withdrawn or
modified, in a manner adverse to Purchaser the approval or recommendation
of the Offer or the Transfer Agreements, or approved or recommended any
Acquisition Proposal or any other acquisition of Partnership Units in the
Partnership, Trust Units or other Interests in the Trust or shares of
Company Common Stock other than the Offer and the Transfer Agreements or
(B) the Board or Liquidating Trustee shall have resolved to do any of the
foregoing;
(f) any representation or warranty of the Liquidating Trustee in the
Agreement or any Beneficiary in the Transfer Agreements that is qualified
as to materiality or Material Adverse Effect shall not be true and
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correct or any such representation or warranty that is not so qualified
shall not be true and correct in any material respect, in each case as if
such representation or warranty was made as of such time on or after the
date of the Agreement;
(g) the Liquidating Trustee shall have failed to perform, in any
material respect, any obligation or to comply, in any material respect,
with any agreement or covenant of the Liquidating Trustee to be performed
or complied with by it under the Agreement or the Beneficiaries shall have
failed to perform in any material respects, any obligation or to comply, in
any material respect, with any agreement or covenant of the Beneficiaries
to be performed or complied with by them under the Transfer Agreements;
(h) the Agreement shall have been terminated in accordance with its
terms;
(i) the Company has failed to file (i) any form, report or document
required to be filed by it with the Commission since September 30, 1997,
including (1) its Annual Reports on Form 10-K for the fiscal years ended
September 30, 1997, 1998, and 1999, (2) its Quarterly Reports on Form 10-Q
for the periods ended December 31, 1999, March 31, 2000 and June 30, 2000,
(3) all proxy statements relating to the Company's meetings of stockholders
(whether annual or special) held since March 1, 1998 and (4) any other
form, report or registration statement (other than Quarterly Reports on
Form 10-Q not referred to in clause (2) above) filed by the Company with
the Commission since September 31, 1999; or (ii) any such form, report or
other document referred to in clauses (1), (2), (3) and (4) above (1) was
not prepared in accordance with either the requirements of the Securities
Act of 1933, as amended, or the Exchange Act, as the case may be, and the
rules and regulations promulgated thereunder, or contained, at the time
filed, or, if amended, as of the date of such amendment, any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading;
(j) any of the consolidated financial statements (including, in each
case, any notes thereto) contained in any form, report or other document
referred to in clauses (1), (2), (3) and (4) of clause (i) above was not
prepared in accordance with GAAP applied on a consistent basis throughout
the periods indicated (except as may be indicated in the notes thereto) or
does not fairly present, in all material respects, the consolidated
financial position, results of operations and cash flows of the Company and
its consolidated subsidiaries as at the respective dates thereof and for
the respective periods indicated therein (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments which would not
have had, and would not have, a Material Adverse Effect); or
(k) Purchaser and the Liquidating Trustee shall have agreed that
Purchaser shall terminate the Offer or postpone the acceptance for payment
of Trust Units thereunder;
which, in the sole judgment of Purchaser in any such case, and regardless of
the circumstances (including any action or inaction by Purchaser or any of its
affiliates) giving rise to any such condition, makes it inadvisable to proceed
with such acceptance for payment.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time and
from time to time in their sole discretion. The failure by Purchaser at any
time to exercise any of the foregoing rights shall not be deemed a waiver of
any such right; the waiver of any such right with respect to particular facts
and other circumstances shall not be deemed a waiver with respect to any other
facts and circumstances; and each such right shall be deemed an ongoing right
that may be asserted at any time and from time to time.
15.Certain Legal Matters and Regulatory Approvals.
Based upon its examination of publicly available information with respect to
the Trust and the review of certain information furnished by the Trust to
Purchaser and discussions between representatives of Purchaser with
representatives of the Trust during Purchaser's investigation of the Trust (see
Section 10),
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Purchaser is not aware of (i) any license or other regulatory permit that
appears to be material to the business of the Trust or any of its subsidiaries,
taken as a whole, which might be adversely affected by the acquisition of Trust
Units by Purchaser pursuant to the Offer or (ii) of any approval or other
action by any domestic (federal or state) or foreign Governmental Authority
which would be required prior to the acquisition of Trust Units by Purchaser
pursuant to the Offer. Should any such approval or other action be required, it
is Purchaser's present intention to seek such approval or action. Purchaser
does not currently intend, however, to delay the purchase of Trust Units
tendered pursuant to the Offer pending the outcome of any such action or the
receipt of any such approval (subject to Purchaser's right to decline to
purchase Trust Units if any of the conditions in Section 14 shall have
occurred). There can be no assurance that any such approval or other action, if
needed, would be obtained without substantial conditions or that adverse
consequences might not result to the business of the Trust, the Company or
Purchaser or that certain assets or parts of the businesses of the Trust, the
Company or Purchaser might not have to be disposed of or held separate or other
substantial conditions complied with in order to obtain such approval or other
action or in the event that such approval was not obtained or such other action
was not taken. See Section 14 for certain conditions of the Offer.
16.Fees and Expenses.
Except as set forth below, Purchaser will not pay any fees or commissions to
any broker, dealer or other person for soliciting tenders of Trust Units
pursuant to the Offer.
Purchaser has retained Innisfree M&A Incorporated, as the Information Agent,
and Citibank, N.A., as the Depositary, in connection with the Offer. The
Information Agent may contact holders of Trust Units by mail, telephone, telex,
telecopy, telegraph and personal interview and may request banks, brokers,
dealers and other nominee Beneficiaries to forward materials relating to the
Offer to beneficial owners. As compensation for acting as Information Agent in
connection with the Offer, Innisfree M&A Incorporated will be paid reasonable
and customary compensation for its services, plus reimbursement for certain
out-of-pocket expenses and may be indemnified against certain liabilities and
expenses in connection with the Offer, including certain liabilities under the
federal securities laws.
Purchaser will pay the Depositary reasonable and customary compensation for
its services in connection with the Offer, plus reimbursement for out-of-pocket
expenses, and will indemnify the Depositary against certain liabilities and
expenses in connection therewith, including under federal securities laws.
Brokers, dealers, commercial banks and trust companies will be reimbursed by
Purchaser for customary handling and mailing expenses incurred by them in
forwarding material to their customers.
17.Miscellaneous.
The Offer is being made solely by this Offer to Purchase and the related
Transfer Agreement and other documents and is being made to Beneficiaries.
Purchaser is not aware of any jurisdiction where the making of the Offer is
prohibited by any administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of Trust Units pursuant thereto,
Purchaser will make a good faith effort to comply with any such state statute.
If, after such good faith effort, Purchaser cannot comply with any such state
statute, the Offer will not be made to (nor will tenders be accepted from or on
behalf of) the Beneficiaries in such state.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER OR THE TRUST NOT CONTAINED IN THIS OFFER
TO PURCHASE OR IN THE TRANSFER AGREEMENT AND OTHER DOCUMENTS, AND IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
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Pursuant to Rule 14d-3 of the General Rules and Regulations under the
Exchange Act, Purchaser has filed with the Commission the Schedule TO, together
with exhibits, furnishing certain additional information with respect to the
Offer. The Schedule TO and any amendments thereto, including exhibits, may be
inspected at, and copies may be obtained from, the same places and in the same
manner as set forth in Section 7 (except that they will not be available at the
regional offices of the Commission).
SULZER MEDICA USA HOLDING CO.
Dated: November 28, 2000
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SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND
EXECUTIVE OFFICERS OF PURCHASER
1. Directors and Executive Officers of Purchaser.
The following table sets forth the name, current business address,
citizenship and present principal occupation or employment, and material
occupations, positions, offices or employments and business addresses thereof
for the past five years of each director and executive officer of Purchaser.
Unless otherwise indicated, the current business address of each person is
Sulzer Medica USA Holding Co., 3 Greenway Plaza, Suite 1600, Houston, Texas
77046. Unless otherwise indicated, each such person is a citizen of the United
States of America, and each occupation set forth opposite an individual's name,
refers to employment with Purchaser.
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Present Principal Occupation or Employment;
Name, Citizenship and Material Positions Held During the Past Five
Current Business Address Years and Business Addresses Thereof
------------------------ ----------------------------------------------
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Andre P. Buchel, Swiss citizen Director and President. Andre P. Buchel has
Sulzer Medica Ltd. been President of Sulzer Medica Ltd.,
CH-8401 Winterthur, President and Chief Executive Officer of
Switzerland Sulzer Medica USA Inc. and Executive Vice
President of Sulzer Ltd. since 1990 and, since
July 1997, Chief Executive Officer of Sulzer
Medica Ltd. From 1987 to 1990, Mr. Buchel
served as Vice President of Sulzer
International Group Ltd, where he was
responsible for Sulzer Ltd's Asia/Australia
region from 1987 to 1989. He served as
President of Sulzer Inc. from 1980 to 1986.
Mr. Buchel joined Sulzer Bros. Ltd in 1975,
where he served in various positions,
including Head of Sales, Turbo Compressors and
Head of Sales, Gas Turbines for Sulzer Ltd.
Richard J. May Treasurer. Richard May has been Group Vice
President of Sulzer Medica USA Inc. since
October 2000, and was a Vice President from
April 1998 to October 1997. From April 1995
until April 1998, he was the Director of
Taxation for Sulzer Medica USA Inc.
David S. Wise Secretary. David Wise has been Group Vice
President and General Counsel of Sulzer Medica
USA Inc. since November 1998. From May 1997
until November 1998, he served as a Vice
President, and from July 1994 to May 1997, he
was Assistant General Counsel of Sulzer Medica
USA Inc.
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2. Directors and Executive Officers of Sulzer Medica Ltd.
The following table sets forth the name, current business address,
citizenship and present principal occupation or employment, and material
occupations, positions, offices or employments and business addresses thereof
for the past five years of each director and executive officer of Purchaser.
Unless otherwise indicated, the current business address of each person is
Sulzer Medica Management Ltd., Zurcherstrasse 12, CH-8401 Winterthur,
Switzerland. Unless otherwise indicated, each such person is a citizen of
Switzerland.
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Present Principal Occupation or Employment;
Name, Citizenship and Material Positions Held During the
Current Business Address Past Five Years and Business Addresses Thereof
------------------------ ----------------------------------------------
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Peter Spalti Director. Chairman of the Board, Winterthur
Winterthur Insurance Co. Insurance Co. Peter Spalti served as Chairman
General Guisan-Strasse 40 and Chief Executive Officer of Winterthur
CH-8401 Winterthur, Insurance Company from 1989 to 1997 and since
Switzerland October, 1997, has served as its Chairman. Mr.
Spalti has served on the Board of Directors of
Sulzer Ltd. since 1982 and currently serves as
Vice Chairman of the Board. Mr. Spalti is also
a member of the Board of Directors of the
following companies: Credit Suisse Group,
Zurich (Vice Chairman); Rieter Holding Ltd.,
Winterthur; Swiss National Bank, Berne (member
of the Bank Council).
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Present Principal Occupation or Employment;
Name, Citizenship and Material Positions Held During the
Current Business Address Past Five Years and Business Addresses Thereof
------------------------ ----------------------------------------------
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Reto F. Domeniconi Director. Reto F. Domeniconi was Chief
Clos des Mesanges Financial Officer of the Nestle Group CH-1800,
CH-1807 Blonay, Switzerland Verey, Switzerland, until his retirement in
1996. He has served on the Board of Directors
of Sulzer Ltd. since 1994. In addition, Mr.
Domeniconi also serves as director of, among
others, Nestle, Bobst, Suez Lyonnaise des
Eaux, Gucci and Xstrata.
Max Link Vice-Chairman of the Board. Max Link presently
Tobelhofstrasse 30 serves as director of several U.S.
CH-8044 Zurich, Switzerland biotechnology ventures, including Alexion
Pharmaceuticals in Chesire, Connecticut (since
1992); Human Genome Sciences in Rockville, MD
(since 1995); Mipharm, SpA in Milan, Italy
(since 1998); and Protein Design Labs in
Fremont, CA (since 1993). He has also been
Chairman of the Board of Cell Therapeutics,
Inc. in Seattle, WA since 1995 and was the
Chief Executive Officer of Corange Ltd. from
1993 to 1994. Prior to these endeavours,
Mr. Link spent his career with Sandoz from
1970 until his retirement in 1993. He served
as Chairman of Sandoz Pharma from 1992 to
1993, Chief Executive Officer of Sandoz Pharma
from 1987 to 1992, Chief Executive Officer of
Sandoz Corp., USA from 1981 to 1986, and Chief
Financial Officer of Sandoz USA from 1978 to
1980.
Larry L. Mathis, US citizen Director. Chairman, American College of Health
3037 Reba Drive Care Executives. Since 1997, Larry L. Mathis
Houston, Texas 77019, USA has been a consultant and author. He was
President and Chief Executive Officer of The
Methodist Health Care System, 6065 Fannin
Street, Houston, TX, an affiliation of over 40
hospitals in the United States and overseas,
from 1983 to 1997. From 1980 to 1982,
Mr. Mathis served as Executive Vice President
and Chief Operating Officer of the Methodist
Hospital System. He is Chairman of the 30,000-
member American College of Healthcare
Executives, Past-Chairman of the American
Hospital Association, the Texas Hospital
Association, the Greater Houston Hospital
Council and the National Task Force on Health
Care Technology Assessment, and a past member
of Medicare's Prospective Payment Assessment
Commission.
Ueli Roost Chairman of the Board. Since February 2000,
Sulzer Ltd. Ueli Roost has been Chairman of the Board and
CH-8401 Winterthur, Chief Executive Officer of Sulzer AG. From
Switzerland July 1998 to December 1999, he was employed at
Keramik Laufen and from 1992 to June 1998, he
was employed at Ceramatec.
Pierre Borgeaud Director. Vice-Chairman of the Board, Sulzer
Sulzer Ltd. Ltd. Pierre Borgeaud has been Chairman of the
CH-8401 Winterthur, Board of Sulzer Ltd. since 1988. From 1981 to
Switzerland 1988, Mr. Borgeaud served as President of
Sulzer's Corporate Executive Management. He
also led the Sulzer Winterthur Engineering
Group and was appointed Executive Vice
President and member of the Corporate
Executive Management in 1975. He served as
Vice President of the Diesel Department
between 1972 and 1975. Mr. Borgeaud began his
career with Sulzer Bros. Ltd in 1959. Mr.
Borgeaud also serves as a director of, among
others, Winterthur Insurance Company, Clariant
International Ltd and Buhler AG.
Andre P. Buchel Chief Executive Officer. Andre P. Buchel has
Sulzer Medica Ltd. been President of Sulzer Medica Ltd.,
CH-8401 Winterthur, President and Chief Executive Officer of
Switzerland Sulzer Medica USA Inc. and Executive Vice
President of Sulzer Ltd. since 1990 and, since
July 1997, Chief Executive Officer of Sulzer
Medica Ltd. From 1987 to 1990, Mr. Buchel
served as Vice President of Sulzer
International Group Ltd, where he was
responsible for Sulzer Ltd.'s Asia/Australia
region from 1987 to 1989. He served as
President of Sulzer Inc. from 1980 to 1986.
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Present Principal Occupation or Employment;
Material Positions Held During the
Name, Citizenship and Past Five Years and Business Addresses
Current Business Address Thereof
------------------------ ---------------------------------------------
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Mr. Buchel joined Sulzer Bros. Ltd in 1975,
where he served in various positions,
including Head of Sales, Turbo Compressors
and Head of Sales, Gas Turbines for Sulzer
Ltd.
Vanessa Oelz Secretariat General. Vanessa Oelz has been
Group Vice President and Secretary General of
Sulzer Medica Management AG since 1997. From
1990 until 1997, Ms. Oelz served as Corporate
Counsel for Sulzer Management AG.
John H. Rankin Head of Human Resources. John H. Rankin has
been Group Vice President of Human Resources
of Sulzer Medica Management Ltd. since 1997.
From 1992 to 1996, Mr. Rankin was Director of
Management Development for Kraft Jacobs
Suchard, Klausstrasse 2, 8012-Zurich,
Switzerland. Mr. Rankin served at Revisuisse
Price Waterhouse in a similar capacity from
1990 to 1992.
Josef Ruegg Head of Finance. Josef Ruegg served as Chief
Financial Officer of Sulzer Medica Management
Ltd. since 1997. From 1989 to 1997 he was the
Group Vice President Finance and Controller
of Sulzer Medica Management Ltd.
3. Directors and Executive Officers of Sulzer AG.
The following table sets forth the name, current business address,
citizenship and present principal occupation or employment, and material
occupations, positions, offices or employments and business addresses thereof
for the past five years of each director and executive officer of Sulzer AG.
Unless otherwise indicated, the current business address of each person is
Sulzer AG, Zurcherstrasse 12, P.O. Box 414, CH-8401 Winterthur, Switzerland.
Unless otherwise indicated, each such person is a citizen of the Switzerland.
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Present Principal Occupation or Employment;
Name, Citizenship and Material Positions Held During the Past Five
Current Business Address Years and Business Addresses Thereof
------------------------ ---------------------------------------------
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Peter Spalti Director. Chairman of the Board, Winterthur
Winterthur Insurance Co. Insurance Co. Peter Spalti served as Chairman
General Guisan-Strasse 40 and Chief Executive Officer of Winterthur
CH-8401 Winterthur, Switzerland Insurance Company from 1989 to 1997 and since
October, 1997, has served as Chairman. Mr.
Spalti has served on the Board of Directors
of Sulzer Ltd. since 1982 and currently
serves as Vice Chairman of the Board.
Mr. Spalti is also a member of the Board of
Directors of the following companies: Credit
Suisse Group, Zurich (Vice Chairman); Rieter
Holding Ltd., Winterthur; Swiss National
Bank, Berne (member of the Bank Council).
Georges Blum Director. Vice Chairman of the Board,
Unigestion Holding Unigestion Holding. Since 1998, Georges Blum
Rue de Jargonnant 2 has been a private consultant and member of
CH-1211 Geneva, Switzerland the boards of directors for several Swiss
companies. From 1961 till 1998, he was
employed by Swiss Bank Corp. (fka UBS SA) at
Aeschenfilatz, 4052 Basle, Switzerland.
Reto F. Domeniconi Director. Reto F. Domeniconi was Chief
Clos des Mesanges Financial Officer of the Nestle Group, CH-
CH-1807 Blonay, Switzerland 1800, Vevey, Switzerland, until his
retirement in 1996. He has served on the
Board of Directors of Sulzer Ltd. since 1994.
In addition, Mr. Domeniconi also serves as
director of, among others, Nestle, Bobst,
Suez Lyonnaise des Eaux, Gucci and Xstrata.
Jan Kleinewefers, German citizen Director. For the past five years, Jan
Kleinewefers Beteiligungs-GmbH Kleinewefers has been the Managing Director
P.O. Box 200265 of Kleinewefers Beteiligungs-GmbH.
DE-7835 Krefeld, Germany
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Present Principal Occupation or Employment;
Name, Citizenship and Material Positions Held During the
Current Business Address Past Five Years and Business Addresses Thereof
------------------------ ----------------------------------------------
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Bernard Koechlin Director. Bernard Koechlin has been the
Zschokke Holding Ltd. Honorary Chairman of Zschokke Holding Ltd.
42, rue du 31 December beginning in May this year, and served as
CH-1206 Geneva, Switzerland Chairman prior to May and since 1988. From
1976 to 1999, he was also the Managing
Director of Zschokke Holding Ltd.
Erich Muller Director. Prior to his retirement in 1998,
Gotthelfstrasse 68 Erich Muller was the Chief Financial Officer
CH-8472 Seuzach, Switzerland of Sulzer Ltd.
Jacob Schmidheiny Director. For the past five years, Jacob
Conzzeta Holding Schmidheiny has been Chairman and Chief
Giesshubelstrasse 45 Executive Officer of Conzetta Holding.
CH-8045 Zurich, Switzerland
Leonardo E. Vannotti Director. Prior to his retirement this year,
Hertensteinstrasse 33 Leonardo E. Vannotti served as the Chairman of
CH-5408 Ennetbaden, C. Gavazzi in Steinhauser, Switzerland.
Switzerland
Ueli Roost Chairman of the Board and Chief Executive
Officer (since February 2000). From July 1998
to December 1999, he was employed at Keramik
Laufen and from 1992 to June 1998, he was
employed at Ceramatec.
Pierre Borgeaud Vice Chairman of the Board. Pierre Borgeaud
has been Chairman of the Board of Sulzer Ltd.
since 1988. From 1981 to 1988, Mr. Borgeaud
served as President of Sulzer's Corporate
Executive Management. He also led the Sulzer
Winterthur Engineering Group and was appointed
Executive Vice President and member of the
Corporate Executive Management in 1975. He
served as Vice President of the Diesel
Department between 1972 and 1975. Mr. Borgeaud
began his career with Sulzer Bros. Ltd in
1959. Mr. Borgeaud also serves as a director
of, among others, Winterthur Insurance
Company, Clariant International Ltd and Buhler
AG.
Kurt Hagi Secretariat General. Kurt Hagi has been
employed by Sulzer Ltd. since 1988.
Bruno Allmendinger Head of Finance and Administration. Since
1998, Bruno Allmendinger has been the Chief
Financial Officer of Sulzer Ltd. and between
1995 to 1998, he had served as the Deputy
Chief Financial Officer of Sulzer Ltd.
Richard Burger Head of Corporate Development. Since 1971,
Richard Burger has served in various positions
at Sulzer Ltd.
Andre P. Buchel Member, Corporate Executive Management. Andre
P. Buchel has been President of Sulzer Medica
Ltd., President and Chief Executive Officer of
Sulzer Medica USA Inc. and Executive Vice
President of Sulzer Ltd. since 1990 and, since
July 1997, Chief Executive Officer of Sulzer
Medica Ltd. From 1987 to 1990, Mr. Buchel
served as Vice President of Sulzer
International Group Ltd, where he was
responsible for Sulzer Ltd.'s Asia/Australia
region from 1987 to 1989. He served as
President of Sulzer Inc. from 1980 to 1986.
Mr. Buchel joined Sulzer Bros. Ltd in 1975,
where he served in various positions,
including Head of Sales, Turbo Compressors and
Head of Sales, Gas Turbines for Sulzer Ltd.
Fred Kindle, Member, Corporate Executive Management. Fred
Liechtenstein citizen Kindle has been the Chief Executive Officer of
Sulzer Industries since 1999. Between 1992 and
1996, he was the Head of the Department of
Mass Transfer and Head of the Product Division
of Sulzer Chem-tech AG.
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Manually signed facsimiles of the Transfer Agreement, properly completed,
will be accepted. The Transfer Agreement and any other required documents
should be sent or delivered by each tendering Beneficiary to the Depositary at
one of its addresses set forth below.
The Depositary for the Offer is:
CITIBANK, N.A.
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By Mail: By Overnight Courier: By Hand:
Citibank, N.A. Citibank, N.A. Citibank, N.A.
P.O. Box 685 915 Broadway, 5th Floor Corporate Trust Window
Old Chelsea Station New York, NY 10010 111 Wall Street, 5th Floor
New York, NY 10113 New York, NY 10043
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By Facsimile (For Eligible Institutions Only):
(212) 505-2248
Confirm Facsimile Transmission (By Telephone Only):
(800) 270-0808
Other Information:
Questions or requests for assistance may be directed to the Information
Agent at its respective address and telephone numbers listed below. Additional
copies of this Offer to Purchase and the Transfer Agreement may be obtained
from the Information Agent.
The Information Agent for the Offer is:
INNISFREE M&A INCORPORATED
501 Madison Avenue, 20th Floor
New York, New York 10022
Telephone: (212) 750-5833 or (888) 750-5834
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