<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D*
UNDER THE SECURITIES EXCHANGE ACT OF 1934
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CCH INCORPORATED
(NAME OF SUBJECT COMPANY)
---------------
WK ACQUISITION SUB, INC.
WOLTERS KLUWER NV
(BIDDERS)
---------------
CLASS A COMMON STOCK, PAR VALUE $1.00 PER SHARE
CLASS B COMMON STOCK, PAR VALUE $1.00 PER SHARE
(TITLE OF CLASS OF SECURITIES)
---------------
124883 10 9 (CLASS A COMMON STOCK)
124883 20 8 (CLASS B COMMON STOCK)
(CUSIP NUMBER OF CLASS OF SECURITIES)
---------------
MR. PETER W. VAN WEL
WOLTERS KLUWER NV
STADHOUDERSKADE 1
1054 ES AMSTERDAM
THE NETHERLANDS
011-31-20-607-0400
with a copy to:
ARNOLD J. SCHAAB, ESQ.
PRYOR, CASHMAN, SHERMAN & FLYNN
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
(NAMES, ADDRESSES AND TELEPHONE NUMBERS OF PERSONS AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
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CALCULATION OF FILING FEE
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Transaction valuation: $1,833,477,687/1/ Amount of filing fee: $366,695.54
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/1/ For purposes of calculating fee only. The amount assumes the purchase of
33,035,634 Shares (as defined herein) at $55.50 in cash per Share. The amount
of the filing fee, calculated in accordance with Rule 0-11(d) of the
Securities Exchange Act of 1934, as amended, equals 1/50 of one percent of the
aggregate of the cash offered by WK Acquisition Sub, Inc. for such number of
Shares.
[_] Check box if any part of the fee is offset by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form or
schedule and the date of its filing.
AMOUNT PREVIOUSLY PAID: NOT FILING PARTY: NOT APPLICABLE
APPLICABLE
FORM OR REGISTRATION NO.: NOT DATE FILED: NOT APPLICABLE
APPLICABLE
- -------
* This Statement also constitutes the Statement on Schedule 13D of WK
Acquisition Sub, Inc. and Wolters Kluwer nv filed with respect to the shares
of Class A Common Stock, par value $1.00 per share, and Class B Common Stock,
par value $1.00 per share, of CCH Incorporated beneficially owned by WK
Acquisition Sub, Inc. and Wolters Kluwer nv.
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Page 1 of pages.
Exhibit Index is located on page 8.
<PAGE>
CUSIP NOS. 124883 10 9 AND PAGE 2 OF PAGES
124883 20 8
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WK Acquisition Sub, Inc.
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2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [_]
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3.
SEC USE ONLY
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4.
SOURCE OF FUNDS
AF
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5.
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) OR 2(f)
[_]
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6.
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,568,966.6 shares of Class A Common Stock
and 9,497,700.7 shares of Class B Common
Stock pursuant to the Stock Option and
Tender Agreement dated as of November 27,
1995.
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8.
CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[_]
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9.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
57.5% (Class A Common Stock)
57.9% (Class B Common Stock)
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10.
TYPE OF REPORTING PERSON
CO
2
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CUSIP NOS. 124883 10 9 AND PAGE 3 OF PAGES
124883 20 8
1.
NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wolters Kluwer nv
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2.
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(b) [_]
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3.
SEC USE ONLY
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4.
SOURCE OF FUNDS
BK
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5.
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) OR 2(f) [_]
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6.
CITIZENSHIP OR PLACE OF ORGANIZATION
The Netherlands
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7.
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
9,568,966.6 shares of Class A Common Stock
and 9,497,700.7 shares of Class B Common
Stock pursuant to the Stock Option and
Tender Agreement dated as of November 27,
1995.
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8.
CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES
[_]
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9.
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
57.5% (Class A Common Stock)
57.9% (Class B Common Stock)
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10.
TYPE OF REPORTING PERSON
CO
3
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This Tender Offer Statement on Schedule 14D-1 (this "Statement") relates to
the offer by WK Acquisition Sub, Inc., a Delaware corporation (the
"Purchaser") and an indirect wholly owned subsidiary of Wolters Kluwer nv, a
corporation organized under the laws of The Netherlands ("Parent"), to
purchase all outstanding shares of Class A Common Stock, par value $1.00 per
share, and Class B Common Stock, par value $1.00 per share (collectively, the
"Shares"), of CCH Incorporated, a Delaware corporation (the "Company"), upon
the terms and subject to the conditions set forth in the Offer to Purchase
dated December 1, 1995 (the "Offer to Purchase") and in the related Letter of
Transmittal for Class A Common Stock and Letter of Transmittal for Class B
Common Stock (which, as amended from time to time, together constitute the
"Offer"), which are annexed to and filed with this Statement as Exhibits
(a)(1), (a)(2) and (a)(3), respectively. This Statement also constitutes the
Statement on Schedule 13D of the Purchaser and Parent with respect to the
Shares beneficially owned by the Purchaser and Parent.
ITEM 1. SECURITY AND SUBJECT COMPANY
(a) The name of the subject company is CCH Incorporated, a Delaware
corporation. The principal executive offices of the Company are located at
2700 Lake Cook Road, Riverwoods, Illinois 60015.
(b) The class of equity securities to which this Statement relates is the
Class A Common Stock, par value $1.00 per share, and Class B Common Stock, par
value $1.00 per share, of the Company. The information set forth in
"Introduction" of the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 ("Price Range of Shares;
Dividends") of the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(d) and (g) This Statement is being filed by the Purchaser and Parent.
The information set forth in "Introduction," Section 8 ("Certain Information
Concerning the Purchaser, the Holding Companies and Parent") and Schedule I
("Directors and Executive Officers of Parent, the Holding Companies and the
Purchaser") of the Offer to Purchase is incorporated herein by reference.
(e) and (f) During the last five years, none of the Purchaser, Wolters
Kluwer International Holding B.V., a corporation organized under the laws of
The Netherlands ("Wolters Kluwer International"), Wolters Kluwer U.S.
Corporation, a Delaware corporation ("Wolters Kluwer US"), WK America, Inc., a
Delaware corporation ("WK America," and together with Wolters Kluwer
International and Wolters Kluwer US, the "Holding Companies") or Parent nor,
to the best knowledge of the Purchaser and Parent, any of the persons listed
in Schedule I ("Directors and Executive Officers of Parent, the Holding
Companies and the Purchaser") to the Offer to Purchase (i) has been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
further violations of, or prohibiting activities subject to, federal or state
securities laws or finding any violations of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY
(a)-(b) The information set forth in "Introduction," Section 8 ("Certain
Information Concerning the Purchaser, the Holding Companies and Parent"),
Section 10 ("Background of the Offer; Past Contacts, Transactions or
Negotiations with the Company") and Section 11 ("Purpose of the Offer and the
Merger; Merger Agreement and Option Agreement") of the Offer to Purchase is
incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a)-(b) The information set forth in Section 9 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
(c) Not applicable.
4
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ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
(a)-(c) The information set forth in "Introduction," Section 6 ("Price Range
of Shares; Dividends"), Section 10 ("Background of the Offer; Past Contacts,
Transactions or Negotiations with the Company"), Section 11 ("Purpose of the
Offer and the Merger; Merger Agreement and Option Agreement") and Section 13
("Dividends and Distributions") of the Offer to Purchase is incorporated
herein by reference.
(f)-(g) The information set forth in Section 12 ("Effect of the Offer on the
Market for the Shares; Trading of the Shares on the Nasdaq National Market;
Registration under the Exchange Act") of the Offer to Purchase is incorporated
herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
(a)-(b) The information set forth in "Introduction," Section 8 ("Certain
Information Concerning the Purchaser, the Holding Companies and Parent"),
Section 10 ("Background of the Offer; Past Contacts, Transactions or
Negotiations with the Company") and Section 11 ("Purpose of the Offer and the
Merger; Merger Agreement and Option Agreement") of the Offer to Purchase is
incorporated herein by reference. As a result of Parent's option to purchase
certain Shares legally and/or beneficially owned by Oakleigh B. Thorne, Honore
T. Wamsler, Daniel K. Thorne and certain affiliates of such individuals
(collectively, the "Sellers") pursuant to the Stock Option and Tender
Agreement, dated as of November 27, 1995, by and among Parent, the Purchaser
and the Sellers, the Purchaser and Parent may be deemed to beneficially own
9,568,966.6 shares of Class A Common Stock and 9,497,700.7 shares of Class B
Common Stock, representing 57.5% and 57.9% of the total number of shares of
Class A Common Stock and Class B Common Stock outstanding, respectively (based
on the total number of shares of Class A Common Stock and Class B Common Stock
outstanding at the close of business on November 24, 1995, as represented to
the Purchaser and Parent by the Company).
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES
The information set forth in "Introduction," Section 8 ("Certain Information
Concerning the Purchaser, the Holding Companies and Parent"), Section 10
("Background of the Offer; Past Contacts, Transactions and Negotiations with
the Company") and Section 11 ("Purpose of the Offer and the Merger; Merger
Agreement and Option Agreement") of the Offer to Purchase is incorporated
herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
The information set forth in "Introduction" and Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS
The information set forth in Section 8 ("Certain Information Concerning the
Purchaser, the Holding Companies and Parent") of the Offer to Purchase is
incorporated herein by reference.
The incorporation by reference herein of the above-referenced financial
information does not constitute an admission that such information is material
to a decision by a stockholder of the Company whether to sell, tender or hold
Shares being sought in the Offer.
ITEM 10. ADDITIONAL INFORMATION
(a) The information set forth in "Introduction," Section 8 ("Certain
Information Concerning the Purchaser, the Holding Companies and Parent"),
Section 10 ("Background of the Offer; Past Contacts, Transactions and
Negotiations with the Company") and Section 11 ("Purpose of the Offer and the
Merger; Merger Agreement and Option Agreement") of the Offer to Purchase is
incorporated herein by reference.
(b)-(c) The information set forth in Section 11 ("Purpose of the Offer and
the Merger; Merger Agreement and Option Agreement") and Section 15 ("Certain
Legal Matters") of the Offer to Purchase is incorporated herein by reference.
(d) The information set forth in Section 12 ("Effect of the Offer on the
Market for the Shares; Trading of the Shares on the Nasdaq National Market;
Registration under the Exchange Act") of the Offer to Purchase is incorporated
herein by reference.
5
<PAGE>
(e) Not applicable.
(f) The information set forth in the Offer to Purchase and the related
Letter of Transmittal for Class A Common Stock and Letter of Transmittal for
Class B Common Stock, copies of which are attached hereto as Exhibits (a)(1),
(a)(2) and (a)(3), respectively, is incorporated herein by reference in its
entirety.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
(a)(1) Offer to Purchase, dated December 1, 1995.
(a)(2) Letter of Transmittal for Class A Common Stock.
(a)(3) Letter of Transmittal for Class B Common Stock.
(a)(4) Notice of Guaranteed Delivery.
(a)(5) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(6) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(7) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(8) Press Release issued November 27, 1995.
(a)(9) Summary Advertisement, dated December 1, 1995.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of November 27, 1995, among
Parent, the Purchaser and the Company.
(c)(2) Stock Option and Tender Agreement, dated as of November 27, 1995, by
and among Parent, the Purchaser and Oakleigh B. Thorne, Honore T.
Wamsler, Daniel K. Thorne and certain affiliates of such individuals.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
6
<PAGE>
SIGNATURES
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: December 1, 1995
Wolters Kluwer nv
/s/ Peter W. van Wel
By: _________________________________
Peter W. van Wel
Member, Executive Board
WK Acquisition Sub, Inc.
/s/ Bruce C. Lenz
By: _________________________________
Bruce C. Lenz
Executive Vice President
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT NAME PAGE NO.
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<C> <S> <C>
(a)(1) Offer to Purchase, dated December 1, 1995..................
(a)(2) Letter of Transmittal for Class A Common Stock.............
(a)(3) Letter of Transmittal for Class B Common Stock.............
(a)(4) Notice of Guaranteed Delivery..............................
(a)(5) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees...............................
(a)(6) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees..................
(a)(7) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9..............................
(a)(8) Press Release issued November 27, 1995.....................
(a)(9) Summary Advertisement, dated December 1, 1995..............
(b) Not applicable.............................................
(c)(1) Agreement and Plan of Merger, dated as of November 27,
1995, among Parent, the Purchaser and the Company..........
(c)(2) Stock Option and Tender Agreement, dated as of November 27,
1995, by and among Parent, the Purchaser and Oakleigh B.
Thorne, Honore T. Wamsler, Daniel K. Thorne and certain
affiliates of such individuals.............................
(d) Not applicable.............................................
(e) Not applicable.............................................
(f) Not applicable.............................................
</TABLE>
8
<PAGE>
Exhibit (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
OF
CCH INCORPORATED
AT
$55.50 NET PER SHARE
BY
WK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY
OF
WOLTERS KLUWER NV
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
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THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED BY THE EXPIRATION DATE AND NOT WITHDRAWN AT LEAST THAT NUMBER
OF SHARES OF CLASS A COMMON STOCK, PAR VALUE $1.00 PER SHARE, OF CCH
INCORPORATED WHICH WOULD CONSTITUTE A MAJORITY OF THE OUTSTANDING
SHARES OF CLASS A COMMON STOCK ON A FULLY DILUTED BASIS. SEE
SECTION 14.
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THE BOARD OF DIRECTORS OF CCH INCORPORATED HAS UNANIMOUSLY APPROVED THE
MERGER AGREEMENT, THE OFFER AND THE MERGER, HAS UNANIMOUSLY DETERMINED
THAT THE MERGER IS ADVISABLE AND THAT THE TERMS OF THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, CCH INCORPORATED'S
STOCKHOLDERS AND RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND
TENDER THEIR SHARES.
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IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
shares of Class A Common Stock or Class B Common Stock of the Company
(collectively, the "Shares") should either (a) complete and sign the
appropriate Letter of Transmittal (the Letter of Transmittal for the Class A
Common Stock is BLUE and the Letter of Transmittal for the Class B Common
Stock is GREEN) or a manually signed facsimile thereof in accordance with the
instructions in the Letter of Transmittal, mail or deliver it and any other
required documents to the Depositary and either deliver the certificate(s) for
such Shares to the Depositary or tender such Shares pursuant to the procedure
for book-entry transfer set forth in Section 3 or (b) request such
stockholder's broker, dealer, commercial bank, trust company or other nominee
to effect the transaction. A stockholder whose Shares are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee must
contact such broker, dealer, commercial bank, trust company or other nominee
to tender such Shares.
Any stockholder who desires to tender Shares and whose certificates
evidencing such Shares are not immediately available or who cannot comply with
the procedures for book-entry transfer on a timely basis may tender such
Shares by following the procedures for guaranteed delivery set forth in
Section 3.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone
numbers set forth on the back cover of this Offer to Purchase. Additional
copies of this Offer to Purchase, the Letters of Transmittal, the Notice of
Guaranteed Delivery and other related materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks and trust
companies.
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The Dealer Manager for the Offer is:
CS First Boston
December 1, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Introduction
1. Terms of the Offer.................................................... 2
2. Acceptance for Payment and Payment.................................... 4
3. Procedures for Tendering Shares....................................... 5
4. Withdrawal Rights..................................................... 7
5. Certain Federal Income Tax Consequences............................... 8
6. Price Range of Shares; Dividends...................................... 9
7. Certain Information Concerning the Company............................ 9
8. Certain Information Concerning the Purchaser, the Holding Companies 12
and Parent............................................................
9. Source and Amount of Funds............................................ 14
10. Background of the Offer; Past Contacts, Transactions or Negotiations 14
with the Company......................................................
11. Purpose of the Offer and the Merger; Merger Agreement and the Option 15
Agreement.............................................................
12. Effect of the Offer on the Market for the Shares; Trading of the
Shares on the Nasdaq National Market; Registration under the Exchange
Act.................................................................. 26
13. Dividends and Distributions........................................... 27
14. Conditions to the Offer............................................... 27
15. Certain Legal Matters................................................. 28
16. Fees and Expenses..................................................... 31
17. Miscellaneous......................................................... 31
Schedule I--Directors and Executive Officers of Parent, the Holding I-1
Companies and the Purchaser...........................................
</TABLE>
i
<PAGE>
TO HOLDERS OF COMMON STOCK OF
CCH INCORPORATED:
INTRODUCTION
WK Acquisition Sub, Inc, a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Wolters Kluwer nv, a corporation organized under
the laws of The Netherlands ("Parent"), hereby offers to purchase all
outstanding shares of Class A Common Stock, par value $1.00 per share (the
"Class A Common Stock"), and Class B Common Stock, par value $1.00 per share
(the "Class B Common Stock," and together with the shares of Class A Common
Stock, the "Shares"), of CCH Incorporated, a Delaware corporation (the
"Company"), at $55.50 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in this Offer
to Purchase and in the related Letters of Transmittal (which together
constitute the "Offer").
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 7 of the Letters of
Transmittal, transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer. The Purchaser will pay all charges and expenses of CS
First Boston Corporation ("CS First Boston"), which is acting as Dealer
Manager for the Offer (in such capacity, the "Dealer Manager"), Morgan
Guaranty Trust Company of New York, which is acting as the Depositary (the
"Depositary"), and Georgeson & Company Inc., which is acting as the
Information Agent (the "Information Agent"), incurred in connection with the
Offer.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED BY THE EXPIRATION DATE (AS HEREINAFTER DEFINED) AND NOT WITHDRAWN AT
LEAST THAT NUMBER OF SHARES OF CLASS A COMMON STOCK WHICH WOULD CONSTITUTE A
MAJORITY OF THE OUTSTANDING SHARES OF CLASS A COMMON STOCK ON A FULLY DILUTED
BASIS (THE "MINIMUM CONDITION"). SEE SECTION 14.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT (AS HEREINAFTER DEFINED), THE OFFER AND THE MERGER (AS HEREINAFTER
DEFINED), HAS UNANIMOUSLY DETERMINED THAT THE MERGER IS ADVISABLE AND THAT THE
TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF,
THE COMPANY'S STOCKHOLDERS AND RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER
AND TENDER THEIR SHARES.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of November 27, 1995 (the "Merger Agreement"), among Parent, the Purchaser
and the Company, pursuant to which, as promptly as practicable following the
satisfaction or waiver of certain conditions, the Purchaser will be merged
with and into the Company (the "Merger"). At the effective time of the Merger,
each outstanding Share (other than Shares held by the Company or any
subsidiary of the Company or Parent or any subsidiary of Parent and other than
Shares held by stockholders who perfect their appraisal rights under the
Delaware General Corporation Law (the "DGCL")) will be converted into the
right to receive $55.50 per Share in cash or any higher price per Share paid
pursuant to the Offer, without interest thereon, and the Company will become
an indirect wholly owned subsidiary of Parent. See Section 12.
Parent, the Purchaser and Oakleigh B. Thorne, Honore T. Wamsler, Daniel K.
Thorne and certain affiliates of such individuals (each a "Seller," and
collectively, the "Sellers") beneficially owning an aggregate of 9,568,967
shares of Class A Common Stock and 9,497,701 shares of Class B Common Stock
(representing approximately 58% of the Shares and approximately 58% of the
voting power of the Shares, in each case outstanding on November 24, 1995)
have entered into the Stock Option and Tender Agreement, dated as of November
27, 1995 (the "Option Agreement"). Such Shares beneficially owned by the
Sellers are hereinafter referred to as the "Sellers' Shares." Pursuant to the
Option Agreement, the Sellers have, among other things, (i) agreed to tender
and not withdraw all of the Sellers' Shares and any additional Shares which
may be acquired by the Sellers, (ii) granted Parent the option to purchase the
Sellers' Shares, and (iii) appointed Parent under certain circumstances as the
Sellers' proxy to vote the Sellers' Shares on all matters in connection with
the
1
<PAGE>
consummation of the transactions contemplated by the Merger Agreement and the
Option Agreement. See Section 11.
According to the Company, as of November 27, 1995, (i) there were 16,638,512
shares of Class A Common Stock outstanding and 16,397,122 shares of Class B
Common Stock outstanding, (ii) the current directors and executive officers of
the Company and their affiliates (including the Sellers) as a group
beneficially owned 9,596,660 shares of Class A Common Stock and 9,680,509
shares of Class B Common Stock and (iii) there were outstanding employee stock
options ("Employee Options") granted under the Company's 1993 Long-Term
Incentive Plan to purchase an aggregate of 1,217,000 shares of Class B Common
Stock.
The Purchaser has been advised by the Company that, to the best of the
Company's knowledge, all of the Company's directors and executive officers
currently intend to tender all Shares owned by them pursuant to the Offer.
The Minimum Condition will be satisfied if 8,319,257 shares of Class A Common
Stock are validly tendered and not withdrawn prior to the Expiration Date.
SINCE THE SELLERS OWN AN AGGREGATE OF 9,568,966 SHARES OF CLASS A COMMON STOCK
AND PURSUANT TO THE OPTION AGREEMENT ARE REQUIRED TO TENDER (AND NOT WITHDRAW)
ALL OF THE SELLERS' SHARES PURSUANT TO THE OFFER, THE MINIMUM CONDITION WILL BE
SATISFIED BY THE TENDER OF THE SELLERS' SHARES. If the Minimum Condition is
satisfied and the Purchaser accepts Shares for payment pursuant to the Offer,
Parent would be able to effect the Merger without the affirmative vote of any
other stockholder of the Company. In the event the Purchaser acquires 90% or
more of each class of the outstanding Shares through the tender of 5,405,695
shares of Class A Common Stock and 5,259,710 shares of Class B Common Stock in
addition to the Sellers' Shares, Parent would be able to effect the Merger
pursuant to the short-form merger provisions of the DGCL, without prior notice
to, or any action by, any other stockholder of the Company.
THIS OFFER TO PURCHASE AND THE RELATED LETTERS OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS
MADE WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER. 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 extension or amendment), the Purchaser will accept for payment and pay
for all Shares which are validly tendered prior to the Expiration Date and not
withdrawn in accordance with Section 4. The term "Expiration Date" means 5:00
p.m., New York City time, on Thursday, January 4, 1996, unless and until the
Purchaser (subject to the terms of the Merger Agreement) shall have extended
the period of time during which the Offer is open, in which event the term
"Expiration Date" shall refer to the latest time and date at which the Offer,
as so extended by the Purchaser, shall expire.
The Offer is conditioned upon, among other things, the satisfaction of the
Minimum Condition and the expiration or earlier termination of all waiting
periods imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the regulations thereunder (the "HSR Act"). See Section 14 which
sets forth in full the conditions to the Offer. If any condition to the
Purchaser's obligation to purchase Shares under the Offer is not satisfied
prior to the Expiration Date, the Purchaser reserves the right (but shall not
be obligated) (i) to decline to purchase any of the Shares tendered and
terminate the Offer and promptly return all tendered Shares to the tendering
stockholders, (ii) to waive such unsatisfied condition, subject to compliance
with applicable rules and regulations of the Securities and Exchange Commission
(the "Commission"), and purchase all Shares validly tendered, (iii) to extend
the Offer and, subject to the right of stockholders to withdraw Shares as
provided in Section 4, retain the Shares which have been tendered during the
period or periods for which the Offer is extended, or (iv) to amend the Offer.
Notwithstanding the foregoing, the Merger Agreement provides that prior to
invoking the condition set forth in paragraph (a) of Section 14 with regard to
actions taken or statutes, rules, regulations, judgments, orders or injunctions
promulgated, entered or enforced by any United States Governmental Entity (as
hereinafter defined) in respect of Parent's ownership of the Shares, operation
of the
2
<PAGE>
Company's business or prohibiting the Offer or the Merger, Parent shall have
used its reasonable best efforts to prevent the imposition of such statute,
rule, regulation, judgment, order or injunction or ameliorate the effects
thereof. In addition, if such order or injunction is a temporary restraining
order or preliminary injunction, Parent may not, for a period of thirty days,
by virtue of this condition alone amend or terminate the Offer, but may only
extend the Offer. The Merger Agreement also provides that the Purchaser may
not (a) waive the Minimum Condition, (b) reduce the number of Shares subject
to the Offer, (c) reduce the price to be paid pursuant to the Offer, (d)
modify or amend the conditions set forth in Section 14, (e) extend the Offer
if all of the conditions are satisfied or waived or, in the case of any single
extension, extend the Offer for more than three business days, (f) change the
form of consideration payable in the Offer, or (g) otherwise amend, add or
waive any term or condition of the Offer in any manner that would adversely
affect the Company or its stockholders. See Section 11.
Subject to the applicable rules and regulations of the Commission and the
terms of the Merger Agreement, the Purchaser expressly reserves the right, in
its sole discretion, at any time or from time to time, regardless of whether
any of the events set forth in Section 14 shall have occurred or shall have
been determined by the Purchaser to have occurred, (i) to extend the period of
time during which the Offer is open and thereby delay acceptance for payment
of, and the payment for, any Shares, by giving oral or written notice of such
extension to the Depositary, and (ii) to amend the Offer in any respect by
giving oral or written notice of such amendment to the Depositary. The rights
reserved by the Purchaser in this paragraph are in addition to the Purchaser's
rights to terminate the Offer described in Section 14. Under no circumstances
will interest be paid on the purchase price for tendered Shares, whether or
not the Purchaser exercises its rights to extend the Offer.
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by public announcement thereof, the announcement in
the case of an extension to be issued no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date
in accordance with the public announcement requirements of Rule 14d-4(c) under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Subject
to applicable law (including Rules 14d-4(c) and 14d-6(d) under the Exchange
Act, which require that any material change in the information published, sent
or given to stockholders in connection with the Offer be promptly disseminated
to stockholders in a manner reasonably designed to inform the stockholders of
such change) and without limiting the manner in which the Purchaser may choose
to make any public announcement, the Purchaser currently intends to make
announcements by issuing a release to the Dow Jones News Service.
If the Purchaser extends the Offer, or if the Purchaser (whether before or
after its acceptance for payment of Shares) is delayed in its purchase of or
payment for Shares or is unable to pay for Shares pursuant to the Offer for
any reason, then, without prejudice to the Purchaser's rights under the Offer,
the Depositary may retain tendered Shares on behalf of the Purchaser, and such
Shares may not be withdrawn except to the extent tendering stockholders are
entitled to withdrawal rights as described in Section 4. The ability of the
Purchaser to delay the payment for Shares which the Purchaser has accepted for
payment is, however, limited by Rule 14e-1(c) under the Exchange Act, which
requires that a bidder pay the consideration offered or return the securities
deposited by or on behalf of holders of securities promptly after the
termination or withdrawal of the bidder's offer.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
the Purchaser will disseminate additional tender offer materials and extend
the Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under
the Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in percentage of
securities sought, will depend upon the facts and circumstances, including the
relative materiality of the terms or information. With respect to a change in
price or a change in percentage of securities sought, a minimum ten business
day period is required to allow for adequate dissemination to stockholders and
investor response. If prior to the Expiration Date, the Purchaser should
decide to increase the price per Share being offered in the Offer, such
increase will be applicable to all stockholders whose Shares are accepted for
payment pursuant to the Offer. As used in this Offer to Purchase, "business
day" has the meaning set forth in Rule 14d-1 under the Exchange Act.
3
<PAGE>
The Company has provided to the Purchaser its list of stockholders and
security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase and the related Letters of
Transmittal and other relevant materials will be mailed to record holders of
Shares and furnished to brokers, dealers, commercial banks, trust companies
and similar persons whose names, or the names of whose nominees, appear on the
stockholder list or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT. Upon the terms and subject to the
conditions of the Offer (including, if the Offer is extended or amended, the
terms and conditions of any extension or amendment), the Purchaser will
purchase, by accepting for payment, and will pay for, all Shares validly
tendered on or prior to the Expiration Date promptly after the Expiration
Date. Subject to applicable rules of the Commission and the terms of the
Merger Agreement, the Purchaser expressly reserves the right to delay
acceptance for payment of or payment for Shares in order to comply, in whole
or in part, with any applicable law, including the HSR Act. See Sections 14
and 15.
Any such delays will be effected in compliance with Rule 14e-1(c) under the
Exchange Act (relating to a bidder's obligation to pay for or return tendered
securities promptly after the termination or withdrawal of such bidder's
offer). In all cases, payment for Shares purchased pursuant to the Offer will
be made only after timely receipt by the Depositary of (i) certificates for
such Shares or timely confirmation of a book-entry transfer (a "Book Entry
Confirmation") of such Shares into the Depositary's account at The Depository
Trust Company, the Midwest Securities Trust Company or the Philadelphia
Depository Trust Company (each, a "Book-Entry Transfer Facility") pursuant to
the procedures set forth in Section 3, (ii) the appropriate Letter(s) of
Transmittal (or manually signed facsimile(s) thereof), properly completed and
duly executed, with any required signature guarantees, or, in the case of
book-entry transfer, an Agent's Message (as hereinafter defined) and (iii) any
other documents required by the Letters of Transmittal. UNLESS THE PROCEDURES
FOR BOOK-ENTRY TRANSFER ARE USED, STOCKHOLDERS HOLDING SHARES OF CLASS A
COMMON STOCK SHOULD COMPLETE THE BLUE LETTER OF TRANSMITTAL, AND STOCKHOLDERS
HOLDING SHARES OF CLASS B COMMON STOCK SHOULD COMPLETE THE GREEN LETTER OF
TRANSMITTAL, IN ORDER TO TENDER SHARES.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility
has received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares, that such participant has received and
agrees to be bound by the terms of the Letter(s) of Transmittal and that the
Purchaser may enforce such agreement against the participant.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment (and thereby purchased) validly tendered Shares, if, as and when the
Purchaser gives oral or written notice to the Depositary of the Purchaser's
acceptance of such Shares for payment pursuant to the Offer. In all cases,
payment for Shares purchased pursuant to the Offer will be made by deposit of
the purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering stockholders. Under no circumstances
will interest on the purchase price of the Shares be paid by the Purchaser by
reason of any delay in making payment. Upon the deposit of funds with the
Depositary for the purpose of making payments to tendering stockholders, the
Purchaser's obligation to make such payment shall be satisfied and tendering
stockholders must thereafter look solely to the Depositary for payment of
amounts owed to them by reason of the acceptance for payment of Shares
pursuant to the Offer.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, or if certificates submitted represent more Shares than are tendered,
certificates for such Shares not purchased or tendered will be returned,
without expense to the tendering stockholder (or, in the case of Shares
tendered by book-entry transfer into the Depositary's account at a Book-Entry
Transfer Facility pursuant to the procedures set forth in Section 3, such
Shares will be credited to an account maintained at such Book-Entry Transfer
Facility), promptly after the expiration, termination or withdrawal of the
Offer. The Purchaser reserves the right to transfer or assign, in whole at any
time or in part from time to time, to Parent or to one or more direct or
indirect wholly owned subsidiaries
4
<PAGE>
of Parent, the right to purchase all or any portion of the Shares tendered
pursuant to the Offer, but any such transfer or assignment will not relieve the
Purchaser of its obligations under the Offer or prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
3. PROCEDURES FOR TENDERING SHARES.
Valid Tender. For Shares to be validly tendered pursuant to the Offer, either
(i) the appropriate Letter of Transmittal, properly completed and duly
executed, or manually signed facsimile thereof, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either the certificates for Shares must be received by the
Depositary at one of such addresses or such Shares must be tendered pursuant to
the procedures for book-entry transfer described below and a Book-Entry
Confirmation must be received by the Depositary, in each case on or prior to
the Expiration Date, or (ii) the tendering stockholder must comply with the
guaranteed delivery procedures described below.
Book-Entry Transfer. The Depositary will establish an account with respect to
the Shares at each Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in any of the Book-Entry Transfer
Facilities' systems may make book-entry delivery of Shares by causing a Book-
Entry Transfer Facility to transfer such Shares into the Depositary's account
at a Book-Entry Transfer Facility in accordance with such Book-Entry Transfer
Facility's procedures for transfer. Although delivery of Shares may be effected
through book-entry transfer at a Book-Entry Transfer Facility, the appropriate
Letter of Transmittal (or manually signed facsimile thereof) properly completed
and duly executed, with any required signature guarantees and any other
required documents, or an Agent's Message, must, in any case, be transmitted to
and received by the Depositary at one of its addresses set forth on the back
cover of this Offer to Purchase on or prior to the Expiration Date or the
tendering stockholder must comply with the guaranteed delivery procedures
described below. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
THE METHOD OF DELIVERY OF CERTIFICATES FOR SHARES, THE LETTER(S) OF
TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY
BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING
STOCKHOLDER. SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, A BOOK-ENTRY
CONFIRMATION). IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Signature Guarantees. Signatures on all Letters of Transmittal must be
guaranteed unless the Shares tendered thereby are tendered (i) by the
registered holder(s) (which term for purposes of this Section includes any
participant in any of the Book-Entry Transfer Facilities systems whose name
appears on a security position listing as the owner of Shares) who has not
completed either the box entitled "Special Delivery Instructions" or the box
entitled "Special Payment Instructions" on the Letter of Transmittal, or (ii)
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in
the Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(each, an "Eligible Institution"). See Instruction 1 of the Letter of
Transmittal. If the certificates are registered in the name of a person other
than the signer of the Letter of Transmittal or if payment is to be made or
certificates for Shares not accepted for payment or not tendered are to be
returned to a person other than the registered holder(s), then the tendered
certificates must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name or names of the registered owner or
owners appear on the certificates, with the signatures on the certificates or
stock powers guaranteed as described above. See Instructions 1 and 5 of the
Letter of Transmittal.
5
<PAGE>
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or time will not permit all required documents to reach the
Depositary on or prior to the Expiration Date, or the procedure for book-entry
transfer cannot be completed on a timely basis, such Shares may nevertheless
be tendered if all the following conditions are satisfied:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Purchaser herewith, is
received by the Depositary on or prior to the Expiration Date as provided
below; and
(iii) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation), together with the appropriate
Letter(s) of Transmittal or manually signed facsimile(s) thereof, properly
completed and duly executed, with any required signature guarantees (or, in
the case of a book-entry transfer, an Agent's Message) and any other
documents required by the Letter(s) of Transmittal, are received by the
Depositary within three trading days after the date of execution of the
Notice of Guaranteed Delivery. A trading day is any day on which the Nasdaq
National Market is open for business.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile transmission or mail to the Depositary and must include a guarantee
by an Eligible Institution in the form set forth in the Notice of Guaranteed
Delivery.
Notwithstanding any other provision hereof, payment for Shares purchased
pursuant to the Offer will in all cases be made only after timely receipt by
the Depositary of certificates for the Shares or a Book-Entry Confirmation of
the delivery of such Shares, and the appropriate Letter(s) of Transmittal (or
manually signed facsimile(s) thereof), properly completed and duly executed,
with any required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message, and any other documents required by the Letter
of Transmittal.
The Purchaser's acceptance for payment of Shares validly tendered pursuant
to one of the procedures described above will constitute a binding agreement
between the tendering stockholders and the Purchaser upon the terms and
subject to the conditions of the Offer.
Backup Federal Income Tax Withholding. In order to avoid "backup
withholding" of federal income tax on payments of cash pursuant to the Offer,
a stockholder surrendering Shares in the Offer must, unless an exemption
applies, provide the Depositary with such stockholder's correct taxpayer
identification number ("TIN") on a Substitute Form W-9 and certify under
penalties of perjury that such TIN is correct and that such stockholder is not
subject to backup withholding. If a stockholder does not provide such
stockholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a penalty on such
stockholder and payment of cash to such stockholder pursuant to the Offer may
be subject to backup withholding of 31%. All stockholders surrendering Shares
pursuant to the Offer should complete and sign the main signature form and the
Substitute Form W-9 included as part of the Letter of Transmittal to provide
the information and certification necessary to avoid backup withholding
(unless an applicable exemption exists and is proved in a manner satisfactory
to the Purchaser and the Depositary). Certain stockholders (including, among
others, all corporations and certain foreign individuals and entities) are not
subject to backup withholding, but such stockholders may be subject to other
withholding requirements. Such stockholders should consult with their own tax
advisor as to the specific tax consequences relating to cash payments.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See
Instruction 9 to the Letter of Transmittal.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tendered Shares pursuant to any of the procedures described above will be
determined by the Purchaser, in its sole discretion, whose determination shall
be final and binding. The Purchaser
6
<PAGE>
reserves the absolute right to reject any or all tenders of any Shares
determined by it not to be in proper form or if the acceptance for payment of,
or payment for, such Shares may, in the opinion of the Purchaser's counsel, be
unlawful. The Purchaser also reserves the absolute right, in its sole
discretion, to waive any of the conditions of the Offer, subject to the terms
of the Merger Agreement, or any defect or irregularity in any tender with
respect to Shares of any particular stockholder, whether or not similar
defects or irregularities are waived in the case of other stockholders. The
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter(s) of Transmittal and the Instructions thereto) will be final and
binding. None of the Purchaser, Parent, the Depositary, the Information Agent,
the Dealer Manager or any other person will be under any duty to give
notification of any defects or irregularities in tenders or will incur any
liability for failure to give any such notification.
Other Requirements. By executing a Letter of Transmittal as set forth above,
a tendering stockholder irrevocably appoints designees of the Purchaser as the
stockholder's attorneys-in-fact and proxies, in the manner set forth in the
Letter of Transmittal, each with full power of substitution, to the full
extent of the stockholder's rights with respect to the Shares tendered by the
stockholder and accepted for payment by the Purchaser (and any and all other
Shares or other securities issued or issuable in respect of such Shares on or
after the date of the Merger Agreement). All such proxies shall be considered
coupled with an interest in the tendered Shares. This appointment will be
effective when, and only to the extent that, the Purchaser accepts Shares for
payment pursuant to the Offer. Upon acceptance for payment, all prior powers
of attorney, proxies or consents given by the stockholder with respect to the
Shares or other securities will, without further action, be revoked, and no
subsequent powers of attorney, proxies or consents may be given (and, if
given, will not be deemed to be effective) with respect thereto. The designees
of the Purchaser will, with respect to the Shares and other securities, be
empowered to exercise all voting and other rights of such stockholder as they
in their sole discretion may deem proper at any annual, special or adjourned
meeting of the Company's stockholders, by written consent or otherwise. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, immediately upon the Purchaser's acceptance for payment of
such Shares, the Purchaser must be able to exercise full voting and other
rights of a record and beneficial holder, including rights in respect of
acting by written consent, with respect to such Shares.
4. WITHDRAWAL RIGHTS. Except as otherwise provided in this Section 4,
tenders of Shares made pursuant to the Offer are irrevocable, provided that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to
the Expiration Date and, unless theretofore accepted for payment by the
Purchaser pursuant to the Offer, may also be withdrawn at any time after
January 29, 1996.
If the Purchaser is delayed in its acceptance for payment of or payment for
Shares or is unable to accept Shares for payment pursuant to the Offer for any
reason, then, without prejudice to the Purchaser's rights under the Offer (but
subject to compliance with Rule 14e-1(c) under the Exchange Act), the
Depositary may, nevertheless, on behalf of the Purchaser, retain tendered
Shares, and such Shares may not be withdrawn except to the extent that
tendering stockholders are entitled to exercise, and duly exercise, withdrawal
rights as described in this Section 4.
For a withdrawal to be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase. Any such
notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of
the registered holder, if different from that of the person who tendered such
Shares. If certificates for Shares have been delivered or otherwise identified
to the Depositary, then, prior to the release of such certificates, the serial
numbers of the particular certificates evidencing the Shares to be withdrawn
and a signed notice of withdrawal with signatures guaranteed by an Eligible
Institution, except in the case of Shares tendered for the account of an
Eligible Institution, must also be furnished to the Depositary as described
above. If Shares have been tendered pursuant to the procedures for book-entry
transfer as set forth in Section 3, any notice of withdrawal must also specify
the name and number of the account at the appropriate Book-Entry Transfer
Facility to be credited with the withdrawn Shares.
7
<PAGE>
ALL QUESTIONS AS TO THE FORM AND VALIDITY (INCLUDING TIME OF RECEIPT) OF
NOTICES OF WITHDRAWAL WILL BE DETERMINED BY THE PURCHASER, IN ITS SOLE
DISCRETION, WHOSE DETERMINATION WILL BE FINAL AND BINDING. NONE OF THE
PURCHASER, PARENT, THE DEALER MANAGER, THE DEPOSITARY, THE INFORMATION AGENT
OR ANY OTHER PERSON WILL BE UNDER ANY DUTY TO GIVE NOTIFICATION OF ANY DEFECTS
OR IRREGULARITIES IN ANY NOTICE OF WITHDRAWAL OR INCUR ANY LIABILITY FOR
FAILURE TO GIVE ANY SUCH NOTIFICATION.
Any Shares properly withdrawn will be deemed to be not validly tendered for
purposes of the Offer. Withdrawn Shares may, however, be retendered by
following one of the procedures described in Section 3 at any time prior to
the Expiration Date.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES. The following is a summary of
certain federal income tax consequences relating to the Offer and the Merger.
The discussion is based on the Internal Revenue Code of 1986, as amended (the
"Code"), the Treasury regulations promulgated thereunder and administrative
rulings and court decisions, all as in effect on the date hereof. The summary
is addressed to stockholders that are U.S. Persons (as defined below) and does
not discuss all of the federal income tax consequences that may be relevant to
a particular stockholder in view of the particular circumstances for such
stockholder.
For purposes of this summary, a "U.S. Person" means a stockholder that is a
citizen or resident of the United States, a corporation or partnership created
or organized in or under the laws of the United States or any state, or an
estate or trust the income of which is includible in gross income for federal
income tax purposes regardless of source.
The receipt of cash for Shares pursuant to the Offer (or the Merger) will be
a taxable transaction for federal income tax purposes and may also be a
taxable transaction under applicable state, local or foreign tax laws. The tax
consequences of such receipt pursuant to the Offer (or the Merger) may vary
depending upon, among other things, the particular circumstances of the
stockholder. In general, a stockholder who receives cash for Shares pursuant
to the Offer (or the Merger) will recognize gain or loss for federal income
tax purposes equal to the difference between the amount of cash received in
exchange for the Shares sold and such stockholder's adjusted tax basis in such
Shares. Provided that the Shares constitute capital assets in the hands of the
stockholder, such gain or loss will be capital gain or loss, and will be long-
term capital gain or loss if the holder has held the Shares for more than one
year at the time of sale. Gain or loss will be calculated separately for each
block of Shares (i.e., a group of Shares with the same tax basis and holding
period) tendered pursuant to the Offer.
Legislative proposals have recently been introduced in Congress which may
reduce effective tax rates applicable to net long-term capital gains and may
limit further the deductibility of long-term capital losses. If the proposals
were enacted into law, and the effective date of such legislation were to be
such that the Offer and the Merger were covered by such legislation, long-term
capital gains recognized as a result of such transactions would generally be
taxed at reduced effective tax rates, and long-term capital losses would be
subject to further limitations on deductibility. It is not clear, however,
whether the proposals will be enacted, and, if enacted, whether the proposals
will apply with respect to the receipt of cash for Shares pursuant to the
Offer and/or the Merger.
The foregoing discussion may not be applicable to certain types of
stockholders, including stockholders who acquired Shares pursuant to the
exercise of employee stock options or otherwise as compensation, individuals
who are not citizens or residents of the United States and foreign
corporations, or entities that are otherwise subject to special tax treatment
under the Code, such as insurance companies, tax-exempt entities and regulated
investment companies.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND IS BASED UPON PRESENT LAW. STOCKHOLDERS ARE URGED TO
CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES OF
THE OFFER AND THE MERGER TO THEM, INCLUDING THE APPLICATION AND EFFECT OF THE
ALTERNATIVE MINIMUM TAX, AND STATE, LOCAL AND FOREIGN TAX LAWS.
8
<PAGE>
6. PRICE RANGE OF SHARES; DIVIDENDS. The shares of Class A Common Stock and
Class B Common Stock trade in the over-the-counter market and are quoted on
the Nasdaq National Market under the symbols "CCHIA" and "CCHIB,"
respectively. The following table sets forth, for the quarters indicated, the
high and low sales price per share of Class A Common Stock and per share of
Class B Common Stock on the Nasdaq National Market. All prices set forth below
are as reported in published financial sources:
<TABLE>
<CAPTION>
CLASS A CLASS B
COMMON STOCK COMMON STOCK
----------------- -----------------
QUARTER ENDED HIGH LOW HIGH LOW
- ------------- ------ ------ ------ ------
<S> <C> <C> <C> <C>
1993
First Quarter........... 20 1/4 16 19 14 1/2
Second Quarter.......... 18 1/2 16 18 15 1/4
Third Quarter........... 17 1/2 14 17 1/4 13 3/4
Fourth Quarter.......... 18 3/4 13 3/4 18 1/2 13 3/4
1994
First Quarter........... 21 17 19 16
Second Quarter.......... 19 3/4 15 1/4 19 15
Third Quarter........... 19 1/2 16 3/4 19 3/4 16
Fourth Quarter.......... 18 5/8 15 18 1/4 15
1995
First Quarter........... 18 15 1/2 17 1/2 15 1/4
Second Quarter.......... 22 1/2 15 1/4 21 3/4 15 1/2
Third Quarter........... 24 1/2 20 1/2 23 1/4 19 1/2
Fourth Quarter (through
November 30, 1995)..... 55 7/8 20 56 21
</TABLE>
On November 24, 1995, the last full trading day prior to the public
announcement of the Offer and the execution of the Merger Agreement, the
reported closing sales price per share of Class A Common Stock and per share
of Class B Common Stock on the Nasdaq National Market was $27.75 and $26.00,
respectively. On November 30, 1995, the last full trading day prior to the
commencement of the Offer, the reported closing sales price per share of Class
A Common Stock and per share of Class B Common Stock on the Nasdaq National
Market was $54 1/2 and $54 1/2, respectively. STOCKHOLDERS ARE URGED TO OBTAIN
A CURRENT MARKET QUOTATION FOR THE SHARES.
The Company has paid regular quarterly dividends of $0.175 per Share since
1988. Under the terms of the Merger Agreement, the Company may continue to pay
ordinary quarterly dividends in an amount not to exceed $0.175 per Share,
provided that record date for the first such quarterly dividend may be no
earlier than January 16, 1996. See Section 13.
7. CERTAIN INFORMATION CONCERNING THE COMPANY.
General. The Company is a leading provider of tax and business law
information, software and services. The Company primarily tracks, explains and
analyzes tax and related law for accounting, legal, human resources,
securities and health care professionals. In addition, the Company develops
and markets software for accountants, human resources and finance
professionals and provides a wide range of services for attorneys. The Company
employs approximately 5,100 people worldwide.
Through its Publishing unit, the Company markets approximately 600
publications and software products in the U.S., Australia, Canada, Europe,
Asia and New Zealand. Many are subscription publications that are updated
daily, monthly or annually and are provided via a variety of media including:
looseleaf publications, CD-ROM, soft and hard cover books and booklets,
newsletters, online database and computer disk. The Company's subsidiary, CCH
Legal Information Services, offers a variety of services to assist attorneys
and businesses in handling corporate, securities, credit and intellectual
property matters.
9
<PAGE>
Selected Consolidated Financial Data. Set forth below is certain selected
consolidated financial data with respect to the Company excerpted or derived
from financial information contained in the Company's Annual Report on Form
10-K for the year ended December 31, 1994 (the "Company Form 10-K"), and the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995 (the "Company Form 10-Q"). More comprehensive financial information is
included in the Company Form 10-K, the Company Form 10-Q and other documents
filed by the Company with the Commission. The financial information that
follows is qualified in its entirety by reference to the Company Form 10-K,
the Company Form 10-Q and such other documents, including the financial
statements and related notes therein. The Company Form 10-K, the Company Form
10-Q and such other documents should be available for inspection and copies
thereof should be obtainable from the offices of the Commission in the manner
set forth below.
CCH INCORPORATED
SELECTED CONSOLIDATED FINANCIAL DATA
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED
SEPTEMBER DECEMBER
30, 31,
----------- -----------
1995 1994 1994 1993
----- ----- ----- -----
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues.............................................. $ 422 $ 411 $ 579 $ 578
Costs and Expenses.................................... 405 407 554 593
----- ----- ----- -----
Operating Earnings (Loss)............................. 17 4 25 (15)*
Other Income.......................................... 3 5 7 24
----- ----- ----- -----
Earnings Before Taxes................................. 20 9 32 9
Net Earnings.......................................... 12 5 19 6
Net Earnings per Share................................ $0.36 $0.16 $0.55 $0.19
BALANCE SHEET DATA (AT END OF PERIOD):
Total Assets.......................................... $517 $574 $581 $594
Total Liabilities..................................... 447 482 489 496
Total Shareholders' Equity............................ 70 92 92 98
</TABLE>
- --------
* Operating loss for the year ended December 31, 1993 includes a $36 million
provision for restructuring of operations.
Certain Projections. The Company does not as a matter of course make public
forecasts or projections as to future performance. In connection with Parent's
review of the Company prior to entering into the Merger Agreement, the Company
provided Parent with certain projections, prepared for and presented at the
Company's presentation to Parent on November 16 and 17, 1995. See Section 10.
The projections were not prepared with a view to public disclosure (and have
not been included in any publicly available documents) or in compliance with
published guidelines of the Commission regarding projections or the guidelines
established by the American Institute of Certified Public Accountants
regarding projections and are included herein only because the information was
provided to Parent.
The projections, while presented with numerical specificity, are based on
numerous estimates and assumptions, including, but not limited to, those
listed below, which involve judgments with respect to, among other things,
future economic and competitive conditions and future business decisions.
These estimates and assumptions may not be realized and are inherently subject
to significant business, economic and competitive uncertainties, many of which
are beyond the control of the Company. Therefore, there can be no assurance
that the projections set forth below will prove to be reliable estimates of
probable future performance. It is quite likely that actual results will vary
from these estimates. In light of the uncertainties inherent in projections of
any kind, the inclusion of projections herein should not be regarded as a
representation by any party that the estimated
10
<PAGE>
results will be realized. There can be no assurances in this regard. The
projections were not prepared in accordance with generally accepted accounting
principles and were not audited or reviewed by any independent accounting
firm, nor did any independent accounting firm perform any other services with
respect thereto and none of the Company, Parent, the Purchaser, Sellers, the
Dealer Manager nor any other person assumes any responsibility for the
accuracy of such projections.
The projections represent possible future operating results as of the time
they were prepared. The Company does not presently intend to update or
publicly revise the projections to reflect circumstances existing or
developments occurring after the preparation of such information or to reflect
the occurrence of events that were unanticipated at the time the projections
were prepared.
<TABLE>
<CAPTION>
FOR YEARS ENDED DECEMBER
31,
--------------------------
1996 1997 1998
-------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C>
Revenues............................................ $638,553 $682,202 $726,065
Operating earnings.................................. 90,617 125,824 152,590
Other income/1/..................................... 6,258 10,100 12,100
-------- -------- --------
Earnings before income taxes........................ 96,875 135,924 164,690
Net income.......................................... 57,156 80,195 97,167
</TABLE>
- --------
/1/Other Income consists primarily of interest income earned on short-term
investments and finance charges.
----------------
Parent was informed by the Company that in preparing the foregoing
projections the following assumptions, among others, were used:
(1) Revenue growth projections of 6.3%, 6.8% and 6.4% over each previous
year from 1996 through 1998. This growth was presumed to be largely from
(a) expanded product offerings in all segments of the business, especially
in practice systems, compliance systems and product suites; (b) aggressive
pursuit of high growth market opportunities, such as Human Resources,
Health Administration, UCC, Trademark and Litigation; and (c) increases in
revenues from the provision of corporate representation services.
(2) A return to historical operating margin levels as the Company
realizes the benefits over the next three years of its significant
restructuring efforts carried out during the period 1992-1995. The
assumptions underlying the increasing operating margins include the
following: (a) management of costs to capitalize on the margin benefits
resulting from a shift from print to electronic products; (b) elimination
of non-recurring project costs due to completion of restructuring efforts;
(c) introduction of on-demand printing and fulfillment; and (d) continued
movement toward distribution through more efficient channels, such as on-
line delivery.
Other Information. The Company is subject to the information filing
requirements of the Exchange Act and, in accordance therewith, is required to
file periodic reports, proxy statements and other information with the
Commission relating to its business, financial condition and other matters.
Information, as of particular dates, concerning the Company's directors and
officers, their remuneration, stock options granted to them, the principal
holders of the Company's securities, any material interests of such persons in
transactions with the Company and other matters is required to be described in
proxy statements distributed to the Company's stockholders and filed with the
Commission. These reports, proxy statements and other information should be
available for inspection at the public reference facilities of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and should also be
available for inspection and copying at prescribed rates at the regional
offices of the Commission located at Seven World Trade Center, 13th Floor, New
York, New York 10048, Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and 5670 Wilshire Boulevard, 11th Floor, Los Angeles,
California 90036. Copies of this material may also be obtained by mail, upon
payment of the Commission's customary fees, from the Commission's principal
office at 450 Fifth Street, N.W., Washington,
11
<PAGE>
D.C. 20549. Such material should also be available on-line through EDGAR and
for inspection at the offices of the Nasdaq National Market at 33 Whitehall
Street, New York, New York 10004.
Except as otherwise set forth herein, the information concerning the Company
contained in this Offer to Purchase, including financial information, has been
furnished by the Company or has been taken from or based upon publicly
available documents and records on file with the Commission and other public
sources. Although neither the Purchaser nor Parent has any knowledge that
would indicate that statements contained herein based upon such documents and
records are untrue, none of the Purchaser, Parent or the Dealer Manager
assumes any responsibility for the accuracy or completeness of the information
concerning the Company, furnished by the Company or contained in such
documents and records, or for any failure by the Company to disclose events
which may have occurred or may affect the significance or accuracy of any such
information but which are unknown to the Purchaser and Parent.
8. CERTAIN INFORMATION CONCERNING THE PURCHASER, THE HOLDING COMPANIES AND
PARENT. The Purchaser is a wholly owned subsidiary of WK America, Inc., a
Delaware corporation ("WK America"), which is a wholly owned subsidiary of
Wolters Kluwer U.S. Corporation, a Delaware corporation ("Wolters Kluwer US").
Wolters Kluwer International Holding B.V., a corporation organized under the
laws of The Netherlands and a wholly owned subsidiary of Parent ("Wolters
Kluwer International," and together with WK America and Wolters Kluwer US, the
"Holding Companies"), owns 100% of the outstanding shares of capital stock of
Wolters Kluwer US. The Purchaser was formed as an acquisition vehicle in
connection with the Offer, the Merger and the other transactions contemplated
by the Merger Agreement and will be merged with and into the Company pursuant
to the Merger. Each of the Holding Companies were formed solely for the
purpose of holding shares of capital stock of indirect subsidiaries of Parent.
Parent, through its operating subsidiaries, is a multinational publisher of
print and electronic information for professionals and businesses with
operations in sixteen European countries and the United States. Parent
operates in seven principal areas: business publishing, legal and tax
publishing, medical publishing, scientific publishing, educational publishing,
professional training and trade publishing for selected markets. Parent's
business publishing activities are conducted for industry, government, non-
profit organizations and professionals. The primary product/market areas
include management, government, higher education, the medical, paramedical and
pharmaceutical sectors, communications, the social sciences, construction,
electronics, and electrical engineering, computerization and information
technology, logistics and transport. Parent's law and taxation publishing
activities focus on providing information for specialists in the fields of law
and taxation, but also include activities aimed toward a larger audience.
Parent's educational publishing activities involve virtually all topics in
primary education, general secondary education, vocational education and adult
education. Parent's scientific publishing activities are conducted principally
in the areas of the natural sciences, engineering, biosciences, medicine,
business administration and economics, the humanities and the social sciences.
Parent also provides training, coaching and continuous education services for
managers and their employees, as well as consulting services in the field of
corporate culture development. The principal executive offices of Parent, the
Purchaser and Wolters Kluwer International are located at Stadhouderskade 1,
1054 ES Amsterdam, The Netherlands. The principal executive offices of WK
America and Wolters Kluwer US are located at 300 Delaware Avenue, Suite 1704,
Wilmington, Delaware 19801.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history of each of the directors and
executive officers of Parent, the Holding Companies and the Purchaser are set
forth in Schedule I hereto.
Set forth below is certain consolidated financial information regarding
Parent and its subsidiaries. The financial information set forth below was
prepared in accordance with The Netherlands generally accepted accounting
principles ("Dutch GAAP"), which differ in certain respects from United States
generally accepted accounting principles ("US GAAP"). The principal
differences include:
. Acquired publishing rights are capitalized. In general, publishing rights
are considered to have an indefinite economic life, and therefore no
systematic amortization is applied. Write-offs are taken in the case of
permanent impairment. Under US GAAP acquired publishing rights are
amortized over the estimated life, not to exceed 40 years.
12
<PAGE>
. Goodwill is written off directly against stockholders' equity. Under US
GAAP goodwill is capitalized and amortized over the estimated life, not
to exceed 40 years.
. Pension costs are based on actuarially computed contributions to
foundations. Under US GAAP, pension costs are actuarially computed in
accordance with the provisions of Financial Accounting Standard No. 87,
Employers' Accounting for Pensions, and include current service costs,
interest costs and amortization of prior service costs.
. Post-retirement and post-employment benefits are recorded as contributions
are made to the plan or at the time of retirement or termination for
unfunded plans. US GAAP generally requires accrual of such costs over the
period the employee provides services to the company.
The consolidated financial statements of Parent are published in Dutch
guilders ("guilders" or "Dfl"). The dollar amounts in the table below have
been translated from guilders at the noon buying rate in New York City for
cable transfers in foreign currencies as certified for customs purposes by the
Federal Reserve Bank of New York (the "Noon Buying Rate") on June 30, 1995,
which was Dfl1.5507 per $1.00. Such rate may differ from the actual rates used
in the preparation of the consolidated financial statements of Parent as of
and for each of the years in the three-year period ended December 31, 1994 and
the interim consolidated financial statements of Parent as of and for the six-
month period ended June 30, 1995, which are expressed in guilders, and,
accordingly, dollar amounts appearing herein may differ from the actual dollar
amounts that were translated into guilders in the preparation of such
financial statements. The following table sets forth, for the periods and
dates indicated, the average, high, low and period-end Noon Buying Rates for
guilders expressed in guilders per $1.00.
YEARLY EXCHANGE RATES
(AMOUNTS IN DFL)
<TABLE>
<CAPTION>
PERIOD-
YEAR AVERAGE(1) HIGH LOW END
---- ---------- ------ ------ -------
<S> <C> <C> <C> <C>
1992........................................ 1.7572 1.8893 1.5684 1.8190
1993........................................ 1.8652 1.9612 1.7617 1.9472
1994........................................ 1.8077 1.9750 1.6727 1.7360
1995 (through November 30, 1995)............ 1.5979 1.7494 1.5192 1.6201
</TABLE>
- --------
(1) The average of the Noon Buying Rates on the last business day of each
month during the relevant period.
----------------
WOLTERS KLUWER NV
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED --------------------------------------
JUNE 30, 1995(1) 1994(1) 1993 1992
----------------- ------------------ -------- --------
(CURRENCY IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C>
AMOUNTS IN ACCORDANCE
WITH DUTCH GAAP
INCOME STATEMENT DATA:
Revenues.............. US$ 880 Dfl1,365 US$1,764 Dfl2,736 Dfl2,616 Dfl2,355
Operating income...... 176 273 351 544 490 404
Net income............ 129 200 246 382 318 258
BALANCE SHEET DATA (AT
END OF PERIOD):
Working capital....... US$ 48 Dfl 75 US$ (97) Dfl (151) Dfl (241) Dfl 123
Total assets.......... 1,168 1,811 1,195 1,853 1,648 2,106
Total debt............ 1 2 1 2 2 230
Liabilities........... 665 1,030 803 1,245 1,089 1,232
Stockholders' equity.. 502 779 391 606 557 644
FULLY DILUTED PER SHARE
DATA:
Net income............ US$ 1.92 Dfl 2.97 US$ 3.71 Dfl 5.75 Dfl 4.86 Dfl 4.15
</TABLE>
- --------
(1) Exchange rate based on the Noon Buying Rate on June 30, 1995:
Dfl 1.5507=US$1.
13
<PAGE>
Except as provided in the Merger Agreement and the Option Agreement and as
otherwise described in this Offer to Purchase, none of the Parent, the Holding
Companies or the Purchaser, or, to the best knowledge of Parent and the
Purchaser, any of the persons listed on Schedule I hereto, has any contract,
arrangement, understanding or relationship with any other person with respect
to any securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or the
voting of any securities of the Company, joint ventures, loan or option
arrangements, puts or calls, guarantees of loans, guarantees against loss or
the giving or withholding of proxies. Except as set forth in this Offer to
Purchase, none of Parent, the Holding Companies or the Purchaser, or, to the
best knowledge of Parent and the Purchaser, any of the persons listed on
Schedule I hereto, has had, since January 1, 1992, any business relationships
or transactions with the Company or any of its executive officers, directors
or affiliates that would require reporting under the rules of the Commission
applicable to this Offer to Purchase. Except as set forth in this Offer to
Purchase, since January 1, 1992, there have been no contacts, negotiations or
transactions between Parent, the Holding Companies or the Purchaser or any of
their respective subsidiaries, or, to the best knowledge of Parent and the
Purchaser, any of the persons listed on Schedule I hereto, and the Company or
its affiliates, concerning a merger, consolidation or acquisition, tender
offer or other acquisition of securities, election of directors or a sale or
other transfer of a material amount of assets. Except as set forth in this
Offer to Purchase, neither Parent nor the Purchaser, nor, to the best
knowledge of Parent and the Purchaser, any of the persons listed on Schedule I
hereto, beneficially owns any Shares or has effected any transactions in the
Shares during the past 60 days, except for 300 shares of Class A Common Stock
beneficially owned by Frans W.B. van Eysinga purchased more than 60 days ago.
9. SOURCE AND AMOUNT OF FUNDS. The total amount of funds required by the
Purchaser and Parent to consummate the Offer and the Merger and to pay related
fees and expenses is estimated to be approximately $1.9 billion. The Purchaser
intends to obtain the required funds from capital contributions and/or loans
from Parent. In response to an Information Memorandum for Participating Banks
prepared by Parent, Parent has received preliminary proposals from several
banks relating to providing such funds and is currently negotiating the terms
and conditions of the financing.
It is presently anticipated that funds borrowed will be repaid from
internally generated funds of Parent or the Company. Parent may, however,
employ alternative methods for refinancing such borrowings, including, without
limitation, debt financing, depending on prevailing interest rates and
financial and other economic conditions.
10. BACKGROUND OF THE OFFER; PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS
WITH THE COMPANY. In the late spring of 1995, the Chief Executive Officer
("CEO") of the Company met with the Chairman of the Executive Board of Parent
to discuss the Company's and Parent's respective businesses and recent
developments in the publishing industry.
In late October, the Chairman of the Executive Board of Parent contacted the
CEO of the Company to invite the CEO of the Company to meet with the Chairman
of the Executive Board of Parent at Parent's headquarters to discuss strategic
opportunities for the two companies in light of the current activity in the
legal publishing industry.
On October 30, the CEO of the Company, another member of the Company's
senior management and a representative of the Company's financial advisor met
with members of the Executive Board and the Chief Financial Officer of Parent.
Parent expressed an interest in pursuing a possible acquisition of the Company
and meetings were scheduled with the Company for November 16 and 17 to discuss
the Company's business activities and its financial performance.
On November 16 and 17, the senior management of the Company conducted the
scheduled meetings with members of senior management of Parent. A further
meeting was planned to review Parent's evaluation of the matters discussed on
November 16 and 17.
14
<PAGE>
In the afternoon of November 22, the CEO of the Company contacted the
Chairman of the Executive Board of Parent and indicated that their meeting
should occur soon, and the Chairman of the Executive Board of Parent agreed to
give the Company an indication of Parent's ability to make an offer for the
Company following a meeting of Parent's Supervisory Board on November 23. They
tentatively agreed to meet, if appropriate, on November 24.
The Supervisory Board of Parent met on Thursday evening, November 23,
Amsterdam time, reviewed the possible acquisition of the Company with Parent's
Executive Board and authorized management to make an offer to acquire the
Company.
After Parent's Supervisory Board Meeting, the Chairman of the Executive
Board of Parent called the CEO of the Company and made a verbal offer of $1.9
billion for the Company. The Company established a formal process through
which written offers would be submitted for evaluation by its Board of
Directors. Parent was advised on the evening of November 23 that the Company
would receive offers at the offices of the Company's legal advisors by 5:00 pm
(New York City time) on November 24. Any offers would be presented to the
Board of Directors at a special meeting to be held on November 25.
During the afternoon of November 24, the Chairman of the Executive Board of
Parent, other members of Parent's senior management and representatives of
Parent's legal and financial advisors met with the CEO of the Company, members
of the Company's senior management and representatives of the Company's
financial advisor to discuss the instructions for submitting an offer.
Parent submitted an offer letter to the Company in the early evening on
November 24. The offer was conditioned on, among other things, the Company's
agreement to negotiate with Parent on an exclusive basis and the binding
agreement of members of the Thorne family to sell their Shares to Parent.
On November 25, the Company's legal and financial advisors met with the
Board of Directors of the Company. The Company's Board of Directors reviewed
the terms of the offer and authorized senior management to enter into
discussions with Parent regarding a possible transaction.
On November 25 and November 26, the legal and financial advisors to the
Company met with those of Parent to negotiate the Merger Agreement and legal
advisors to the Thorne family met with those of Parent to negotiate the Option
Agreement. During the evening of November 26, the Board of Directors of the
Company met with its financial and legal advisors. In the late morning of
November 27, the trustees with voting power over the Thorne family Shares
executed the Option Agreement. The Merger Agreement was finalized and executed
in the early afternoon on November 27, and public announcements were made
immediately thereafter in the United States and The Netherlands.
11. PURPOSE OF THE OFFER AND THE MERGER; MERGER AGREEMENT AND OPTION
AGREEMENT. The purpose of the Offer, the Merger, the Merger Agreement and the
Option Agreement is for Parent to acquire control of, and the entire equity
interest in, the Company. The Offer, the Merger Agreement and the Option
Agreement are intended to increase the likelihood that the Merger will be
effected as promptly as practicable.
THE MERGER AGREEMENT. The following summary of the Merger Agreement, a copy
of which is filed as an Exhibit to the Schedule 14D-1 and incorporated by
reference herein, is qualified by reference to the full text of the Merger
Agreement.
The Offer. Pursuant to the terms of the Merger Agreement, the Purchaser is
required to commence the Offer no later than December 1, 1995 and to keep the
Offer open until 5:00 p.m. (New York City time) on January 4, 1996. The
obligations of the Purchaser to accept for payment, and pay for, any Shares
tendered pursuant to the Offer are subject to the conditions set forth in
Section 14 (the "Offer Conditions"). The Merger Agreement provides that
without the prior written consent of the Company, the Purchaser will not (i)
waive the
15
<PAGE>
Minimum Condition, (ii) reduce the number of Shares subject to the Offer,
(iii) reduce the per Share price to be paid pursuant to the Offer, (iv) modify
or add to the Offer Conditions (other than to waive any Offer Conditions to
the extent permitted by the Merger Agreement), (v) extend the Offer if all of
the Offer Conditions are satisfied or waived or, in the case of any single
extension, extend the Offer for more than three business days, (vi) change the
form of consideration payable in the Offer, or (vii) otherwise amend, add or
waive any term or condition of the Offer in any manner that would adversely
affect the Company or its stockholders.
Company Actions. Pursuant to the Merger Agreement, the Company has agreed
that on the date of the commencement of the Offer, subject to the fiduciary
duties of the Board of Directors of the Company under applicable law as
determined by the Board of Directors of the Company in good faith after
consultation with the Company's outside counsel, it will file with the
Commission and mail to its stockholders, a Solicitation/Recommendation
Statement on Schedule 14D-9 containing the recommendation of the Board of
Directors that the Company's stockholders accept the Offer and that the
holders of shares of Class A Common Stock approve the Merger.
The Merger. The Merger Agreement provides that, upon the terms and subject
to the conditions of the Merger Agreement, and in accordance with the DGCL,
the Purchaser shall be merged with and into the Company at the effective time
of the Merger (the "Effective Time"). Following the Merger, the separate
corporate existence of the Purchaser shall cease and the Company shall
continue as the surviving corporation (the "Surviving Corporation") and shall
succeed to and assume all the rights and obligations of the Purchaser in
accordance with the DGCL. The Certificate of Incorporation and Bylaws of the
Purchaser shall become the Certificate of Incorporation and Bylaws of the
Surviving Corporation. The directors of the Purchaser shall become the initial
directors of the Surviving Corporation and the officers of the Company shall
become the initial officers of the Surviving Corporation.
Conversion of Securities. At the Effective Time, each Share issued and
outstanding immediately prior thereto shall be cancelled and extinguished and
each Share (other than Shares held by the Company as treasury Shares, Shares
owned by any wholly owned subsidiary of the Company, Shares owned by Parent,
the Purchaser or any wholly owned subsidiary of Parent, and Dissenting Shares
(as defined below)) shall, by virtue of the Merger and without any action on
the part of the Purchaser, Parent, the Company or the holders of the Shares,
be converted into and represent the right to receive in cash, without
interest, the per share consideration paid in the Offer (the "Merger
Consideration"). Each share of common stock of the Purchaser issued and
outstanding immediately prior to the Effective Time shall, at the Effective
Time, by virtue of the Merger and without any action on the part of the
Purchaser, Parent, the Company or the holders of Shares, be converted into and
shall thereafter evidence one validly issued and outstanding share of common
stock of the Surviving Corporation.
Dissenting Shares. If required by the DGCL, Shares which are held by holders
who have properly exercised appraisal rights with respect thereto in
accordance with Section 262 of the DGCL ("Dissenting Shares") will not be
exchangeable for the right to receive the Merger Consideration, and holders of
such Shares will be entitled to receive payment of the appraisal value of such
Shares unless such holders fail to perfect or withdraw or lose their right to
appraisal and payment under the DGCL.
Merger Without a Meeting of Stockholders. In the event that the Purchaser,
or any other direct or indirect subsidiary of Parent, shall acquire at least
90% of the outstanding Shares, the parties agree to take all necessary and
appropriate actions to cause the Merger to become effective without a meeting
of stockholders of the Company, in accordance with Section 253 of the DGCL, as
soon as practicable after the expiration of the Offer, but in no event later
than six business days thereafter.
Representations and Warranties. In the Merger Agreement, the Company has
made customary representations and warranties to Parent and the Purchaser,
including, but not limited to, representations and warranties relating to the
Company's organization and qualification, capitalization, its authority to
enter into the
16
<PAGE>
Merger Agreement and carry out the related transactions, filings made by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), or the Exchange Act (including financial statements
included in the documents filed by the Company under the Securities Act and
the Exchange Act), required consents and approvals, the absence of certain
material adverse changes or events, approval by the Board of Directors of the
Merger Agreement and the Option Agreement for all purposes under Section 203
of the DGCL, the payment of taxes, compliance with applicable laws,
litigation, material liabilities of the Company and its subsidiaries, employee
benefit plans, intellectual property, environmental matters.
The Purchaser and Parent have also made customary representations and
warranties to the Company, including, but not limited to, representations and
warranties relating to the Purchaser's and Parent's organization and
qualification, capitalization, authority to enter into the Merger Agreement
and carry out the related transactions, required consents and approvals and
the availability of sufficient funds to consummate the Offer.
Covenants Relating to the Conduct of Business. The Company has agreed that
it will, and will cause its subsidiaries to, in all material respects, carry
on their respective businesses in, and not enter into any material transaction
other than in accordance with, the regular and ordinary course and, to the
extent consistent therewith, use their reasonable best efforts to preserve
intact their current business organizations, keep available the services of
their current officers and employees and preserve their relationships with
customers, suppliers and others having business dealings with them. The
Company has agreed that, except as contemplated by the Merger Agreement or as
disclosed by the Company to the Parent pursuant to the Merger Agreement, it
shall not, and shall not permit any of its subsidiaries (a "Subsidiary") to,
without the prior written consent of the Parent:
(a) declare, set aside or pay any dividends on, or make any other actual,
constructive or deemed distributions in respect of, any of its capital
stock, or otherwise make any payments to stockholders of the Company in
their capacity as such, other than (1) ordinary quarterly dividends by the
Company consistent with past practice in an amount not in excess of $0.17
1/2 per quarter per Share, provided that the record date for any such
dividend to be paid in the first quarter of 1996 shall not be earlier than
January 16, 1996 or (2) dividends declared prior to the date of the Merger
Agreement,
(b) issue, deliver, sell, pledge, dispose of or otherwise encumber, or
authorize the issuance, delivery, sale, pledge, disposition or other
encumbrance of, any shares of its capital stock, any other voting
securities or equity equivalent or any securities convertible into, or any
rights, warrants or options to acquire, any such shares, voting securities
or convertible securities or equity equivalent (other than, in the case of
the Company, the issuance of Shares during the period from the date of the
Merger Agreement through the Effective Time upon the exercise of Company
stock options outstanding on the date of the Merger Agreement in accordance
with their current terms;
(c) amend its Certificate of Incorporation or Bylaws;
(d) acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or by any
other manner, any business or any corporation, partnership, association or
other business organization or division thereof;
(e) other than in the ordinary course of business consistent with past
practice, sell, lease or otherwise dispose of or agree to sell, lease or
otherwise dispose of, any of its assets;
(f) incur, assume or prepay any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt securities or
guarantee any debt securities of others, except for borrowings or
guarantees incurred in the ordinary course of business consistent with past
practice;
(g) alter through merger, liquidation, reorganization, restructuring or
in any other fashion the corporate structure or ownership of any subsidiary
of the Company;
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(h) enter into or adopt any employee benefit plans or programs (which if
currently existing would come within the definition of Benefit Plans under
Section 4.12 of the Merger Agreement), or amend any existing, Benefit Plan,
agreement or arrangement, make any contribution to any Benefit Plans which
is disproportionately large when compared to prior contributions made to
such Benefit Plan or enter into or amend any employee benefit plan or
employment or consulting agreement, grant bonuses or compensation increases
except (x) for certain stay bonuses, merit bonuses and severance payments
under the Company's severance policy or as otherwise permitted by Section
7.11 of the Merger Agreement or (y) bonuses or compensation increases
associated with Benefit Plans, promotions and regular reviews in the
ordinary course of business;
(i) except as may be required as a result of a change in law or in
generally accepting accounting principles, change any of the accounting
practices or principles used by it;
(j) make any tax election or settle or compromise any federal, state,
local or foreign tax liability;
(k) settle or compromise any pending or threatened suit, action or claim
which is material;
(l) enter into any material contracts or modify, amend, terminate any
material contracts;
(m) take or offer or propose to take, or agree to take in writing or
otherwise any of the actions described above or any action which would make
any of the representations or warranties of the Company contained in the
Merger Agreement untrue or incorrect as of the date when made if such
action had been taken, or would result in any of the Offer conditions not
being satisfied.
During the period from the date of the Merger Agreement through the
Effective Time, the Purchaser shall not engage in any activities of any nature
except as provided in or contemplated by the Merger Agreement.
No Solicitation. The Company has agreed in the Merger Agreement that the
Company, its affiliates and their respective officers, directors, employees,
representatives and agents shall immediately cease any existing discussions or
negotiations, if any, with any parties conducted heretofore with respect to
any acquisition or exchange of all or any material portion of the assets of,
or any equity interest in, the Company or any of its subsidiaries or any
business combination with the Company or any of its subsidiaries. The Company
has agreed in the Merger Agreement that, from and after the date of the Merger
Agreement, the Company will not, directly or indirectly, solicit or initiate
any Takeover Proposal (as hereinafter defined) from any person, or engage in
discussions or negotiations relating thereto (including by way of furnishing
information); provided, however, that (i) the Company may engage in
discussions or negotiations with a third party who seeks to initiate such
discussions or negotiations or may furnish such third party information
concerning the Company and its business, properties, assets, operating results
and prospects, in each case only in response to a request for such information
or access to any person made after the date hereof which was not encouraged,
solicited or initiated by the Company or any of its affiliates or any of its
or their respective officers, directors, employees, representatives or agents
after the date hereof, pursuant to appropriate confidentiality agreements,
(ii) the Company's Board of Directors may take and disclose to the Company's
stockholders a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act and (iii) following receipt of a Takeover Proposal or offer the
Board of Directors of the Company may withdraw or modify its recommendation to
the stockholders, but in each case referred to in the foregoing clauses (i)
through (iii) only to the extent that the Board of Directors of the Company
shall conclude in good faith after consultation with the Company's outside
counsel that such action is appropriate in order for the Board of Directors of
the Company to act in a manner which is consistent with its fiduciary
obligations under applicable law. The Company also agreed to promptly notify
Parent of its receipt of any proposal or offer. As used in the Merger
Agreement, "Takeover Proposal" means any proposal or offer, other than a
proposal or offer by Parent or any of its affiliates, for a tender or exchange
offer, a merger, consolidation or other business combination involving the
Company or any Subsidiary of the Company or any proposal to acquire in any
manner a substantial equity interest in, or a substantial portion of the
assets of, the Company or
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any of its Subsidiaries or any other transaction the consummation of which
could reasonably be expected to impede, interfere with, prevent or materially
delay the Offer or the Merger or which would reasonably be expected to dilute
materially the benefits to Parent of the transactions contemplated by the
Merger Agreement.
Company Stock Options; Tax Gross-Up. Pursuant to the Merger Agreement,
immediately upon the consummation of the Offer, all outstanding employee stock
options, whether or not then fully exercisable or vested, to purchase Shares
(a "Company Stock Option") theretofore granted under the Company's Long-Term
Incentive Plan shall become fully exercisable and vested, and, pursuant to the
terms of the Long Term Incentive Plan, the Company Stock Options, shall, upon
their surrender to the Company by the holders thereof, be cancelled by the
Company, and the holders thereof shall receive a cash payment from the Company
in an amount equal to the number of Shares subject to each surrendered option
multiplied by the difference between the exercise price per Share covered by
the option and the Merger Consideration. No additional awards shall be granted
under the Long-Term Incentive Plan. Parent acknowledged that the Company has
resolved to "gross-up" certain executives for excise taxes due on any "excess
parachute payment" as a result of the acceleration of the vesting of the
Company Stock Options (subject to a maximum "gross-up" amount of $6,000,000)
and agreed to undertake to make such payments to the extent due after the
Effective Time.
Reasonable Best Efforts to Effect Merger. Upon the terms and subject to the
conditions set forth in the Merger Agreement, each of Parent, the Purchaser
and the Company has agreed to use its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger, and the other transactions contemplated by the Merger
Agreement, provided, however, that the Company shall be under no obligation to
take any action to the extent that the Board of Directors shall conclude in
good faith, after consultation with the Company's outside counsel, that such
action could be inconsistent with the Board of Directors' fiduciary
obligations under applicable law.
Indemnification. Pursuant to the Merger Agreement, Parent has agreed that,
from and after the Effective Time, it will cause the Surviving Corporation to
indemnify and hold harmless all past and present officers, directors,
employees and agents of the Company and of its Subsidiaries to the full extent
such persons may be indemnified by the Company pursuant to the Company's
Certificate of Incorporation and Bylaws as in effect as of the date of the
Merger Agreement for acts and omissions occurring at or prior to the Effective
Time and shall advance reasonable litigation expenses incurred by such persons
in connection with defending any action arising out of such acts or omissions
in accordance with the terms and provisions of such Certificate of
Incorporation and Bylaws. In addition, Parent will maintain in effect for a
period of six years the Company's current directors' and officers' liability
insurance covering those persons who are currently covered by such policy;
provided, however, Parent shall not be required to expend in any one year an
amount in excess of 150% of the annual premiums currently paid by the Company
for such insurance, but in such case the annual premiums of such insurance
coverage exceed such amount, Parent shall be obligated to obtain a policy with
the greatest coverage available for a cost not exceeding such amount.
Employee Benefits. Until at least December 31, 1996, Parent shall maintain
or cause to be maintained employee benefits and programs for retirees,
directors, officers and employees of the Company and its Subsidiaries that are
no less favorable in the aggregate than those being provided to such retirees,
directors, officers and employees on the date of the Merger Agreement. On or
after January 1, 1997, the retirees, directors, officers and employees of the
Company and its Subsidiaries shall be eligible for employee benefits and
programs (including but not limited to incentive compensation, deferred
compensation, pension, life insurance, medical, profit sharing (including
401(k)), severance, salary continuation and fringe benefits) which are no less
favorable in the aggregate than those generally available to similarly
situated retirees, directors, officers and employees of Parent and its
Subsidiaries in the relevant geographic regions. For purposes of eligibility
to participate in and vesting in all benefits provided to retirees, directors,
officers and employees of the Company and its Subsidiaries will be credited
with their years of service with the Company and its Subsidiaries and years of
service with prior employers to the extent service with prior employers is
taken into account under plans of the Company. Upon
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termination of any medical plan of the Company, individuals who were
directors, officers or employees of the Company or its Subsidiaries at the
Effective Time shall become eligible to participate in the medical plan of
Parent, provided that no condition that was eligible for coverage under any
medical plan of the Company at the time of such termination shall be excluded
from coverage under the medical plan of Parent as a pre-existing condition.
Amounts paid before the Effective Time by retirees, directors, officers and
employees of the Company under any medical plans of the Company shall after
the Effective Time be taken into account in applying deductibles and maximum
out-of-pocket limits applicable under the medical plan of Parent provided as
of the Effective Time to the same extent as if such amounts had been paid
under such medical plan of Parent.
Parent agreed that the following principles shall apply for purposes of
determining bonuses for 1995 under the Company's Short-Term Incentive Plan for
1995: (1) the Compensation Committee's determination to pay certain persons
who are employees of the Company or any of its Subsidiaries and who are
covered by such plan (other than employees whose employment is terminated for
any reason for cause on or prior to December 31, 1995); (2) whether any
bonuses are payable under such plan to other employees and, if so, the amounts
thereof shall be determined as if the transactions contemplated by the Merger
Agreement had not occurred and the Company had remained an independent,
publicly-owned company through December 31, 1995, taking into account to the
extent reasonably applicable the limitations imposed by Section 6.1(a) of the
Merger Agreement; and (3) any bonuses payable pursuant to clause (2) above
shall be paid by February 28, 1996. The Company has estimated that the total
amount of such bonuses will not exceed $3,000,000.
Parent agreed to fulfill any obligations that may arise under any Welfare
Plan to provide health benefits to retirees or other arrangements to provide
health benefits to retirees, in either case, entered into prior to the date of
the Merger Agreement.
Merit Bonuses; Severance Policy. Pursuant to the Merger Agreement, from the
date of the Merger Agreement up to the Effective Time, the Company shall be
permitted to offer and pay bonuses, in addition to any bonuses or payments
pursuant to any existing bonus or incentive plans of the Company, payable to
officers and employees whose performance and dedication to the Company or its
significant subsidiaries merits, in the discretion of the Chief Executive
Officer of the Company, special compensation ("Merit Bonuses"); provided,
however, that the aggregate amount paid by the Company pursuant to such Merit
Bonuses shall be no greater than $1,000,000.
With respect to officers and employees who are or will be terminated, Parent
has agreed to maintain the Company's severance policy as in effect on the date
of the Merger Agreement, or shall replace such policy with a policy providing
equal or more favorable compensation, for a period of at least one year from
the Effective Time.
Parent has agreed to honor or cause to be honored all existing severance
policies with the Company's officers and employees.
Parent has agreed that it and its Subsidiaries will provide reasonable and
customary outplacement services ("Outplacement Services") to officers of the
Company and its Subsidiaries who are terminated as a result of, or within
eighteen months following, the Merger, which Outplacement Services provided to
such officer and employees shall include one-on-one counseling and assistance.
Management Contracts. The Company has agreed to use its reasonable best
efforts to cause the key members of its senior management to enter into
employment arrangements with the Surviving Corporation on terms and conditions
satisfactory to Parent and pursuant to which they shall remain as employees of
the Surviving Corporation following the Effective Time.
Company Stockholder Approval; Proxy Statement. The Company has agreed that
if approval of the Merger by the holders of Class A Common Stock ("Class A
Holders") is required by applicable law, the Company
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shall either (i) call a meeting of its Class A Holders (the "Stockholder
Meeting") for the purpose of voting upon the Merger and shall use its
reasonable best efforts to obtain Class A Holder approval of the Merger or
(ii) if the holders of a majority of the outstanding shares of Class A Common
Stock intend to act by written consent, comply with the requirements of Rule
14c-2 promulgated under the Exchange Act. The Stockholder Meeting, if
necessary, shall be held as soon as practicable following the purchase of
shares of Common Stock pursuant to the Offer and the Company will, through its
Board of Directors, but subject to the fiduciary duties of its Board of
Directors under applicable law as determined by the Board of Directors in good
faith after consultation with the Company's outside counsel, recommend to its
Class A Holders the approval of the Merger and not rescind its declaration
that the Merger is advisable. The record date for the Stockholder Meeting
shall be a date subsequent to the date Parent or the Purchaser becomes a
record holder of Shares purchased pursuant to the Offer.
If required by applicable law, the Company will, as soon as practicable
following the expiration of the Offer, prepare and file a preliminary Proxy
Statement or Information Statement (each as defined in the Merger Agreement),
as the case may be, with the Commission and will use its reasonable best
efforts to respond to any comments of the Commission or its staff and to cause
the Proxy Statement to be mailed to the Class A Holders. The Company will
notify Parent of the receipt of any comments from the Commission or its staff
and of any request by the Commission or its staff for amendments or
supplements to the Proxy Statement or for additional information and will
supply Parent with copies of all correspondence between the Company or any of
its representatives, on the one hand, and the Commission or its staff, on the
other hand, with respect to the Proxy Statement or the Merger. If at any time
prior to the approval of the Merger Agreement by the holders of Class A Common
Stock at the Stockholder Meeting, if necessary, there shall occur any event
that should be set forth in an amendment or supplement to the Proxy Statement,
the Company will prepare and mail to its stockholders such an amendment or
supplement.
Parent agreed to cause all shares of Class A Common Stock purchased pursuant
to the Offer and all other shares of Class A Common Stock owned by the
Purchaser or any other Subsidiary of Parent to be voted in favor of the
approval of the Merger.
Access to Information. The Company has agreed that it shall, and shall cause
each of its Subsidiaries to, afford to Parent, and to Parent's accountants,
counsel, financial advisors and other representatives, reasonable access and
permit them to make such inspections as they may reasonably require during
normal business hours during the period from the date of the Merger Agreement
through the Effective Time to all their respective properties, books,
contracts, commitments and records (including the availability of an office at
the Company's corporate headquarters where Parent's representatives may work
on a day-to-day basis) and, during such period, the Company shall, and shall
cause each of its Subsidiaries to, furnish certain information promptly to
Parent; provided that, in no event shall the Company be requested to supply to
Parent, or to Parent's accountants, counsel, financial advisors or other
representatives, any information relating to indications of interest from, or
discussions with, any other potential acquirors of the Company which were
received or conducted prior to the date of the Merger Agreement, except to the
extent necessary for use in the Offer Documents (as defined in the Merger
Agreement), the Schedule 14D-9 and the Proxy Statement and/or the Information
Statement. Except as required by law, Parent will hold, and will cause its
affiliates, associates and representatives to hold, any nonpublic information
in confidence until such time as such information otherwise becomes publicly
available and shall use its reasonable best efforts to ensure that such
affiliates, associates and representatives to do not disclose such information
to others without the prior written consent of the Company. In the event of
termination of the Merger Agreement for any reason, Parent shall promptly
return or destroy all nonpublic documents so obtained from the Company or any
of its Subsidiaries and any copies made of such documents for Parent.
Conditions Precedent. The respective obligations of each of Parent, the
Purchaser and the Company to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time of the following conditions: (a)
if approval of the Merger by the Class A Holders is required by applicable
law, the Merger shall have been
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approved by the requisite vote of such holders; (b) the Purchaser shall have
accepted for payment and paid for the Shares properly tendered pursuant to the
Offer; provided, however, that this condition will be deemed satisfied with
respect to the obligations of Parent and the Purchaser if the Purchaser fails
to accept for payment and pay for any Shares pursuant to the Offer in
violation of the terms of the Merger Agreement or the Offer; (c) no
Governmental Entity (as defined in the Merger Agreement) or court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
law, rule, regulation, executive order, decree or injunction prohibiting the
consummation of the Merger; provided, however, that the Company, Parent and
the Purchaser shall use their reasonable best efforts to have any such order,
decree or injunction vacated and (d) the applicable waiting period under the
HSR Act shall have expired or been terminated.
Termination. The Merger Agreement provides that it may be terminated at any
time prior to the Effective Time, whether prior to or after approval by the
stockholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by the Company if (i) the Offer has not been timely commenced in
accordance with the Merger Agreement; or (ii) the Offer shall expire or is
terminated without any Shares being purchased thereunder due to the Offer
Conditions (other than the Minimum Condition) failing to be met; or (iii)
there is an offer to acquire all of the outstanding Shares or substantially
all of the assets of the Company for consideration that provides
stockholders of the Company a value per Share which, in the good faith
judgment of the Board of Directors of the Company, provides a higher value
per Share than the consideration per Share pursuant to the Offer or the
Merger and as a result of which, the Board of Directors of the Company is
obligated in accordance with its fiduciary duty under applicable law, as
advised by its counsel, to terminate the Merger Agreement; or (iv) there
has been (y) a material breach by Parent or the Purchaser of any
representation or warranty that is not qualified as to materiality or (z) a
breach by Parent or the Purchaser of any representation or warranty that is
qualified as to materiality, in each case which breach has not been cured
within five business days following receipt by Parent or the Purchaser of
notice of the breach; or (v) Parent or the Purchaser fails to comply in any
material respect with any of its material obligations or covenants
contained in the Merger Agreement which failure to perform is incapable of
being cured or has not been cured within five business days following
receipt by Parent or the Purchaser of written notice of the failure to
perform.
(c) by either Parent or the Company if (i) the Merger has not been
effected on or prior to the close of business on May 31, 1996; provided,
however, that the right to terminate the Merger Agreement pursuant to such
provision shall not be available (y) to Parent if the Purchaser or any
affiliate of the Purchaser acquires Shares pursuant to the Offer, or (z) to
any party whose failure to fulfill any obligation of the Merger Agreement
has been the cause of, or resulted in, the failure of the Merger to have
occurred on or prior to the aforesaid date; or (ii) any court of competent
jurisdiction or any governmental, administrative or regulatory authority,
agency or body shall have issued an order, decree or ruling or taken any
other action permanently enjoining, restraining or otherwise prohibiting
the transactions contemplated by the Merger Agreement and such order,
decree, ruling or other action shall have become final and nonappealable;
or (iii) if the stockholders of the Company fail to give any approval
required by applicable law; or (iv) if as the result of the failure of any
of the Offer Conditions (except for the Minimum Condition), the Offer shall
have terminated or expired in accordance with its terms without the
Purchaser having purchased any Shares pursuant to the Offer or pursuant to
the Option Agreement in accordance with its terms; provided, however, that
the right to terminate the Merger Agreement pursuant to Section 9.1(c)(iv)
of the Merger Agreement shall not be available to any party whose failure
to fulfill any of its obligations under the Merger Agreement results in the
failure of any such condition.
(d) by Parent if the Board of Directors of the Company shall have failed
to recommend, or withdrawn, modified or amended in any material respect its
approval or recommendations of the Offer or the Merger or shall have
resolved to do any of the foregoing.
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Fees and Expenses. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with the Merger Agreement and the transactions
contemplated thereby shall be paid by the party incurring such costs and
expenses.
THE OPTION AGREEMENT. The following summary of the Option Agreement, a copy
of which is filed as an Exhibit to the Schedule 14D-1 and incorporated by
reference herein, is qualified by reference to the full text of the Option
Agreement.
General. As a condition of the willingness of Parent to enter into the
Merger Agreement, Parent required that each of the Sellers enter into the
Option Agreement. The Sellers include trusts for the benefit of certain
members of the Thorne family and individual members of the Thorne family.
Agreement to Tender. Pursuant to the Option Agreement, the Sellers severally
(and not jointly) have agreed to tender pursuant to the Offer, a total of
9,568,967 shares of Class A Common Stock owned by the Sellers, representing
approximately 58% of the outstanding Class A Common Stock, and 9,497,701
shares of Class B Common Stock owned by the Sellers, representing
approximately 58% of the outstanding Class B Common Stock. Each Seller
severally has agreed to deliver to the Depositary, no later than the tenth
business day following the date of this Offer to Purchase, the appropriate
Letter(s) of Transmittal together with the certificates for the Seller's
Shares, if available, or a "Notice of Guaranteed Delivery," if the Seller's
Shares are not available; provided, that each Seller has agreed to use all
reasonable efforts to make such deliveries within five business days following
the date of this Offer to Purchase. Each of the Sellers has also severally
agreed not to withdraw any Shares tendered into the Offer.
Option to Purchase. Each Seller has also severally granted to the Purchaser
an irrevocable option (the "Stock Option") to purchase all of such Seller's
Shares legally and/or beneficially owned by such Seller at a purchase price
equal to $55.50 per Share. The exercise period for the Stock Option commences
on the later of January 2, 1996 and the termination or expiration of the Offer
and ends ten business days after the later of such dates; provided, however,
if the Merger Agreement terminates solely by reason of an offer for the
Company being made for consideration that provides the stockholders of the
Company a per Share value which in the good faith judgment of the Board of
Directors of the Company provides a higher value per Share than the
consideration per Share pursuant to the Offer or the Merger and as a result of
which the Board of Directors of the Company is obligated in accordance with
its fiduciary duty under applicable law, as advised by counsel, to terminate
the Merger Agreement (a "Fiduciary Duty Termination"), such exercise period
for the Stock Option would commence on the date of termination of the Merger
Agreement and end ten business days thereafter.
Conditions to Delivery of the Shares. The Option Agreement provides that the
obligation of the Sellers to deliver the Sellers' Shares upon exercise of the
Stock Option is subject to (i) all waiting periods under the HSR Act
applicable to the exercise of the Stock Option having expired or been
terminated, (ii) there being no preliminary or permanent injunction or other
order by any court of competent jurisdiction restricting, preventing or
prohibiting the exercise of the Stock Option or the delivery of the Sellers'
Shares in respect of such exercise, and (iii) the Offer having expired or
terminated without any Shares being purchased thereunder and without any
violation of the Offer by Parent or the Purchaser.
Representations and Warranties. The Option Agreement contains customary
representations and warranties by each Seller, including those relating to (i)
authority to enter into the Option Agreement and sell Shares owned by such
Seller, (ii) no options, warrants or other purchase rights existing as to such
Seller's Shares, (iii) good and marketable title to such Seller's Shares free
and clear of all liens, claims, encumbrances and security interests, (iv)
legality, validity and binding effect of the Option Agreement, and (v) no
violation of agreements, judgments, laws, rules and regulations. The Option
Agreement also contains various customary representations and warranties by
Parent and the Purchaser, including those relating to authority to enter into
the Option Agreement, the sufficiency of funds of Parent, legality, validity
and binding effect of the Option Agreement and no violation of agreements,
judgments, laws, rules and regulations.
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No Disposition of Sellers' Shares and No Acquisition of Shares. In the
Option Agreement, each Seller severally has agreed that, except as
contemplated by the Option Agreement, such Seller will, and none would offer
or agree to, sell, transfer or otherwise dispose of, or create any security
interest, pledge, option, right of first refusal, limitation on such Seller's
voting rights or other encumbrance with respect to, such Seller's Shares. Each
such Seller has also agreed that it will not, and will not offer to agree to,
acquire any additional Shares or options, warrants or other rights to acquire
Shares, without the prior written consent of the Purchaser.
Covenants of Parent and the Purchaser. Each of Parent and the Purchaser has
agreed that it will not sell, offer to sell or otherwise dispose of the Shares
in violation of the Securities Act. Each of Parent and the Purchaser has also
agreed that it will perform in all material respects all of its respective
obligations under the Merger Agreement. Pursuant to the Option Agreement,
Parent and the Purchaser have agreed that if Parent and the Purchaser exercise
the Stock Option or any of their other rights under the Option Agreement at a
time when the Merger Agreement has terminated, Parent and the Purchaser will
effect a merger pursuant to which each outstanding Share (other than those
held by Parent, the Purchaser, the Company or any subsidiary of the Company)
shall be converted into the right to receive not less than $55.50 per Share,
net to the selling stockholder, in cash at the earliest practicable date after
the closing of the Stock Option.
No Solicitation. Each Seller has agreed in the Option Agreement that it
shall immediately cease any discussions or negotiations, if any, with any
parties with respect to any acquisition or exchange of all or any material
portion of the assets of, or any equity interest in, the Company or any of its
subsidiaries or any business combination with the Company or any of its
subsidiaries. Each Seller has also agreed that, from and after the date of the
Option Agreement, no Seller will directly or indirectly solicit or initiate
any Takeover Proposal from any person, or engage in discussions or
negotiations relating thereto (including by way of furnishing information).
Each Seller will promptly notify Parent of its receipt of any Takeover
Proposal. The definition of "Takeover Proposal" in the Option Agreement is the
same as in the Merger Agreement.
Voting Agreement and Proxy. The Option Agreement provides that during the
time the Option Agreement is in effect, each Seller will vote all such
Seller's Shares (i) in favor of the Merger, the Merger Agreement and the
transactions contemplated by the Merger Agreement, (ii) against any action or
agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement, and (iii) against any action or agreement that
would materially impede, interfere with or attempt to discourage the Offer or
the Merger. Each Seller also has agreed that if the Merger Agreement
terminates by reason of a Fiduciary Duty Termination such Seller will (i)
attend or otherwise participate in all stockholder meetings or actions by
written consent, (ii) vote such Seller's Shares to enlarge the Board of
Directors of the Company to enable the Purchaser to nominate a majority of the
members of the Board of Directors, and (iii) vote such Seller's Shares so as
to prevent the Company from taking certain actions provided for in the Merger
Agreement. The Option Agreement further provides that in the event any Seller
fails to vote any of such Seller's Shares in the manner prescribed in this
paragraph, such Seller will be deemed to have irrevocably appointed the
Purchaser as the proxy of such Seller pursuant to Section 212 of the DGCL to
vote and otherwise act (by written consent or otherwise) with respect to all
of such Seller's Shares (other than to reduce the price paid pursuant to the
Offer or the Merger or to otherwise modify or amend the Merger Agreement to
reduce the rights or benefits of the Company or any stockholders of the
Company under the Offer or the Merger Agreement or to reduce the obligations
of Parent or the Purchaser thereunder). This irrevocable proxy expires if (x)
the Offer expires or terminates without any Shares being purchased thereunder
in violation of the terms of the Offer or (y) Parent or the Purchaser violates
the terms of the Option Agreement.
Termination. The Option Agreement will terminate, without any action by any
of the parties, on the date on which the Merger Agreement terminates in
accordance with its terms, except with respect to the exercise of the Stock
Option. The Stock Option may be exercised after termination of the Merger
Agreement on the terms described above under "Stock Option."
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OTHER MATTERS. Under the DGCL, if the Purchaser acquires less than 90% of
each class of the outstanding Shares, the Merger would require, among other
things, the affirmative vote of the holders of at least a majority of all the
outstanding shares of Class A Common Stock. If the Purchaser acquires,
pursuant to the Offer or otherwise, including pursuant to the Option
Agreement, voting power with respect to at least a majority of the outstanding
shares of Class A Common Stock, which would be the case if the Minimum
Condition is satisfied, the Purchaser will have the voting power to effect the
Merger without the vote of any other stockholder, which it intends to do.
Pursuant to the Option Agreement, the Sellers have, among other things, agreed
to tender in the Offer and not withdraw all of the Sellers' Shares. The
Minimum Condition will be satisfied upon the tender by the Sellers of the
Sellers' Shares. The DGCL also provides that if a parent company owns at least
90% of each class of stock of a subsidiary, the parent company can effect a
merger with the subsidiary without the authorization of the other stockholders
of the subsidiary. Accordingly, if the Purchaser acquires 90% or more of the
outstanding shares of Class A Common Stock and Class B Common Stock pursuant
to the Offer and the Option Agreement or otherwise, the Purchaser could, and
intends to, consummate the Merger without the approval of any other
stockholders of the Company.
No appraisal rights are available in connection with the Offer. However, if
the Merger is consummated, stockholders of the Company may have certain rights
under the DGCL to dissent and demand appraisal of, and payment in cash of the
fair value of, their Shares. Such rights, if the statutory procedures are
complied with, could lead to a judicial determination of the fair value
(excluding any element of value arising from the accomplishment or expectation
of the Merger) required to be paid in cash to such dissenting holders for
their Shares. Any such judicial determination of the fair value of Shares
could be based upon considerations other than or in addition to the price paid
in the Offer and the market value of the Shares, including asset values and
the investment value of the Shares. The value so determined could be more or
less than the purchase price per Share pursuant to the Offer or the
consideration per Share to be paid in the Merger.
In addition, several decisions by Delaware courts have held that, in certain
instances, a controlling stockholder of a corporation involved in a merger has
a fiduciary duty to the other stockholders that requires the merger to be fair
to such other stockholders. In determining whether a merger is fair to
minority stockholders, the Delaware courts have considered, among other
things, the type and amount of consideration to be received by the
stockholders and whether there were fair dealings among the parties. The
Delaware Supreme Court has indicated in recent decisions that in most cases
the remedy available in a merger that is found not to be "fair" to minority
stockholders is the right to appraisal described above or a damages remedy
based on essentially the same principles.
Section 203 of the DGCL prohibits business combination transactions
involving a Delaware corporation and an "interested stockholder" (defined
generally as any person that directly or indirectly beneficially owns 15% or
more of the outstanding voting stock of the subject corporation) for three
years following the date such person became an "interested stockholder,"
unless certain exceptions apply, including that prior to such date the Board
of Directors of the Company approved either the business combination or the
transaction which resulted in such person being an interested stockholder. As
set forth below, the Company's Board of Directors has taken actions to make
DGCL (S) 203 inapplicable to Parent and the Purchaser in connection with the
Offer, the Merger and the transactions contemplated by the Option Agreement.
In the Merger Agreement, the Company represented that its Board of Directors
has unanimously approved the Merger Agreement and the Option Agreement and the
transactions contemplated thereby, including the Offer and the Merger, for
purposes of DGCL (S) 203, such approval occurring prior to the time the
Purchaser became an "interested stockholder" as defined in DGCL (S) 203, so
that the provisions thereof are not applicable to such transactions.
The Commission has adopted Rule 13e-3 under the Exchange Act which is
applicable to certain "going private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Merger because it
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is anticipated that the Merger will be effected within one year following
consummation of the Offer. Rule 13e-3 requires, among other things, that
certain financial information concerning the Company and certain information
relating to the fairness of the proposed transaction and the consideration
offered to minority stockholders in such transaction, be filed with the
Commission and disclosed to minority stockholders prior to consummation of the
transaction.
The Purchaser or an affiliate of the Purchaser may, following the
consummation or termination of the Offer, seek to acquire additional Shares
through open market purchases, privately negotiated transactions, a tender
offer or exchange offer or otherwise, upon such terms and at such prices as it
shall determine, which may be more or less than the price to be paid pursuant
to the Offer. The Purchaser and its affiliates also reserve the right to
dispose of any or all Shares acquired by them.
Upon the completion of the Offer, Parent intends to conduct a detailed
review of the Company and its assets, corporate structure, dividend policy,
capitalization, operations, properties, policies, management and personnel and
consider, subject to the terms of the Merger Agreement, what, if any, changes
would be desirable in light of the circumstances which then exist. Such
changes could include changes in the Company's business, corporate structure,
charter, by-laws, capitalization, Board of Directors, management or dividend
policy, although Parent has no current plans with respect to any of such
matters.
Except as noted in this Offer to Purchase, neither Parent nor the Purchaser
has any present plans or proposals that would result in an extraordinary
corporate transaction, such as a merger, reorganization, liquidation,
relocation of operations or sale or transfer of assets, involving the Company
or any of its subsidiaries, or any material changes in the Company's corporate
structure, business or composition of its management or personnel.
12. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; TRADING OF THE SHARES
ON THE NASDAQ NATIONAL MARKET; REGISTRATION UNDER THE EXCHANGE ACT. The
purchase of Shares pursuant to the Offer will reduce the number of Shares that
might otherwise trade publicly and the number of holders of Shares, which
could adversely affect the liquidity and market value of the remaining Shares
held by stockholders other than the Purchaser.
Depending upon the aggregate market value and per Share price of any Shares
not purchased pursuant to the Offer, the Shares may no longer meet the
standards of the National Association of Securities Dealers, Inc. (the "NASD")
for continued inclusion in the Nasdaq National Market, which require that an
issuer have at least 200,000 publicly held shares with a market value of $1
million held by at least 400 stockholders or 300 stockholders holding round
lots and have net tangible assets of at least $1 million, $2 million or $4
million depending on profitability levels during the issuer's four most recent
fiscal years. If these standards are not met, the Shares might nevertheless
continue to be included in the NASD's Nasdaq Stock Market with quotations
published in the Nasdaq "additional list" or in one of the "local lists."
However, if the number of holders of shares of Class A Common Stock or Class B
Common Stock falls below 300, or if the number of publicly held shares of
Class A Common Stock or Class B Common Stock falls below 100,000, or if there
are not at least two market makers for such Shares, NASD rules provide that
the Class A Common Stock or the Class B Common Stock, as the case may be,
would no longer be "qualified" for Nasdaq Stock Market reporting, and the
Nasdaq Stock Market would cease to provide any quotations. Shares held
directly or indirectly by an officer or director of the Company, or by any
beneficial owner of more than 10% of the Shares, ordinarily will not be
considered as being publicly held for this purpose. If, as a result of the
purchase of Shares pursuant to the Offer or otherwise, the Class A Common
Stock or the Class B Common Stock no longer meets the NASD requirements for
continued inclusion in any tier of the Nasdaq National Market or in any other
tier of the Nasdaq Stock Market, and the Class A Common Stock or the Class B
Common Stock, as the case may be, are no longer included in any tier of the
Nasdaq National Market, the market for such Shares could be adversely
affected.
In the event the Class A Common Stock or the Class B Common Stock no longer
meets the requirements of the NASD for inclusion in any tier of the Nasdaq
Stock Market, quotations might still be available from other
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sources. The extent of the public market for such Shares and availability of
such quotations would, however, depend upon the number of holders of such
Shares remaining at such time, the interest in maintaining a market in the
Shares on the part of securities firms, the possible termination of
registration under the Exchange Act, as described below, and other factors.
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), which has the effect, among other things, of allowing brokers to
extend credit on the collateral of the Shares. Depending upon factors similar
to those described above regarding listing and market quotations, following
the Offer it is possible that the Shares would no longer constitute "margin
securities" for the purposes of the margin regulations of the Federal Reserve
Board and therefore could no longer be used as collateral for loans made by
brokers.
The shares of Class A Common Stock and Class B Common Stock are each
currently registered under the Exchange Act. Registration of either class of
securities under the Exchange Act may be terminated upon application of the
Company to the Commission if such class is not listed on a national securities
exchange and there are fewer than 300 record holders of such Shares.
Termination of registration of the Shares under the Exchange Act would reduce
substantially the information required to be furnished by the Company to its
stockholders and to the Commission and would make certain provisions of the
Exchange Act, such as the short-swing profit recovery provisions of Section
16(b), the requirement of furnishing a proxy statement in connection with
stockholders' meetings pursuant to Section 14(a) and the requirements of Rule
13e-3 under the Exchange Act with respect to "going private" transactions no
longer applicable to the Company. Furthermore, if the Purchaser acquires a
substantial number of Shares or the registration of the Shares under the
Exchange Act were to be terminated, the ability of "affiliates" of the Company
and persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 under the Securities Act may be impaired or
eliminated. If registration of the Shares under the Exchange Act were
terminated prior to the consummation of the Merger, the Shares would no longer
be "margin securities" or be eligible for listing or Nasdaq reporting. It is
the present intention of the Purchaser to seek to cause the Company to make an
application for termination of registration of the Shares as soon as possible
following the Offer if the requirements for termination of registration are
met.
13. DIVIDENDS AND DISTRIBUTIONS. As described in Section 11, the Merger
Agreement provides that, prior to the Effective Time, the Company will not,
and will not permit any of its Subsidiaries to, without the prior written
consent of Parent, (x) declare, set aside or pay any dividends on, or make any
other actual, constructive or deemed distributions in respect of, any of its
capital stock, or otherwise make any payments to stockholders of the Company
in their capacity as such, other than (1) ordinary quarterly dividends by the
Company consistent with past practice in an amount not in excess of $0.17 1/2
per Share per quarter, provided that the record date for the first such
quarterly dividend may be no earlier than January 16, 1996, or (2) dividends
declared prior to November 27, 1995, or (y) issue, deliver, sell, pledge,
award, dispose of or otherwise encumber or authorize the issuance, delivery,
sale, pledge, disposition or other encumbrance of, any shares of the capital
stock of the Company, any other voting securities or equity equivalent or any
securities convertible into, or rights, warrants or options to acquire, any
such shares, voting securities or convertible securities or equity equivalent
(other than, in the case of the Company, the issuance of Shares from November
27, 1995 through the Effective Time upon the exercise of stock options).
14. CONDITIONS TO THE OFFER. Notwithstanding any other provisions of the
Offer, and in addition to (and not in limitation of) the Purchaser's rights to
extend and amend the Offer at any time in its sole discretion (subject to the
provisions of the Merger Agreement) provided that the Purchaser shall not be
obligated to accept for payment any Shares until the expiration of all
applicable waiting periods under the HSR Act, the Purchaser shall not be
required to accept for payment, purchase or pay for, and may delay the
acceptance for payment of and payment for, any tendered Shares, in each event
subject to Rule 14e-1(c) under the Exchange Act, and may terminate or, subject
to the terms of the Merger Agreement, amend the Offer, if (i) there shall not
have been validly tendered and not withdrawn immediately prior to the
expiration of the Offer such number of Shares of
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Class A Common Stock which would constitute a majority of the voting power of
the outstanding Shares (determined on a fully diluted basis) of the Class A
Common Stock and (ii) if at any time on or after the date of the Merger
Agreement and before the time of payment for any such Shares (whether or not
any Shares have theretofore been accepted for payment or paid for pursuant to
the Offer) any of the following conditions exist or shall occur and remain in
effect:
(a) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, entered, enforced,
enacted or issued, by any United States Governmental Entity which (i)
prohibits or limits or seeks to prohibit or materially limit Parent's or
Purchaser's (x) ownership, or seeks to impose material limitations on the
ability of Parent or Purchaser to acquire or hold, or exercise full rights
of ownership of, any Shares accepted for payment pursuant to the Offer,
including, without limitation, the right to vote such Shares or (y)
operation of all or a material portion of the Company's business or assets,
or compels Parent to dispose of or hold separate all or a material portion
of the Company's business or assets as a result of the Offer or the Merger,
or (ii) prohibits or limits or seeks to prohibit or materially limit, or
makes illegal, the acceptance for payment, purchase or payment for Shares
or the consummation of the Offer or the Merger and such statute, rule,
regulation, judgment, order or injunction shall remain in effect for a
period of fifteen business days after the issuance thereof; provided,
however, that in order to invoke this condition with respect to any such
statute, rule, regulation, judgment, order or injunction Parent shall have
used in its reasonable best efforts to prevent such statute, rule,
regulation, judgment, order or injunction or ameliorate the effects
thereof; provided, further, that if any such order or injunction is a
temporary restraining order or preliminary injunction, Parent may not, for
a period of thirty days, by virtue of this condition alone amend or
terminate the Offer, but may only extend the Offer and thereby postpone
acceptance for payment or purchase of Shares; or
(b) the Merger Agreement shall have been terminated in accordance with
its terms; or
(c) the Company shall have breached any of its representations and
warranties set forth in Article IV of the Merger Agreement (other than any
matters that, in the aggregate, would not have a Material Adverse Effect
(as defined in the Merger Agreement) on the Company); or
(d) the Company shall have failed in any material respect to perform any
obligation or covenant required by the Merger Agreement to be performed or
complied with by it; or
(e) the Board of Directors of the Company shall have withdrawn or
modified in a manner adverse to Parent or the Purchaser its approval or
recommendation of the Offer, the Merger or the Merger Agreement, or
approved or recommended any Takeover Proposal; or
(f) there shall have occurred and continued to exist for at least three
business days (i) any general suspension of trading in, or limitation on
prices for, securities on a national securities exchange in the United
States or (ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or The Netherlands;
which, in the reasonable judgment of the Purchaser, makes it inadvisable to
proceed with the Offer or with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of the Purchaser and may
be waived by the Purchaser, in whole or in part, at any time and from time to
time, in the sole discretion of the Purchaser. The failure by the Purchaser at
any time to exercise any of the foregoing rights will not be deemed a waiver
of any other right, and each right will be deemed an ongoing right which may
be asserted at any time and from time to time.
15. CERTAIN LEGAL MATTERS.
General. Except as described in this Section 15, based on a review of
publicly available information filed by the Company with the Commission and
other publicly available information concerning the Company, neither Parent
nor the Purchaser is aware of any license or regulatory permit that appears to
be material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by the acquisition of
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Shares by the Purchaser pursuant to the Offer, the Merger or the Option
Agreement or, except as set forth below, of any approval or other action by
any governmental, administrative or regulatory agency or authority, domestic
or foreign, that would be required prior to the acquisition of Shares by the
Purchaser pursuant to the Offer, the Merger or the Option Agreement. Should
any such approval or other action be required, the Purchaser currently
contemplates that it will be sought. While the Purchaser does not currently
intend to delay the acceptance for payment of Shares tendered pursuant to the
Offer pending the outcome of any such matter, there can be no assurance that
any such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that adverse consequences might not
result to the Company's business or that certain parts of the Company's
business might not have to be disposed of in the event that such approvals
were not obtained or any other actions were not taken. The Purchaser's
obligation under the Offer to accept for payment and pay for Shares is subject
to certain conditions. See Section 14.
State Takeover Statutes. A number of states have adopted "takeover" statutes
that purport to apply to attempts to acquire corporations that are
incorporated in such states, or whose business operations have substantial
economic effects in such states, or which have substantial assets, security
holders, employees, principal executive offices or principal places of
business in such states.
In 1982, in Edgar v. MITE Corporation, the Supreme Court of the United
States invalidated on constitutional grounds the Illinois Business Takeover
Act, which, as a matter of state securities law, made takeovers of
corporations meeting certain requirements more difficult. However, in 1987, in
CTS Corp. v. Dynamics Corp. of America, the Supreme Court held that the State
of Indiana may, as a matter of corporate law, and, in particular, with respect
to those aspects of corporate law concerning corporate governance,
constitutionally disqualify a potential acquiror from voting on the affairs of
a target corporation without prior approval of the remaining stockholders. The
state law before the Supreme Court was by its terms applicable only to
corporations that had a substantial number of stockholders in the state and
were incorporated there. Subsequently, a number of federal courts ruled that
various state takeover statutes were unconstitutional insofar as they apply to
corporations incorporated outside the state of enactment.
The Company, directly or through subsidiaries, conducts business in a number
of states throughout the United States, some of which have enacted "takeover"
statutes. The Purchaser does not know whether any of these statutes will, by
their terms, apply to the Offer, and has not complied with any such statutes.
To the extent that certain provisions of these statutes purport to apply to
the Offer, the Purchaser believes that there are reasonable bases for
contesting such statutes. If any person should seek to apply any state
takeover statute, the Purchaser would take such action as then appears
desirable, which action may include challenging the validity or applicability
of any such statute in appropriate court proceedings. If it is asserted that
one or more takeover statutes applies to the Offer and the Merger, and it is
not determined by an appropriate court that such statute or statutes do not
apply or are invalid as applied to the Offer and the Merger, the Purchaser
might be required to file certain information with, or receive approvals from,
the relevant state authorities, and the Purchaser might be unable to purchase
or pay for Shares tendered pursuant to the Offer, or be delayed in continuing
or consummating the Offer. In such case, the Purchaser may not be obligated to
accept for payment or pay for Shares tendered. See Section 14.
Antitrust. The Offer, the Merger and the acquisition of Shares pursuant to
the Option Agreement are subject to the HSR Act, which provides that certain
acquisition transactions may not be consummated unless certain information has
been furnished to the Antitrust Division of the Department of Justice (the
"Antitrust Division") and the Federal Trade Commission ("FTC") and certain
waiting period requirements have been satisfied. On December 1, 1995, the
Parent filed a Notification and Report Form with respect to the Offer (the
"HSR Filing").
Under the provisions of the HSR Act applicable to the Offer, the purchase of
Shares under the Offer may not be consummated until the expiration of a 15-
calendar day waiting period following the filing by Parent. Accordingly, as
such filing was made on December 1, 1995, the waiting period with respect to
the Offer will expire at 11:59 p.m., New York City time, on December 16, 1995,
unless the Parent receives a request for
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additional information or documentary material, or the Antitrust Division and
the FTC terminate the waiting period prior thereto. If, within such 15-day
waiting period, either the Antitrust Division or the FTC requests additional
information or material from Parent concerning the Offer, the waiting period
will be extended and would expire at 11:59 p.m., New York City time, on the
tenth calendar day after the date of substantial compliance by Parent with
such request. Only one extension of the waiting period pursuant to a request
for additional information is authorized by the HSR Act. Thereafter, such
waiting period may be extended only by court order or with the consent of
Parent. The Purchaser will not accept for payment Shares tendered pursuant to
the Offer unless and until the waiting period requirements imposed by the HSR
Act with respect to the Offer have been satisfied. See Section 14.
If the transaction to which the HSR Filing relates is abandoned prior to the
expiration of the 15-day waiting period or any extension thereof, then the
Merger or the purchase by the Purchaser of the Sellers' Shares pursuant to the
Option Agreement may not be consummated until 30 calendar days after receipt
by the Antitrust Division and the FTC of the Notification and Report Forms of
both Parent and the Company unless the 30-day period is earlier terminated by
the Antitrust Division and the FTC. Within such 30-day period, the Antitrust
Division or the FTC may request additional information or documentary
materials from Parent or the Company. The acquisition of Shares pursuant to
the Merger or the Option Agreement may not be consummated until 20 days after
such requests are substantially complied with by both Parent and the Company.
Thereafter, the waiting periods may be extended only by court order or with
the consent of Parent and the Company.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's acquisition of
Shares pursuant to the Offer, the Merger and the Option Agreement. At any time
before or after the Purchaser's acquisition of Shares, the Antitrust Division
or the FTC could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking to enjoin the
acquisition of Shares pursuant to the Offer, the Merger or the Option
Agreement or otherwise or seeking divestiture of Shares acquired by the
Purchaser or divestiture of substantial assets of Parent or its subsidiaries.
Private parties and state attorneys general may also bring legal action under
the antitrust laws under certain circumstances. Based upon an examination of
publicly available information relating to the businesses in which Parent and
the Company are engaged, Parent and the Purchaser believe that the acquisition
of Shares by the Purchaser will not violate the antitrust laws. Nevertheless,
there can be no assurance that a challenge to the Offer or other acquisition
of Shares by the Purchaser on antitrust grounds will not be made or, if such a
challenge is made, of the result. See Section 14 for certain conditions to the
Offer, including conditions with respect to certain governmental actions.
Exon-Florio Provision. Section 271 (the Omnibus Trade and Competitiveness
Act of 1988) of the Defense Production Act of 1950, as amended (the "Exon-
Florio Provision") applies to all acquisitions proposed or pending on or after
August 23, 1988, by or with foreign persons which could result in foreign
control of persons engaged in interstate commerce in the United States. The
Exon-Florio Provision empowers the President of the United States to prohibit
or suspend mergers, acquisitions or takeovers by or with foreign persons if
the President finds, after investigations, credible evidence that the foreign
person might take action that threatens to impair the national security of the
United States and that the other provisions of existing law do not provide
adequate and appropriate authority to protect the national security. The
President has designated The Committee on Foreign Investment in the United
States ("CFIUS") as the agency authorized under the Exon-Florio Provision to
receive notices and other information, to determine whether investigations
should be undertaken and to make investigations. CFIUS is comprised of
representatives of the Departments of Treasury, State, Commerce, Defense and
Justice, the Office of Management and Budget, the United States Trade
Representative's Office and the Council of Economic Advisors. Any
determination by CFIUS that an investigation is called for must be made within
30 days after its acceptance of written notification concerning a proposed
transaction. In the event that CFIUS determines to undertake an investigation,
such investigation must be completed within 45 days after such determination.
Upon completion or termination of any such investigation, CFIUS must report to
the President and present its recommendation. The President then has 15 days
in which to suspend or prohibit the proposed transaction or to seek other
appropriate relief. In order for the President to exercise his authority to
suspend or
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prohibit an acquisition, the President must make two findings: (i) that there
is credible evidence that leads the President to believe that the foreign
interest exercising control might take action that threatens to impair
national security, and (ii) that provisions of law other than the Exon-Florio
Provision and the International Emergency Economic Powers Act do not provide
adequate and appropriate authority for the President to protect the national
security in connection with the acquisition. Such findings are not subject to
judicial review. If the President makes such findings, he may take action for
such time as he considers appropriate to suspend or prohibit the relevant
acquisition. The President may direct the Attorney General to seek appropriate
relief, including divestment relief, in the District Courts of the United
States in order to implement and enforce the Exon-Florio Provision. The Exon-
Florio Provision does not obligate the parties to an acquisition to notify
CFIUS of a proposed transaction. However, if notice of a proposed acquisition
is not submitted to CFIUS, then the transaction remains indefinitely subject
to review by the President under the Exon-Florio Provision, unless it is
determined that CFIUS does not have jurisdiction over the transaction.
The Purchaser and the Company have not yet determined whether CFIUS has
jurisdiction and therefore whether a filing is appropriate with regard to the
transactions contemplated by the Merger Agreement. Although the Purchaser
believes that the transactions contemplated by the Merger Agreement should not
raise any national security concerns, there can be no assurance that CFIUS
will not determine to conduct an investigation of the proposed transaction
and, if an investigation is commenced, there can be no assurance regarding the
outcome of such investigation. If the results of such investigation are
adverse to the Purchaser, the Purchaser may not be obligated to accept for
payment or pay for any Shares tendered pursuant to the Offer.
16. FEES AND EXPENSES. CS First Boston is acting as the Dealer Manager in
connection with the Offer and is acting as exclusive financial advisor to
Parent with respect to Parent's proposed acquisition of the Company. Parent
has agreed, pursuant to an engagement letter dated November 24, 1995 (the
"Engagement Letter"), to pay CS First Boston for its services a fee of 0.35%
of the Aggregate Consideration (as defined in the Engagement Letter) paid in
connection with the proposed acquisition. In addition, Parent has agreed to
reimburse CS First Boston for certain of its out-of-pocket expenses. Parent
also has agreed to indemnify CS First Boston and certain related persons
against certain liabilities and expenses in connection with its services,
including certain liabilities under the federal securities laws. CS First
Boston has rendered various investment banking and other advisory services to
the Parent and its affiliates in the past and is expected to continue to
render such services, for which it has received and will continue to receive
customary compensation from the Parent and its affiliates.
The Purchaser has retained Georgeson & Company Inc. to act as the
Information Agent and Morgan Guaranty Trust Company of New York to act as the
Depositary in connection with the Offer. The Information Agent may contact
holders of Shares by mail, telephone, telex, telegraph and personal interview
and may request brokers, dealers, commercial banks, trust companies and other
nominees to forward the materials relating to the Offer to beneficial owners.
The Information Agent and the Depositary each will receive reasonable and
customary compensation for their services, will be reimbursed for certain
reasonable out-of-pocket expenses and will be indemnified against certain
liabilities and expenses in connection therewith, including certain
liabilities under the federal securities laws. Neither the Information Agent
nor the Depositary has been retained to make solicitations or recommendations
in connection with the Offer.
Except as set forth above, neither Parent nor the Purchaser will pay any
fees or commissions to any broker or dealer or other person for soliciting
tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks
and trust companies will be reimbursed by the Purchaser for reasonable
expenses incurred by them in forwarding the offering materials to their
customers.
17. MISCELLANEOUS. Neither Parent nor the Purchaser is aware of any
jurisdiction in which the making of the Offer or the tender of Shares in
connection therewith would not be in compliance with the laws of such
jurisdiction. If Parent or the Purchaser becomes aware of any jurisdiction in
which the making of the Offer would not be in compliance with applicable law,
Parent or the Purchaser will make a good faith effort to comply with any such
law. If, after such good faith effort, Parent or the Purchaser cannot comply
with any such laws, the
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Offer will not be made to (nor will tenders be accepted from or on behalf of)
the holders of Shares residing in such jurisdiction. In any jurisdiction where
the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of
Parent or the Purchaser by one or more registered brokers or dealers which are
licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR PARENT NOT CONTAINED IN THIS
OFFER TO PURCHASE OR IN THE LETTERS OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
Parent and the Purchaser have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional
information with respect to the Offer, and may file amendments thereto. In
addition, the Company has filed with the Commission a
Solicitation/Recommendation Statement on Schedule 14D-9 pursuant to Rule 14d-9
under the Exchange Act, setting forth the recommendation of the Board with
respect to the Offer and the reasons for such recommendation and furnishing
certain additional related information. The Schedule 14D-9 is being mailed to
stockholders of the Company herewith. The Schedule 14D-1 and Schedule 14D-9
and any amendments thereto, including exhibits, may be inspected and copies
may be obtained at 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).
WK Acquisition Sub, Inc.
December 1, 1995
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SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF
PARENT, THE HOLDING COMPANIES AND THE PURCHASER
1. MEMBERS OF THE SUPERVISORY BOARD AND EXECUTIVE BOARD AND EXECUTIVE
OFFICERS OF WOLTERS KLUWER NV. The following table sets forth the name,
business address and present principal occupation or employment and material
occupations, positions, offices or employments for the past five years of each
member of the Supervisory Board and Executive Board and each Executive Officer
of Wolters Kluwer nv. Unless otherwise indicated, each such person is a
citizen of The Netherlands, and the business address of each such person is
c/o Wolters Kluwer nv, Stadhouderskade 1, 1054 ES Amsterdam, The Netherlands.
SUPERVISORY BOARD
<TABLE>
<CAPTION>
INDIVIDUAL PRINCIPAL OCCUPATION
NAME AND BUSINESS ADDRESS OFFICE OR EMPLOYMENT (PRESENT/PAST)
- ------------------------- -------------------------- -----------------------------------
<S> <C> <C>
O. Hattink Chairman, Member of the Supervisory Board
Bloemcamplaan 17 Member since February 1988 --Royal Verkade nv
2244 EA Wassenaar --RBC Finance BV
The Netherlands --Hudig-Langeveldt BV
--IHC Calland nv
--Royal Pakhoed nv
--British Gas International BV
--British Gas Netherlands BV
N.J. Westdijk Member Chairman of the Executive Board
Nieuwegracht 161 since May 1993 of Royal Pakhoed nv
3512 LL Utrecht
The Netherlands
Member of the Supervisory Board
--De nationale Investeringsbank nv
--NV E.J. Brill
B.H. ter Kuile Member Lawyer, De Brauw
Neyhuyskade 4 since May 1986 Blackstone Westbroek
2596 XL's Gravenhage --Judge
The Netherlands --Professor of Community Law
University of Rotterdam
--Member of the Executive Board of
ICC-Nederland
J.M.M. Maeijer Member Professor of Law
Pauluslaan 17 since 1988 University of Nijmegen,
6564 AP Heilig The Netherlands
Landstichting --Judge
The Netherlands --Consultant, Department of Justice
Member of the Supervisory Board
</TABLE> --Vendex International nv
I-1
<PAGE>
<TABLE>
<CAPTION>
INDIVIDUAL PRINCIPAL OCCUPATION
NAME AND BUSINESS ADDRESS OFFICE OR EMPLOYMENT (PRESENT/PAST)
- ------------------------- --------------- --------------------------------------------
<S> <C> <C>
J.V.H. Pennings Member Chairman of the Executive Board of
Casinoweg 170 since May 1995 Oce-van der Grintan nv
5915 ER Venlo Member of the Supervisory Board
The --Grolsch nv
Netherlands --De Nederlandsche Bank nv
--Van Geel Group BV
--Royal IBC
H. de Ruiter Member Managing Director of Royal Dutch Shell Group
Prins since May 1994 Member of the Supervisory Board
Frederiklaan --AEGON
16 --Heineken
2243 HW
Wassenaar
The
Netherlands
C.M. Walravens Member Professor and Consultant
Oude Delft 130 since June 1978 Member of the Supervisory Board
2611 CG Delft --Honeywell-Bull
The --Tauw Infra Consult
Netherlands --VSN Group
--Achmea Group
--CSM
</TABLE>
EXECUTIVE BOARD
The names of the members of the Executive Board of Wolters Kluwer nv, whose
present principal occupations are serving as such members, are:
<TABLE>
<CAPTION>
NAME AND BUSINESS ADDRESS OFFICE
------------------------- ------
<C> <S>
C.J. Brakel Chairman since 1995; Member since 1981
C.H. van Kempen Member since 1993; Chief Executive Officer of
Wolters Kluwer Italy, an indirect and wholly owned
subsidiary of Wolters Kluwer nv, from 1990 through
1993
Peter W. van Wel Member since 1993; Chairman of the Board since 1993
and Chief Executive Officer of Wolters Kluwer U.S.
Corporation, an indirect and wholly owned subsidiary
of Wolters Kluwer nv, from 1990 through 1993
Robert Pieterse Member since 1987
</TABLE>
EXECUTIVE OFFICERS
The names of the Executive Officers of Wolters Kluwer nv, whose present
principal occupations are serving as such officers, are:
<TABLE>
<CAPTION>
NAME AND BUSINESS ADDRESS OFFICE
------------------------- ------
<C> <S>
Hans E.M. van Dinter Chief Financial Officer for more than the past five
years
R.N. Hazewinkel Secretary of the Executive Board since 1993; Editor
of Samson Publishers for more than the past five
years
Paul C. Kooijmans Director of Accounting & Control for more than the
past five years
A.S.F. Kuipers Director of Business Development since January 1995;
prior to 1995, Managing Director of BBI Publishers
M.H. Sanders Director of Personnel & Organization for more than
the past five years
F.H. Simons Head of the Legal Department for more than the past
five years
</TABLE>
I-2
<PAGE>
2. MEMBERS OF THE EXECUTIVE BOARD OF WOLTERS KLUWER INTERNATIONAL HOLDING
B.V. The following table sets forth the name, business address and present
principal occupation or employment and material occupations, positions,
offices or employments for the past five years of each member of the Executive
Board of Wolters Kluwer International Holding B.V. Each such person is a
citizen of The Netherlands, and the business address of each such person is
c/o Wolters Kluwer nv, Stadhouderskade 1, 1054 ES Amsterdam, The Netherlands.
<TABLE>
<CAPTION>
NAME AND BUSINESS INDIVIDUAL PRINCIPAL OCCUPATION
ADDRESS OFFICE OR EMPLOYMENT (PRESENT/PAST)
- ----------------- ------ -------------------------------
<S> <C> <C>
Hans E.M. van Dinter Member Chief Financial Officer of
Wolters Kluwer nv for more
than the past five years
F.H. Simons Member Head of the Legal Department
of Wolters Kluwer nv for more
than the past five years
</TABLE>
I-3
<PAGE>
3. DIRECTORS AND EXECUTIVE OFFICERS OF WOLTERS KLUWER U.S. CORPORATION. The
following table sets forth the name, business address and present principal
occupation or employment and material occupations, positions, offices or
employments for the past five years of each Director and Executive Officer of
Wolters Kluwer U.S. Corporation. Each such person is a citizen of The
Netherlands. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to employment with Wolters Kluwer U.S. Corporation.
<TABLE>
<CAPTION>
INDIVIDUAL PRINCIPAL OCCUPATION
NAME AND BUSINESS ADDRESS OFFICE OR EMPLOYMENT (PRESENT/PAST)
- ------------------------- ------ -------------------------------
<S> <C> <C>
Peter W. van Wel Chairman of the Board Member of the Executive
c/o Wolters Kluwer nv since 1993 Board of Wolters Kluwer
Stadhouderskade 1 nv since 1993; Chief
1054 ES Amsterdam Executive Officer from
The Netherlands 1990 to 1993
F.W.B. van Eysinga Director, President and Prior to 1994, Managing
c/o Wolters Kluwer U.S. Chief Executive Officer Director of Wolters
Corporation since 1994 Kluwer Academic
1185 Avenue of the Americas Publishers, a wholly
36th floor owned subsidiary of
New York, New York 10036 Wolters Kluwer nv
Bruce C. Lenz Executive Vice President Executive Vice President
c/o Wolters Kluwer U.S. and Chief Financial and Chief Financial
Corporation Officer Officer for more than
1185 Avenue of the Americas the past five years
36th floor
New York, New York 10036
(U.S. citizen)
</TABLE>
I-4
<PAGE>
4. DIRECTORS AND EXECUTIVE OFFICERS OF WK AMERICA, INC. The following table
sets forth the name, business address and present principal occupation or
employment and material occupations, positions, offices or employments for the
past five years of each Director and Executive Officer of WK America, Inc.
Unless otherwise indicated, each such person is a citizen of The Netherlands.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to employment with WK America, Inc.
<TABLE>
<CAPTION>
NAME AND BUSINESS INDIVIDUAL PRINCIPAL OCCUPATION
ADDRESS OFFICE OR EMPLOYMENT (PRESENT/PAST)
- ----------------- ------ -------------------------------
<S> <C> <C>
Peter W. van Wel Chairman of the Board Member of the Executive Board
c/o Wolters Kluwer nv of Wolters Kluwer nv since 1993;
Stadhouderskade 1 Chief Executive Officer of
1054 ES Amsterdam Wolters Kluwer U.S. Corporation
The Netherlands from 1990 to 1993
F.W.B. van Eysinga Director and President Prior to 1994, Managing Director of
c/o Wolters Kluwer Wolters Kluwer Academic Publishers, a
U.S. Corporation wholly owned subsidiary of Wolters
1185 Avenue of the Kluwer nv
Americas
36th floor
New York, New York
10036
Bruce C. Lenz Secretary and Executive Vice President and Chief
c/o Wolters Kluwer Treasurer Financial Officer of Wolters Kluwer
U.S. Corporation U.S. Corporation for more than the past
1185 Avenue of the five years
Americas
36th floor
New York, New York
10036
(U.S. citizen)
</TABLE>
I-5
<PAGE>
5. DIRECTORS AND EXECUTIVE OFFICERS OF WK ACQUISITION SUB, INC. The
following table sets forth the name, business address and present principal
occupation or employment and material occupations, positions, offices or
employments for the past five years of each Director and Executive Officer of
WK Acquisition Sub, Inc. Unless otherwise indicated, each such person is a
citizen of The Netherlands, and each occupation set forth opposite an
individual's name refers to employment with WK Acquisition Sub, Inc.
<TABLE>
<CAPTION>
INDIVIDUAL PRINCIPAL OCCUPATION
OR
NAME AND BUSINESS ADDRESS OFFICE EMPLOYMENT (PRESENT/PAST)
- ------------------------- ------------------------ ---------------------------------
<S> <C> <C>
Peter W. van Wel Chairman and Member of the Executive Board of
c/o Wolters Kluwer nv President Wolters Kluwer nv since 1993;
Stadhouderskade 1 Chief Executive Officer of
1054 ES Amsterdam Wolters Kluwer U.S. Corporation
The Netherlands from 1990 to 1993
Bruce C. Lenz Director and Executive Vice President and
c/o Wolters Kluwer U.S. Corporation Executive Vice President Chief Financial Officer of
1185 Avenue of the Americas Wolters Kluwer U.S. Corporation
36th floor for more than the past five years
New York, New York 10036
(U.S. citizen)
Hans E.M. van Dinter Director Chief Financial Officer of
c/o Wolters Kluwer nv Wolters Kluwer nv
Stadhouderskade 1 for more than the past five years
1054 ES Amsterdam
The Netherlands
</TABLE>
I-6
<PAGE>
Facsimile copies of the Letters of Transmittal, properly completed and duly
executed, will be accepted. The Letters of Transmittal, certificates
evidencing Shares and any other required documents should be sent or delivered
by each stockholder or its broker, dealer, commercial bank or other nominee to
the Depositary as follows:
The Depositary for the Offer is:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By Mail: By Hand:
Morgan Guaranty Trust Morgan Guaranty Trust Morgan Guaranty Trust
Company Company of New York Company of New York
Corporate Reorganization c/o State Street Bank and c/o State Street Bank and
PO Box 8216 Trust Trust
Boston, MA 02266-8216 61 Broadway 225 Franklin Street
Concourse Level, Morgan Concourse Level
Window Boston, MA
New York, NY
By Overnight Courier: By Facsimile Transmission:
(617) 774-4519
Morgan Guaranty Trust Company
c/o State Street Confirm by Telephone:
Corporate Reorganization (617) 774-4501
500 Victory Road
Marina Bay MB2
N. Quincy, MA 02171
Questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone
numbers set forth below. Additional copies of this Offer to Purchase, the
Letters of Transmittal and the Notice of Guaranteed Delivery may be obtained
from the Information Agent. A stockholder may also contact its broker, dealer,
commercial bank or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
GEORGESON
& COMPANY INC.
WALL STREET PLAZA
NEW YORK, NEW YORK 10005
BANKS AND BROKERS CALL COLLECT (212) 440-9800
ALL OTHERS CALL TOLL-FREE (800) 223-2064
The Dealer Manager for the Offer is:
CS FIRST BOSTON
PARK AVENUE PLAZA
55 EAST 52ND STREET
NEW YORK, NEW YORK 10055
CALL TOLL-FREE (800) 704-8076
<PAGE>
Exhibit (a)(2)
LETTER OF TRANSMITTAL
TO TENDER
SHARES OF CLASS A COMMON STOCK
OF
CCH INCORPORATED
PURSUANT TO THE OFFER TO PURCHASE
DATED DECEMBER 1, 1995
BY
WK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY
OF
WOLTERS KLUWER NV
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
By Mail: By Hand:
<S> <C> <C>
Morgan Guaranty Trust Company Morgan Guaranty Trust Company Morgan Guaranty Trust Company
Corporate Reorganization of New York of New York
PO Box 8216 c/o State Street Bank and Trust c/o State Street Bank and Trust
Boston, MA 02266-8216 61 Broadway 225 Franklin Street
Concourse Level, Morgan Window Concourse Level
New York, NY Boston, MA
</TABLE>
<TABLE>
<S> <C>
By Overnight Courier: By Facsimile Transmission:
(617) 774-4519
Morgan Guaranty Trust Company Confirm by Telephone:
c/o State Street Corporate Reorganization (617) 774-4501
500 Victory Road
Marina Bay MB2
N. Quincy, MA 02171
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Letter of Transmittal is to be completed by stockholders of CCH
Incorporated either if certificates evidencing shares of Class A Common Stock
(as defined below) are to be forwarded herewith or if a tender of such shares
is to be made by book-entry transfer to the account of Morgan Guaranty Trust
Company of New York, as Depositary (the "Depositary"), at The Depository Trust
Company ("DTC"), the Midwest Securities Trust Company ("MSTC") or the
Philadelphia Depository Trust Company ("PDTC") (each, a "Book-Entry Transfer
Facility" and collectively, the "Book-Entry Transfer Facilities") pursuant to
the procedures set forth in Section 3--"Procedures for Tendering Shares" of
the Offer to Purchase (as defined below). DELIVERY OF DOCUMENTS TO A BOOK-
ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
1
<PAGE>
Holders of shares of Class A Common Stock whose certificates are not
immediately available, or who are unable to deliver their certificates and all
other documents required by this Letter of Transmittal to the Depositary on or
prior to the Expiration Date (as defined in Section 1--"Terms of the Offer" of
the Offer to Purchase) or who cannot complete the procedure for delivery by
book-entry transfer on a timely basis and who wish to tender their shares must
tender their shares pursuant to the guaranteed delivery procedure set forth in
Section 3--"Procedures for Tendering Shares" of the Offer to Purchase. See
Instruction 2 of this Letter of Transmittal.
[_] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND
COMPLETE THE FOLLOWING:
Name(s) of Tendering Institution ______________________________________________
Check Box of Book-Entry Transfer Facility:
(CHECK ONE) [_] DTC [_] MSTC [_] PDTC
Account Number ___________________ Transaction Code Number ___________________
[_] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) _______________________________________________
Window Ticket Number (if any) _________________________________________________
Date of Execution of Notice of Guaranteed Delivery ____________________________
Name of Institution Which Guaranteed Delivery _________________________________
If Delivered by Book-Entry Transfer, Check Box of Book-Entry Transfer
Facility:
(CHECK ONE) [_] DTC [_] MSTC [_] PDTC
Account Number ___________________ Transaction Code Number ___________________
2
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES OF CLASS A COMMON STOCK TENDERED
- ----------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) CERTIFICATE(S) TENDERED
APPEAR(S) ON CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TOTAL NUMBER
OF SHARES NUMBER
CERTIFICATE EVIDENCED BY OF SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
----------- --------------- ----------
----------- --------------- ----------
----------- --------------- ----------
----------- --------------- ----------
----------- --------------- ----------
----------- --------------- ----------
----------- --------------- ----------
TOTAL SHARES
OF CLASS A
COMMON STOCK
----------
</TABLE>
- -------------------------------------------------------------------------------
* Need not be completed by stockholders delivering shares of Class A
Common Stock by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all shares of Class
A Common Stock evidenced by each certificate delivered to the Depositary
are being tendered. See Instruction 4 of this Letter of Transmittal.
The names and addresses of the registered holders should be printed, if not
already printed above, exactly as they appear on the certificates representing
shares of Class A Common Stock tendered hereby. The certificates and the
number of shares of Class A Common Stock that the undersigned wishes to tender
should be indicated in the appropriate boxes.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to WK Acquisition Sub, Inc., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Wolters Kluwer
nv, a corporation organized under the laws of The Netherlands (the "Parent"),
the above described shares of Class A Common Stock, par value $1.00 per share
(the "Class A Common Stock"), of CCH Incorporated, a Delaware corporation (the
"Company"), pursuant to the Purchaser's offer to purchase all outstanding
shares of Class A Common Stock and Class B Common Stock, par value $1.00 per
share (the "Class B Common Stock," and together with the Class A Common Stock,
the "Shares"), at a price of $55.50 per Share net to the seller in cash (the
"Purchase Price"), upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated December 1, 1995 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which together constitute the "Offer"). The undersigned understands that the
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 Shares tendered pursuant to the Offer, but any such
transfer or assignment will not relieve the Purchaser of its obligations under
the Offer or prejudice the rights of tendering stockholders to receive payment
for Shares accepted for payment pursuant to the Offer.
Subject to, and effective upon, the acceptance for payment of the shares
tendered herewith, in accordance with 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), the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Purchaser, all right,
title and interest in and to all of the shares tendered hereby and all
dividends, distributions (including, without limitation, distributions of
additional shares) and rights declared, issued, paid or distributed in respect
of such shares on or after November 27, 1995 and payable or distributable to
the undersigned on a date prior to the transfer to the name of the Purchaser
(or nominee or transferee of the Purchaser) on the Company's stock transfer
records of the shares tendered herewith (collectively, "Distributions") and
irrevocably constitutes and appoints the Depositary the true and lawful agent
and attorney-in-fact of the undersigned with respect to such shares and all
Distributions with full power of substitution (such
3
<PAGE>
power of attorney being deemed to be an irrevocable power coupled with an
interest) to (i) deliver certificates for such shares and all Distributions or
transfer ownership of such shares and all Distributions on the account books
maintained by a Book-Entry Transfer Facility, together, in either case, with
all accompanying evidences of transfer and authenticity, to or upon the order
of the Purchaser, upon receipt by the Depositary, as the undersigned's agent,
of the Purchase Price, (ii) present such shares and all Distributions for
transfer on the books of the Company and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such shares and all
Distributions, all in accordance with the terms and subject to the conditions
of the Offer.
The undersigned hereby irrevocably appoints Peter W. van Wel, Hans E.M. van
Dinter, and Bruce C. Lenz, and each of them, as the attorneys-in-fact and
proxy of the undersigned, each with full power of substitution, to vote in
such manner as each such attorney and proxy or the substitute for any such
attorney and proxy shall, in the sole discretion of each such attorney and
proxy, deem proper, and otherwise act (by written consent or otherwise) with
respect to all of the shares tendered hereby (and any Distributions) which the
undersigned is entitled to vote at any meeting of stockholders of the Company
(whether annual or special and whether or not adjourned or postponed), or
consent in lieu of any such meeting or otherwise. This power of attorney and
proxy is irrevocable and is granted in consideration of, and is effective
upon, the Purchaser's oral or written notice to the Depositary of its
acceptance for payment of such shares in accordance with the terms of the
Offer. Such acceptance for payment shall revoke all other powers of attorney
and proxies given by the undersigned at any time with respect to such shares
(and any Distributions), and no subsequent powers of attorney or proxies may
be given (and if given or executed shall not be effective) by the undersigned
with respect thereto. The undersigned acknowledges and understands that in
order for shares to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment of such shares, the Purchaser must be able
to exercise full voting power and other rights of a record and beneficial
holder, including, without limitation, voting at any meeting of the Company's
stockholders or acting by written consent, with respect to such shares (and
any Distributions).
The undersigned hereby represents and warrants that: (i) the undersigned has
full power and authority to tender, sell, assign and transfer the shares
tendered hereby (and any Distributions) and (ii) when the same are accepted
for payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions,
charges, claims and encumbrances, and that none of such shares and
Distributions will be subject to any adverse claim. The undersigned, upon
request, shall execute and deliver all additional documents deemed by the
Depositary or the Purchaser to be necessary or desirable to complete the sale,
assignment and transfer of the shares tendered hereby and all Distributions.
In addition, the undersigned shall remit and transfer promptly to the
Depositary for the account of the Purchaser all Distributions in respect of
the shares tendered hereby, accompanied by appropriate documentation of
transfer, and, pending such remittance and transfer or appropriate assurance
thereof, the Purchaser shall be entitled, subject to applicable law, to all
rights and privileges as owner of each such Distribution and may withhold the
entire Purchase Price or deduct from the Purchase Price the amount or value of
such Distribution as determined by the Purchaser in its sole discretion.
No authority conferred herein or agreed to be conferred herein shall be
affected by, and all such authority shall survive, the death or incapacity of
the undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, trustees in bankruptcy, personal
and legal representatives, successors and assigns of the undersigned. Except
as described in Section 4 --"Withdrawal Rights" of the Offer to Purchase, this
tender is irrevocable.
The undersigned understands that the acceptance for payment of tendered
shares by the Purchaser pursuant to any of the procedures described in Section
2 --"Acceptance for Payment and Payment" of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, the Purchaser may not be
required to accept for payment any of the shares tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the Purchase Price for all shares
purchased and return any certificates for shares not tendered or not
purchased, in the name(s)
4
<PAGE>
of the registered holder(s) appearing above under "Description of Shares of
Class A Common Stock Tendered." Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions," please mail the check for the
Purchase Price for all shares purchased and return any certificates for any
shares not tendered or not purchased (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of Shares of Class A Common Stock Tendered." If the boxes
entitled "Special Delivery Instructions" and "Special Payment Instructions"
are both completed, please issue the check for the Purchase Price for all
shares purchased and return any certificates for shares not tendered or not
purchased in the name(s) of, and deliver said check and/or certificate(s) to,
the person(s) so indicated. Unless otherwise indicated in the box entitled
"Special Payment Instructions," in the case of a book-entry delivery of
shares, please credit the account maintained at the Book-Entry Transfer
Facility indicated above with any shares not purchased. The undersigned
recognizes that the Purchaser has no obligation pursuant to the Special
Payment Instructions to transfer any shares from the name(s) of the registered
holder(s) thereof if the Purchaser does not accept for payment any of the
shares tendered hereby.
5
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS (SEE SPECIAL DELIVERY INSTRUCTIONS
INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the To be completed ONLY if the
check for the Purchase Price of check for the Purchase Price of
shares purchased or certificates shares purchased or certificates
for shares not tendered or not for shares not tendered or not
purchased are to be issued in the purchased are to be sent to some-
name of someone other than the one other than the undersigned,
undersigned, or if shares ten- or to the undersigned at an ad-
dered hereby and delivered by dress other than that shown under
book-entry transfer which are not "Description of Shares of Class A
purchased are to be returned by Common Stock Tendered."
credit to an account at one of
the Book-Entry Transfer Facili-
ties other than that designated
above.
Issue [_] Check [_] Certificate(s) Mail [_] Check [_] Certificate(s)
to: to:
Name _____________________________ Name______________________________
(PLEASE PRINT)
(PLEASE PRINT)
Address __________________________ Address __________________________
__________________________________ __________________________________
(INCLUDE ZIP CODE) (INCLUDE ZIP CODE)
__________________________________
(TAX IDENTIFICATION OR SOCIAL
SECURITY NO.)
(SEE SUBSTITUTE W-9 ON REVERSE
SIDE)
[_]Credit unpurchased shares ten-
dered by book-entry transfer to
the account set forth below:
Check appropriate box:
[_] DTC [_] MSTC [_] PDTC
Account Number ___________________
6
<PAGE>
IMPORTANT
STOCKHOLDERS: SIGN HERE
(Also Complete Substitute Form W-9 on Reverse Side)
__________________________________________________________
__________________________________________________________
(Signature(s) of Stockholder(s))
Dated: _________________________
(Must be signed by registered holder(s) exactly as
name(s) appear(s) on stock certificate(s) or on a
security position listing or by person(s) authorized to
become registered holder(s) by certificate(s) and
documents transmitted herewith. If signature is by a
trustee, executor, administrator, guardian, attorney-in-
fact, officer of a corporation or other person acting in
a fiduciary or representative capacity, please provide
the following information. See Instruction 5.)
Name(s)___________________________________________________
___________________________________________________
(Please Print)
Capacity (Full Title) ____________________________________
Address___________________________________________________
___________________________________________________
(Include Zip Code)
Area Code and
Telephone Number ___________________________
Tax Identification or
Social Security Number ___________________________________
(See Substitute Form W-9 on reverse side)
GUARANTEE OF SIGNATURE(S)
(If Required--See Instructions 1 and 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
Authorized Signature(s) __________________________________
Name _____________________________________________________
(Please Print)
Name of Firm _____________________________________________
Address __________________________________________________
(Include Zip Code)
Area Code and Telephone Number ___________________________
Dated: _________________________
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Signature Guarantee. No signature guarantee on this Letter of Transmittal
is required if (i) this Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this document, shall include any
participant in a Book-Entry Transfer Facility whose name appears on a security
position listing as the owner of shares) of shares tendered herewith, unless
such holder(s) have completed either the box entitled "Special Delivery
Instructions" or "Special Payment Instructions" on this Letter of Transmittal
or (ii) such shares are tendered for the account of a financial institution
(including most commercial banks, savings and loan associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each, an "Eligible Institution"). In all
other cases, all signatures on this Letter of Transmittal must be guaranteed
by an Eligible Institution.
2. Delivery of Letter of Transmittal and Certificates. This Letter of
Transmittal is to be completed by stockholders either if certificates are to
be forwarded herewith or, unless an Agent's Message (as defined in Section 2--
"Acceptance for Payment and Payment" of the Offer to Purchase) is utilized, if
tenders are to be made pursuant to the procedures for delivery by book-entry
transfer set forth in Section 3--"Procedures for Tendering Shares" of the
Offer to Purchase. Certificates for all physically tendered shares, or timely
confirmation of a book-entry transfer (a "Book Entry Confirmation") into the
Depositary's account at a Book-Entry Transfer Facility of all shares delivered
by book-entry transfer, as well as a Letter of Transmittal (or manually signed
facsimile hereof) properly completed and duly executed with all required
signature guarantees and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth herein on or prior to the Expiration Date (as defined in Section 1--
"Terms of the Offer" of the Offer to Purchase), or the tendering stockholder
must comply with the guaranteed delivery procedures set forth below. If
certificates are forwarded to the Depositary in multiple deliveries, a Letter
of Transmittal (or manually signed facsimile hereof) properly completed and
duly executed with all required signature guarantees must accompany each such
delivery.
Stockholders whose certificates for shares are not immediately available,
who cannot deliver their certificates and all other required documents to the
Depositary on or prior to the Expiration Date, or who cannot complete the
procedure for delivery by book-entry transfer on a timely basis may tender
their shares pursuant to the guaranteed delivery procedures set forth in
Section 3--"Procedures for Tendering Shares" of the Offer to Purchase.
Pursuant to such procedures, (i) such tender must be made by or through an
Eligible Institution, (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by the Purchaser, must
be received by the Depositary, either by hand delivery, mail or facsimile
transmission, on or prior to the Expiration Date and (iii) the certificates
for all physically tendered shares, in proper form for transfer (or Book-Entry
Confirmation) together with a Letter of Transmittal (or manually signed
facsimile thereof) properly completed and duly executed with all required
signature guarantees or, in the case of a book-entry transfer, an Agent's
Message, and any other documents required by this Letter of Transmittal, must
be received by the Depositary within three trading days after the date of the
execution of the Notice of Guaranteed Delivery. A trading day is any day on
which the Nasdaq National Market is open for business.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE CERTIFICATES FOR
SHARES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-
ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING
STOCKHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED FOR SUCH DOCUMENTS TO REACH THE DEPOSITARY. EXCEPT AS
OTHERWISE PROVIDED IN THIS INSTRUCTION 2, DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE DEPOSITARY.
No alternative, conditional or contingent tenders will be accepted and no
fractional shares will be purchased. All tendering stockholders, by execution
of this Letter of Transmittal (or a facsimile hereof), waive any right to
receive any notice of the acceptance of their shares for payment.
3. Inadequate Space. If the space provided herein under "Description of
Shares of Class A Common Stock Tendered" is inadequate, the certificate
numbers, the number of shares of Class A Common Stock evidenced by such
certificates and the number of shares of Class A Common Stock tendered should
be listed on a separate signed schedule and attached hereto.
8
<PAGE>
4. Partial Tenders (not applicable to stockholders who tender by book-entry
transfer). If fewer than all the shares evidenced by any certificate delivered
to the Depositary herewith are to be tendered, fill in the number of shares
that are to be tendered in the box entitled "Number of Shares Tendered." In
such case, as soon as practicable after the Expiration Date, new
certificate(s) evidencing the remainder of the shares that were evidenced by
the certificates delivered to the Depositary herewith will be sent to the
person(s) signing this Letter of Transmittal, unless otherwise provided in the
box entitled "Special Delivery Instructions." All shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the certificates without alteration, enlargement or any other change
whatsoever.
If any share tendered hereby is held of record by two or more holders, all
such holders must sign this Letter of Transmittal.
If any of the shares tendered hereby are registered in names of different
holders, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
shares tendered hereby, no endorsements of certificates or separate stock
powers are required unless payment is to be made, or certificates for shares
not tendered or not purchased are to be issued in the name of, a person other
than the registered holder(s) in which case, the certificate(s) tendered
hereby must be endorsed or accompanied by appropriate stock powers in either
case signed exactly as the name(s) of the registered holder(s) appear(s) on
such certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the shares tendered hereby, the certificates tendered
hereby must be endorsed or accompanied by appropriate stock powers, in either
case signed as the name(s) of the registered holder(s) appear(s) on such
certificates. Signatures on such certificates and stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer
of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Purchaser of such person's authority to so act must be
submitted.
6. Special Payment and Delivery Instructions. If a check for the Purchase
Price of any shares tendered hereby is to be issued or certificate(s) not
tendered or not purchased are to be issued in the name of a person other than
the person signing this Letter of Transmittal, or to the person(s) signing
this Letter of Transmittal but at an address other than that shown above, the
appropriate boxes on this Letter of Transmittal must be completed.
Stockholders tendering shares by book-entry transfer may request that shares
not purchased be credited to such account maintained at a Book-Entry Transfer
Facility as such stockholder may designate in the box entitled "Special
Payment Instructions" herein. If no such instructions are given, all such
shares not purchased will be returned by crediting the account at the Book-
Entry Transfer Facility designated above.
7. Stock Transfer Taxes. Except as set forth in this Instruction 7, the
Purchaser will pay or cause to be paid any stock transfer taxes with respect
to the transfer and sale of the purchased shares to it, or to its order,
pursuant to the Offer. If, however, payment of the Purchase Price of any
shares purchased is to be made to, or certificate(s) for shares not tendered
or not purchased are to be issued in the name of, a person other than the
registered owner(s), or if tendered certificates are registered in the name of
any persons other than the persons signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered
holder(s), such other person or otherwise) payable on account of the transfer
to such other person will be deducted from the Purchase Price of such shares
purchased, unless evidence satisfactory to the Purchaser of the payment of
such taxes or exemption therefrom is submitted.
8. Waiver of Conditions. Subject to the terms of the Merger Agreement (as
defined in the Offer to Purchase), the conditions of the Offer may be waived
by the Purchaser, in whole or in part, at any time and from time to time in
Purchaser's sole discretion, in the case of any shares tendered.
9
<PAGE>
9. Substitute Form W-9. Each tendering stockholder is required to provide
the Depositary with a correct taxpayer identification number ("TIN"),
generally the stockholder's social security or federal employer identification
number, and with certain other information, on the Substitute Form W-9, which
is provided under "Important Tax Information" below, and to certify, under
penalties of perjury, that such number is correct and that the stockholder is
not subject to backup withholding of federal income tax. If a tendering
stockholder has been notified by the Internal Revenue Service that such
stockholder is subject to backup withholding, such stockholder must cross out
item (2) of the Certification box (Part 2) of the Substitute Form W-9, unless
such stockholder has since been notified by the Internal Revenue Service that
such stockholder is no longer subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
stockholder to 31% federal income tax withholding on the payment of the
Purchase Price of all shares purchased from such stockholder. The box in Part
3 of the Substitute Form W-9 may be checked if the tendering stockholder has
not been issued a TIN and has applied for a TIN or intends to apply for a TIN
in the near future. If the box in Part 3 is checked and the Depositary is not
provided with a TIN within 60 days, the Depositary will withhold 31% on all
payments of the Purchase Price to such stockholder until a TIN is provided to
the Depositary.
10. Lost, Destroyed or Stolen Certificates. If any certificate(s)
representing shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary. The stockholder will then be instructed as to
the steps that must be taken in order to replace the certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost or destroyed certificates have been followed.
11. Requests for Assistance or Additional Copies. Requests for assistance
may be directed to the Dealer Manager or the Information Agent at the
addresses set forth below. Additional copies of the Offer to Purchase, this
Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 may
be obtained from the Dealer Manager or the Information Agent at the addresses
set forth below or from brokers, dealers, commercial banks or trust companies.
IMPORTANT: This Letter of Transmittal (or manually signed facsimile hereof)
properly completed and duly executed (with all required signature guarantees
and certificates or confirmation of book-entry transfer and all other required
documents) or the Notice of Guaranteed Delivery properly completed and duly
executed must be received by the Depositary on or prior to the Expiration
Date.
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered shares are
accepted for payment is required to provide the Depositary (as payer) with
such stockholder's current TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If the Depositary is not provided with the correct TIN, the
stockholder or other payee may be subject to a $50 penalty imposed by the
Internal Revenue Service. In addition, payments that are made to such
stockholder or other payee with respect to shares purchased pursuant to the
Offer may be subject to backup withholding of 31%.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual or a foreign entity to qualify
as an exempt recipient, that stockholder must submit to the Depositary a
properly completed Internal Revenue Service Form W-8 (a "Form W-8"), signed
under penalties of perjury, attesting to that individual's exempt status. A
Form W-8 can be obtained from the Depositary. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payment made to the stockholder or other payee. Backup withholding is not
an additional tax. Rather, the federal income tax liability of persons subject
to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made to a stockholder or other
payee with respect to shares purchased pursuant to the Offer, the stockholder
is required to notify the Depositary of the stockholder's current TIN (or the
TIN of
10
<PAGE>
any other payee) by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such stockholder is
awaiting a TIN), and that (1) the stockholder has not been notified by the
Internal Revenue Service that the stockholder is subject to backup withholding
as a result of failure to report all interest or dividends or (2) the Internal
Revenue Service has notified the stockholder that the stockholder is no longer
subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
shares tendered hereby. If the shares are registered in more than one name or
are not registered in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
11
<PAGE>
PAYER'S NAME: MORGAN GUARANTY TRUST COMPANY OF NEW YORK
PART 1--PLEASE PROVIDE YOUR Social security
SUBSTITUTE TIN IN THE BOX AT RIGHT AND number or Employer
FORM W-9 CERTIFY BY SIGNING AND identification
DATING BELOW. number
DEPARTMENT OF
THE TREASURY ____________________
INTERNAL --------------------------------------------------------
REVENUE PART 2--CERTIFICATION--Under penalties of perjury, I
SERVICE certify that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me), and
(2) I am not subject to backup withholding because:
PAYER'S REQUEST (a) I am exempt from backup withholding, or (b) I
FOR TAXPAYER have not been notified by the Internal Revenue
IDENTIFICATION Service (IRS) that I am subject to backup
NUMBER ("TIN") withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup
withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item
(2) above if you have been notified by the IRS that
you are currently subject to backup withholding
because of underreporting interest or dividends on
your tax return. However, if after being notified by
the IRS that you were subject to backup withholding
you received another notification from the IRS that
you are no longer subject to backup, do not cross
out item (2).
--------------------------------------------------------
PART 3 --
SIGNATURE ______________ DATE _______ Awaiting TIN [_]
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number, 31% of all reportable payments made to me will be
withheld, but that such amounts will be refunded to me if I then provide a
taxpayer identification number within 60 days.
Signature_________________________ Date_______________
The Information Agent for the Offer is:
GEORGESON
& COMPANY INC.
--------------
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect (212) 440-9800
All Others Call Toll-Free (800) 223-2064
12
<PAGE>
Exhibit (a)(3)
LETTER OF TRANSMITTAL
TO TENDER
SHARES OF CLASS B COMMON STOCK
OF
CCH INCORPORATED
PURSUANT TO THE OFFER TO PURCHASE
DATED DECEMBER 1, 1995
BY
WK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY
OF
WOLTERS KLUWER NV
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
By Mail: By Hand:
<S> <C> <C>
Morgan Guaranty Trust Morgan Guaranty Trust Company of New York Morgan Guaranty Trust Company
Company c/o State Street Bank and Trust of New York
Corporate Reorganization 61 Broadway c/o State Street Bank and Trust
PO Box 8216 Concourse Level, Morgan Window 225 Franklin Street
Boston, MA 02266-8216 New York, NY Concourse Level
Boston, MA
</TABLE>
<TABLE>
<S> <C>
By Overnight Courier: By Facsimile Transmission:
(617) 774-4519
Morgan Guaranty Trust Company Confirm by Telephone:
c/o State Street Corporate Reorganization (617) 774-4501
500 Victory Road
Marina Bay MB2
N. Quincy, MA 02171
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION OTHER THAN
AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Letter of Transmittal is to be completed by stockholders of CCH
Incorporated either if certificates evidencing shares of Class B Common Stock
(as defined below) are to be forwarded herewith or if a tender of such shares
is to be made by book-entry transfer to the account of Morgan Guaranty Trust
Company of New York, as Depositary (the "Depositary"), at The Depository Trust
Company ("DTC"), the Midwest Securities Trust Company ("MSTC") or the
Philadelphia Depository Trust Company ("PDTC") (each, a "Book-Entry Transfer
Facility" and collectively, the "Book-Entry Transfer Facilities") pursuant to
the procedures set forth in Section 3--"Procedures for Tendering Shares" of
the Offer to Purchase (as defined below). DELIVERY OF DOCUMENTS TO A BOOK-
ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
1
<PAGE>
Holders of shares of Class B Common Stock whose certificates are not
immediately available, or who are unable to deliver their certificates and all
other documents required by this Letter of Transmittal to the Depositary on or
prior to the Expiration Date (as defined in Section 1--"Terms of the Offer" of
the Offer to Purchase) or who cannot complete the procedure for delivery by
book-entry transfer on a timely basis and who wish to tender their shares must
tender their shares pursuant to the guaranteed delivery procedure set forth in
Section 3--"Procedures for Tendering Shares" of the Offer to Purchase. See
Instruction 2 of this Letter of Transmittal.
[_] CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND
COMPLETE THE FOLLOWING:
Name(s) of Tendering Institution ______________________________________________
Check Box of Book-Entry Transfer Facility:
(CHECK ONE) [_] DTC [_] MSTC [_] PDTC
Account Number ___________________ Transaction Code Number ___________________
[_] CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s) _______________________________________________
Window Ticket Number (if any) _________________________________________________
Date of Execution of Notice of Guaranteed Delivery ____________________________
Name of Institution Which Guaranteed Delivery _________________________________
If Delivered by Book-Entry Transfer, Check Box of Book-Entry Transfer
Facility:
(CHECK ONE) [_] DTC [_] MSTC [_] PDTC
Account Number ___________________ Transaction Code Number ___________________
2
<PAGE>
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES OF CLASS B COMMON STOCK TENDERED
- -------------------------------------------------------------------------------------------------
CERTIFICATE(S) TENDERED
(ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S)
APPEAR(S) ON CERTIFICATE(S))
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TOTAL NUMBER
OF SHARES NUMBER
CERTIFICATE EVIDENCED BY OF SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
----------- --------------- -----------
----------- --------------- -----------
----------- --------------- -----------
----------- --------------- -----------
----------- --------------- -----------
----------- --------------- -----------
----------- --------------- -----------
TOTAL SHARES
OF CLASS B
COMMON STOCK
-----------
</TABLE>
- -------------------------------------------------------------------------------
* Need not be completed by stockholders delivering shares of Class B
Common Stock by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all shares of Class
B Common Stock evidenced by each certificate delivered to the Depositary
are being tendered. See Instruction 4 of this Letter of Transmittal.
The names and addresses of the registered holders should be printed, if not
already printed above, exactly as they appear on the certificates representing
shares of Class B Common Stock tendered hereby. The certificates and the
number of shares of Class B Common Stock that the undersigned wishes to tender
should be indicated in the appropriate boxes.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to WK Acquisition Sub, Inc., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Wolters Kluwer
nv, a corporation organized under the laws of The Netherlands (the "Parent"),
the above described shares of Class B Common Stock, par value $1.00 per share
(the "Class B Common Stock"), of CCH Incorporated, a Delaware corporation (the
"Company"), pursuant to the Purchaser's offer to purchase all outstanding
shares of Class B Common Stock and Class A Common Stock, par value $1.00 per
share (the "Class A Common Stock," and together with the Class B Common Stock,
the "Shares"), at a price of $55.50 per Share net to the seller in cash (the
"Purchase Price"), upon the terms and subject to the conditions set forth in
the Offer to Purchase, dated December 1, 1995 (the "Offer to Purchase"),
receipt of which is hereby acknowledged, and in this Letter of Transmittal
(which together constitute the "Offer"). The undersigned understands that the
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 Shares tendered pursuant to the Offer, but any such
transfer or assignment will not relieve the Purchaser of its obligations under
the Offer or prejudice the rights of tendering stockholders to receive payment
for Shares accepted for payment pursuant to the Offer.
Subject to, and effective upon, the acceptance for payment of the shares
tendered herewith, in accordance with 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), the undersigned hereby sells,
assigns and transfers to, or upon the order of, the Purchaser, all right,
title and interest in and to all of the shares tendered hereby and all
dividends, distributions (including, without limitation, distributions of
additional shares) and rights declared, issued, paid or distributed in respect
of such shares on or after November 27, 1995 and payable or distributable to
the undersigned on a date prior to the transfer to the name of the Purchaser
(or nominee or transferee of the Purchaser) on the Company's stock transfer
records of the shares tendered herewith (collectively, "Distributions") and
irrevocably constitutes and appoints the Depositary the true and lawful agent
and attorney-in-fact of the undersigned with respect to such shares and all
Distributions with full power of substitution (such
3
<PAGE>
power of attorney being deemed to be an irrevocable power coupled with an
interest) to (i) deliver certificates for such shares and all Distributions or
transfer ownership of such shares and all Distributions on the account books
maintained by a Book-Entry Transfer Facility, together, in either case, with
all accompanying evidences of transfer and authenticity, to or upon the order
of the Purchaser, upon receipt by the Depositary, as the undersigned's agent,
of the Purchase Price, (ii) present such shares and all Distributions for
transfer on the books of the Company and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such shares and all
Distributions, all in accordance with the terms and subject to the conditions
of the Offer.
The undersigned hereby irrevocably appoints Peter W. van Wel, Hans E.M. van
Dinter, and Bruce C. Lenz, and each of them, as the attorneys-in-fact and
proxy of the undersigned, each with full power of substitution, to vote in
such manner as each such attorney and proxy or the substitute for any such
attorney and proxy shall, in the sole discretion of each such attorney and
proxy, deem proper, and otherwise act (by written consent or otherwise) with
respect to all of the shares tendered hereby (and any Distributions) which the
undersigned is entitled to vote at any meeting of stockholders of the Company
(whether annual or special and whether or not adjourned or postponed), or
consent in lieu of any such meeting or otherwise. This power of attorney and
proxy is irrevocable and is granted in consideration of, and is effective
upon, the Purchaser's oral or written notice to the Depositary of its
acceptance for payment of such shares in accordance with the terms of the
Offer. Such acceptance for payment shall revoke all other powers of attorney
and proxies given by the undersigned at any time with respect to such shares
(and any Distributions), and no subsequent powers of attorney or proxies may
be given (and if given or executed shall not be effective) by the undersigned
with respect thereto. The undersigned acknowledges and understands that in
order for shares to be deemed validly tendered, immediately upon the
Purchaser's acceptance for payment of such shares, the Purchaser must be able
to exercise full voting power and other rights of a record and beneficial
holder, including, without limitation, voting at any meeting of the Company's
stockholders or acting by written consent, with respect to such shares (and
any Distributions).
The undersigned hereby represents and warrants that: (i) the undersigned has
full power and authority to tender, sell, assign and transfer the shares
tendered hereby (and any Distributions) and (ii) when the same are accepted
for payment by the Purchaser, the Purchaser will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions,
charges, claims and encumbrances, and that none of such shares and
Distributions will be subject to any adverse claim. The undersigned, upon
request, shall execute and deliver all additional documents deemed by the
Depositary or the Purchaser to be necessary or desirable to complete the sale,
assignment and transfer of the shares tendered hereby and all Distributions.
In addition, the undersigned shall remit and transfer promptly to the
Depositary for the account of the Purchaser all Distributions in respect of
the shares tendered hereby, accompanied by appropriate documentation of
transfer, and, pending such remittance and transfer or appropriate assurance
thereof, the Purchaser shall be entitled, subject to applicable law, to all
rights and privileges as owner of each such Distribution and may withhold the
entire Purchase Price or deduct from the Purchase Price the amount or value of
such Distribution as determined by the Purchaser in its sole discretion.
No authority conferred herein or agreed to be conferred herein shall be
affected by, and all such authority shall survive, the death or incapacity of
the undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, trustees in bankruptcy, personal
and legal representatives, successors and assigns of the undersigned. Except
as described in Section 4 --"Withdrawal Rights" of the Offer to Purchase, this
tender is irrevocable.
The undersigned understands that the acceptance for payment of tendered
shares by the Purchaser pursuant to any of the procedures described in Section
2 --"Acceptance for Payment and Payment" of the Offer to Purchase and in the
instructions hereto will constitute the undersigned's acceptance of the terms
and conditions of the Offer. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, the Purchaser may not be
required to accept for payment any of the shares tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the Purchase Price for all shares
purchased and return any certificates for shares not tendered or not
purchased, in the name(s)
4
<PAGE>
of the registered holder(s) appearing above under "Description of shares of
Class B Common Stock Tendered." Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions," please mail the check for the
Purchase Price for all shares purchased and return any certificates for any
shares not tendered or not purchased (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of shares of Class B Common Stock Tendered." If the boxes
entitled "Special Delivery Instructions" and "Special Payment Instructions"
are both completed, please issue the check for the Purchase Price for all
shares purchased and return any certificates for shares not tendered or not
purchased in the name(s) of, and deliver said check and/or certificate(s) to,
the person(s) so indicated. Unless otherwise indicated in the box entitled
"Special Payment Instructions," in the case of a book-entry delivery of
shares, please credit the account maintained at the Book-Entry Transfer
Facility indicated above with any shares not purchased. The undersigned
recognizes that the Purchaser has no obligation pursuant to the Special
Payment Instructions to transfer any shares from the name(s) of the registered
holder(s) thereof if the Purchaser does not accept for payment any of the
shares tendered hereby.
5
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS (SEE SPECIAL DELIVERY INSTRUCTIONS
INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the To be completed ONLY if the
check for the Purchase Price of check for the Purchase Price of
shares purchased or certificates shares purchased or certificates
for shares not tendered or not for shares not tendered or not
purchased are to be issued in the purchased are to be sent to some-
name of someone other than the one other than the undersigned,
undersigned, or if shares ten- or to the undersigned at an ad-
dered hereby and delivered by dress other than that shown under
book-entry transfer which are not "Description of Shares of Class B
purchased are to be returned by Common Stock Tendered."
credit to an account at one of
the Book-Entry Transfer Facili-
ties other than that designated
above.
Issue [_] Check [_] Certificate(s) Mail [_] Check [_] Certificate(s)
to: to:
Name______________________________
(PLEASE PRINT)
Name _____________________________
(PLEASE PRINT) Address __________________________
Address __________________________ __________________________________
(INCLUDE ZIP CODE)
__________________________________
(INCLUDE ZIP CODE)
__________________________________
(TAX IDENTIFICATION OR SOCIAL
SECURITY NO.)
(SEE SUBSTITUTE W-9 ON REVERSE
SIDE)
[_]Credit unpurchased shares ten-
dered by book-entry transfer to
the account set forth below:
Check appropriate box:
[_] DTC [_] MSTC [_] PDTC
Account Number ___________________
6
<PAGE>
IMPORTANT
STOCKHOLDERS: SIGN HERE
(Also Complete Substitute Form W-9 on Reverse Side)
__________________________________________________________
__________________________________________________________
(Signature(s) of Stockholder(s))
Dated: _________________________
(Must be signed by registered holder(s) exactly as
name(s) appear(s) on stock certificate(s) or on a
security position listing or by person(s) authorized to
become registered holder(s) by certificate(s) and
documents transmitted herewith. If signature is by a
trustee, executor, administrator, guardian, attorney-in-
fact, officer of a corporation or other person acting in
a fiduciary or representative capacity, please provide
the following information. See Instruction 5.)
Name(s)___________________________________________________
___________________________________________________
(Please Print)
Capacity (Full Title) ____________________________________
Address___________________________________________________
___________________________________________________
(Include Zip Code)
Area Code and
Telephone Number ___________________________
Tax Identification or
Social Security Number ___________________________________
(See Substitute Form W-9 on reverse side)
GUARANTEE OF SIGNATURE(S)
(If Required--See Instructions 1 and 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
Authorized Signature(s) __________________________________
Name _____________________________________________________
(Please Print)
Name of Firm _____________________________________________
Address __________________________________________________
(Include Zip Code)
Area Code and Telephone Number ___________________________
Dated: _________________________
7
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Signature Guarantee. No signature guarantee on this Letter of Transmittal
is required if (i) this Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this document, shall include any
participant in a Book-Entry Transfer Facility whose name appears on a security
position listing as the owner of shares) of shares tendered herewith, unless
such holder(s) have completed either the box entitled "Special Delivery
Instructions" or "Special Payment Instructions" on this Letter of Transmittal
or (ii) such shares are tendered for the account of a financial institution
(including most commercial banks, savings and loan associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each, an "Eligible Institution"). In all
other cases, all signatures on this Letter of Transmittal must be guaranteed
by an Eligible Institution.
2. Delivery of Letter of Transmittal and Certificates. This Letter of
Transmittal is to be completed by stockholders either if certificates are to
be forwarded herewith or unless an Agent's Message (as defined in Section 2--
"Acceptance for Payment and Payment" of the Offer to Purchase) is utilized, if
tenders are to be made pursuant to the procedures for delivery by book-entry
transfer set forth in Section 3--"Procedures for Tendering shares" of the
Offer to Purchase. Certificates for all physically tendered shares, or timely
confirmation of a book-entry transfer (a "Book Entry Confirmation") into the
Depositary's account at a Book-Entry Transfer Facility of all shares delivered
by book-entry transfer, as well as a Letter of Transmittal (or manually signed
facsimile hereof) properly completed and duly executed with all required
signature guarantees and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth herein on or prior to the Expiration Date (as defined in Section 1--
"Terms of the Offer" of the Offer to Purchase), or the tendering stockholder
must comply with the guaranteed delivery procedures set forth below. If
certificates are forwarded to the Depositary in multiple deliveries, a Letter
of Transmittal (or manually signed facsimile hereof) properly completed and
duly executed with all required signature guarantees must accompany each such
delivery.
Stockholders whose certificates for shares are not immediately available,
who cannot deliver their certificates and all other required documents to the
Depositary on or prior to the Expiration Date, or who cannot complete the
procedure for delivery by book-entry transfer on a timely basis may tender
their shares pursuant to the guaranteed delivery procedures set forth in
Section 3--"Procedures for Tendering Shares" of the Offer to Purchase.
Pursuant to such procedures, (i) such tender must be made by or through an
Eligible Institution, (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form provided by the Purchaser, must
be received by the Depositary, either by hand delivery, mail or facsimile
transmission, on or prior to the Expiration Date and (iii) the certificates
for all physically tendered shares, in proper form for transfer (or Book-Entry
Confirmation) together with a Letter of Transmittal (or manually signed
facsimile thereof) properly completed and duly executed with all required
signature guarantees or, in the case of a book-entry transfer, an Agent's
Message, and any other documents required by this Letter of Transmittal, must
be received by the Depositary within three trading days after the date of the
execution of the Notice of Guaranteed Delivery. A trading day is any day on
which the Nasdaq National Market is open for business.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE CERTIFICATES FOR
SHARES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-
ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING
STOCKHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED FOR SUCH DOCUMENTS TO REACH THE DEPOSITARY. EXCEPT AS
OTHERWISE PROVIDED IN THIS INSTRUCTION 2, DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE DEPOSITARY.
No alternative, conditional or contingent tenders will be accepted and no
fractional shares will be purchased. All tendering stockholders, by execution
of this Letter of Transmittal (or a facsimile hereof), waive any right to
receive any notice of the acceptance of their shares for payment.
3. Inadequate Space. If the space provided herein under "Description of
Shares of Class B Common Stock Tendered" is inadequate, the certificate
numbers, the number of shares of Class B Common Stock evidenced by such
certificates and the number of shares of Class B Common Stock tendered should
be listed on a separate signed schedule and attached hereto.
8
<PAGE>
4. Partial Tenders (not applicable to stockholders who tender by book-entry
transfer). If fewer than all the shares evidenced by any certificate delivered
to the Depositary herewith are to be tendered, fill in the number of shares
that are to be tendered in the box entitled "Number of Shares Tendered." In
such case, as soon as practicable after the Expiration Date, new
certificate(s) evidencing the remainder of the shares that were evidenced by
the certificates delivered to the Depositary herewith will be sent to the
person(s) signing this Letter of Transmittal, unless otherwise provided in the
box entitled "Special Delivery Instructions." All shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the certificates without alteration, enlargement or any other change
whatsoever.
If any share tendered hereby is held of record by two or more holders, all
such holders must sign this Letter of Transmittal.
If any of the shares tendered hereby are registered in names of different
holders, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
shares tendered hereby, no endorsements of certificates or separate stock
powers are required unless payment is to be made, or certificates for shares
not tendered or not purchased are to be issued in the name of, a person other
than the registered holder(s) in which case, the certificate(s) tendered
hereby must be endorsed or accompanied by appropriate stock powers in either
case signed exactly as the name(s) of the registered holder(s) appear(s) on
such certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the shares tendered hereby, the certificates tendered
hereby must be endorsed or accompanied by appropriate stock powers, in either
case signed as the name(s) of the registered holder(s) appear(s) on such
certificates. Signatures on such certificates and stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer
of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to the Purchaser of such person's authority to so act must be
submitted.
6. Special Payment and Delivery Instructions. If a check for the Purchase
Price of any shares tendered hereby is to be issued or certificate(s) not
tendered or not purchased are to be issued in the name of a person other than
the person signing this Letter of Transmittal, or to the person(s) signing
this Letter of Transmittal but at an address other than that shown above, the
appropriate boxes on this Letter of Transmittal must be completed.
Stockholders tendering shares by book-entry transfer may request that shares
not purchased be credited to such account maintained at a Book-Entry Transfer
Facility as such stockholder may designate in the box entitled "Special
Payment Instructions" herein. If no such instructions are given, all such
shares not purchased will be returned by crediting the account at the Book-
Entry Transfer Facility designated above.
7. Stock Transfer Taxes. Except as set forth in this Instruction 7, the
Purchaser will pay or cause to be paid any stock transfer taxes with respect
to the transfer and sale of the purchased shares to it, or to its order,
pursuant to the Offer. If, however, payment of the Purchase Price of any
shares purchased is to be made to, or certificate(s) for shares not tendered
or not purchased are to be issued in the name of, a person other than the
registered owner(s), or if tendered certificates are registered in the name of
any persons other than the persons signing this Letter of Transmittal, the
amount of any stock transfer taxes (whether imposed on the registered
holder(s), such other person or otherwise) payable on account of the transfer
to such other person will be deducted from the Purchase Price of such shares
purchased, unless evidence satisfactory to the Purchaser of the payment of
such taxes or exemption therefrom is submitted.
8. Waiver of Conditions. Subject to the terms of the Merger Agreement (as
defined in the Offer to Purchase), the conditions of the Offer may be waived
by the Purchaser, in whole or in part, at any time and from time to time in
Purchaser's sole discretion, in the case of any shares tendered.
9
<PAGE>
9. Substitute Form W-9. Each tendering stockholder is required to provide
the Depositary with a correct taxpayer identification number ("TIN"),
generally the stockholder's social security or federal employer identification
number, and with certain other information, on the Substitute Form W-9, which
is provided under "Important Tax Information" below, and to certify, under
penalties of perjury, that such number is correct and that the stockholder is
not subject to backup withholding of federal income tax. If a tendering
stockholder has been notified by the Internal Revenue Service that such
stockholder is subject to backup withholding, such stockholder must cross out
item (2) of the Certification box (Part 2) of the Substitute Form W-9, unless
such stockholder has since been notified by the Internal Revenue Service that
such stockholder is no longer subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
stockholder to 31% federal income tax withholding on the payment of the
Purchase Price of all shares purchased from such stockholder. The box in Part
3 of the Substitute Form W-9 may be checked if the tendering stockholder has
not been issued a TIN and has applied for a TIN or intends to apply for a TIN
in the near future. If the box in Part 3 is checked and the Depositary is not
provided with a TIN within 60 days, the Depositary will withhold 31% on all
payments of the Purchase Price to such stockholder until a TIN is provided to
the Depositary.
10. Lost, Destroyed or Stolen Certificates. If any certificate(s)
representing shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary. The stockholder will then be instructed as to
the steps that must be taken in order to replace the certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost or destroyed certificates have been followed.
11. Requests for Assistance or Additional Copies. Requests for assistance
may be directed to the Dealer Manager or the Information Agent at the
addresses set forth below. Additional copies of the Offer to Purchase, this
Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9 may
be obtained from the Dealer Manager or the Information Agent at the addresses
set forth below or from brokers, dealers, commercial banks or trust companies.
IMPORTANT: This Letter of Transmittal (or manually signed facsimile hereof)
properly completed and duly executed (with all required signature guarantees
and certificates or confirmation of book-entry transfer and all other required
documents) or the Notice of Guaranteed Delivery properly completed and duly
executed must be received by the Depositary on or prior to the Expiration
Date.
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered shares are
accepted for payment is required to provide the Depositary (as payer) with
such stockholder's current TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If the Depositary is not provided with the correct TIN, the
stockholder or other payee may be subject to a $50 penalty imposed by the
Internal Revenue Service. In addition, payments that are made to such
stockholder or other payee with respect to shares purchased pursuant to the
Offer may be subject to backup withholding of 31%.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual or a foreign entity to qualify
as an exempt recipient, that stockholder must submit to the Depositary a
properly completed Internal Revenue Service Form W-8 (a "Form W-8"), signed
under penalties of perjury, attesting to that individual's exempt status. A
Form W-8 can be obtained from the Depositary. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payment made to the stockholder or other payee. Backup withholding is not
an additional tax. Rather, the federal income tax liability of persons subject
to backup withholding will be reduced by the amount of tax withheld. If
withholding results in an overpayment of taxes, a refund may be obtained from
the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made to a stockholder or other
payee with respect to shares purchased pursuant to the Offer, the stockholder
is required to notify the Depositary of the stockholder's current TIN (or the
TIN of
10
<PAGE>
any other payee) by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such stockholder is
awaiting a TIN), and that (1) the stockholder has not been notified by the
Internal Revenue Service that the stockholder is subject to backup withholding
as a result of failure to report all interest or dividends or (2) the Internal
Revenue Service has notified the stockholder that the stockholder is no longer
subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the TIN (e.g., social
security number or employer identification number) of the record owner of the
shares tendered hereby. If the shares are registered in more than one name or
are not registered in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
11
<PAGE>
PAYER'S NAME: MORGAN GUARANTY TRUST COMPANY OF NEW YORK
PART 1--PLEASE PROVIDE YOUR Social security
TIN IN THE BOX AT RIGHT AND number or Employer
SUBSTITUTE CERTIFY BY SIGNING AND identification
FORM W-9 DATING BELOW. number
DEPARTMENT OF ____________________
THE TREASURY
INTERNAL --------------------------------------------------------
REVENUE PART 2--CERTIFICATION--Under penalties of perjury, I
SERVICE certify that:
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me), and
(2) I am not subject to backup withholding because:
PAYER'S REQUEST (a) I am exempt from backup withholding, or (b) I
FOR TAXPAYER have not been notified by the Internal Revenue
IDENTIFICATION Service (IRS) that I am subject to backup
NUMBER ("TIN") withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup
withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item
(2) above if you have been notified by the IRS that
you are currently subject to backup withholding
because of underreporting interest or dividends on
your tax return. However, if after being notified by
the IRS that you were subject to backup withholding
you received another notification from the IRS that
you are no longer subject to backup, do not cross
out item (2).
--------------------------------------------------------
PART 3 --
SIGNATURE ______________ DATE _______ Awaiting TIN [_]
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number, 31% of all reportable payments made to me will be
withheld, but that such amounts will be refunded to me if I then provide a
taxpayer identification number within 60 days.
Signature_________________________ Date_______________
The Information Agent for the Offer is:
GEORGESON
& COMPANY INC.
--------------
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect (212) 440-9800
All Others Call Toll-Free (800) 223-2064
12
<PAGE>
Exhibit (a)(4)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
OF
CCH INCORPORATED
TO
WK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY
OF
WOLTERS KLUWER NV
This Notice of Guaranteed Delivery, or one substantially in the form hereof,
must be used to accept the Offer (as defined below) (i) if certificates
evidencing shares of Class A Common Stock, par value $1.00 per share (the
"Class A Common Stock"), and/or Class B Common Stock, par value $1.00 per
share (the "Class B Common Stock," and together with the Class A Common Stock,
the "Shares"), of CCH Incorporated, a Delaware corporation, are not
immediately available, (ii) if certificates for Shares and all other required
documents cannot be delivered to Morgan Guaranty Trust Company of New York, as
Depositary (the "Depositary"), on or prior to the Expiration Date (as defined
in Section 1--"Terms of the Offer" of the Offer to Purchase (as defined
below)) or (iii) if the procedure for delivery by book-entry transfer cannot
be completed on a timely basis. This Notice of Guaranteed Delivery may be
delivered by hand or mail or transmitted by facsimile transmission to the
Depositary. See Section 3--"Procedures for Tendering Shares" of the Offer to
Purchase.
The Depositary for the Offer is:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
By Mail: By Hand:
<S> <C> <C>
Morgan Guaranty Trust Company Morgan Guaranty Trust Company Morgan Guaranty Trust Company
Corporate Reorganization of New York of New York
PO Box 8216 c/o State Street Bank and Trust c/o State Street Bank and Trust
Boston, MA 02266 61 Broadway 225 Franklin Street
Concourse Level, Morgan Window Concourse Level
New York, NY Boston, MA
</TABLE>
<TABLE>
<S> <C>
By Overnight Courier: By Facsimile Transmission:
Morgan Guaranty Trust Company (617) 774-4519
c/o State Street Corporate Reorganization Confirm by Telephone:
500 Victory Road (617) 774-4501
Marina Bay MB2
N. Quincy, MA 02171
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" (AS DEFINED BELOW) UNDER THE
INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE
SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to WK Acquisition Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of Wolters Kluwer nv, a corporation
organized under the laws of The Netherlands, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated December 1, 1995 (the
"Offer to Purchase"), and in the related Letters of Transmittal (which together
constitute the "Offer"), receipt of each of which is hereby acknowledged, the
number of Shares specified below pursuant to the guaranteed delivery procedures
set forth in Section 3--"Procedures for Tendering Shares" of the Offer to
Purchase.
Number of shares of CLASS A COMMON Area Code and Telephone Number(s):____
STOCK:______________________________
Certificate No. for shares (if
- ------------------------------------ available)____________________________
Number of shares of CLASS B COMMON --------------------------------------
STOCK:______________________________
Signature(s):_________________________
- ------------------------------------
--------------------------------------
Name(s) of Record Holder(s):________
Dated:________________________________
- ------------------------------------
If Shares will be delivered by book-
- ------------------------------------ entry transfer, check one box and
PLEASE TYPE OR PRINT provide account number:
[_] The Depository Trust Company
Address(es):________________________ [_] Midwest Securities Trust Company
[_] Philadelphia Depository Trust
- ------------------------------------ Company
(Zip Code) Account Number:_______________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each, an "Eligible Institution"), hereby
guarantees to deliver to the Depositary either the certificates representing
the Shares tendered hereby in proper form for transfer, or timely confirmation
of the book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company, the Midwest Securities Trust Company or the
Philadelphia Depository Trust Company (pursuant to the procedures set forth in
Section 3--"Procedures for Tendering Shares" of the Offer to Purchase), in any
such case together with the appropriate Letter(s) of Transmittal (or manually
signed facsimile(s) thereof), properly completed and duly executed with all
required signature guarantees, or an Agent's Message (as defined in the Offer
to Purchase) in connection with a book-entry transfer of Shares, and any other
documents required by the Letter(s) of Transmittal, within three trading days
after the date of execution hereof. A trading day is any day on which the
Nasdaq National Market is open for business.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the appropriate Letter(s) of
Transmittal and certificates for Shares to the Depositary within the time
period shown herein. Failure to do so could result in a financial loss to such
Eligible Institution.
Name of Firm: ______________________ ------------------------------------
Address: ___________________________ AUTHORIZED SIGNATURE
- ------------------------------------ Name:_________________________________
(Zip Code) Title:________________________________
Area Code and Tel. No.:_____________ Date:_________________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES SHOULD
BE SENT ONLY WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
Exhibit (a)(5)
LOGO CS First Boston
CS First Boston
Corporation
Park Avenue Plaza
New York, New York
10055
Tel: (212) 909-2000
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
OF
CCH INCORPORATED
AT
$55.50 NET PER SHARE
BY
WK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
WOLTERS KLUWER NV
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
December 1, 1995
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by WK Acquisition Sub, Inc., a Delaware corporation
(the "Purchaser") and a wholly owned subsidiary of Wolters Kluwer nv, a
corporation organized under the laws of The Netherlands (the "Parent"), to act
as Dealer Manager in connection with the Purchaser's offer to purchase all
outstanding shares of Class A Common Stock, par value $1.00 per share (the
"Class A Common Stock"), and Class B Common Stock, par value $1.00 per share
(the "Class B Common Stock," and together with the Class A Common Stock, the
"Shares"), of CCH Incorporated, a Delaware corporation (the "Company"), at a
price of $55.50 per Share net to the seller in cash, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated December 1, 1995
(the "Offer to Purchase"), and in the related Letters of Transmittal (which
together constitute the "Offer") enclosed herewith. The Offer is being made
pursuant to the Agreement and Plan of Merger, dated as of November 27, 1995,
among the Parent, the Purchaser and the Company (the "Merger Agreement").
The Offer is conditioned upon, among other things, there being validly
tendered by the Expiration Date (as defined in the Offer to Purchase) and not
withdrawn at least that number of shares of Class A Common Stock which would
constitute a majority of the outstanding shares of Class A Common Stock on a
fully diluted basis (the "Minimum Condition"). In connection with entering into
the Merger Agreement, the Parent, the Purchaser and certain stockholders of the
Company (the "Sellers") beneficially owning Shares representing approximately
58% of the voting power of the outstanding Shares (the "Sellers' Shares")
entered into the Stock Option and Tender Agreement, dated as of November 27,
1995 (the "Option Agreement"). Pursuant to the Option Agreement, the Sellers
have, among other things, agreed to tender in the Offer and not withdraw all of
the Sellers' Shares. THE MINIMUM CONDITION WILL BE SATISFIED UPON THE TENDER BY
THE SELLERS OF THE SELLERS' SHARES.
<PAGE>
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, or who hold
Shares registered in their own names, we are enclosing the following documents:
1. The Offer to Purchase;
2. The blue Letter of Transmittal to tender shares of Class A Common
Stock for your use and for the information of your clients (manually signed
facsimile copies of the Letter of Transmittal may be used to tender such
Shares);
3. The green Letter of Transmittal to tender shares of Class B Common
Stock for your use and for the information of your clients (manually signed
facsimile copies of the Letter of Transmittal may be used to tender such
Shares);
4. A Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for Shares are not immediately available or time will not
permit certificates for Shares and all other required documents to reach
Morgan Guaranty Trust Company of New York (the "Depositary") by the
Expiration Date or if the procedures for book-entry transfer cannot be
completed on a timely basis;
5. A letter from the President and Chief Executive Officer of the Company
and the Company's Solicitation/Recommendation Statement on Schedule 14D-9
filed with the Securities and Exchange Commission;
6. A form of letter which may be sent to your clients for whose accounts
you hold Shares in your name or in the name of a nominee, with space
provided for obtaining such clients' instructions with regard to the Offer;
7. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
8. A return envelope addressed to the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
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 extensions
or amendments), the Purchaser will be deemed to have accepted for payment (and
thereby purchased) all Shares validly tendered on or prior to the Expiration
Date and not properly withdrawn if, as and when the Purchaser gives oral or
written notice to the Depositary of the Purchaser's acceptance of such Shares
for payment pursuant to the Offer. Payment for Shares purchased pursuant to the
Offer will in all cases be made only after timely receipt by the Depositary of
(i) certificates for such Shares, or timely confirmation of a book-entry
transfer of such Shares into the Depositary's account at The Depository Trust
Company, the Midwest Securities Trust Company or the Philadelphia Depository
Trust Company, pursuant to the procedures described in Section 3--"Procedures
for Tendering Shares" of the Offer to Purchase and (ii) the appropriate
Letter(s) of Transmittal (or manually signed facsimile(s) thereof), properly
completed and duly executed with all required signature guarantees, or an
Agent's Message (as defined in the Offer to Purchase) in connection with a
book-entry transfer of Shares, together with any other documents required by
such Letter(s) of Transmittal.
In order to take advantage of the Offer, the appropriate Letter(s) of
Transmittal (or manually signed facsimile(s) thereof) duly executed and
properly completed with any required signature guarantees, or an Agent's
Message in connection with a book-entry transfer of Shares, and any other
required documents, should be sent to the Depositary, and certificates
representing the tendered Shares should be delivered, all in accordance with
the instructions set forth in the appropriate Letter(s) of Transmittal and the
Offer to Purchase.
If holders of Shares wish to tender their Shares, but it is impracticable for
them to tender their certificates on or prior to the Expiration Date or to
comply with the book-entry transfer procedures on a timely basis, a
<PAGE>
tender may be effected by following the guaranteed delivery procedures
specified in Section 3--"Procedures for Tendering Shares" of the Offer to
Purchase.
Neither the Parent nor the Purchaser will pay any fee or commission to any
broker or dealer or any other person (other than the Dealer Manager as
described in the Offer to Purchase) in connection with the solicitation of
tenders of Shares pursuant to the Offer. The Purchaser will, however, upon
request, reimburse brokers, dealers, commercial banks and trust companies for
reasonable and necessary costs and expenses incurred by them in forwarding the
Offer to Purchase and the related documents to the beneficial owners of Shares
held by them as nominee or in a fiduciary capacity.
The Purchaser will pay or cause to be paid all stock transfer taxes
applicable to the purchase of Shares pursuant to the Offer, except as set forth
in Instruction 7 of the appropriate Letter(s) of Transmittal.
Any inquiries you have with respect to the Offer should be addressed to the
Dealer Manager or the Information Agent at their addresses and telephone
numbers set forth on the back cover of the Offer to Purchase. Additional copies
of the enclosed material may be obtained from the Information Agent or the
Dealer Manager or from brokers, dealers, commercial banks or trust companies.
Very truly yours,
CS FIRST BOSTON CORPORATION
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER
PERSON AS THE AGENT OF THE PURCHASER, THE PARENT, ANY AFFILIATE OF THE
PURCHASER OR THE PARENT, THE DEALER MANAGER, THE DEPOSITARY OR THE INFORMATION
AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY
STATEMENTS ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER, EXCEPT FOR
STATEMENTS EXPRESSLY MADE IN THE OFFER TO PURCHASE OR THE LETTERS OF
TRANSMITTAL.
<PAGE>
Exhibit (a)(6)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF
CLASS A COMMON STOCK AND CLASS B COMMON STOCK
OF
CCH INCORPORATED
AT
$55.50 NET PER SHARE
BY
WK ACQUISITION SUB, INC.
A WHOLLY OWNED SUBSIDIARY OF
WOLTERS KLUWER NV
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
December 1, 1995
To Our Clients:
Enclosed for your consideration is an Offer to Purchase, dated December 1,
1995 (the "Offer to Purchase"), and the related Letters of Transmittal (which
together constitute the "Offer"), in connection with the offer by WK
Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and a wholly
owned subsidiary of Wolters Kluwer nv, a corporation organized under the laws
of The Netherlands (the "Parent"), to purchase all of the outstanding shares
of Class A Common Stock, par value $1.00 per share (the "Class A Common
Stock"), and Class B Common Stock, par value $1.00 per share (the "Class B
Common Stock," and together with the Class A Common Stock, the "Shares"), of
CCH Incorporated, a Delaware corporation (the "Company"), at $55.50 per Share
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTERS OF TRANSMITTAL ARE FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR
YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on your
behalf any or all of the Shares held by us for your account, upon the terms
and subject to the conditions set forth in the Offer.
Your attention is directed to the following:
1. The offer price is $55.50 per Share net to the seller in cash upon the
terms and subject to the conditions set forth in the Offer.
2. The Offer is being made pursuant to the Agreement and Plan of Merger,
dated as of November 27, 1995, among the Parent, the Purchaser and the
Company (the "Merger Agreement").
3. The Offer and withdrawal rights will expire at 5:00 P.M., New York
City time, on Thursday, January 4, 1996, unless the Offer is extended.
<PAGE>
4. The Board of Directors of the Company has unanimously approved the
Merger Agreement, the Offer and the Merger (as defined in the Offer to
Purchase), has unanimously determined that the Merger is advisable and that
the terms of the Offer and the Merger are fair to, and in the best
interests of, the Company's stockholders and recommends that stockholders
accept the Offer and tender their Shares.
5. The Offer is being made for all outstanding Shares. The Offer is
conditioned upon, among other things, there being validly tendered by the
Expiration Date (as defined in the Offer to Purchase) and not withdrawn at
least that number of shares of Class A Common Stock which would constitute
a majority of the outstanding shares of Class A Common Stock on a fully
diluted basis (the "Minimum Condition"). In connection with entering into
the Merger Agreement, the Parent, the Purchaser and certain stockholders of
the Company (the "Sellers") beneficially owning Shares representing
approximately 58% of the voting power of the outstanding Shares (the
"Sellers' Shares") entered into the Stock Option and Tender Agreement,
dated as of November 27, 1995 (the "Option Agreement"). Pursuant to the
Option Agreement, the Sellers have, among other things, agreed to tender in
the Offer and not withdraw all of the Sellers' Shares. The Minimum
Condition will be satisfied upon the tender by the Sellers of the Sellers'
Shares.
6. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 7 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by the
Purchaser pursuant to the Offer. However, federal income tax backup
withholding at a rate of 31% may be required, unless an exemption is
provided or unless the required taxpayer identification information is
provided (see Instruction 9 to the Letter of Transmittal).
7. Notwithstanding any other provision of the Offer, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Depositary of (i) certificates for Shares or
timely Book-Entry Confirmation (as defined in the Offer to Purchase) with
respect to such Shares pursuant to the procedures described in Section 3--
"Procedures for Tendering Shares" of the Offer to Purchase and (ii) the
appropriate Letter(s) of Transmittal (or manually signed facsimile(s)
thereof) properly completed and duly executed with all required signature
guarantees, or an Agent's Message (as defined in the Offer to Purchase) in
connection with a book-entry transfer of Shares, together with any other
documents required by the appropriate Letter(s) of Transmittal.
Accordingly, payment may not be made to all tendering stockholders at the
same time depending upon when certificates representing Shares or
confirmations for book-entry transfer of such Shares into the Depositary's
account are actually received by the Depositary.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the instruction form contained
in this letter. An envelope in which to return your instructions to us is
enclosed. If you authorize the tender of your Shares, all such Shares will be
tendered unless otherwise specified in your instructions. YOUR INSTRUCTIONS
SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON
YOUR BEHALF PRIOR TO THE EXPIRATION DATE.
The Offer is made solely by the Offer to Purchase and the related Letters of
Transmittal and is being made to all holders of Shares. The Purchaser is not
aware of any jurisdiction in which the making of the Offer or the tender of
Shares in connection therewith would not be in compliance with applicable law.
If the Parent or the Purchaser becomes aware of any jurisdiction in which the
making of the Offer or the tender of Shares in connection therewith would not
be in compliance with applicable law, the Parent or the Purchaser will make a
good faith effort to comply with any such law. If, after such good faith
effort, the Parent or the Purchaser cannot comply with any such law, the Offer
will not be made to (nor will tenders be accepted from or on behalf of) the
holders of Shares residing in any such jurisdiction. In any jurisdiction where
the securities, blue sky or other laws require the Offer to be made by
licensed brokers or dealers, the Offer shall be deemed to be made on behalf of
the Parent or the Purchaser by the Dealer Manager or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING
SHARES OF CLASS A COMMON STOCK AND CLASS B COMMON STOCK OF CCH INCORPORATED
The undersigned acknowledges receipt of your letter and the enclosed Offer to
Purchase, dated December 1, 1995, and the related Letters of Transmittal (which
together constitute the "Offer") in connection with the offer by WK Acquisition
Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Wolters
Kluwer nv, a corporation organized under the laws of The Netherlands, to
purchase all outstanding shares of Class A Common Stock, par value $1.00 per
share (the "Class A Common Stock"), and Class B Common Stock, par value $1.00
per share (the "Class B Common Stock," and together with the Class A Common
Stock, the "Shares"), of CCH Incorporated, a Delaware corporation, at a price
of $55.50 per Share net to the seller in cash, upon the terms and subject to
the conditions set forth in the Offer.
This will instruct you to instruct your nominee to tender the number of
Shares indicated below (or, if no number is indicated below, all Shares) that
are held for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer.
Number of Shares SIGN HERE
to be Tendered*
------------------------------------
shares of Class A Common Stock
- ---
shares of Class B Common Stock ------------------------------------
- --- Signature(s)
--------------------------------------
--------------------------------------
Please Type or Print Name(s)
--------------------------------------
Please Type or Print Address(es)
------------------------------------
Dated: _____________________________ Area Code and Telephone Number
--------------------------------------
Taxpayer Identification or Social
Security Number
- --------
* Unless otherwise indicated, it will be assumed that all your Shares held by
us for your account are to be tendered.
3
<PAGE>
Exhibit (a)(7)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.-- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<CAPTION>
- ------------------------------------------------- --------------------------------------------------
GIVE THE GIVE THE EMPLOYER
SOCIAL SECURITY IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF-- FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ------------------------------------------------- --------------------------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate, The legal entity
2. Two or more individuals The actual owner or pension trust (Do not furnish
(joint account) of the account the identifying
or, if combined number of the
funds, the first personal
individual on representative
the account(1) or trustee
3. Husband and wife (joint The actual owner unless the legal
account) of the account entity itself is
or, if joint not designated
funds, the first in the account
individual on title.)(5)
the account(1) 10. Corporate account The corporation
4. Custodian account of a The minor(2) 11. Religious, charitable, The organization
minor (Uniform Gift to or educational
Minors Act) organization account
5. Adult and minor (joint The adult or, if 12. Partnership account The partnership
account) the minor is the held in the name of
only the business
contributor, the 13. Association, club, or The organization
minor(1) other tax-exempt
6. Account in the name of The ward, minor, organization
guardian or committee for or incompetent 14. A broker or registered The broker or
a designated ward, minor, person(3) nominee nominee
or incompetent person 15. Account with the The public
7. a. The usual revocable The grantor- Department of entity
savings trust account trustee(1) Agriculture in the
(grantor is also trustee) name of a public
b. So-called trust account The actual entity (such as a
that is not a legal or owner(1) State or local
valid trust under State government, school
law district, or prison)
8. Sole proprietorship The owner(4) that receives
account agricultural program
payments
- ------------------------------------------------- --------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number
(for businesses and all other entities), at the local office of the Social
Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include
the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under Section 403(b)(7).
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
. An international organization or any agency, or instrumentality thereof.
. A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of
1940.
. A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file a Substitute Form W-9 to avoid
possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM,
SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see sections 6041, 6041A(a), 6042, 6044, 6045, 6049,
6050A, and 6050N, and the regulations under those sections.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. The IRS uses the numbers for
identification purposes and to help verify the accuracy of tax returns. Payers
must be given the numbers whether or not recipients are required to file a tax
returns. Payers must generally withhold 31% of taxable interest, dividend, and
certain other payments to a payee who does not furnish a taxpayer
identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due
to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
Unless otherwise noted herein, all references to section numbers or
regulations are reference to the Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
<PAGE>
Exhibit (a)(8)
Wolters Kluwer
November 27, 1995
Wolters Kluwer acquires important international partner in the United States
On November 27, 1995 Wolters Kluwer reached definitive agreement with the Thorne
family, majority shareholders of CCH Incorporated (Commerce Clearing House), to
acquire their whole stake in CCH.
CCH is a publicly quoted company at Nasdaq.
Wolters Kluwer will soon make a tender offer for the remaining public shares of
CCH at a share price of $55.50.
The total acquisition price for the company will be $1.9 bln.
The CCH Board has approved the offer of Wolters Kluwer and fully supports the
transaction. Both companies are convinced of the major strategic advantages.
CCH was founded in 1892. The company is the leading publisher in tax law and
business information in the United States, Canada, Australia and New Zealand.
Over the past years a strong position has been built in the United Kingdom and
there are outlets in the Far East.
CCH has a strong market position in printed product. The company is also well
advanced as content owner in offering electronic publications (on-line and
CD-ROM) and electronic information services.
Presently, more than 30% of the sales in the United States is generated by
means of electronic products.
CCH aims at professional markets of tax experts, accountants, lawyers etc. The
company meets all acquisition criteria of Wolters Kluwer.
In 1995 the total sales will amount to approx. $600 mln. There are over 5,000
employees.
In recent years CCH has undergone major restructuring in order to optimize its
positions in the fast growing markets for electronic information.
It is expected that the company will achieve a profit margin in 1996/1997 which
meets Wolters Kluwer levels.
No shares will be issued by Wolters Kluwer to finance this acquisition. The
purchase will be financed by surplus cash and bank credit. Taking into account
the interest for the purchase of CCH the company will contribute to Wolters
Kluwer EPS after approx. 12 months.
1
<PAGE>
Due to this acquisition the geographical spread of activities of Wolters Kluwer
will change substantially. It has subsequently been decided, as from this
acquisition, to adopt international accounting standards and to capitalize
goodwill paid on new acquisitions. This goodwill will be amortized in line with
the economic life of the investment.
The amortization of goodwill of CCH is the cause that the Wolters Kluwer EPS in
1996 will be approximately the same as the 1995 EPS. The 1995 EPS will, in line
with expectations as announced, amount to approx. Dfl. 6.70. For the years 1997
through 1999 Wolters Kluwer expects to achieve yet again an annual average
growth in EPS of at least 15%. The cash flow of Wolters Kluwer after this
acquisition will be sufficient in the coming years to pay back all bank credits
by the year 2000.
The intended acquisition of CCH is a major strengthening of the international
Wolters Kluwer position in tax/legal publishing, which opens up this important
growth market in the United States and Canada in one step. This leap also offers
new, attractive perspectives in the Pacific countries.
Executive Board
Wolters Kluwer nv
P.O. 818
1000 AV Amsterdam
The Netherlands
Tel.: +31 20 60 70 450
- --------------------------------------------------------------------------------
To the press and financial analysts:
Tuesday November 28, 1995 at 15.00 hrs there will be an opportunity to put
questions to the Wolters Kluwer Executive Board in the Marriott Hotel,
Stadhouderskade 21, Amsterdam.
2
<PAGE>
Exhibit (a)(9)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated December
1, 1995 and the related Letters of Transmittal, and is not being made to CCH
Incorporated stockholders in any jurisdiction where the making of the Offer is
not in compliance with the laws of such jurisdiction. In those jurisdictions
where the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of the
Purchaser by CS First Boston Corporation ("CS First Boston") or one or more
registered brokers or dealers licensed under the laws of such jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of
Class A Common Stock and Class B Common Stock
of
CCH Incorporated
by
WK Acquisition Sub, Inc.
a wholly owned subsidiary of
WOLTERS KLUWER NV
at
$55.50 Net Per Share
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON THURSDAY, JANUARY 4, 1996, UNLESS THE OFFER IS EXTENDED.
WK Acquisition Sub, Inc., a Delaware corporation (the "Purchaser") and
a wholly owned subsidiary of Wolters Kluwer nv, a corporation organized under
the laws of The Netherlands ("Wolters Kluwer"), is offering to purchase all
outstanding shares of Class A Common Stock, par value $1.00 per share (the
"Class A Common Stock"), and Class B Common Stock, par value $1.00 per share
(the "Class B Common Stock," and together with the Class A Common Stock, the
"Shares"), of CCH Incorporated, a Delaware corporation (the "Company"), at
$55.50 per Share net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated December 1, 1995 (the
"Offer to Purchase") and in the related Letters of Transmittal (which together
constitute the "Offer").
The Board of Directors of the Company has unanimously approved the Merger
Agreement (as defined below), the Offer and the Merger (as defined below), has
unanimously determined that the Merger is advisable and that the terms of the
Offer and the Merger are fair to, and in the best interests of, the Company's
stockholders and recommends that stockholders accept the Offer and tender their
Shares.
The Offer is conditioned upon, among other things, there being validly
tendered by the Expiration Date (as defined in the Offer to Purchase) and not
withdrawn at least that number of shares of Class A Common Stock which would
constitute a majority of the outstanding shares of Class A Common Stock on a
fully diluted basis (the "Minimum Condition").
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of November 27, 1995 (the "Merger Agreement"), among Wolters Kluwer, the
Purchaser and the Company, pursuant to which the Purchaser is making the Offer
and as promptly as practicable following the expiration of the Offer and the
satisfaction or waiver of certain conditions the Purchaser will be merged with
and into the Company (the "Merger"). At the effective time of the Merger, each
outstanding Share (other than Shares held by the Company or Wolters Kluwer or
any of their respective subsidiaries and other than Shares held by stockholders
who perfect their appraisal rights under Delaware Law) will be converted into
the right to receive $55.50 in cash, without interest thereon, and the Company
will become a wholly owned subsidiary of Wolters Kluwer.
Wolters Kluwer, the Purchaser and certain stockholders of the Company
(collectively, the "Sellers") beneficially owning an aggregate of 19,066,667
Shares, representing approximately 58% of the outstanding Shares on a fully
diluted basis and 58% of the voting power of the outstanding Shares on November
24, 1995 (the "Sellers' Shares"), have entered into the Stock Option and Tender
Agreement, dated as of November 27, 1995 (the "Option Agreement"), pursuant to
which the Sellers have, among other things, (i) agreed to tender in the Offer
all of the Sellers' Shares and any additional Shares which may be acquired by
Sellers, (ii) granted Wolters Kluwer the option to purchase the Sellers'
Shares, and (iii) appointed Wolters Kluwer under certain circumstances as such
Sellers' proxy to vote the Sellers' Shares on all matters in connection with
the consummation of the transactions contemplated by the Merger Agreement and
the Option Agreement. The Minimum Condition will be satisfied upon the tender
by the Sellers of the Sellers' Shares.
For purposes of the Offer, the Purchaser shall be deemed to have accepted for
payment (and thereby purchased) validly tendered Shares, if, as and when the
Purchaser gives oral or written notice to the Depositary of the Purchaser's
acceptance of such Shares for payment pursuant to the Offer. In all cases,
payment for Shares purchased pursuant to the Offer will be made by deposit of
the purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering stockholders. Under no circumstances will
interest on the purchase price of the Shares be paid by the Purchaser by reason
of any delay in making payment. Payment for Shares purchased pursuant to the
Offer will in all cases be made only after timely receipt by the Depositary of
(i) certificates for such Shares (or timely confirmation of a book-entry
transfer of such Shares into the Depositary's account at a Book-Entry Transfer
Facility (as defined in the Offer to Purchase) and (ii) the appropriate
Letter(s) of Transmittal (or manually signed facsimile(s) thereof) properly
completed and duly executed with all required signature guarantees or an Agent's
Message (as defined in the Offer to Purchase) in connection with a book-entry
transfer of Shares, together with any other documents required by the Letter(s)
of Transmittal. The Purchaser expressly reserves the right at any time or from
time to time, subject to the terms of the Merger Agreement and regardless of
whether any of the events set forth in Section 14 of the Offer to Purchase shall
have occurred or shall have been determined by the Purchaser to have occurred,
to extend the period of time during which the Offer is open and thereby delay
acceptance for payment of, and the payment for, any Shares by giving oral or
written notice of such extension to the Depositary. Any such extension will be
followed as promptly as practicable by public announcement thereof no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
Tenders of Shares made pursuant to the Offer are irrevocable, provided that
Shares tendered pursuant to the Offer may be withdrawn (other than the Sellers'
Shares as provided in the Option Agreement) at any time prior to the Expiration
Date (or, if the Purchaser shall have extended the period of time for which the
Offer is open, at the latest time and date at which the Offer, as so extended
by the Purchaser, shall expire) and, unless theretofore accepted for payment by
the Purchaser pursuant to the Offer, may also be withdrawn at any time after
January 29, 1996. To be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Depositary at one of its addresses
set forth on the back cover page of the Offer to Purchase and must specify the
name of the person who tendered the Shares to be withdrawn, the number of
Shares to be withdrawn and the name of the registered holders, if different
from the name of the person who tendered such Shares. If certificates for
Shares have been delivered or otherwise identified to the Depositary, then,
prior to the release of such certificates, the serial numbers of the particular
certificates evidencing the Shares to be withdrawn and a signed notice of
withdrawal with signatures guaranteed by an Eligible Institution (as defined in
the Offer to Purchase) must be submitted prior to the release of such Shares
(except that such signature guarantee requirement is not applicable in the case
of Shares tendered by an Eligible Institution). In the case of Shares tendered
by book-entry transfer, the notice of withdrawal must also specify the name and
number of the account at the Book-Entry Transfer Facility to be credited with
the withdrawn Shares. All questions as to the form and the validity (including
time of receipt) of notices of withdrawal will be determined by the Purchaser,
in its sole discretion, whose determination will be final and binding. None of
the Purchaser, Wolters Kluwer, the Dealer Manager, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notification.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended, is
contained in the Offer to Purchase and is incorporated herein by reference.
The Company is providing to the Purchaser its list of stockholders and security
position listings for the purpose of disseminating the Offer to holders of
Shares. The Offer to Purchase and the related Letters of Transmittal and other
relevant materials will be mailed to record holders of Shares and furnished to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the stockholder list or, if
applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of Shares.
The Offer to Purchase and the related Letters of Transmittal contain
important information which should be read carefully before any decision is
made with respect to the Offer.
Requests for copies of the Offer to Purchase, the Letters of Transmittal and
all other tender offer materials may be directed to the Information Agent as
set forth below, and copies will be furnished promptly at the Purchaser's
expense.
The Information Agent for the Offer is:
GEORGESON
& COMPANY INC.
--------------
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect (212) 440-9800
All Others Call Toll-Free (800) 223-2064
The Dealer Manager for the Offer is:
CS First Boston
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
Call Toll-Free (800) 704-8076
December 1, 1995
<PAGE>
EXHIBIT (c)(1)
Execution Copy
-----------------------------------
AGREEMENT AND PLAN OF MERGER
Among
Wolters Kluwer N.V.,
WK Acquisition Sub, Inc.
And
CCH Incorporated
-----------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
Parties and Recitals.................................................. 1
ARTICLE I
THE OFFER
---------
Section 1.1 The Offer................................................ 3
Section 1.2 Company Actions.......................................... 4
ARTICLE II
THE MERGER
----------
Section 2.1 The Merger............................................... 6
Section 2.2 Effective Time........................................... 7
Section 2.3 Effects of the Merger.................................... 7
Section 2.4 Certificate of Incorporation and Bylaws.................. 7
Section 2.5 Directors and Officers................................... 7
Section 2.6 Conversion of Securities................................. 7
Section 2.7 Exchange of Certificates................................. 8
Section 2.8 Dissenting Company Common Shares......................... 10
Section 2.9 Merger Without Meeting of Stockholders................... 10
Section 2.10 No Further Ownership Rights in Common Stock.............. 10
Section 2.11 Closing of Company Transfer Books........................ 11
Section 2.12 Further Assurances....................................... 11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
----------------------------------------
Section 3.1 Organization, Standing and Power......................... 11
Section 3.2 Authority; Non-Contravention............................. 12
Section 3.3 Offer Documents and Proxy Statement...................... 14
Section 3.4 Financing................................................ 14
Section 3.5 Brokers.................................................. 15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
Section 4.1 Organization, Standing and Power......................... 15
Section 4.2 Capital Structure........................................ 15
Section 4.3 Authority; Non-Contravention............................. 16
Section 4.4 SEC Documents............................................ 18
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
Section 4.5 Offer Documents and Proxy Statement...................... 18
Section 4.6 Absence of Certain Events................................ 19
Section 4.7 Section 203 of the DGCL.................................. 19
Section 4.8 Taxes.................................................... 19
Section 4.9 Compliance with Applicable Law........................... 20
Section 4.10 Litigation............................................... 21
Section 4.11 No Undisclosed Liabilities............................... 21
Section 4.12 Benefit Plans............................................ 22
Section 4.13 Trademarks, Patents and Copyrights....................... 22
Section 4.14 Environmental Matters.................................... 23
Section 4.15 Brokers.................................................. 24
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING SUB
--------------------------------------------
Section 5.1 Organization and Standing................................ 24
Section 5.2 Capital Structure........................................ 24
Section 5.3 Authority; Non-Contravention............................. 25
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
-----------------------------------------
Section 6.1 Conduct of Business by the Company
Pending the Merger..................................... 26
Section 6.2 No Solicitation.......................................... 28
Section 6.3 Conduct of Business of Sub Pending the
Merger................................................. 29
ARTICLE VII
ADDITIONAL AGREEMENTS
---------------------
Section 7.1 Company Stockholder Approval; Proxy
Statement.............................................. 29
Section 7.2 Access to Information.................................... 30
Section 7.3 Fees and Expenses........................................ 31
Section 7.4 Company Stock Options.................................... 31
Section 7.5 Reasonable Best Efforts.................................. 32
Section 7.6 Public Announcements..................................... 32
Section 7.7 Real Estate Transfer and Gains Taxes..................... 33
Section 7.8 State Takeover Laws...................................... 33
Section 7.9 Indemnification; Directors and Officers
Insurance.............................................. 33
Section 7.10 Employee Benefits........................................ 34
Section 7.11 Merit Bonuses; Severance Policy.......................... 35
Section 7.12 Management Contracts..................................... 36
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII
CONDITIONS PRECEDENT
--------------------
Section 8.1 Conditions to Each Party's Obligation to
Effect the Merger...................................... 36
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
Section 9.1 Termination.............................................. 37
Section 9.2 Effect of Termination.................................... 39
Section 9.3 Amendment................................................ 39
Section 9.4 Waiver................................................... 40
ARTICLE X
GENERAL PROVISIONS
------------------
Section 10.1 Non-Survival of Representations and
Warranties............................................ 40
Section 10.2 Notices................................................. 40
Section 10.3 Interpretation.......................................... 41
Section 10.4 Counterparts............................................ 41
Section 10.5 Entire Agreement; No Third-Party
Beneficiaries......................................... 42
Section 10.6 Governing Law........................................... 42
Section 10.7 Assignment.............................................. 42
Section 10.8 Severability............................................ 42
Section 10.9 Enforcement of this Agreement........................... 43
</TABLE>
EXHIBIT A Conditions of the Offer
-iii-
<PAGE>
AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER, dated as of November 27, 1995 (this
"Agreement"), among Wolters Kluwer N.V., a corporation organized under the laws
of The Netherlands ("Parent"), WK Acquisition Sub, Inc., a Delaware corporation
("Sub") and a wholly owned subsidiary of Parent, and CCH Incorporated, a
Delaware corporation (the "Company") (Sub and the Company being hereinafter
collectively referred to as the "Constituent Corporations").
W I T N E S S E T H:
--------------------
WHEREAS, the respective Boards of Directors of Parent, Sub and the
Company have unanimously approved the acquisition of the Company by Parent
pursuant to a tender offer (the "Offer") by Sub for all of the outstanding
shares of Class A Common Stock, par value $1.00 per share (the "Class A Common
Stock"), of the Company and all of the outstanding shares of Class B Common
Stock, par value $1.00 per share (the "Class B Common Stock" and, together with
the Class A Common Stock, the "Common Stock") of the Company, at a price of
$55.50 per share of Common Stock, net to the seller in cash, followed by a
merger (the "Merger") of Sub with and into the Company upon the terms and
subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company has (i) determined that
the consideration to be paid for each share of Common Stock in the Offer is fair
to and in the best interests of the stockholders of the Company, (ii) approved
and adopted this Agreement and the transactions contemplated hereby, and (iii)
adopted resolutions unanimously approving the Offer and the Merger and
recommending that the Company's stockholders accept the Offer and approve and
adopt the Merger Agreement;
WHEREAS, Parent has informed the Company that Parent has required as a
condition to entering into this Agreement that certain stockholders of the
Company (collectively, "Stockholders") enter into a Stock Option and Tender
Agreement (the "Option Agreement") pursuant to which Stockholders have agreed,
among other things, (i) to tender all of the shares of Common Stock that
Stockholders now own or hereafter acquire (the "Stockholder Shares") into the
Offer, (ii) to grant Parent the
<PAGE>
option to purchase all of the Stockholder Shares, (iii) to appoint Parent under
certain circumstances as Stockholders' proxy to vote the Stockholder Shares that
are Class A Shares, and (iv) with respect to certain questions put to
stockholders of the Company for a vote, to vote such Stockholder Shares that are
Class A Shares, in each case, in accordance with the terms and conditions of the
Option Agreement; and
WHEREAS, pursuant to the Merger, each issued and outstanding share of
Common Stock not owned directly or indirectly by Parent or the Company will be
converted into the right to receive the per share consideration paid pursuant to
the Offer.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the parties agree
as follows:
-2-
<PAGE>
ARTICLE I
THE OFFER
---------
Section 1.1 The Offer. (a) Subject to the provisions of this
---------
Agreement, as promptly as practicable but in no event later than five business
days after the date hereof, Sub shall, and Parent shall cause Sub to, commence
the Offer. The obligation of Sub to, and of Parent to cause Sub to, commence
the Offer and accept for payment, and pay for, any shares of Common Stock
tendered pursuant to the Offer shall be subject only to the conditions set forth
in Exhibit A. Without the prior written consent of the Company, Sub shall not
(i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the
number of shares of Common Stock subject to the Offer, (iii) reduce the price
per share of Common Stock to be paid pursuant to the Offer, (iv) modify or add
to the conditions set forth in Exhibit A (other than to waive any conditions to
the extent permitted by this Agreement), (v) extend the Offer if all of the
Offer conditions are satisfied or waived or, in the case of any single
extension, extend the offer for more than 3 business days, (vi) change the form
of consideration payable in the Offer, or (vii) otherwise amend, add or waive
any term or condition of the Offer in any manner that would adversely affect the
Company or its stockholders. The Offer shall not expire prior to January 4,
1996. So long as this Agreement is in effect and the Offer conditions have not
been satisfied or waived, Sub shall, and Parent shall cause Sub to, cause the
Offer not to expire. Subject to the terms and conditions of the Offer, Sub
shall, and Parent shall cause Sub to, pay for all shares of Common Stock validly
tendered and not withdrawn pursuant to the Offer as soon as practicable after
the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall
file with the Securities and Exchange Commission (the "SEC") a Tender Offer
Statement on Schedule 14D-1 with respect to the Offer, which shall contain an
offer to purchase and a related letter of transmittal and summary advertisement
(such Schedule 14D-1 and the documents therein pursuant to which the Offer will
be made, together with any supplements or amendments thereto, the "Offer
Documents"). The Company and its counsel shall be given an opportunity to
review and comment upon the Offer Documents prior to the filing thereof with the
SEC.
-3-
<PAGE>
The Offer Documents shall comply as to form in all material respects with the
requirements of the Securities Exchange Act of 1934, as amended (including the
rules and regulations promulgated thereunder, the "Exchange Act"), and on the
date filed with the SEC and on the date first published, sent or given to the
Company's stockholders, the Offer Documents shall not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that no
representation is made by Parent or Sub with respect to information supplied by
the Company for inclusion in the Offer Documents. Each of Parent, Sub and the
Company agrees promptly to correct any information provided by it for use in the
Offer Documents if and to the extent that such information shall have become
false or misleading in any material respect, and each of Parent and Sub further
agrees to take all steps necessary to cause the Offer Documents as so corrected
to be filed with the SEC and to be disseminated to the Company's stockholders,
in each case as and to the extent required by applicable Federal securities
laws. Parent and Sub agree to provide the Company and its counsel in writing
with any comments Parent, Sub or their counsel may receive from the SEC or its
staff with respect to the Offer Documents.
(c) Prior to the expiration of the Offer, Parent shall provide or
cause to be provided to Sub all of the funds necessary to purchase any shares of
Common Stock that Sub becomes obligated to purchase pursuant to the Offer.
Section 1.2 Company Actions. (a) The Company hereby approves of and
---------------
consents to the Offer and represents that the Board of Directors of the Company
has duly adopted resolutions unanimously approving this Agreement, the Offer and
the Merger, determining that the Merger is advisable and that the terms of the
Offer and Merger are fair to, and in the best interests of, the Company's
stockholders and recommending that the Company's stockholders accept the Offer
and that the holders of Class A Common Stock approve the Merger. The Company
represents that its Board of Directors has received the opinion of Goldman,
Sachs & Co. (the "Financial Advisor") that the proposed consideration to be
received by the holders of shares of Common Stock pursuant to the Offer and the
Merger is fair to such holders. The Company
-4-
<PAGE>
has been authorized by the Financial Advisor to permit, subject to prior review
and consent by such Financial Advisor (unless such consent is innappropriate
under the circumstances), the inclusion of such fairness opinion and a reference
thereto in the Schedule 14D-9 referred to below, and the Proxy Statement
referred to in Section 7.1 and the Information Statement referred to in Section
3.3. The Company hereby consents to the inclusion in the Offer Documents of the
recommendations of the Company's Board of Directors described in this Section
1.2(a).
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the "Schedule 14D-9") and shall mail the Schedule 14D-9 to the
stockholders of the Company. Subject to the fiduciary duties of the Board of
Directors of the Company under applicable law as determined by the Board of
Directors in good faith after consultation with the Company's outside counsel,
and subject to the terms of this Agreement, the Schedule 14D-9 shall contain the
recommendations described in paragraph (a) above. Parent and its counsel shall
be given an opportunity to review and comment upon the Schedule 14D-9 prior to
the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in
all material respects with the requirements of the Exchange Act and, on the date
filed with the SEC and on the date first published, sent or given to the
Company's stockholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that no representation is
made by the Company with respect to information supplied by Parent or Sub for
inclusion in the Schedule 14D-9. Each of the Company, Parent and Sub agrees
promptly to correct any information provided by it for use in the Schedule 14D-9
if and to the extent that such information shall have become false or misleading
in any material respect, and the Company further agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC
and disseminated to the holders of shares of Common Stock, in each case as and
to the extent required by applicable Federal securities laws. The Company
agrees to provide Parent and Sub and their counsel in writing with any comments
the Company or its counsel may receive
-5-
<PAGE>
from the SEC or its staff with respect to the Schedule 14D-9 promptly after the
receipt of such comments.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Sub with mailing labels containing the names and
addresses of the record holders of Common Stock as of a recent date and of those
persons becoming record holders subsequent to such date, together with copies of
all lists of stockholders, security position listings and computer files and all
other information in the Company's possession or control regarding the
beneficial owners of Common Stock, and shall furnish to Sub such information and
assistance (including updated lists of stockholders, security position listings
and computer files) as Sub may reasonably request in communicating the Offer to
the Company's stockholders. Subject to the requirements of law, and except for
such steps as are necessary to disseminate the documents constituting the Offer
and any other documents necessary to consummate the Merger, Parent and Sub and
each of their affiliates and associates shall hold in confidence the information
contained in any of such labels, lists and files, will use such information only
in connection with the Offer and the Merger, and, if this Agreement is
terminated, will promptly deliver to the Company all copies of such information
then in their possession.
ARTICLE II
THE MERGER
----------
Section 2.1 The Merger. Upon the terms and subject to the conditions
----------
hereof, and in accordance with the General Corporation Law of the State of
Delaware, as amended (the "DGCL"), Sub shall be merged with and into the Company
at the Effective Time (as hereinafter defined), and Purchaser hereby agrees to
use its best efforts to effect such Merger and to take all actions necessary or
desirable to effect such Merger. Following the Merger, the separate corporate
existence of Sub shall cease and the Company shall continue as the surviving
corporation (the "Surviving Corporation") and shall succeed to and assume all
the rights and obligations of Sub in accordance with the DGCL.
-6-
<PAGE>
Section 2.2 Effective Time. The Merger shall become effective when
--------------
the Certificate of Merger or, if applicable, the Certificate of Ownership and
Merger (each, the "Certificate of Merger"), executed in accordance with the
relevant provisions of the DGCL, are accepted for record by the Secretary of
State of the State of Delaware. When used in this Agreement, the term
"Effective Time" shall mean the later of the date and time at which the
Certificate of Merger is accepted for record or such later time established by
the Certificate of Merger. The filing of the Certificate of Merger shall be
made as soon as practicable after the satisfaction or waiver of the conditions
to the Merger set forth herein.
Section 2.3 Effects of the Merger. The Merger shall have the effects
---------------------
set forth in Section 259 of the DGCL.
Section 2.4 Certificate of Incorporation and Bylaws. The Certificate
---------------------------------------
of Incorporation and Bylaws of Sub, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation and Bylaws of the
Surviving Corporation until thereafter changed or amended as provided therein or
by Certificate of Incorporation and applicable law.
Section 2.5 Directors and Officers. The directors of Sub immediately
----------------------
prior to the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their resignation or removal or
until their respective successors are duly elected and qualified.
Section 2.6 Conversion of Securities. As of the Effective Time, by
------------------------
virtue of the Merger and without any action on the part of any stockholder of
the Company:
(a) All shares of Common Stock that are held in the treasury of the
Company or by any Subsidiary (as hereinafter defined) of the Company and
any shares of Common Stock owned by Parent, Sub or any other Subsidiary of
Parent shall be cancelled and retired and
-7-
<PAGE>
no consideration shall be delivered in exchange therefor.
(b) Each share of Common Stock issued and outstanding immediately
prior to the Effective Time (other than shares to be cancelled in
accordance with Section 2.6(a) and other than Dissenting Company Common
Shares (as defined in Section 2.8)) shall be converted into the right to
receive from the Surviving Corporation in cash, without interest, the per
share consideration paid in the Offer (the "Merger Consideration"). All
such shares of Common Stock, when so converted, shall no longer be
outstanding and shall automatically be cancelled and retired and each
holder of a certificate or certificates (the "Certificates") representing
any such shares shall cease to have any rights with respect thereto, except
the right to receive the Merger Consideration.
(c) Each issued and outstanding share of the capital stock of Sub
shall be converted into and become one fully paid and nonassessable share
of common stock, par value $.01 per share, of the Surviving Corporation.
Section 2.7 Exchange of Certificates. (a) Paying Agent. Parent and
------------------------ ------------
the Company shall authorize a commercial bank (or such other person or persons
as shall be acceptable to Parent and the Company) to act as paying agent
hereunder (the "Paying Agent") for the payment of the Merger Consideration upon
surrender of Certificates. All of the fees and expenses of the Paying Agent
shall be borne by Parent.
(b) Surviving Corporation to Provide Funds. Parent shall take all
--------------------------------------
steps necessary to enable and cause the Surviving Corporation to deposit in
trust with the Paying Agent prior to the Effective Time cash in an amount
necessary to pay the Merger Consideration for all of the shares of Common Stock
pursuant to Section 2.6. Such amount shall hereinafter be referred to as the
"Exchange Fund." If the amount of cash in the Exchange Fund is insufficient to
pay all of the amounts required to be paid pursuant to Section 2.6 Parent from
time to time after the Effective Time shall take all steps necessary to enable
and cause
-8-
<PAGE>
the Surviving Corporation to deposit in trust additional cash with the Paying
Agent sufficient to make all such payments.
(c) Exchange Procedures. As soon as practicable after the Effective
-------------------
Time, the Paying Agent shall mail to each holder of record of a Certificate,
other than Parent, the Company and any Subsidiary of Parent or the Company, (i)
a letter of transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the Certificates shall pass, only upon actual
delivery of the Certificates to the Paying Agent and shall be in a form and have
such other provisions as Parent may reasonably specify) and (ii) instructions
for use in effecting the surrender of the Certificates in exchange for the
Merger Consideration. Upon surrender of a Certificate for cancellation to the
Paying Agent or to such other agent or agents as may be appointed by the
Surviving Corporation, together with such letter of transmittal, duly executed,
and such other documents as may reasonably be required by the Paying Agent, the
holder of such Certificate shall be entitled to receive in exchange therefor the
Merger Consideration and the Certificates so surrendered shall forthwith be
cancelled. No interest will be paid or will accrue on the cash payable upon the
surrender of any Certificate. If payment is to be made to a person other than
the person in whose name the Certificate so surrendered is registered, it shall
be a condition of payment that such Certificate shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
payment shall pay any transfer or other taxes required by reason of such
Certificate or establish to the satisfaction of the Surviving Corporation that
such tax has been paid or is not applicable. Until surrendered as contemplated
by this Section 2.7, each Certificate (other than Certificates representing
Dissenting Company Common Shares and Certificates representing any shares of
Common Stock owned by Parent or any Subsidiary of Parent) shall be deemed at any
time after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration, without interest, into which the shares of
Common Stock theretofore represented by such Certificate shall have been
converted pursuant to Section 2.6. Notwithstanding the foregoing, neither the
Paying Agent nor any party hereto shall be liable to a former stockholder of the
Company for any cash or interest delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws. Any portion of the
Exchange Fund that remains unclaimed by
-9-
<PAGE>
the stockholders of the Company for one year after the Effective Time shall be
repaid to the Surviving Corporation. Any stockholders of the Company who have
not theretofore complied with Article II hereof shall thereafter look only to
the Surviving Corporation and Parent for payment of their claim for the Merger
Consideration, without any interest thereon.
Section 2.8 Dissenting Company Common Shares. Notwithstanding any
--------------------------------
provision of this Agreement to the contrary, if required by the DGCL but only to
the extent required thereby, shares of Common Stock which are issued and
outstanding immediately prior to the Effective Time and which are held by
holders of such shares of Common Stock who have properly exercised appraisal
rights with respect thereto in accordance with Section 262 of the DGCL (the
"Dissenting Company Common Shares") will not be exchangeable for the right to
receive the Merger Consideration, and holders of such shares of Common Stock
will be entitled to receive payment of the appraised value of such shares of
Common Stock in accordance with the provisions of such Section 262 unless and
until such holders fail to perfect or effectively withdraw or lose their rights
to appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively withdraws or loses such right, such
shares of Common Stock will thereupon be treated as if they had been converted
into and to have become exchangeable for, at the Effective Time, the right to
receive the Merger Consideration, without any interest thereon. The Company
will give Parent prompt notice of any demands received by the Company for
appraisals of shares of Common Stock.
Section 2.9 Merger Without Meeting of Stockholders. Notwithstanding
--------------------------------------
the foregoing, in the event that Sub, or any other direct or indirect subsidiary
of Parent, shall acquire at least 90 percent of the outstanding shares of each
class of the stock of the Company, the parties hereto agree to take all
necessary and appropriate action to cause the Merger to become effective as soon
as practicable after the expiration of the Offer, but in no event later than six
business days thereafter, without a meeting of stockholders of the Company, in
accordance with Section 253 of the DGCL.
Section 2.10 No Further Ownership Rights in Common Stock. All cash
-------------------------------------------
paid upon the surrender of Certificates in
-10-
<PAGE>
accordance with the terms hereof shall be deemed to have been issued in full
satisfaction of all rights pertaining to the shares of Common Stock.
Section 2.11 Closing of Company Transfer Books. At the Effective
---------------------------------
Time, the stock transfer books of the Company shall be closed and no transfer of
shares of Common Stock shall thereafter be made. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be cancelled
and exchanged as provided in this Article II.
Section 2.12 Further Assurances. If at any time after the Effective
------------------
Time the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation, its right, title or interest in, to or
under any of the rights, privileges, powers, franchises, properties or assets of
either of the Constituent Corporations, or (b) otherwise to carry out the
purposes of this Agreement, the Surviving Corporation and its proper officers
and directors or their designees shall be authorized to execute and deliver, in
the name and on behalf of either of the Constituent Corporations in the Merger,
all such deeds, bills of sale, assignments and assurances and do, in the name
and on behalf of such Constituent Corporations, all such other acts and things
necessary, desirable or proper to vest, perfect or confirm its right, title or
interest in, to or under any of the rights, privileges, powers, franchises,
properties or assets of such Constituent Corporation and otherwise to carry out
the purposes of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT
----------------------------------------
Parent represents and warrants to the Company as follows:
Section 3.1 Organization, Standing and Power. Parent is a
--------------------------------
corporation duly organized, validly existing and in good standing under the laws
of The Netherlands and has the requisite
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<PAGE>
corporate power and authority to carry on its business as now being conducted.
Section 3.2 Authority; Non-Contravention. Parent has all requisite
----------------------------
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Parent and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent. This Agreement has been duly executed and delivered by Parent and
(assuming the valid authorization, execution and delivery of this Agreement by
the Company) constitutes a valid and binding obligation of Parent enforceable
against Parent in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and except that the availability of equitable
remedies, including specific performance, injunction and any other form of
equitable relief, is subject to the discretion of the court before which
proceeding therefor may be brought. The execution and delivery of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the provisions hereof will not, conflict with, or result in
any violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to the loss of a material benefit under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of Parent or any of its Significant Subsidiaries under, any
provision of (i) the Charter or Bylaws of Parent (true and complete copies of
which as of the date hereof have been delivered to the Company) or any provision
of the comparable charter or organizational documents of any of its Significant
Subsidiaries, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to Parent or any of its Significant Subsidiaries or (iii)
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Parent or any of its Significant Subsidiaries or any of their
respective properties or assets, other than, in the case of clauses (ii) or
(iii), any such conflicts, violations, defaults, rights, liens, security
interests, charges or encumbrances that, individually or in the
-12-
<PAGE>
aggregate, would not have a Material Adverse Effect on Parent, materially impair
the ability of Parent to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby. No filing or
registration with, or authorization, consent or approval of, any domestic
(federal and state), foreign or supranational court, commission, governmental
body, regulatory agency, authority or tribunal (a "Governmental Entity") is
required by or with respect to Parent or any of its Significant Subsidiaries in
connection with the execution and delivery of this Agreement by Parent or is
necessary for the consummation of the Offer, the Merger and the other
transactions contemplated by this Agreement, except for (i) in connection, or in
compliance, with the Exchange Act, (ii) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware and appropriate documents
with the relevant authorities of other states in which the Company is qualified
to do business, (iii) such filings and consents as may be required under any
environmental, health or safety law or regulation pertaining to any
notification, disclosure or required approval triggered by the Offer, the Merger
or the transactions contemplated by this Agreement, (iv) such filings as may be
required in connection with the Gains Taxes described in Section 7.7, (v) such
other consents, approvals, orders, authorizations, registrations, declarations
and filings as may be required under the corporation, takeover or blue sky laws
of various states, (vi) such filings and approvals as may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"Improvements Act"), and (vii) such other consents, orders, authorizations,
registrations, declarations and filings which (A) may be required under the laws
of any foreign country or supra-national organization in which the Company or
any of its Subsidiaries conducts any business or owns any property or assets or
(B) the failure of which to be obtained or made would not, individually or in
the aggregate, have a Material Adverse Effect on Parent, materially impair the
ability of Parent to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby. For purposes of
this Agreement (a) "Material Adverse Change" or "Material Adverse Effect" means,
when used with respect to Parent, Sub or the Company, as the case may be, any
change or effect that is or may be materially adverse to the business, assets,
or financial condition, or results of operations of Parent and its Significant
Subsidiaries taken as a whole, Sub, or the Company and its Significant
Subsidiaries taken
-13-
<PAGE>
as a whole, as the case may be, (b) "Subsidiary" means any significant
corporation, partnership, joint venture or other legal entity of which Parent or
the Company, as the case may be (either alone or through or together with any
other Subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests the holders of which are generally entitled to vote for
the election of the board of directors or other governing body of such
corporation or other legal entity and (c) "Significant Subsidiary" means any
Significant Subsidiary within the meaning of Rule 1-02 of Regulation S-X of the
SEC.
Section 3.3 Offer Documents and Proxy Statement. None of the
-----------------------------------
information to be supplied by Parent or Sub for inclusion or incorporation by
reference in the Offer Documents, the Schedule 14D-9 or the proxy statement, if
any, (together with any amendments or supplements thereto, the "Proxy
Statement") relating to the Stockholder Meeting (as defined in Section 7.1) the
information statement, if any, filed by the Company in connection with the
Merger pursuant to Rule 14C-2 promulgated under the Exchange Act (the
"Information Statement"), will (i) in the case of the Offer Documents, the
Schedule 14D-9, the Proxy Statement and the Information Statement, at the
respective time such documents are filed with the SEC or first published, sent
or given to the Company's stockholders, or (ii) in the case of the Proxy
Statement or the Information Statement, at the time of the mailing of either of
such Statements and at the time of the Stockholder Meeting or action by written
consent, as the case may be, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. If at any time prior to the purchase of shares
of Common Stock pursuant to the Offer there shall occur any event with respect
to Parent, its officers and directors or any of its Subsidiaries which is
required to be described in the Offer Documents, such event shall be so
described, and an amendment or supplement shall be promptly filed with the SEC
and, as required by law, disseminated to the stockholders of the Company.
Section 3.4 Financing. Parent has, or immediately prior to the
---------
expiration of the Offer will have, all of the funds necessary to consummate the
Offer and the Merger and the
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<PAGE>
transactions contemplated hereby on a timely basis and to pay any and all
related fees and expenses.
Section 3.5 Brokers. No broker, investment banker or other person,
-------
other than CS First Boston Corporation, the fees and expenses of which will be
paid by Parent, is entitled to any broker's, finder's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent or Sub.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to Parent and Sub as follows:
Section 4.1 Organization, Standing and Power. The Company and each
--------------------------------
of its Significant Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated and has the requisite corporate power and authority to carry on its
business as now being conducted. The Company and each of its Significant
Subsidiaries is duly qualified to do business, and is in good standing, in each
jurisdiction where the character of its properties owned or held under lease or
the nature of its activities makes such qualification necessary, except where
the failure to be so qualified would not, individually or in the aggregate, have
a Material Adverse Effect on the Company.
Section 4.2 Capital Structure. The authorized capital stock of the
-----------------
Company is 80,000,000 shares of Common Stock, consisting of 40,000,000 shares of
Class A Common Stock and 40,000,000 shares of Class B Common Stock. At the
close of business on November 24, 1995, (i) 16,638,512 shares of Class A Common
Stock were issued and outstanding, (ii) 16,397,122 shares of Class B Common
Stock were issued and outstanding, (iii) 2,000,000 shares of Common Stock were
reserved for issuance upon the exercise of outstanding Company Stock Options (as
defined in Section 7.4) and (iv) 779,690 shares of Class A Common Stock and
1,021,080 shares of Class B Common Stock were held by the Company in its
treasury. There are no outstanding stock appreciation
-15-
<PAGE>
rights ("SARs") which were not granted in tandem with a related Company Stock
Option. All outstanding shares of capital stock of the Company are validly
issued, fully paid and nonassessable and not subject to preemptive rights.
Except for the 1,217,000 Company Stock Options outstanding as of November 24,
1995, there are no options, warrants, rights, commitments, agreements,
arrangements or undertakings of any kind to which the Company or any of its
Significant Subsidiaries is a party or by which any of them is bound obligating
the Company or any of its Significant Subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock or
other voting securities of the Company or of any of its Significant
Subsidiaries. There are no voting trusts or other agreements or understandings
to which the Company is a party with respect to the voting of the capital stock
of the Company.
Section 4.3 Authority; Non-Contravention. The Board of Directors of
----------------------------
the Company has declared the Merger advisable and the Company has all requisite
power and authority to enter into this Agreement and, subject to approval of the
Merger by the stockholders of the Company (if required), to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Company, subject to such approval of the Merger by the
stockholders of the Company (if required). This Agreement has been duly
executed and delivered by the Company and (assuming the valid authorization,
execution and delivery of this Agreement by Parent and Sub) constitutes a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms. Except as set forth in the Company SEC Documents (as
hereinafter defined) or the letter from the Company to Parent dated the date
hereof, which letter relates to this Agreement and is designated therein as the
Company Disclosure Letter (the "Company Disclosure Letter"), the execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of
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<PAGE>
the properties or assets of the Company or any of its Significant Subsidiaries
under, any provision of (i) the Certificate of Incorporation or Bylaws of the
Company (true and complete copies of which as of the date hereof have been
delivered to Parent) or any provision of the comparable charter or organization
documents of any of its Significant Subsidiaries, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to the Company
or any of its Significant Subsidiaries or (iii) any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company or any of
its Significant Subsidiaries or any of their respective properties or assets,
other than, in the case of clause (ii) or (iii), any such conflicts, violations,
defaults, rights, liens, security interests, charges or encumbrances that,
individually or in the aggregate, would not have a Material Adverse Effect on
the Company, materially impair the ability of the Company to perform its
obligations hereunder or prevent the consummation of any of the transactions
contemplated hereby. No filing or registration with, or authorization, consent
or approval of, any Governmental Entity is required by or with respect to the
Company or any of its Significant Subsidiaries in connection with the execution
and delivery of this Agreement by the Company or the consummation by the Company
of the transactions contemplated hereby, except for (i) in connection or in
compliance with the provisions of he Exchange Act, (ii) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware and
appropriate documents with the relevant authorities of other states in which the
Company is qualified to do business, (iii) such filings and consents as may be
required under any environmental, health or safety law or regulation pertaining
to any notification, disclosure or required approval triggered by the Offer, the
Merger or the transactions contemplated by this Agreement, (iv) such filings as
may be required in connection with the Gains Taxes described in Section 7.7, (v)
such consents, approvals, orders, authorizations, registrations, declarations
and filings as may be required under the corporation, takeover or blue sky laws
of various states, (vi) such filings and approvals as may be required under the
Improvements Act, and (vii) such other consents, orders, authorizations,
registrations, declarations and filings which (A) may be required under the laws
of any foreign country or supranational organization in which the Company or any
of its Subsidiaries conducts any business or owns any property or
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<PAGE>
assets or (B) the failure of which to be obtained or made would not,
individually or in the aggregate, have a Material Adverse Effect on the Company,
materially impair the ability of Company to perform its obligations hereunder or
prevent the consummation of any of the transactions contemplated hereby.
Section 4.4 SEC Documents. The Company has filed all required
-------------
documents with the SEC since January 1, 1993 (the "Company SEC Documents"). As
of their respective dates, the Company SEC Documents complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as the
case may be, and none of the Company SEC Documents contained 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 therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of the Company included in the Company SEC Documents comply as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto) and fairly present the consolidated financial
position of the Company and its consolidated Subsidiaries as at the dates
thereof and the consolidated results of their operations and changes in
financial position for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments and to any other adjustments
described therein).
Section 4.5 Offer Documents and Proxy Statement. None of the
-----------------------------------
information supplied or to be supplied by the Company for inclusion or
incorporation by reference in the Offer Documents or the Schedule 14D-9, the
Information Statement, if any, the Proxy Statement, if any, or any amendment or
supplement thereto, will (i) in the case of the Offer Documents, the Schedule
14D-9 and the Information Statement, at the respective times such documents are
filed with the SEC or first published, sent or given to the Company's
stockholders, (ii) in the case of the Proxy Statement, if any, at the time of
the mailing of the Proxy Statement and at the time of the Stockholder Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to
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<PAGE>
be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading. If at any
time prior to the Effective Time any event with respect to the Company, its
officers and directors or any of its Subsidiaries should occur which is required
to be described in an amendment of, or a supplement to, the Proxy Statement or
the Offer Documents, such event shall be so described, and such amendment or
supplement shall be promptly filed with the SEC and, as required by law,
disseminated to the stockholders of the Company. The Proxy Statement will
comply as to form in all material respects with the requirements of the Exchange
Act.
Section 4.6 Absence of Certain Events. Except as may be disclosed in
-------------------------
the Company Disclosure Letter or in the Company SEC Documents filed with the SEC
prior to the date hereof, the Company has, in all material respects, conducted
its business only in, and has not entered into any material transaction (other
than the transactions contemplated by this Agreement) other than in accordance
with, the ordinary course, and since September 30, 1995, there has not been any
Material Adverse Change with respect to the Company.
Section 4.7 Section 203 of the DGCL. The Board of Directors of the
-----------------------
Company has approved this Agreement and the Option Agreement for all purposes
under Section 203 of the DGCL and the Company has heretofore furnished to Parent
a true and correct copy of resolutions duly adopted by the unanimous vote of
such board on November 26, 1995 and such resolutions are in full force and
effect on the date hereof. Such action is the only action necessary so that the
restrictions on business combinations contained in Section 203 of the DGCL will
not apply with respect to or as a result of the Merger or the Option Agreement
or any of the transactions contemplated herein or therein.
Section 4.8 Taxes. Except as may be disclosed in the Company
-----
Disclosure Letter, (i) the Company and each Significant Subsidiary has filed all
Tax Returns required to have been filed on or before the date hereof; (ii) all
Taxes shown to be due on the Tax Returns referred in clause (i) have been timely
paid; (iii) neither the Company nor any Significant Subsidiary has waived any
statute of limitations in respect of Taxes of the
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<PAGE>
Company or such Subsidiary; (iv) the Tax Returns referred to in clause (i)
relating to federal and state income Taxes have been examined by the Internal
Revenue Service or the appropriate state or appropriate foreign taxing authority
or the period for assessment of the Taxes in respect of which such Tax Returns
were required to be filed has expired; (v) no issues that have been raised in
writing by the relevant taxing authority in connection with the examination of
the Tax Returns referred to in clause (i) are currently pending; (vi) to the
best of the knowledge of the Company, none of the Internal Revenue Service, the
appropriate state taxing authority or the appropriate foreign tax authority,
have proposed any adjustments to tax against the Company or any Subsidiary; and
(vii) all deficiencies asserted or assessments made as a result of any
examination of the Tax Returns referred to in clause (i) by a taxing authority
have been paid in full. For purposes of this Agreement (a) "Tax" (and, with
correlative meaning, "Taxes" and "Taxable") means, when used with respect to
Parent or the Company, as the case may be, any federal, state, local or foreign
income, gross receipts, property, sales, use, license, excise, franchise,
employment, payroll, withholding, alternative or added minimum, ad valorem,
transfer or excise tax, or any other tax, custom, duty, governmental fee or
other like assessment or charge of any kind whatsoever, together with any
interest or penalty, imposed by any governmental authority, and (b) "Tax Return"
means any return, report or similar statement required to be filed with respect
to any Tax (including any attached schedules), including, without limitation,
any information return, claim for refund, amended return or declaration of
estimated Tax.
Section 4.9 Compliance with Applicable Law. The Company and its
------------------------------
Subsidiaries hold all material permits, licenses, variances, exemptions, orders
and approvals of all United States Governmental Entities necessary for the
lawful conduct of their respective businesses (the "Company Permits"), except
for failures to hold such permits, licenses, variances, exemptions, orders and
approvals that would not, individually or in the aggregate, have a Material
Adverse Effect on the Company. The Company and its subsidiaries are in
compliance with the terms of the Company Permits, except where the failure so to
comply would not have a Material Adverse Effect on the Company. Except as
disclosed in the Company SEC Documents, to the best knowledge of the Company,
the businesses of the Company and its subsidiaries
-20-
<PAGE>
are not being conducted in violation of any law, ordinance or regulation of any
United States Governmental Entity, except for violations that, individually or
in the aggregate, would not have a Material Adverse Effect on the Company or
prevent or materially delay the consummation of the Offer or the Merger. Except
as set forth in the Company Disclosure Letter, as of the date of this Agreement,
no investigation or review by any United States Governmental Entity with respect
to the Company or any of its subsidiaries is pending or, to the best knowledge
of the Company, threatened in writing, other than, in each case, those the
outcome of which would not be reasonably expected to have a Material Adverse
Effect on the Company or prevent or materially delay the consummation of the
Offer or the Merger.
Section 4.10 Litigation. Except as disclosed in the Company SEC
----------
Documents or in the Company Disclosure Schedule and except for suits filed in
connection with the Offer, there is no suit, claim, action, proceeding or
investigation pending before any United States Governmental Entity or, to the
best knowledge of the Company, threatened against the Company or any of its
subsidiaries that could reasonably be expected to have a Material Adverse Effect
on the Company. Except as disclosed in the Company SEC Documents or in the
Company Disclosure Letter, neither the Company nor any of its subsidiaries is
subject to any outstanding order, writ, injunction or decree that could
reasonably be expected to have a Material Adverse Effect on the Company.
Section 4.11 No Undisclosed Liabilities. Except as and to the extent
--------------------------
set forth in the Company's Annual Report to Stockholders for the year ended
December 31, 1994, or in any subsequently filed document by the Company with the
SEC prior to the date of this Agreement, neither the Company nor any of its
subsidiaries has any liabilities or obligations of any nature, whether or not
accrued, contingent or otherwise, that would be required by generally accepted
accounting principles to be reflected on a consolidated balance sheet of the
Company and it subsidiaries (including the notes thereto), except for
liabilities or obligations incurred in the ordinary course of business since
December 31, 1994, that would not, individually or in the aggregate, have a
Material Adverse Effect on the Company.
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<PAGE>
Section 4.12 Benefit Plans. (a) Each "employee pension benefit plan"
-------------
(as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) (a Pension Plan"), "employee welfare benefit plan"
(as defined in Section 3(1) of ERISA) (a "Welfare Plan"), and each other plan,
arrangement or policy (written or oral) relating to stock options, stock
purchases, compensation, deferred compensation, bonuses, severance, fringe
benefits or other employee benefits, in each case maintained or contributed to,
or required to be maintained or contributed to, by the Company or its
subsidiaries for the benefit of any present or former employee, officer or
director (each of the foregoing, a "Benefit Plan") has been substantially
administered in accordance with its terms. The Company and its subsidiaries and
all the Benefit Plans are in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code of 1986, as amended
(the "Code"), all other applicable laws and all applicable collective bargaining
agreements.
(b) None of the Company or other person or entity that, together with
the Company, is treated as a single employer under Section 414 of the Code
(each, including the Company, a "Commonly Controlled Entity") has incurred any
liability to a Pension Plan under Title IV of ERISA (other than for
contributions not yet due) or to the Pension Benefit Guaranty Corporation (other
than for payment of premiums not yet due), which liability has not been fully
paid.
(c) No Commonly Controlled Entity is required to contribute to any
"multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) or has
withdrawn from any multiemployer plan where such withdrawal has resulted or
would result in any "withdrawal liability" (within the meaning of Section 4201
of ERISA) that has not been fully paid.
Section 4.13 Trademarks, Patents and Copyrights. Except as set forth
----------------------------------
in the Disclosure Letter, (i) the Company and its subsidiaries own or possess
adequate licenses or other valid rights to use all patents, patent rights,
trademarks, trademark rights, trade names, trade dress, trade name rights,
copyrights, servicemarks, trade secrets, applications for trademarks and for
servicemarks, mask works, know-how and other proprietary rights and information
used or held for use in connection with the
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<PAGE>
business of the Company and the subsidiaries as conducted since December 31,
1993 or as currently conducted, except to the extent that the failure to so own
or possess would have a Material Adverse Effect, and (ii) the Company is unaware
of any assertion or claim challenging the validity of any of the foregoing
which, individually or in the aggregate, could have a Material Adverse Effect.
The conduct of the business of the Company and the Subsidiaries as conducted
since December 31, 1993 and as currently conducted did not and does not conflict
in any way with any applicable patent, patent right, license, trademark,
trademark right, trade dress, trade name, trade name right, service mark, mask
work or copyright of any third party that, individually or in the aggregate,
could have a Material Adverse Effect on the Company. There are no infringements
of any propriety rights owned by or licensed by or to the Company or any
subsidiary which, individually or in the aggregate, could have a Material
Adverse Effect on the Company. For purposes of this Section 4.12 only, the term
------------
"Material Adverse Effect" means Material Adverse Effect on the Company in an
amount equal to or greater than $100,000,000.
Section 4.14 Environmental Matters. (a) For purposes of this
---------------------
Agreement, the following terms shall have the following meanings: (i)
"Hazardous Substances" means (A) any asbestos-containing material, petroleum and
- ---------------------
petroleum products, including crude oil and any fractions thereof,(B) any
hazardous substance, hazardous waste, hazardous material, toxic substance, air
or water pollutant or contaminant, as those terms are defined by any federal,
state or local Environmental Law; (ii) "Environmental Law" means any federal,
state or local law relating to (A) releases or threatened releases into the
environment of Hazardous Substances; or (B) the generation, emission, discharge
or release, transport, treatment, storage or disposal of any Hazardous
Substances.
(b) Except as described in the Company Disclosure Letter: (i) neither
the Company nor any subsidiary is in material violation of any Environmental
Law; (ii) the Company and each of its subsidiaries has all material permits,
licenses and other authorizations required under any Environmental Law and each
of them is in compliance in all material respects with their requirements; (iii)
none of the Company or any of its subsidiaries has received any notice or claim
since December 31,
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<PAGE>
1993, alleging liability for or arising from the off-site disposal of Hazardous
Substance and, to the Company's knowledge, neither the Company nor any
subsidiary is liable for any off-site contamination caused by a Hazardous
Substance; and (iv) neither the Company nor any subsidiary has received any
notice of violation with or liability under any Environmental Law which,
individually or in the aggregate, would have a Material Adverse Effect on the
Company.
Section 4.15 Brokers. No broker, investment banker or other person,
-------
other than Goldman, Sachs & Co. and Dennis P. Ferrel, the fees and expenses of
which will be paid by the Company, is entitled to any broker's, finder's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING SUB
--------------------------------------------
Parent and Sub jointly and severally represent and warrant to the
Company as follows:
Section 5.1 Organization and Standing. Sub is a corporation duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware. Sub was organized solely for the purpose of acquiring the Company and
engaging in the transactions contemplated by this Agreement and has not engaged
in any business since it was incorporated which is not in connection with the
acquisition of the Company and this Agreement.
Section 5.2 Capital Structure. The authorized capital stock of Sub
-----------------
consists of 1,000 shares of common stock, par value $.01 per share, all of which
are validly issued and outstanding, fully paid and nonassessable and are owned
by Parent free and clear of all liens, claims and encumbrances.
Section 5.3 Authority; Non-Contravention. Sub has the requisite
----------------------------
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution
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<PAGE>
and delivery of this Agreement, the performance by Sub of its obligations
hereunder and the consummation of the transactions contemplated hereby have been
duly authorized by its Board of Directors and Parent as its sole stockholder,
and, except for the corporate filings required by state law, no other corporate
proceedings on the part of Sub are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Sub and (assuming the due authorization, execution and
delivery hereof by the Company) constitutes a valid and binding obligation of
Sub enforceable against Sub in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of Sub under, any provision of (i) the
Certificate of Incorporation or Bylaws (true and complete copies of which as of
the date hereof have been delivered to the Company) of Sub, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to Sub or (iii)
any judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to Sub or any of its properties or assets, other than, in the case of
clauses (ii) or (iii), any such conflicts, violations, defaults, rights, liens,
security interests, charges or encumbrances that, individually or in the
aggregate, would not have a Material Adverse Effect on Sub, materially impair
the ability of Sub to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
-----------------------------------------
Section 6.1 Conduct of Business by the Company Pending the Merger.
-----------------------------------------------------
Except as otherwise expressly contemplated by this Agreement or as described in
the Company Disclosure
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Letter, during the period from the date of this Agreement through the Effective
Time, the Company shall, and shall cause its Subsidiaries to, in all material
respects carry on their respective businesses in, and not enter into any
material transaction other than in accordance with, the regular and ordinary
course and, to the extent consistent therewith, use its reasonable best efforts
to preserve intact their current business organizations, keep available the
services of their current officers and employees and preserve their
relationships with customers, suppliers and others having business dealings with
them. Without limiting the generality of the foregoing, and, except as
otherwise expressly contemplated by this Agreement or as described in the
Company Disclosure Letter, the Company shall not, and shall not permit any of
its Subsidiaries to, without the prior written consent of Parent:
(a) (x) declare, set aside or pay any dividends on, or make any other
actual, constructive or deemed distributions in respect of, any of its
capital stock, or otherwise make any payments to stockholders of the
Company in their capacity as such, other than (1) ordinary quarterly
dividends by the Company consistent with past practice in an amount not in
excess of $0.17 1/2 per share of Common Stock per quarter, the first such
dividend to be with a record date no earlier than January 16, 1996, or (2)
dividends declared prior to the date of this Agreement;
(b) issue, deliver, sell, pledge, award, dispose of or otherwise
encumber, or authorize the issuance, delivery, sale, pledge, disposition or
other encumbrance of, any shares of its capital stock, any other voting
securities or equity equivalent or any securities convertible into, or any
rights, warrants or options to acquire, any such shares, voting securities
or convertible securities or equity equivalent (other than, in the case of
the Company, the issuance of Common Stock during the period from the date
of this Agreement through the Effective Time upon the exercise of Company
Stock Options outstanding on the date of this Agreement in accordance with
their current terms;
(c) amend its Certificate of Incorporation or Bylaws;
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(d) acquire or agree to acquire by merging or consolidating with, or
by purchasing a substantial portion of the assets of or equity in, or by
any other manner, any business or any corporation, partnership, association
or other business organization or division thereof;
(e) other than in the ordinary course of business consistent with
past practice, sell, lease or otherwise dispose of or agree to sell, lease
or otherwise dispose of, any of its assets;
(f) incur, assume or prepay any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt securities or
guarantee any debt securities of others, except for borrowings or
guarantees incurred in the ordinary course of business consistent with past
practice;
(g) alter through merger, liquidation, reorganization, restructuring
or in any other fashion the corporate structure or ownership of any
Subsidiary of the Company; or
(h) enter into or adopt any employee benefit plans or programs (which
if currently existing would come within the definition of Benefit Plans),
or amend any existing, Benefit Plan, agreement or arrangement, make any
contribution to any Benefit Plans which is disproportionately large when
compared to prior contributions made to such Benefit Plan or enter into or
amend any employee benefit plan (including without limitation, the Long-
Term Incentive Plan) or employment or consulting agreement, grant bonuses
or compensation increases except (x) as permitted by Section 7.11 or (y)
bonuses or compensation increases associated with Benefit Plans, promotions
and regular reviews in the ordinary course of business; or
(i) except as may be required as a result of a change in law or in
generally accepting accounting principles, change any of the accounting
practices or principles used by it;
(j) make any tax election or settle or compromise any federal, state,
local or foreign tax liability;
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(k) settle or compromise any pending or threatened suit, action or
claim which is material;
(l) enter into any material contracts or modify, amend, terminate any
material contracts;
(m) take or offer or propose to take, or agree to take in writing or
otherwise any of the actions described in Sections 6.1 or any action which
would make any of the representations or warranties of the Company
contained in this Agreement untrue or incorrect as of the date when made if
such action had been taken, or would result in any of the Offer conditions
not being satisfied.
Section 6.2 No Solicitation. The Company, its affiliates and their
---------------
respective officers, directors, employees, representatives and agents shall
immediately cease any existing discussions or negotiations, if any, with any
parties conducted heretofore with respect to any acquisition or exchange of all
or any material portion of the assets of, or any equity interest in, the Company
or any of its subsidiaries or any business combination with the Company or any
of its subsidiaries. From and after the date hereof, the Company will not,
directly or indirectly, solicit or initiate any Takeover Proposal (as
hereinafter defined) from any person, or engage in discussions or negotiations
relating thereto (including by way of furnishing information); provided,
--------
however, that (i) the Company may engage in discussions or negotiations with a
- -------
third party who seeks to initiate such discussions or negotiations or may
furnish such third party information concerning the Company and its business,
properties, assets, operating results and prospects, in each case only in
response to a request for such information or access to any person made after
the date hereof which was not encouraged, solicited or initiated by the Company
or any of its affiliates or any of its or their respective officers, directors,
employees, representatives or agents after the date hereof, pursuant to
appropriate confidentiality agreements, (ii) the Company's Board of Directors
may take and disclose to the Company's stockholders a position contemplated by
Rule 14e-2(a) promulgated under the Exchange Act and (iii) following receipt of
a Takeover Proposal or offer the Board of Directors of the Company may withdraw
or modify its recommendation referred to in Section 7.1, but in each case
referred to in the foregoing clauses (i) through (iii) only
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to the extent that the Board of Directors of the Company shall conclude in good
faith after consultation with the Company's outside counsel that such action is
appropriate in order for the Board of Directors of the Company to act in a
manner which is consistent with its fiduciary obligations under applicable law.
The Company will promptly notify Parent of its receipt of any proposal or offer.
As used in this Agreement, "Takeover Proposal" shall mean any proposal or offer,
other than a proposal or offer by Parent or any of its affiliates, for a tender
or exchange offer, a merger, consolidation or other business combination
involving the Company or any Subsidiary of the Company or any proposal to
acquire in any manner a substantial equity interest in, or a substantial portion
of the assets of, the Company or any of its Subsidiaries or any other
transaction the consummation of which could reasonably be expected to impede,
interfere with, prevent or materially delay the Offer or the Merger or which
would reasonably be expected to dilute materially the benefits to Parent of the
transactions contemplated hereby.
Section 6.3 Conduct of Business of Sub Pending the Merger. During
---------------------------------------------
the period from the date of this Agreement through the Effective Time, Sub shall
not engage in any activities of any nature except as provided in or contemplated
by this Agreement.
ARTICLE VII
ADDITIONAL AGREEMENTS
---------------------
Section 7.1 Company Stockholder Approval; Proxy Statement. (a) If
---------------------------------------------
approval of the Merger by the holders of Class A Common Stock ("Class A
Holders") is required by applicable law, the Company shall either (i) call a
meeting of its Class A Holders (the "Stockholder Meeting") for the purpose of
voting upon the Merger and shall use its reasonable best efforts to obtain Class
A Holder approval of the Merger or (ii) if the holders of a majority of the
outstanding shares of Class A Common Stock intend to act by written consent,
comply with the requirements of Rule 14c-2 promulgated under the Exchange Act.
The Stockholder Meeting, if necessary, shall be held as soon as practicable
following the purchase of shares of Common Stock pursuant to the Offer and the
Company will, through its Board of
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Directors but subject to the fiduciary duties of its Board of Directors under
applicable law as determined by the Board of Directors in good faith after
consultation with the Company's outside counsel, recommend to its Class A
Holders the approval of the Merger and not rescind its declaration that the
Merger is advisable. The record date for the Stockholder Meeting shall be a
date subsequent to the date Parent or Sub becomes a record holder of Common
Stock purchased pursuant to the Offer.
(b) If required by applicable law, the Company will, as soon as
practicable following the expiration of the Offer, prepare and file a
preliminary Proxy Statement or Information Statement, as the case may be, with
the SEC and will use its reasonable best efforts to respond to any comments of
the SEC or its staff and to cause the Proxy Statement to be mailed to the Class
A Holders. The Company will notify Parent of the receipt of any comments from
the SEC or its staff and of any request by the SEC or its staff for amendments
or supplements to the Proxy Statement or for additional information and will
supply Parent with copies of all correspondence between the Company or any of
its representatives, on the one hand, and the SEC or its staff, on the other
hand, with respect to the Proxy Statement or the Merger. If at any time prior
to the approval of this Agreement by the Class A Holders at the Stockholder
Meeting, if necessary, there shall occur any event that should be set forth in
an amendment or supplement to the Proxy Statement, the Company will prepare and
mail to its stockholders such an amendment or supplement.
(c) Parent agrees to cause all shares of Class A Common Stock
purchased pursuant to the Offer and all other shares of Class A Common Stock
owned by Sub or any other Subsidiary of Parent to be voted in favor of the
approval of the Merger.
Section 7.2 Access to Information. The Company shall, and shall
---------------------
cause each of its Subsidiaries to, afford to Parent, and to Parent's
accountants, counsel, financial advisors and other representatives, reasonable
access and permit them to make such inspections as they may reasonably require
during normal business hours during the period from the date of this Agreement
through the Effective Time to all their respective properties, books, contracts,
commitments and records (including the availability of an office at the
Company's corporate headquarters
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where Parent's representatives may work on a day-to-day basis) and, during such
period, the Company shall, and shall cause each of its Subsidiaries to, furnish
promptly to Parent (i) a copy of each report, schedule, registration statement
and other document filed by it during such period pursuant to the requirements
of federal or state laws and (ii) all other information concerning its business,
properties and personnel as Parent may reasonably request; provided that no
investigation pursuant to this Section 7.2 or otherwise will affect or be deemed
to modify any of the representations and warranties made by the Company in this
Agreement. In no event shall the Company be requested to supply to Parent, or
to Parent's accountants, counsel, financial advisors or other representatives,
any information relating to indications of interest from, or discussions with,
any other potential acquirors of the Company which were received or conducted
prior to the date hereof, except to the extent necessary for use in the Offer
Documents, the Schedule 14D-9 and the Proxy Statement and/or the Information
Statement. Except as required by law, Parent will hold, and will cause its
affiliates, associates and representatives to hold, any nonpublic information in
confidence until such time as such information otherwise becomes publicly
available and shall use its reasonable best efforts to ensure that such
affiliates, associates and representatives do not disclose such information to
others without the prior written consent of the Company. In the event of
termination of this Agreement for any reason, Parent shall promptly return or
destroy all nonpublic documents so obtained from the Company or any of its
Subsidiaries and any copies made of such documents for Parent.
Section 7.3 Fees and Expenses. Whether or not the Merger is
-----------------
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.
Section 7.4 Company Stock Options; Tax Gross-Up. Immediately upon
-----------------------------------
the consummation of the Offer, all outstanding employee stock options, whether
or not then fully exercisable or vested, to purchase shares of Common Stock (a
"Company Stock Option") heretofore granted under the Long-Term Incentive Plan
shall become fully exercisable and vested, and, pursuant to the terms of the
Long Term Incentive Plan, the Company Stock Options,
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<PAGE>
shall, upon their surrender to the Company by the holders thereof, be cancelled
by the Company, and the holders thereof shall receive a cash payment from the
Company in an amount equal to the number of shares of Common Stock subject to
each surrendered option multiplied by the difference between the exercise price
per share of Common Stock covered by the option and the Merger Consideration.
No additional awards shall be granted under the Long Term Incentive Plan.
Parent acknowledges that the Company has resolved to "gross-up" certain
executives for excise taxes due on any "excess parachute payment" as a result of
the acceleration of the vesting of the Company Stock Options (subject to a
maximum "gross-up" amount of $6,000,000 and undertakes to make such payments to
the extent due after the Effective Time.
Section 7.5 Reasonable Best Efforts. Upon the terms and subject to
-----------------------
the conditions set forth in this Agreement, each of the parties agrees to use
its reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger, and the other
transactions contemplated by this Agreement, including (a) the obtaining of all
necessary actions or non-actions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations and filings
(including filings with Governmental Entities) and the taking of all reasonable
steps as may be necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by any Governmental Entity, (b) the obtaining of all
necessary consents, approvals or waivers from third parties, (c) the defending
of any lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
hereby, including seeking to have any stay or temporary restraining order
entered by any court or other Governmental Entity vacated or reversed, and (d)
the execution and delivery of any additional instruments necessary to consummate
the transactions contemplated by this Agreement; provided, however, that the
-------- -------
Company shall be under no obligation to take any action to the extent that the
Board of Directors shall conclude in good faith, after consultation with the
Company's outside counsel, that such action could be
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inconsistent with the Board of Directors' fiduciary obligations under applicable
law.
Section 7.6 Public Announcements. Parent and Sub, on the one hand,
--------------------
and the Company, on the other hand, will consult with each other before issuing
any press release or otherwise making any public statements with respect to the
transactions contemplated by this Agreement, and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by applicable law or by obligations pursuant to any listing
agreement with any national securities exchange.
Section 7.7 Real Estate Transfer and Gains Taxes. Parent and the
------------------------------------
Company agree that either the Company or the Surviving Corporation will pay any
stamp tax, recording tax, sales tax, use tax, real property transfer or gains
tax, stock transfer tax or similar tax, or any other state or local tax which is
attributable to the transfer of the beneficial ownership of the Company's or its
Subsidiaries real property, if any (collectively, the "Gains Taxes"), and any
penalties or interest with respect to the Gains Taxes, payable in connection
with the consummation of the Offer or the Merger. The Company agrees to
cooperate with Sub in the filing of any returns with respect to the Gains Taxes,
including supplying in a timely manner a complete list of all real property
interests held by the Company or its Subsidiaries and any information with
respect to such property that is reasonably necessary to complete such returns.
The portion of the consideration allocable to the real property of the Company
and its Subsidiaries shall be determined by Sub or Parent in its reasonable
discretion. The stockholders of the Company shall be deemed to have agreed to
be bound by the allocation established pursuant to this Section 7.7 in the
preparation of any return with respect to the Gains Taxes.
Section 7.8 State Takeover Laws. If any "fair price" or "control
-------------------
share acquisition" statute or other similar statute or regulation shall become
applicable to the transactions contemplated hereby, the Company and the members
of the Board of Directors of the Company shall use their reasonable best efforts
to grant such approvals and take such actions as are necessary so that the
transactions contemplated hereby may be consummated as promptly as practicable
on the terms contemplated hereby and
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otherwise act to minimize the effects of such statute or regulation on the
transactions contemplated hereby.
Section 7.9 Indemnification; Directors and Officers Insurance. From
-------------------------------------------------
and after the Effective Time, Parent agrees to, and to cause the Surviving
Corporation to, indemnify and hold harmless all past and present officers,
directors, employees and agents of the Company and of its Subsidiaries to the
full extent such persons may be indemnified by the Company pursuant to the
Company's Certificate of Incorporation and Bylaws as in effect as of the date
hereof for acts and omissions occurring at or prior to the Effective Time and
shall advance reasonable litigation expenses incurred by such persons in
connection with defending any action arising out of such acts or omissions in
accordance with the terms and provisions of the Certificate of Incorporation and
Bylaws. In addition, Parent shall maintain in effect for a period of six years
the Company's current directors' and officers' liability insurance covering
those persons who are currently covered by such policy (a true and correct copy
of which has been made available to Parent); provided, however, that in no event
-------- -------
shall Parent be required to expend in any one year an amount in excess of 150%
of the annual premiums currently paid by the Company for such insurance which
the Company represents is $167,000 for the primary policy; and provided,
--------
further, that if the annual premiums of such insurance coverage exceed such
- -------
amount, Parent shall be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount.
Section 7.10 Employee Benefits. (a) Until at least December 31,
-----------------
1996, Parent shall maintain or cause to be maintained employee benefits and
programs for retirees, directors, officers and employees of the Company and its
Subsidiaries that are no less favorable in the aggregate than those being
provided to such retirees, directors, officers and employees on the date hereof
taking into account that the Company will be a private company without stock
options and the like. On or after January 1, 1997, the retirees, directors,
officers and employees of the Company and its Subsidiaries shall be eligible for
employee benefits, plans and programs (including but not limited to incentive
compensation, deferred compensation, pension, life insurance, medical, profit
sharing (including 401(k)), severance, salary continuation and fringe benefits)
which are no less favorable in the aggregate than those generally
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available to similarly situated retirees, directors, officers and employees of
Parent and its Significant Subsidiaries in the relevant geographic regions. For
purposes of eligibility to participate in and vesting in all benefits provided
to retirees, directors, officers and employees, retirees, directors, officers
and employees of the Company and its Subsidiaries will be credited with their
years of service with the Company and its Subsidiaries and years of service with
prior employers to the extent service with prior employers is taken into account
under plans of the Company. Upon termination of any medical plan of the
Company, individuals who were directors, officers or employees of the Company or
its Subsidiaries at the Effective Time shall become eligible to participate in
the medical plan of Parent, provided that no condition that was eligible for
--------
coverage under any medical plan of the Company at the time of such termination
shall be excluded from coverage under the medical plan of Parent as a pre-
existing condition. Amounts paid before the Effective Time by retirees,
directors, officers and employees of the Company under any medical plans of the
Company shall after the Effective Time be taken into account in applying
deductibles and maximum out-of-pocket limits applicable under the medical plan
of Parent provided as of the Effective Time to the same extent as if such
amounts had been paid under such medical plan of Parent.
(b) Parent agrees that the following principles shall apply for
purposes of determining bonuses for 1995 under the Company's Short Term
Incentive Plan for 1995: (1) the Compensation Committee's determination to pay
certain persons who are employees of the Company or any of its Subsidiaries and
who are covered by such plan (other than employees whose employment is
terminated for any reason for cause on or prior to December 31, 1995) the
maximum amount of such bonuses is hereby ratified by Parent; (2) whether any
bonuses are payable under such plan to other employees and, if so, the amounts
thereof shall be determined as if the transactions contemplated hereby had not
occurred and the Company had remained an independent, publicly-owned company
through December 31, 1995, taking into account to the extent reasonably
applicable the limitations imposed by Section 6.1(a); and (3) any bonuses
payable pursuant to clause (2) above shall be paid by February 28, 1996. The
Company reasonably estimates that the total amount of such bonuses will not
exceed $3,000,000.
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(c) Notwithstanding anything herein to the contrary, Parent agrees to
fulfill any obligations that may arise under any Welfare Plan to provide health
benefits to retirees or other arrangements to provide health benefits to
retirees, in either case, entered into prior to the date hereof.
Section 7.11 Merit Bonuses; Severance Policy. (a) From the date
-------------------------------
hereof up to the Effective Time, the Company shall be permitted to offer and pay
bonuses, in addition to any bonuses or payments pursuant to any existing bonus
or incentive plans of the Company, payable to officers and employees whose
performance and dedication to the Company or its Subsidiaries merits, in the
discretion of the Chief Executive Officer, special compensation ("Merit
Bonuses"); provided, however, that the aggregate amount paid by the Company
-------- -------
pursuant to such Merit Bonuses shall be no greater than $1,000,000.
(b) With respect to officers and employees who are or will be
terminated, Parent shall maintain the Company's severance policy as in effect on
the date hereof, or shall replace such policy with a policy providing equal or
more favorable compensation, for a period of at least one year from the
Effective Time.
(c) Parent shall honor or cause to be honored all existing severance
with the Company's officers and employees.
(d) Parent and its Subsidiaries shall provide reasonable and
customary outplacement services ("Outplacement Services") to officers of the
Company and its Subsidiaries who are terminated as a result of, or within
eighteen months following, the Merger, which Outplacement Services provided to
such officer and employees shall include one-on-one counseling and assistance.
Section 7.12 Management Contracts. The Company agrees to use its
--------------------
reasonably best efforts to cause the key members of its senior management to
enter into employment arrangements with the Surviving Corporation on terms and
conditions satisfactory to Parent and pursuant to which they shall remain as
employees of the Surviving Corporation following the Effective Time.
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ARTICLE VIII
CONDITIONS PRECEDENT
--------------------
Section 8.1 Conditions to Each Party's Obligation to Effect the
---------------------------------------------------
Merger. The respective obligations of each party to effect the Merger shall be
- ------
subject to the fulfillment at or prior to the Effective Time of the following
conditions:
(a) Stockholder Approval. If approval of the Merger by the Class A
--------------------
Holders is required by applicable law, the Merger shall have been approved
by the requisite vote of such holders.
(b) Purchase of Shares of Common Stock. Sub shall have accepted for
----------------------------------
payment and paid for the shares of Common Stock properly tendered pursuant
to the Offer; provided, however, that this condition will be deemed
-------- -------
satisfied with respect to the obligations of Parent and Sub if Sub fails to
accept for payment and pay for any shares of Common Stock pursuant to the
Offer in violation of the terms of this Agreement or the Offer.
(c) No Order. No Governmental Entity or court of competent
--------
jurisdiction shall have enacted, issued, promulgated, enforced or entered
any law, rule, regulation, executive order, decree or injunction prohibits
the consummation of the Merger; provided, however, that the Company, Parent
-------- -------
and Sub shall use their reasonable best efforts to have any such order,
decree or injunction vacated.
(d) Improvements Act Waiting Period. The applicable waiting period
-------------------------------
under the Improvements Act shall have expired or been terminated.
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ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
Section 9.1 Termination. This Agreement may be terminated at any
-----------
time prior to the Effective Time, whether before or after any approval by the
stockholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by the Company if:
(i) the Offer has not been timely commenced in accordance with
Section 1.1(a); or
(ii) the Offer shall expire or is terminated without any shares of
Common Stock being purchased thereunder due to the conditions set forth in
Exhibit A (other than the Minimum Condition) failing to be met; or
(iii) there is an offer to acquire all of the outstanding shares of
Common Stock or substantially all of the assets of the Company for
consideration that provides stockholders of the Company a value per share
of Common Stock which, in the good faith judgment of the Board of Directors
of the Company, provides a higher value per share than the consideration
per share pursuant to the Offer or the Merger and as a result of which, the
Board of Directors of the Company is obligated in accordance with its
fiduciary duty under applicable law, as advised by its counsel, to
terminate this Agreement; or
(iv) there has been (y) a material breach by Parent or Sub of any
representation or warranty that is not qualified as to materiality or (z) a
breach by Parent or Sub of any representation or warranty that is qualified
as to materiality, in each case which breach has not been cured within five
business days following receipt by Parent or Sub of notice of the breach;
or
(v) Parent or Sub fails to comply in any material respect with any of
its material obligations or covenants
-38-
<PAGE>
contained herein which failure to perform is incapable of being cured or
has not been cured within five (5) business days following receipt by
Parent or Sub of written notice of the failure to perform.
(c) by either Parent or the Company if:
(i) the Merger has not been effected on or prior to the close of
business on May 31, 1996; provided, however, that the right to terminate
-------- -------
this Agreement pursuant to this clause shall not be available (y) to Parent
if Sub or any affiliate of Sub acquires shares of Common Stock pursuant to
the Offer, or (z) to any party whose failure to fulfill any obligation of
this Agreement has been the cause of, or resulted in, the failure of the
Merger to have occurred on or prior to the aforesaid date; or
(ii) any court of competent jurisdiction or any governmental,
administrative or regulatory authority, agency or body shall have issued an
order, decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become
final and nonappealable; or
(iii) if the stockholders of the Company fail to give any approval
required by applicable law; or
(iv) if as the result of the failure of any of the conditions set
forth in Exhibit A hereto (except for the Minimum Condition), the Offer
shall have terminated or expired in accordance with its terms without Sub
having purchased any shares of Common Stock pursuant to the Offer or
pursuant to the Option Agreement in accordance with its terms; provided,
--------
however, that the right to terminate this Agreement pursuant to this
-------
Section 9.1(c)(v) shall not be available to any party whose failure to
fulfill any of its obligations under this Agreement results in the failure
of any such condition.
(d) By Parent if the Board of Directors of the Company shall have
failed to recommend, or withdrawn, modified or amended in any material
respect its approval or
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<PAGE>
recommendations of the Offer or the Merger or shall have resolved to do any
of the foregoing.
Section 9.2 Effect of Termination. In the event of termination of
---------------------
this Agreement by either Parent or the Company, as provided in Section 9.1, this
Agreement shall forthwith become void and there shall be no liability hereunder
on the part of the Company, Parent or Sub or their respective officers or
directors (except as set forth in the last two sentences of Section 7.2 and
except for Section 7.3, which shall survive the termination); provided, however,
-------- -------
that nothing contained in this Section 9.2 shall relieve any party hereto from
any liability for any breach of this Agreement.
Section 9.3 Amendment. This Agreement may be amended by the parties
---------
hereto, by or pursuant to action taken by their respective Boards of Directors,
at any time before or after any approval of the Merger by the Class A Holders of
the Company but, after the purchase of any shares of Common Stock pursuant to
the Offer, no amendment shall be made which decreases the Merger Consideration
or which in any way materially adversely affects the rights of stockholders of
the Company, without the further approval of such stockholders. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
Section 9.4 Waiver. At any time prior to the Effective Time, the
------
parties hereto may (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein which may legally be waived. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
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ARTICLE X
GENERAL PROVISIONS
------------------
Section 10.1 Non-Survival of Representations and Warranties. None of
----------------------------------- ----------
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time.
Section 10.2 Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed given if delivered personally, sent by
overnight courier or telecopied (with a confirmatory copy sent by overnight
courier) to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(a) if to Parent or Sub, to:
Hans E.M. van Dinter
Wolters Kluwer
Stadhouderskade 1
1000 AV Amsterdam
The Netherlands
Telefax: 31 20 607 04 16
with a copy to:
Arnold J. Schaab, Esq.
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, NY 10022
(b) if to the Company, to:
Oakleigh Thorne
CCH Incorporated
2700 Lake Cook Road
Riverwoods, Illinois 60015
with a copy to:
Mary Ann Hynes
CCH Incorporated
2700 Lake Cook Road
Riverwoods, Illinois 60015
and
-41-
<PAGE>
Deirdre von Moltke
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
and a copy to:
Douglas A. Doetsch
Mayer, Brown & Platt
190 S. LaSalle Street
Chicago, IL 60603
Section 10.3 Interpretation. When a reference is made in this
--------------
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
Section 10.4 Counterparts. This Agreement may be executed in
------------
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 10.5 Entire Agreement; No Third-Party Beneficiaries. This
----------------------------------------------
Agreement, including the documents and instruments referred to herein, (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (b) except for the provisions of Sections 7.9, 7.10(b)
and 7.11(a), (b)(only with respect to officers) and (d), is not intended to
confer upon any person other than the parties any rights or remedies hereunder.
Section 10.6 Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
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<PAGE>
Section 10.7 Assignment. Neither this Agreement nor any of the
----------
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of the other parties, except that Sub
may assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Parent or to any direct or indirect wholly
owned subsidiary of Parent, but no such assignment shall relieve Sub of any of
its obligations hereunder. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
Section 10.8 Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible.
Section 10.9 Enforcement of this Agreement. The parties agree that
-----------------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
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<PAGE>
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
WOLTERS KLUWER N.V.
By:_________________________
Name:
Title:
Attest:________________________
Name:
Title:
WK ACQUISITION SUB, INC.
By:__________________________
Name:
Title:
Attest:________________________
Name:
Title:
CCH INCORPORATED
By:__________________________
Name:
Title:
Attest:________________________
Name:
Title:
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<PAGE>
EXHIBIT A
Notwithstanding any other provisions of the Offer, and provided that
Sub shall not be obligated to accept for payment any shares of Common Stock
until expiration of all applicable waiting periods under the Improvements Act,
Sub shall not be required to accept for payment, purchase or pay for any shares
of Common Stock tendered, and may terminate or, subject to the terms of the
Agreement, amend the Offer and may delay the acceptance for payment of and
payment for shares of Common Stock, if (i) there shall not have been validly
tendered and not withdrawn immediately prior to the expiration of the Offer such
number of shares of Common Stock which would constitute a majority of the voting
power of the outstanding shares (determined on a fully diluted basis) of the
Class A Common Stock (the "Minimum Condition") and (ii) if at any time on or
after the date hereof and before the time of payment for any such shares of
Common Stock (whether or not any shares of Common Stock have theretofore been
accepted for payment or paid for pursuant to the Offer) any of the following
conditions exist or shall occur and remain in effect:
(a) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, entered, enforced,
enacted, issued, by any United States Governmental Entity which (i) prohibits or
limits or seeks to prohibit or materially limit Parent's or Sub's (x) ownership,
or seeks to impose material limitations on the ability of Parent or Sub to
acquire or hold, or exercise full rights of ownership of, any shares of Common
Stock accepted for payment pursuant to the Offer, including, without limitation,
the right to vote such shares of Common Stock or (y) operation of all or a
material portion of the Company's business or assets, or compels Parent to
dispose of or hold separate all or a material portion of the Company's business
or assets as a result of the Offer or the Merger, or (ii) prohibits, or limits
or seeks to prohibit or materially limit, or makes illegal, the acceptance for
payment, purchase or payment for shares of Common Stock or the consummation of
the Offer or the Merger and such statute, rule, regulation, judgment, order or
injunction shall remain in effect for a period of fifteen business days after
the issuance thereof; provided, however, that in order to invoke this condition
-------- -------
with
-1-
<PAGE>
respect to any such statute, rule, regulation, judgment, order or injunction
Parent shall have used its reasonable best efforts to prevent such statute,
rule, regulation, judgment, order or injunction or ameliorate the effects
thereof; provided, further, that if any such order or injunction is a temporary
-------- -------
restraining order or preliminary injunction, Parent may not, for a period of 30
days, by virtue of this condition alone amend or terminate the Offer, but may
only extend the Offer and thereby postpone acceptance for payment or purchase of
shares of Common Stock;
(b) the Agreement shall have been terminated in accordance with its
terms;
(c) the Company shall have breached any of its representations and
warranties set forth in Article IV of the Merger Agreement (other than any
matters that, in the aggregate, would not have a Material Adverse Effect on
the Company);
(d) the Company shall have failed in any material respect to perform
any obligation or covenant required by the Agreement to be performed or
complied with by it;
(e) the Board of Directors of the Company shall have withdrawn or
modified in a manner adverse to Parent or Sub its approval or
recommendation of the Offer, the Merger or this Agreement, or approved or
recommended any Takeover Proposal; or
(f) there shall have occurred and continued to exist for at least
three business days (i) any general suspension of trading in, or limitation
on prices for, securities on a national securities exchange in the United
States or (ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or The Netherlands;
which, in the reasonable judgment of Sub, makes it inadvisable to proceed with
the Offer or with such acceptance for payment or payment.
The foregoing conditions may be waived by Sub, in whole or part, at
any time and from time to time, in the sole discretion of Sub. The failure by
Sub at any time to exercise any of the foregoing rights will not be deemed a
waiver of any
-2-
<PAGE>
right and each right will be deemed an ongoing right which may be asserted at
any time and from time to time.
-3-
<PAGE>
EXHIBIT (c)(2)
STOCK OPTION AND TENDER AGREEMENT
Stock Option and Tender Agreement (this "Agreement"), dated as of November
---------
27, 1995, is by and among Wolters Kluwer N.V., a corporation organized under the
laws of The Netherlands ("Purchaser"), WK Acquisition Sub, Inc., a Delaware
---------
corporation and a wholly-owned subsidiary of Purchaser ("Sub"), and the
---
Stockholders set forth in Annex I hereto (each, a "Stockholder" and
------- -----------
collectively, the "Stockholders") of CCH INCORPORATED, a Delaware corporation
------------
(the "Company").
-------
W I T N E S S E T H:
-------------------
WHEREAS, Purchaser, Sub, and the Company are entering into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which Sub has agreed to make
----------------
a tender offer (the "Offer") for all outstanding shares of Class A Common Stock,
-----
par value $1.00 per share, and Class B Common Stock, par value $1.00 per share
(collectively, the "Common Stock"), of the Company at $55.50 per share (the
------------
"Offer Price"), net to the seller in cash, to be followed by a merger (the
- ------------
"Merger") of Sub with and into the Company.
- -------
WHEREAS, as a condition to the willingness of Purchaser to enter into the
Merger Agreement, Purchaser has required that each Stockholder agree, and in
order to induce Purchaser to enter into the Merger Agreement, each Stockholder
has agreed, among other things, (i) to tender in the Offer all of the shares of
Common Stock now owned or which may hereafter be acquired by such Stockholder
(the "Shares"), (ii) to grant Purchaser the option to purchase the Shares in
------
certain circumstances, (iii) to appoint Purchaser as each Stockholder's proxy to
vote the Shares in connection with the Merger Agreement, and (iv) with respect
to certain questions put to stockholders of the Company for a vote, to vote the
Shares, in each case, in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the adequacy of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Tender of Shares. Each Stockholder severally (and not jointly) agrees
----------------
to tender and sell to Purchaser and/or Sub pursuant to the Offer all of the
Shares legally and/or beneficially owned by such Stockholder (as set forth on
Schedules A and B hereto) (or, with respect to pledged Shares described on
- ----------- -
Schedule A or B, to use reasonable best efforts to cause the pledgees to so
- -------- - -
tender and sell, and to otherwise comply with the terms of this Agreement).
Each Stockholder severally (and not jointly) agrees that such Stockholder shall
deliver to the depositary for the Offer, no later than the tenth business day
following the commencement of the Offer, either a letter of
<PAGE>
transmittal together with the certificates for the Shares, if available, or a
"Notice of Guaranteed Delivery", if the Shares are not available; provided that
--------
each Stockholder shall use all reasonable efforts to complete the foregoing
within 5 business days following the commencement of the Offer; provided,
--------
further, any tender made after 5 business days following the commencement of the
- -------
Offer may not be made pursuant to a "Notice Guaranteed Delivery". Each
Stockholder severally (and not jointly) agrees not to withdraw any Shares
tendered into the Offer.
2. Stock Option.
------------
2.1 Grant of Stock Option. Each Stockholder hereby grants to Purchaser an
---------------------
irrevocable option (the "Stock Option") to purchase all of the Shares legally
------------
and/or beneficially owned by such Stockholder (as set forth on Schedules A and B
----------- -
hereto), at such time as Purchaser may exercise the Stock Option during the
Exercise Period (as defined below), at a purchase price equal to the Offer
Price; provided that such Shares subject to the Stock Option shall include all
--------
Class B shares so owned by such Stockholder and such number of Class A shares as
shall be equal to the lesser of (x) all Class A shares so owned by such
Stockholder and (y) such number of Class B shares.
2.2 Exercise of Stock Option. (a) Subject to Section 2.3 hereof, the
------------------------
Stock Option may be exercised by Purchaser, in whole and for all Stockholders
but not in part or for less than all Stockholders, upon termination or
expiration of the Offer, and during the period (the "Exercise Period")
---------------
commencing on the later of January 2, 1996 and the termination or expiration of
the Offer and ending on the date 10 business days after the date such period
commenced; provided that if the Merger Agreement shall terminate solely by
--------
reason of the Company's exercise of its termination rights pursuant to Section
9.1(b)(iii) of the Merger Agreement, the Exercise Period shall commence on such
date and end on the date 10 business days thereafter.
(b) In the event Purchaser wishes to exercise the Stock Option, Purchaser
shall send a written notice (an "Exercise Notice") during the Exercise Period to
---------------
each Stockholder specifying that Purchaser shall purchase the total number of
Shares held by such Stockholder and a date, which shall be a business day, and a
place, which shall be in The City of New York, for the closing of such purchase
(the "Stock Option Closing").
------------ -------
(c) Upon receipt of the Exercise Notice, each Stockholder shall be
obligated to deliver to Purchaser a certificate or certificates representing the
number of Shares held by such Stockholder (or to direct the depository for the
Offer to so deliver such certificate or certificates), in
-2-
<PAGE>
accordance with the terms of this Agreement, on the later of the date specified
in such Exercise Notice and the first business day on which the conditions
specified in Section 2.3 shall be satisfied. The date specified in such
Exercise Notice may be as early as one business day after the date of such
Exercise Notice.
2.3 Conditions to Delivery of the Shares. The obligation of the
------------------------------------
Stockholders to deliver the Shares upon exercise of the Stock Option is subject
to the following conditions:
(a) All waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, applicable to the exercise of the Stock Option and the
delivery of the Shares shall have expired or been terminated;
(b) There shall be no preliminary or permanent injunction or other order by
any court of competent jurisdiction restricting, preventing or prohibiting the
exercise of the Stock Option or the delivery of the Shares in respect of such
exercise; and
(c) The Offer shall have expired or terminated without any shares of
Common Stock being purchased thereunder and without any violation of the Offer
by the Purchaser or Sub.
2.4 Stock Option Closings. At the Stock Option Closing, each Stockholder
---------------------
will deliver to Purchaser a certificate or certificates evidencing the number of
Shares owned by such Stockholder, each such certificate being duly endorsed in
blank and accompanied by such stock powers and such other documents as may be
necessary in Purchaser's judgment to transfer record ownership of the Shares
into Purchaser's name on the stock transfer books of the Company, and Purchaser
will purchase the delivered Shares at the Offer Price. All payments made by
Purchaser to the Stockholders pursuant to this Section 2.4 shall be made by wire
transfer of immediately available funds or by certified bank check payable to
the Stockholders, in an amount for each Stockholder equal to the product of (a)
the Offer Price and (b) the number of Shares delivered by such Stockholder in
respect of the Stock Option Closing.
2.5 Adjustments Upon Changes in Capitalization. In the event of any
------------------------------------------
change in the number of issued and outstanding shares of Common Stock by reason
of any stock dividend, subdivision, merger, recapitalization, combination,
conversion or exchange of shares, or any other change in the corporate or
capital structure of the Company (including, without limitation, the declaration
or payment of an extraordinary dividend of cash or securities) which would have
the effect of diluting or otherwise adversely affecting Purchaser's rights and
privileges under this Agreement, the number and kind of the
-3-
<PAGE>
Shares and the consideration payable in respect of the Shares shall be
appropriately and equitably adjusted to restore to Purchaser its rights and
privileges under this Agreement. Without limiting the scope of the foregoing,
in any such event, at the option of Purchaser, the Stock Option shall represent
the right to purchase, in addition to the number and kind of Shares which
Purchaser would be entitled to purchase pursuant to the immediately preceding
sentence, whatever securities, cash or other property the Shares subject to the
Stock Option shall have been converted into or otherwise exchanged for, together
with any securities, cash or other property which shall have been distributed
with respect to such Shares.
3. Representations and Warranties of Stockholders.
----------------------------------------------
Each Stockholder severally (and not jointly), represents and warrants to
Purchaser and Sub that:
3.1 Power and Authority. Except as disclosed in writing to Purchaser
-------------------
(including in Schedules A and B), such Stockholder has all necessary power and
--------- - -
authority to enter into this Agreement and to sell, assign, transfer and deliver
to Sub, pursuant to the terms and conditions of this Agreement and the Merger
Agreement, the Shares legally and/or beneficially owned by such Stockholder (as
set forth on Schedules A and B hereto);
----------- -
3.2 No Other Rights. Except for this Agreement and as shown on Schedule A
--------------- -------- -
or B, there are no outstanding options, warrants or rights to purchase or
-
acquire such Shares of such Stockholder;
3.3 Only Shares. Except as disclosed on Schedule A or B, such Shares of
----------- -------- - -
such Stockholder subject to this Agreement are the only shares of Common Stock
owned of record, or owned beneficially with the power to sell, by such
Shareholder;
3.4 Title. Except as disclosed on Schedule A or B, such Stockholder has,
----- -------- - -
and upon the closing of the Offer Sub shall receive (without regard to the
disclosure on Schedule A or B other than the disclosure as to loans extended to
---------- -
Daniel K. Thorne by Metropolitan Life), good and marketable title to such Shares
of such Stockholder, free and clear of all liens, claims, encumbrances and
security interests of any nature whatsoever; and
3.5 Validity. This Agreement is the legal, valid and binding agreement of
--------
such Stockholder enforceable against such Stockholder in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and
except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought.
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<PAGE>
3.6 Non-Contravention. Except for certain pledge agreements as disclosed
-----------------
on Schedule A or B, the execution and delivery of this Agreement do not, and the
-------- - -
consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation under,
or result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of such Stockholder under, any provision of
(i) any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or license applicable
to such Stockholder or (ii) any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to such Stockholder or any of its
properties or assets, other than any such conflicts, violations, defaults,
rights, liens, security interests, charges or encumbrances that, individually or
in the aggregate, would not have a material adverse effect on the ability of
such Stockholder to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
4. Representations and Warranties of Purchaser and Sub. Purchaser and Sub
---------------------------------------------------
hereby represent and warrant to each Stockholder as follows:
4.1 Power and Authority. Each of Purchaser and Sub has all necessary
-------------------
power and authority to enter into the Agreement, and to purchase the Shares
pursuant to the terms and conditions of this Agreement and the Merger Agreement;
4.2 Sufficient Funds. Purchaser has, or prior to the date of the Stock
----------------
Option Closing will have, all of the funds necessary to consummate the
transactions contemplated hereby on a timely basis and to pay any and all
related fees and expenses;
4.3 Validity. This Agreement is the legal, valid and binding agreement of
--------
Purchaser and Sub enforceable against them in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditor's rights generally and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought;
4.4 Non-Contravention. The execution and delivery of this Agreement do
-----------------
not, and the consummation of the transactions contemplated hereby and compliance
with the provisions hereof will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any obligation
under, or result in the creation
-5-
<PAGE>
of any lien, security interest, charge or encumbrance upon any of the properties
or assets of Purchaser or any of its Significant Subsidiaries (as defined in the
Merger Agreement) under, any provision of (i) the Charter or Bylaws of Purchaser
(or any comparable organizational documents) or any provision of the comparable
charter or organizational documents of any of its Significant Subsidiaries, (ii)
any loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable to
Parent or any of its Significant Subsidiaries or (iii) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Purchaser or
any of its Significant Subsidiaries or any of their respective properties or
assets, other than, in the case of clauses (ii) or (iii), any such conflicts,
violations, defaults, rights, liens, security interests, charges or encumbrances
that, individually or in the aggregate, would not have a Material Adverse Effect
(as defined in the Merger Agreement) on Purchaser, materially impair the ability
of Purchaser to perform its obligations hereunder or prevent the consummation of
any of the transactions contemplated hereby.
5. Covenants of Stockholders.
-------------------------
5.1 No Disposition or Encumbrance of Shares; No Acquisition of Shares.
-----------------------------------------------------------------
(a) Each Stockholder severally (and not jointly) covenants and agrees that,
except as contemplated by this Agreement, no Stockholder shall, and no
Stockholder shall offer or agree to, sell, transfer, tender, assign, hypothecate
or otherwise dispose of, or create any security interest, lien, claim, pledge,
option, right of first refusal, agreement, limitation on such Stockholder's
voting rights, charge or other encumbrance of any nature whatsoever with respect
to the Shares now legally and/or beneficially owned by, or that may hereafter be
acquired by, such Stockholder.
(b) Each Stockholder hereby severally (and not jointly) covenants and
agrees that it shall not, and shall not offer to agree to, acquire any
additional shares of Common Stock, or options, warrants or other rights to
acquire shares of Common Stock, without the prior written consent of Purchaser.
5.2 No Solicitation of Transactions. Each Stockholder shall immediately
-------------------------------
cease any existing discussions or negotiations, if any, with any parties
conducted heretofore with respect to any acquisition or exchange of all or any
material portion of the assets of, or any equity interest in, the Company or any
of its subsidiaries or any business combination with the Company or any of its
subsidiaries. From and after the date hereof, no Stockholder shall, directly or
indirectly, solicit or initiate any takeover proposal or offer from any person,
or engage in discussions or negotiations relating thereto (including by way of
furnishing information). Each Stockholder shall
-6-
<PAGE>
promptly advise Purchaser of the receipt of any Takeover Proposal. As used in
this Agreement, "Takeover Proposal" shall mean any proposal or offer, other than
a proposal or offer by Purchaser or any of its affiliates, for a tender or
exchange offer, a merger, consolidation or other business combination involving
the Company or any subsidiary of the Company or any proposal to acquire in any
manner a substantial equity interest in, or a substantial portion of the assets
of, the Company or any of its subsidiaries or any other transaction the
consummation of which could reasonably be expected to impede, interfere with,
prevent or materially delay the Offer or the Merger or which would reasonably be
expected to dilute materially the benefits to Parent of the transactions
contemplated hereby or by the Merger Agreement.
5.3 Stockholders' Representative. Each Stockholder hereby appoints
----------------------------
Oakleigh Thorne as Stockholders' Representative to act as Stockholders'
Representative for purposes of giving and receiving notices under this
Agreement.
6. Covenants of Purchaser and Sub.
-------------------------------
6.1 No Sale. Neither Purchaser nor Sub will sell, offer to sell or
-------
otherwise dispose of the Shares in violation of the Securities Act of 1993, as
amended.
6.2 Performance. Purchaser and Sub shall perform in all material respects
-----------
all of their respective obligations under the Merger Agreement. If Purchaser
and Sub exercise the Stock Option or any of their other rights hereunder at a
time when the Merger Agreement shall have terminated, Purchaser and Sub
nevertheless agree to effect a merger pursuant to which each outstanding share
of common stock of the Company (other than held by Purchaser, Sub, the Company
or any subsidiary of the Company) shall be converted into the right to receive
not less than $55.50 per share, net to the seller, in cash at the earliest
practicable date after the Stock Option Closing.
7. Voting Agreement; Proxy of Stockholder.
--------------------------------------
7.1 Voting Agreement. (a) Each Stockholder hereby severally (and not
----------------
jointly) agrees that, during the time this Agreement is in effect, at any
meeting of the stockholders of the Company, however called, and in any action by
written consent of the stockholders of the Company, such Stockholder shall (i)
vote all of the Shares legally and/or beneficially owned by such Stockholder in
favor of the Merger, the Merger Agreement (as amended from time to time) and any
of the transactions contemplated by the Merger Agreement; (ii) vote such Shares
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation of
the Company under the Merger Agreement; and (iii) vote the Shares against any
action or
-7-
<PAGE>
agreement that would materially impede, interfere with or attempt to discourage
the Offer or the Merger.
(b) Each Stockholder hereby severally (and not jointly) further agrees
that, if the Merger Agreement shall terminate solely by reason of the Company's
exercise of its termination rights pursuant to Section 9.1(b)(iii) of the Merger
Agreement, and for as long as the Exercise Period has not ended, such
Stockholder (i) shall attend or otherwise participate in all duly called
stockholder meetings and in all actions by written consent of stockholders, (ii)
shall vote the Shares legally and/or beneficially owned by such Stockholder to
enlarge the Board of Directors of the Company to provide the Purchaser with a
majority of members of the Board elected by the Purchaser, (iii) shall not,
without the prior written consent of Purchaser, vote any of such Shares in favor
of any of the actions described in Section 6.1(a), (b), (e) or (f) of the Merger
Agreement and (iv) shall otherwise vote such Shares, and use its reasonable
efforts in its capacity as stockholder of the Company, to prevent the actions
described in Section 6.1(a), (b), (e) or (f) of the Merger Agreement.
(c) Each Purchaser and Sub agree that the covenants of each Stockholder
under this Section 7.1 relate only to each Stockholder in its capacity as
stockholder and not to any other capacity in which such person may be acting.
7.2 Irrevocable Proxy. In the event that any Stockholder shall breach its
-----------------
covenant set forth in Section 7.1, such Stockholder (without any further action
on such Stockholder's part) shall be deemed to have hereby irrevocably appointed
Purchaser as the attorney and proxy of such Stockholder pursuant to the
provisions of section 212 of the DGCL, with full power of substitution, to vote,
and otherwise act (by written consent or otherwise) with respect to all shares
of Common Stock, including the Shares, that such Stockholder is entitled to vote
at any meeting of stockholders of the Company (whether annual or special and
whether or not an adjourned or postponed meeting) or consent in lieu of any such
meeting or otherwise, to vote such shares as set forth in Section 7.1 above;
provided that in any such vote or other action pursuant to such proxy, Purchaser
- --------
shall not have the right (and such proxy shall not confer the right) to vote to
reduce the Offer Price or the Merger Consideration (as defined in the Merger
Agreement) or to otherwise modify or amend the Merger Agreement to reduce the
rights or benefits of the Company or any stockholders of the Company (including
the Stockholders) under the Offer or the Merger Agreement or to reduce the
obligations of Purchaser and/or Sub thereunder; and provided further, that this
-------- -------
proxy shall irrevocably cease to be in effect at any time that (x) the Offer
shall have expired or terminated without any share of Common Stock being
purchased thereunder in violation of the terms of the Offer or (y) Purchaser or
Sub shall be in violation of the terms of this
-8-
<PAGE>
Agreement. THIS PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN
INTEREST. Each Stockholder hereby revokes, effective upon the execution and
delivery of the Merger Agreement by the parties thereto, all other proxies and
powers of attorney with respect to the Shares that Stockholder may have
heretofore appointed or granted, and no subsequent proxy or power of attorney
(except in furtherance of Stockholder's obligations under 7.1 hereof) shall be
given or written consent executed (and if given or executed, shall not be
effective) by Stockholder with respect thereto so long as this Agreement remains
in effect. Each Stockholder shall forward to Purchaser any proxy cards that
such Stockholder receives with respect to the Offer or the Merger Agreement.
8. Effectiveness; Termination; No Survival. This Agreement shall become
---------------------------------------
effective upon its execution by each of the parties hereto and upon the
execution of the Merger Agreement. This Agreement may be terminated at any time
by mutual written consent of the parties hereto. Other than the Stock Option,
which shall be governed by Section 2.2(a), this Agreement shall terminate,
without any action by the parties hereto, on the date on which the Merger
Agreement terminates in accordance with its terms. No such termination shall
relieve any party from liability for any breach of this Agreement. The
representations and warranties of the parties set forth in Sections 3 and 4
hereof (other than Sections 3.1, 3.2, 3.4 and 3.5 which shall survive regardless
---
of any investigation made by the Purchaser) shall not survive the termination of
this Agreement (or, in the event the Stock Option is exercised, the purchase of
the Shares pursuant thereto).
9. Miscellaneous.
-------------
9.1 Notices. All notices and other communications hereunder shall be in
-------
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail, postage prepaid, with return receipt
requested, as follows:
If to Purchaser or Sub, to:
Wolters Kluwer N.V.
Stadhouderskade 1
P.O. Box 818
1000 AV Amsterdam
The Netherlands
Attention: Hans E.M. van Dinter
-9-
<PAGE>
with a copy to:
Pryor, Cashman, Sherman & Flynn
410 Park Avenue
New York, New York 10022
Attention: Arnold J. Schaab, Esq.
If to the Stockholders, to the Stockholders'
Representative at:
Oakleigh Thorne
CCH Incorporated
2700 Lake Cook Road
Riverwoods, Illinois
60015-3888
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attention: Douglas A. Doetsch
and a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Deirdre M. von Moltke
and a copy to:
Stroock & Stroock & Lavan
Seven Hanover Square
New York, New York 10004-2594
Attention: Theodore S. Lynn
9.2 Waiver and Amendment. Any provision of this Agreement may be waived
--------------------
at any time by the party which is entitled to the benefits thereof and this
Agreement may be amended or supplemented at any time. No such waiver, amendment
or supplement shall be effective unless in writing and signed by the party
sought to be bound thereby.
9.3 No Prior Agreements. This Agreement and the Merger Agreement contain
-------------------
the entire agreement, and supersede all other prior agreements and
understandings, both written and oral, among the parties hereto with respect to
the subject matter hereof. This Agreement is not intended to confer upon any
other person any rights or remedies hereunder.
9.4 Successors and Assigns. This Agreement shall not be assignable,
----------------------
except that Parent or Sub may assign its rights
-10-
<PAGE>
under this Agreement to another direct or indirect wholly-owned subsidiary of
Parent, but such assignment shall not relieve Parent or Sub of their respective
obligations hereunder. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by and against the parties hereto and their
successors (including administrators and executors of individuals) and permitted
assigns.
9.5 Remedies. Parent and Sub, on the one hand, and the Stockholders, on
--------
the other hand, each acknowledge and agree that the other would be irreparably
damaged in the event any of the provisions of this Agreement were not performed
by the other in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that each party shall be entitled to an injunction or
injunctions to redress the breaches of this Agreement and to specifically
enforce the terms and provisions hereof in any action instituted in any court of
the United States or any state thereof having jurisdiction, in addition to any
other remedy to which such party may be entitled at law or in equity.
9.6 Expenses. Each of the parties shall pay its own expenses in
--------
connection with the negotiation, execution and performance of the Agreement.
9.7 Counterparts. This Agreement and any amendments hereto may be
------------
executed in two or more counterparts, each of which shall be considered to be an
original, but of which together shall constitute the same instrument.
9.8 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the state of Delaware, without regard to the
principles of conflicts of laws.
9.9 Severability. If any term, provision, covenant or restriction of this
------------
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
-11-
<PAGE>
10. Effect of Headings. The section headings herein are for convenience
------------------
only and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement to take effect
as of the date set forth above.
WOLTERS KLUWER N.V.
By: /s/ Peter W. van Wel
---------------------
Name:
Title:
WK ACQUISITION SUB, INC.
By: /s/ Bruce C. Lenz
---------------------
Name:
Title:
-12-
<PAGE>
Annex I
Signatures of Stockholders
-13-
<PAGE>
/s/ Oakleigh B. Thorne /s/ Oakleigh B. Thorne
- ---------------------- ----------------------
OAKLEIGH B. THORNE, OAKLEIGH B. THORNE,
individually as beneficiary of CCH Employees'
Profit Sharing Plan
<PAGE>
/s/ Daniel K. Thorne
- --------------------
DANIEL K. THORNE,
individually
/s/ Daniel K. Thorne /s/ Theodore S. Lynn
- --------------------- --------------------
DANIEL K. THORNE THEORDORE S. LYNN,
as Trustee of as Trustee of
Daniel K. Thorne 1995 Daniel K. Thorne 1995
Charitable Remiander Trust Charitable Remainder Trust
U/A dated 10/31/95 U/A dated 10/31/95
<PAGE>
/s/ Oakleigh B. Thorne /s/ Potter Palmer
- ---------------------------- ---------------------------
OAKLEIGH B. THORNE, POTTER PALMER,
as Trustee of Trust as Trustee of Trust
f/b/o Oakleigh B. Thorne f/b/o Oakleigh B. Thorne
U/A dated 12/23/70 U/A dated 12/23/70
/s/ Oakleigh B. Thorne /s/ Potter Palmer
- ---------------------------- ---------------------------
OAKLEIGH B. THORNE, POTTER PALMER,
as Trustee of Trust as Trustee of Trust
f/b/o Honore T. Wamsler f/b/o Honore T. Wamsler
U/A dated 12/23/70 U/A dated 12/23/70
/s/ Oakleigh B. Thorne /s/ Potter Palmer
- ---------------------------- ---------------------------
OAKLEIGH B. THORNE, POTTER PALMER,
as Trustee of Trust as Trustee of Trust
f/b/o Charlotte T. Bordeaux f/b/o Charlotte T. Bordeaux
U/A dated 12/23/70 U/A dated 12/23/70
<PAGE>
/s/ Oakleigh B. Thorne /s/ John Akin
- ---------------------- --------------
OAKLEIGH B. THORNE, JOHN AKIN,
as Trustee of Trust as Trustee of Trust
U/W Oakleigh L. Thorne U/W Oakleigh L. Thorne
f/b/o Dorothy Forbes Thorne f/b/o Dorothy Forbes Thorne
<PAGE>
/s/ Oakleigh B. Thorne /s/ George Whalen, Jr.
- -------------------------------- ---------------------------------
OAKLEIGH B. THORNE GEORGE WHALEN, JR.
President and Member, Investment Member, Investment Committee
Committee Millbrook Tribute Gardens, Inc.
Millbrook Tribute Gardens, Inc.
/s/ Oakleigh B. Thorne /s/ George Whalen, Jr.,
- -------------------------------- ---------------------------------
OAKLEIGH B. THORNE GEORGE WHALEN, JR.,
as Trustee of Trust as Trustee of Trust
U/W Margaret Parshall U/W Margaret Parshall
f/b/o Helen C. King f/b/o Helen C. King
<PAGE>
/s/ Oakleigh B. Thorne /s/ Mark M. Collins
- -------------------------------- ------------------------------
OAKLEIGH B. THORNE MARK M. COLLINS
as Trustee of Trust as Trustee of Trust
U/A dated 12/15/76 U/A dated 12/15/76
<PAGE>
/s/ Oakleigh Thorne
- -------------------
OAKLEIGH THORNE,
individually
<PAGE>
/s/ Oakleigh Thorne /s/ Oakleigh Thorne
- ----------------------------- ------------------------------
OAKLEIGH THORNE, OAKLEIGH THORNE,
as Trustee of as Trustee of
Thorne GST Trust Oakleigh Hewson Thorne 1995 Trust
U/A dated 9/5/95 U/A dated 9/5/95
<PAGE>
/s/ Oakleigh B. Thorne /s/ Oakleigh B. Thorne
- ------------------------------- -------------------------------
OAKLEIGH B. THORNE, OAKLEIGH B. THORNE,
as Trustee of Trust as Trustee of Trust
U/W Oakleigh L. Thorne U/W Oakleigh L. Thorne
f/b/o Oakleigh B. Thorne f/b/o Honore T. Wamsler
/s/ OAKLEIGH B. THORNE
- ------------------------------
OAKLEIGH B. THORNE
as Trustee of Trust
U/W Oakleigh L. Thorne
f/b/o Charlotte T. Bordeaux
<PAGE>
/s/ Henry F. Thorne 11/26/95 /s/ Henry F. Thorne 11/26/95
- ---------------------------------- ----------------------------------
HENRY FLEMING THORNE, HENRY FLEMING THORNE,
as Trustee of as Trustee of
Maxwell Edward Thorne 1995 Trust Alexander Lewis Thorne 1995 Trust
U/A dated 9/5/95 U/A dated 9/5/95
<PAGE>
/s/ Honore T. Wamsler
- ---------------------
HONORE T. WAMSLER
individually
<PAGE>
/s/ Oakleigh B. Thorne /s/ Henry S. Gooss
- ---------------------------- ---------------------------
OAKLEIGH B. THORNE, CHEMICAL BANK,
as Trustee of Trust as Trustee of Trust
f/b/o Oakleigh B. Thorne f/b/o Oakleigh B. Thorne
U/A dated 1/27/74 U/A dated 1/27/74
/s/ Oakleigh B. Thorne /s/ Henry S. Gooss
- ---------------------------- ---------------------------
OAKLEIGH B. THORNE, CHEMICAL BANK,
as Trustee of Trust as Trustee of Trust
f/b/o Honore T. Wamsler f/b/o Honore T. Wamsler
U/A dated 1/27/74 U/A dated 1/27/74
/s/ Oakleigh B. Thorne /s/ Henry S. Gooss
- ---------------------------- ---------------------------
OAKLEIGH B. THORNE, CHEMICAL BANK,
as Trustee of Trust as Trustee of Trust
f/b/o Charlotte T. Bordeaux f/b/o Charlotte T. Bordeaux
U/A dated 1/27/74 U/A dated 1/27/74
<PAGE>
SCHEDULE A
FIDUCIARY SHAREHOLDERS
----------------------
Shares
Trust Trustee (and Class)
----- ------- -----------
Trust f/b/o Oakleigh B. 102,000 (A)
Oakleigh B. Thorne Thorne 102,000 (B)
dated 12/23/70 Potter Palmer
Trust f/b/o Oakleigh B. 106,000 (A)
Honore T. Wamsler Thorne 106,000 (B)
U/A dated 12/23/70 Potter Palmer
Trust f/b/o Oakleigh B. 100,000 (A)
Charlotte T. Bordeaux Thorne 100,000 (A)
U/A dated 12/23/70 Potter Palmer
Trust f/b/o Oakleigh B. 637,616 (A)
Oakleigh B. Thorne Thorne 637,616 (B)
U/A dated 1/27/74 Chemical Bank
Trust f/b/o Oakleigh B. 637,618 (A)
Honore T. Wamsler Thorne 637,618 (B)
U/A dated 1/27/74 Chemical Bank
Trust f/b/o Oakleigh B. 637,618 (A)
Charlotte T. Bordeaux Thorne 637,618 (B)
U/A dated 1/27/74 Chemical Bank
Trust U/W Oakleigh B. 1,140,242 (A)
Oakleigh L. Thorne Thorne 1,140,242 (B)
f/b/o Oakleigh B. Chemical Bank
Thorne
Trust U/W Oakleigh B. 1,057,000 (A)
Oakleigh L. Thorne Thorne 1,057,000 (B)
f/b/o Honore T. Wamsler Chemical Bank
Trust U/W Oakleigh B. 1,127,742 (A)
Oakleigh L. Thorne Thorne 1,127,742 (B)
f/b/o Charlotte T. Chemical Bank
Bordeaux
Trust U/W Oakleigh B. 1,268,816 (A)
Oakleigh L. Thorne Thorne 1,268,816 (B)
f/b/o Dorothy Forbes John Akin
Thorne
<PAGE>
Shares
Trust Trustee (and Class)
----- ------- -----------
Trust U/A Oakleigh B. 489,598 (A)
dated 12/15/76 Thorne 489,598 (B)
Mark M. Collins
Thorne GST Trust Oakleigh Thorne 93,567 (B)
U/A dated 9/5/95
Oakleigh Hewson Thorne Oakleigh Thorne 935 (B)
1995 Trust
U/A date 9/5/95
Maxwell Edward Thorne Henry F. Thorne 935 (B)
1995 Trust
U/A dated 9/5/95
Alexander Lewis Thorne Henry F. Thorne 935 (B)
1995 Trust
U/A dated 9/5/95
Trust U/W Oakleigh B. 94,944 (A)
Margaret Parshall Thorne 94,944 (B)
f/b/o Helen C. King George Whalen, Jr.
Daniel K. Thorne 1995 Daniel K. Thorne 177,853 (B)
Charitable Remainder Theodore S. Lynn ------------
Trust
U/A dated 10/31/95
Total (A) 7,399,194
Total (B) 7,673,419
----------
Grand Total 15,072,613
==========
<PAGE>
SCHEDULE B
INDIVIDUAL SHAREHOLDINGS
------------------------
Shares
Person (and Class)
------ -----------
Oakleigh B. Thorne/1/ 341,469.6 (A)
255,073.7 (B)
Honore T. Wamsler 81,242 (A)
Daniel K. Thorne/2/ 1,546,852 (A)
1,368,999 (B)
Millbrook Tribute Gardens, Inc. 200,009 (A)
200,009 (B)
Oakleigh Thorne 200 (A)
200 (B)
-------
Total (A) 2,169,772.6
Total (B) 1,824,281.7
-----------
Grand Total 3,994,054.3
===========
The representations and warranties made in the foregoing Agreement are subject
to the footnotes below.
- ---------------
/1/ Oakleigh B. Thorne's holdings include 24,157.63 shares of Class A and
34,133.73 shares of Class B in the CCH Employees' Savings Plan. Mr. Thorne
does not have legal title to said shares. 214,922 of his Class A shares are
pledged.
/2/ All of Daniel K. Thorne's Class B shares and no more than 57,000 of his
Class A shares are pledged against loans made by Metropolitan Life (pledged
shares being 41,426 Class A shares and 110,000 Class B shares) and Bankers
Trust (pledged shares being all such remaining Class A shares and Class B
shares), and the pledgees are being requested to cooperate as contained in
a letter of this date denominated an "Irrevocable Instruction".
<PAGE>
November 27, 1995
Wolters Kluwer N.V.
P.O. Box 818
1000 AV Amsterdam
Re: CCH Incorporated (the "Company")
--------------------------------
Gentlemen:
Reference is hereby made to that certain Agreement and Plan of Merger,
dated as of the date hereof, among Wolters Kluwer N.V., WK Acquisition Sub, Inc.
and the Company (the "Merger Agreement"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Merger Agreement.
The undersigned hereby agrees that, prior to the expiration of the
Offer, he shall deliver to the designated depositary for the Offer a letter
indicating his intention to withdraw from the Offer that number of shares of
Class A Common Stock of the Company that are necessary to cause the total number
of shares of Class B Common Stock of the Company tendered by all stockholders in
the Offer and accepted by Sub to equal the total number of shares of Class A
Common Stock of the Company tendered by all stockholders in the Offer and
accepted by Sub. As soon as practicable following the expiration of the Offer,
you shall notify the undersigned in writing as to the exact number of shares of
Class A Common Stock of the Company, if any, that he will need to withdraw from
the Offer in accordance with the immediately preceding sentence and the
undersigned shall promptly thereafter withdraw such shares of Class A Common
Stock of the Company from the Offer.
<PAGE>
Please confirm your agreement to the foregoing by signing the attached
copy of this letter as indicated below.
Very truly yours,
/s/ Oakleigh Thorne
-------------------------
Oakleigh Thorne
Agreed to an Accepted:
WOLTERS KLUWER N.V.
/s/ Peter W. van Wel
By: ____________________
Name:
Title:
