<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
VITRONICS CORPORATION
(NAME OF SUBJECT COMPANY)
DTI INTERMEDIATE, INC.
DOVER TECHNOLOGIES INTERNATIONAL, INC.
DOVER CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(TITLE OF CLASS OF SECURITIES)
928503 10 1
(CUSIP NUMBER OF CLASS OF SECURITIES)
ROBERT A. LIVINGSTON
VICE PRESIDENT
DOVER TECHNOLOGIES INTERNATIONAL, INC.
ONE MARINE MIDLAND PLAZA
EAST TOWER, SIXTH FLOOR
BINGHAMTON, NEW YORK 13901
(607) 773-2290
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
Copy to:
ROBERT J. SMITH, ESQ.
COUGHLIN & GERHART, LLP
ONE MARINE MIDLAND PLAZA
EAST TOWER, EIGHTH FLOOR
BINGHAMTON, NEW YORK 13901
(607) 723-9511
CALCULATION OF FILING FEE
TRANSACTION VALUATION* $19,759,947.00
AMOUNT OF FILING FEE $3,952.00
*FOR PURPOSES OF CALCULATING FEE ONLY. This amount assumes the purchase of
9,856,572 outstanding shares of common stock of Vitronics Corporation and
543,400 shares of common stock of Vitronics Corporation which may be issued upon
exercise of outstanding options and warrants, in each case, at $1.90 in cash per
share. The amount of the filing fee calculated in accordance with Regulation
240.0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50 of one
percentum of the value of shares to be purchased.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
AMOUNT PREVIOUSLY PAID: NOT APPLICABLE.
FORM OR REGISTRATION NO.: NOT APPLICABLE.
FILING PARTY: NOT APPLICABLE.
<PAGE> 2
14D-1
<TABLE>
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- --------------------------
CUSIP No. 928503 10 1
- --------------------------
- ------------------------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
DTI Intermediate, Inc.
- ------------------------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
2 (b) [ ]
- ------------------------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------------------------
SOURCE OF FUNDS
4
AF
- ------------------------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(e) or 2(f) [ ]
- ------------------------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
7 PERSON
0
- ------------------------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
8 CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
9
0
- ------------------------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
10
CO
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
14D-1
<TABLE>
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- --------------------------
CUSIP No. 928503 10 1
- --------------------------
- ------------------------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Dover Technologies International, Inc.
- ------------------------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
2 (b) [ ]
- ------------------------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------------------------
SOURCE OF FUNDS
4
AF
- ------------------------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(e) or 2(f) [ ]
- ------------------------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
7 PERSON
0
- ------------------------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
8 CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
9
0
- ------------------------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
10
CO
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 4
14D-1
<TABLE>
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- --------------------------
CUSIP No. 928503 10 1
- --------------------------
- ------------------------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Dover Corporation
- ------------------------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
2 (b) [ ]
- ------------------------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------------------------
SOURCE OF FUNDS
4
WC
- ------------------------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(e) or 2(f) [ ]
- ------------------------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
7 PERSON
0
- ------------------------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
8 CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
9
0
- ------------------------------------------------------------------------------------------------
TYPE OF REPORTING PERSON
10
CO
- ------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 (this "Statement") relates to
the offer by DTI Intermediate, Inc., a Delaware corporation (the "Purchaser")
and a wholly owned subsidiary of Dover Technologies International, Inc., a
Delaware corporation ("Dover Technologies"), an indirect wholly owned subsidiary
of Dover Corporation, a Delaware corporation ("Dover"), to purchase all of the
outstanding shares of Common Stock, par value $.01 per share (the "Common
Stock"), of Vitronics Corporation, a Massachusetts corporation (the "Company")
at $1.90 per share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated September 9, 1997 (the
"Offer to Purchase"), a copy of which is attached hereto as Exhibit (a)(1) and
in the related Letter of Transmittal, a copy of which is attached hereto as
Exhibit (a)(2) (which together constitute the "Offer").
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Vitronics Corporation and the
address of its principal executive offices is 1 Forbes Road, Newmarket
Industrial Park, Newmarket, New Hampshire 03857.
(b) The class of securities to which this Statement relates is the Common
Stock, par value $.01 per share of the Company. As of September 3, 1997, there
were 9,856,572 shares issued and outstanding and there were outstanding options
to purchase an aggregate of 543,400 shares. Purchaser is seeking to purchase all
of the outstanding shares at a purchase price of $1.90 per share, net to the
seller in cash.
(c) The information set forth in "Section 6-Price Range of the Shares;
Dividends on the Shares" of the Offer to Purchase is incorporated herein by
reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d), (g) The information set forth in the "INTRODUCTION" and "Section
9-Certain Information Concerning the Purchaser, Dover Technologies and Dover
Corporation" of the Offer to Purchase is incorporated herein by reference. The
name, business address, present principal occupation or employment, the material
occupations, positions, offices or employments for the past five years and
citizenship of each director and executive officer of the Purchaser, Dover
Technologies and Dover and the name, principal business and address of any
corporation or other organization in which such occupations, positions, offices
and employments are or were carried on are set forth in Schedule I of the Offer
to Purchase and incorporated herein by reference.
(e)-(f) During the last five years neither the Purchaser, Dover
Technologies or Dover nor, to the best knowledge of the Purchaser, Dover
Technologies and Dover, any of the persons listed in Schedule I of the Offer to
Purchase have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction as a result of which
any such person was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting activities subject to, federal or state
securities laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)(1) Other than the transactions described in Item 3(b) below, neither
the Purchaser, Dover Technologies nor Dover, or, to the best knowledge of the
Purchaser, Dover Technologies and Dover, any of the persons listed in Schedule I
of the Offer to Purchase, has entered into any transaction with the Company, or
any of the Company's affiliates which are corporations, since the commencement
of the Company's third full fiscal year preceding the date of this Statement,
the aggregate amount of which was equal to or greater than one percent of the
consolidated revenues of the Company for (i) the fiscal year in which such
transaction occurred or (ii) the portion of the current fiscal year which has
occurred if the transaction occurred in such year.
(a)(2) Other than the transactions described in Item 3(b) below, neither
the Purchaser, Dover Technologies nor Dover, or, to the best knowledge of the
Purchaser, Dover Technologies and Dover, any of the
<PAGE> 6
persons listed in Schedule I of the Offer to Purchase, has entered into any
transaction since the commencement of the Company's third full fiscal year
preceding the date of this Statement, with the executive officers, directors or
affiliates of the Company which are not corporations, in which the aggregate
amount involved in such transaction or in a series of similar transactions,
including all periodic installments in the case of any lease or other agreement
providing for periodic payments or installments, exceeded $40,000.
(b) The information set forth in the "INTRODUCTION", "Section 9-Certain
Information Concerning the Purchaser, Dover Technologies and Dover Corporation",
"Section 11-Background of the Offer; Purpose of the Offer and the Merger; the
Merger Agreement and Certain Other Agreements" and "Section 12-Plans for the
Company; Other Matters" 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 10-Source and Amount of
Funds" of the Offer to Purchase is incorporated herein by reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(e) The information set forth in the "INTRODUCTION", "Section
11-Background of the Offer; Purpose of the Offer and the Merger; the Merger
Agreement and Certain Other Agreements" and "Section 12-Plans for the Company;
Other Matters" of the Offer to Purchase is incorporated herein by reference.
(f)-(g) The information set forth in "Section 7-Effect of the Offer on the
Market for the Shares; Stock Listing; Exchange Act Registration; Margin
Regulations" 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 "Section 9-Certain Information
Concerning the Purchaser, Dover Technologies and Dover Corporation" of the Offer
to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the "INTRODUCTION", "Section 10-Source and
Amount of Funds", "Section 11-Background of the Offer; Purpose of the Offer and
the Merger; the Merger Agreement and Certain Other Agreements", "Section
12-Plans for the Company; Other Matters" and "Section 16-Fees and Expenses" of
the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "Section 16-Fees and Expenses" of the Offer to
Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The bidder's financial condition is not material to a decision by a
security holder of the Subject Company whether to sell, tender or hold
securities being sought in the tender offer and therefore financial information
concerning the bidder is not provided.
ITEM 10. ADDITIONAL INFORMATION.
(a) Except as disclosed in Items 3 and 7 above, there are no present or
proposed material contracts, arrangements, understandings or relationships
between the Purchaser, Dover Technologies or Dover, or to the best knowledge of
the Purchaser, Dover Technologies and Dover, any of the persons listed in
Schedule I of the
<PAGE> 7
Offer to Purchase, and the Company, or any of its executive officers, directors,
controlling persons or subsidiaries.
(b)-(c) The information set forth in the "INTRODUCTION", "Section
14-Conditions of the Offer" and "Section 15-Certain Legal Matters" of the Offer
to Purchase is incorporated herein by reference.
(d) The information set forth in "Section 7-Effect of the Offer on the
Market for the Shares; Stock Listing; Exchange Act Registration; Margin
Regulations" and "Section 15-Certain Legal Matters" of the Offer to Purchase is
incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal, to the extent not otherwise incorporated herein by reference, is
incorporated herein by reference.
ITEM 11. MATERIALS TO BE FILED AS EXHIBITS.
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(a)(1) Offer to Purchase dated September 9, 1997.
(a)(2) Letter of Transmittal with respect to the Shares.
(a)(3) Letter, dated September 9, 1997, from Morrow & Co., Inc. to Brokers, Dealers, Banks,
Trust Companies and Other Nominees.
(a)(4) Letter for use by Brokers, Dealers, Banks, Trust Companies and Nominees to their
Clients.
(a)(5) Notice of Guaranteed Delivery with respect to the Shares.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form
W-9.
(a)(7) Press Release issued by Dover Technologies and the Company dated September 3, 1997.
(a)(8) Form of Summary Advertisement dated September 9, 1997.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of September 3, 1997, by and among Dover
Technologies, the Purchaser and the Company.
(c)(2) Letter Agreement between James Manfield, Jr. and Dover Technologies dated September
3, 1997.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
<PAGE> 8
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify the
information set forth in this statement is true, complete and correct.
Date: September 9, 1997
DTI INTERMEDIATE, INC.
By: /s/ JOHN E. POMEROY
------------------------------------
John E. Pomeroy, President
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify the
information set forth in this statement is true, complete and correct.
Date: September 9, 1997
DOVER TECHNOLOGIES INTERNATIONAL, INC.
By: /s/ JOHN E. POMEROY
-----------------------------------------
John E. Pomeroy, President
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify the
information set forth in this statement is true, complete and correct.
Date: September 9, 1997
DOVER CORPORATION
By: /s/ JOHN E. POMEROY
------------------------------------
John E. Pomeroy, Vice President
<PAGE> 9
INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ -----------------------------------------------------------------------------------
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(a)(1) Offer to Purchase dated September 9, 1997
(a)(2) Letter of Transmittal with respect to the Shares
(a)(3) Letter, dated September 9, 1997, from Morrow & Co., Inc. to Brokers, Dealers,
Banks, Trust Companies and Other Nominees
(a)(4) Letter for use by Brokers, Dealers, Banks, Trust Companies and Nominees to their
Clients
(a)(5) Notice of Guaranteed Delivery with respect to the Shares
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form
W-9
(a)(7) Press Release jointly issued by Dover Technologies and the Company dated September
3, 1997
(a)(8) Form of Summary Advertisement dated September 9, 1997
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of September 3, 1997, by and among Dover
Technologies, the Purchaser and the Company
(c)(2) Letter Agreement between James J. Manfield, Jr. and Dover Technologies dated
September 3, 1997.
</TABLE>
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
BY
DTI INTERMEDIATE, INC.
A WHOLLY OWNED SUBSIDIARY OF
DOVER TECHNOLOGIES INTERNATIONAL, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DOVER CORPORATION
AT
$1.90 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON OCTOBER 6, 1997, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER DATED
AS OF SEPTEMBER 3, 1997 AMONG DOVER TECHNOLOGIES INTERNATIONAL, INC., DTI
INTERMEDIATE, INC. AND VITRONICS CORPORATION. THE BOARD OF DIRECTORS OF
VITRONICS CORPORATION HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT, THE OFFER
AND THE MERGER AND DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE
FAIR TO, AND IN THE BEST INTERESTS OF, THE SHAREHOLDERS OF VITRONICS
CORPORATION, AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND
TENDER THEIR SHARES.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER, THAT NUMBER OF
SHARES WHICH REPRESENTS AT LEAST SIXTY-SIX AND TWO-THIRDS PERCENT (66 2/3%) OF
THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS AND (II) THE OTHER CONDITIONS
SET FORTH IN THIS OFFER TO PURCHASE. SEE SECTION 14.
IMPORTANT
Any shareholder who desires to tender all or any portion of such
shareholder's Shares ( as defined herein) should either (i) complete and sign
the Letter of Transmittal (or facsimile thereof) in accordance with the
instructions in the Letter of Transmittal, mail or deliver it and any other
required documents to the Depositary (as defined herein) and either deliver the
certificates for such Shares to the Depositary or tender such Shares pursuant to
the procedures for book-entry transfer set forth in Section 3 or (ii) request
such shareholder's broker, dealer, commercial bank, trust company or other
nominee to effect the transaction for such shareholder. Any shareholder 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 shareholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available, or who cannot comply
with the procedures for book-entry transfer on a timely basis, may tender such
Shares by following the procedures for guaranteed delivery set forth in Section
3.
Questions and requests for assistance may be directed to the Information
Agent at its location and telephone number set forth on the back cover of this
Offer to Purchase. Requests for additional copies of this Offer to Purchase, the
Letter of Transmittal and the Notice of Guaranteed Delivery may be directed to
the Information Agent, the Depositary, or to brokers, dealers, commercial banks
or trust companies. A shareholder also may contact brokers, dealers, commercial
banks or trust companies for assistance concerning the Offer.
September 9, 1997
<PAGE> 2
TABLE OF CONTENTS
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PAGE
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INTRODUCTION..................................................................... 3
THE OFFER........................................................................ 4
1. Terms of the Offer....................................................... 4
2. Acceptance for Payment and Payment....................................... 6
3. Procedure for Tendering Shares........................................... 7
4. Withdrawal Rights........................................................ 9
5. Certain Federal Income Tax Consequences.................................. 10
6. Price Range of the Shares; Dividends on the Shares....................... 10
7. Effect of the Offer on the Market for the Shares; Stock Listing; Exchange
Act Registration; Margin Regulations..................................... 11
8. Certain Information Concerning the Company............................... 12
9. Certain Information Concerning the Purchaser, Dover Technologies and
Dover Corporation........................................................ 13
10. Source and Amount of Funds............................................... 14
11. Background of the Offer; Purpose of the Offer and the Merger; The Merger
Agreement and Certain Other Agreements................................... 15
12. Plans for the Company; Other Matters..................................... 22
13. Dividends and Distributions.............................................. 25
14. Conditions of the Offer.................................................. 25
15. Certain Legal Matters.................................................... 27
16. Fees and Expenses........................................................ 30
17. Miscellaneous............................................................ 30
Schedule I -- Directors and Executive Officers of Dover Corporation, Dover
Technologies International, Inc. and DTI Intermediate, Inc....................... 31
</TABLE>
2
<PAGE> 3
To the Holders of Common Stock of
Vitronics Corporation:
INTRODUCTION
DTI Intermediate, Inc., a Delaware corporation (the "Purchaser") and a
wholly owned direct subsidiary of Dover Technologies International, Inc., a
Delaware corporation ("Dover Technologies"), an indirect wholly owned subsidiary
of Dover Corporation, a Delaware corporation ("Dover Corporation"), hereby
offers to purchase all of the outstanding shares (the "Shares") of Common Stock,
par value $.01 per share (the "Common Stock") of Vitronics Corporation, a
Massachusetts corporation (the "Company"), at $1.90 per Share, net to the seller
in cash, upon the terms and subject to the conditions set forth in this Offer to
Purchase and in the related Letter of Transmittal (which, together with any
amendments or supplements hereto or thereto, collectively constitute the
"Offer"). Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The
Purchaser will pay all fees and expenses incurred in connection with the Offer
of The Bank of New York ("Bank"), which is acting as the Depositary (the
"Depositary"), and Morrow & Co., Inc., which is acting as the Information Agent
(the "Information Agent").
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER, THAT NUMBER OF
SHARES WHICH REPRESENTS AT LEAST SIXTY-SIX AND TWO-THIRDS PERCENT (66 2/3%) OF
THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION"). SEE
SECTION 14. As used in this Offer to Purchase, "fully diluted basis" takes into
account issued and outstanding Shares and Shares subject to issuance under
outstanding options. The Company has informed the Purchaser that, as of
September 3, 1997, there were 9,856,572 Shares issued and outstanding, and there
were outstanding options to purchase an aggregate of 543,400 Shares. The Merger
Agreement provides, among other things, that the Company will not, without the
prior written consent of Dover Technologies, issue any additional Shares (except
on the exercise of outstanding options and warrants). Based on the foregoing and
giving effect to the exercise of all outstanding options, the Purchaser believes
that the Minimum Condition will be satisfied if 6,933,315 Shares are validly
tendered and not withdrawn prior to the expiration of the Offer.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of September 3, 1997 (the "Merger Agreement"), by and among Dover
Technologies, the Purchaser and the Company pursuant to which, as soon as
practicable after the completion of the Offer and satisfaction or waiver, if
permissible, of all conditions to the Merger (as defined below), (i) at the
election of Dover Technologies, the Company may be merged with and into the
Purchaser and the separate corporate existence of the Company will thereupon
cease, or (ii) at the election of Dover Technologies, the Purchaser may be
merged with and into the Company and the separate corporate existence of the
Purchaser will cease. The merger, as effected pursuant to clause (i) or (ii) of
the immediately preceding sentence, is referred to herein as the "Merger," and
such of the Purchaser or the Company as is the surviving corporation of the
Merger is sometimes herein referred to as the "Surviving Corporation." At the
effective time of the Merger (the "Effective Time"), each Share then outstanding
(other than Shares held by Dover Technologies, the Purchaser or any other wholly
owned subsidiary of Dover Technologies and Shares held by shareholders who
perfect their dissenters' rights under Massachusetts law) will be converted into
the right to receive $1.90 in cash or any higher price per Share paid in the
Offer. The Merger Agreement is more fully described in Section 11.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, THE OFFER AND THE MERGER AND DETERMINED THAT THE TERMS OF THE OFFER
AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY'S
SHAREHOLDERS, AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS ACCEPT THE OFFER AND
TENDER THEIR SHARES.
Scott-Macon Securities, Inc., the Company's financial advisor
("Scott-Macon"), has delivered to the Company's Board of Directors its written
opinion to the effect that the consideration to be received by the public
shareholders of the Company in the Offer and the Merger is fair to such
shareholders from a financial point of view as of the date of delivery of that
opinion. Such opinion is set forth in full as an exhibit to the
3
<PAGE> 4
Company's Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule
14D-9") that is being mailed to shareholders of the Company.
The Merger Agreement provides that, except as otherwise provided therein,
following satisfaction or waiver, if permissible, of the conditions to the Offer
and subject to the terms and conditions thereof, the Purchaser will accept for
payment, in accordance with the terms of the Offer, all Shares validly tendered
and not withdrawn pursuant to the Offer as soon as it is permitted to do so
pursuant to applicable law. The Offer will not remain open following the time
Shares are accepted for payment.
Consummation of the Merger is conditioned upon, among other things, the
approval and adoption by the requisite vote of shareholders of the Company of
the Merger Agreement, if required by applicable law in order to consummate the
Merger. See Section 12. Under the Massachusetts General Laws, Chapter 156B
Massachusetts Business Corporation Law ("Corporations Code"), except as
otherwise provided below, the affirmative vote of two-thirds of the outstanding
shares of Common Stock is required to approve the Merger Agreement and the
Merger.
Under Section 82 of the Corporations Code, if a corporation owns at least
90% of the outstanding shares of each class of another corporation, the
corporation holding such stock may merge such other corporation into itself
without any action or vote on the part of the shareholders upon a vote of its
directors (a "short-form merger"). In the event that Dover Technologies, the
Purchaser and any other subsidiaries of Dover Technologies acquire in the
aggregate at least 90% of the Shares, pursuant to the Offer or otherwise, then,
at the election of Dover Technologies, a short-form merger could be effected
without any approval of the shareholders of the Company upon a vote of the Board
of Directors of the Company, subject to compliance with the provisions of
Section 82 of the Corporations Code. Even if Dover Technologies, the Purchaser
and the other subsidiaries of Dover Technologies do not own 90% of the
outstanding Shares following consummation of the Offer, Dover Technologies and
the Purchaser could seek to purchase additional shares in the open market or
otherwise in order to reach the 90% threshold and employ a short-form merger.
The per share consideration paid for any Shares so acquired may be greater or
less than that paid in the Offer. Dover Technologies does presently intend to
effect a merger, whether or not it acquires 90% or more of the Shares.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY DECISION
IS MADE WITH RESPECT TO THE OFFER.
THE OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 4 of
this Offer to Purchase. The term "Expiration Date" shall mean 12:00 Midnight,
New York City time, on October 6, 1997, unless and until the Purchaser, in
accordance with the terms of the Merger Agreement, shall have extended the
period of time for which the Offer is open, in which event the term "Expiration
Date" shall mean the latest time and date at which the Offer, as so extended by
the Purchaser, shall expire.
The Offer is conditioned upon, among other things, the satisfaction of the
Minimum Condition and the expiration or 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. If such
conditions are not satisfied prior to the Expiration Date, the Purchaser
reserves the right (but shall not be obligated) to (i) decline to purchase any
of the Shares tendered and terminate the Offer, subject to the terms of the
Merger Agreement, (ii) waive any of the conditions to the Offer, to the extent
permitted by applicable law and the provisions of the Merger Agreement, and,
subject to complying with applicable rules and regulations of the Securities and
Exchange Commission (the "Commission"), purchase all Shares validly tendered or
(iii) subject to the terms of the Merger Agreement, extend the Offer and,
subject to the right of
4
<PAGE> 5
shareholders to withdraw Shares until the Expiration Date, retain the Shares
which will have been tendered during the period or periods for which the Offer
is extended.
Subject to the terms of the Merger Agreement, the Purchaser expressly
reserves the right, in its sole discretion, at any time or from time to time,
(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 (including, without limitation, by decreasing or increasing
the consideration offered in the Offer (the "Offer Price") to holders of Shares
and/or by decreasing the number of Shares being sought in the Offer), 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 as described in Section 14. Any extension, amendment or
termination 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"). Without limiting the obligation of the Purchaser
under such Rule or 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. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE TO BE PAID BY THE PURCHASER FOR THE
SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The Merger Agreement provides that the Purchaser will not amend or waive
the Minimum Condition and will not decrease the Offer Price or decrease the
number of Shares sought, or amend any other condition of the Offer in any manner
adverse to the holders of the Shares without the written consent of the Company;
provided, however, that if on the initial scheduled Expiration Date of the
Offer, which is twenty business days after the date the Offer is commenced, all
conditions to the Offer shall not have been satisfied or waived, the Purchaser
may, from time to time, in its sole discretion, extend the Expiration Date for
one or more periods not to exceed thirty business days in the aggregate.
Notwithstanding the foregoing, the Merger Agreement provides that the Purchaser
may extend the Offer as it reasonably deems necessary to comply with any legal
or regulatory requirements, including the HSR Act. Furthermore, under the terms
of the Merger Agreement, if, immediately prior to the Expiration Date, the
Shares tendered and not withdrawn equal more than 75% but less than 90% of the
outstanding Shares, the Purchaser may extend the Offer for a period not to
exceed twenty business days, notwithstanding that all conditions to the Offer
may have been satisfied. The Merger Agreement further provides, however, that in
no event may the Offer be extended beyond the date of termination of the Merger
Agreement, and either party has the right to terminate the Merger Agreement if
the Offer is not completed by November 21, 1997.
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 shareholders are
entitled to withdrawal rights as described in Section 4. However, the ability of
the Purchaser to delay the payment for Shares which the Purchaser has accepted
for payment is limited by Rule 14e-l(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 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 then existing, including
the relative materiality of the changed terms or information. In a public
release, the Commission has stated that in its view an offer must remain open
for a minimum period of time following a material change in the terms of
5
<PAGE> 6
the Offer and that waiver of a material condition, such as the Minimum
Condition, is a material change in the terms of the Offer. The release states
that an offer should remain open for a minimum of five business days from the
date a material change is first published, sent or given to security holders and
that, if material changes are made with respect to information not materially
less significant than the offer price and the number of shares being sought, a
minimum of ten business days may be required to allow adequate dissemination and
investor response. The requirement to extend the Offer will not apply to the
extent that the number of business days remaining between the occurrence of the
change and the then-scheduled Expiration Date equals or exceeds the minimum
extension period that would be required because of such amendment. As used in
this Offer to Purchase, "business day" has the meaning set forth in Rule 14d-1
under the Exchange Act.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase and the related Letter of Transmittal
will be mailed by the Purchaser to record holders of Shares and will be
furnished by the Purchaser to brokers, dealers, banks and similar persons whose
names, or the names of whose nominees, appear on the shareholder lists or, if
applicable, who are listed as participants in a clearing agency's security
position listing, for subsequent transmittal to beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will accept for payment and will pay, promptly
after the Expiration Date, for all Shares validly tendered prior to the
Expiration Date and not properly withdrawn in accordance with Section 4. All
determinations concerning the satisfaction of such terms and conditions will be
within the Purchaser's discretion, which determinations will be final and
binding. See Sections 1 and 14. The Purchaser expressly reserves the right, in
its sole discretion, to delay acceptance for payment of or payment for Shares in
order to comply in whole or in part with any applicable law, including, without
limitation, the HSR Act. Any such delays will be effected in compliance with
Rule 14e-l(c) under the Exchange Act (relating to a bidder's obligation to pay
the consideration offered or return the securities deposited by or on behalf of
holders of securities promptly after the termination or withdrawal of such
bidder's offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates for
such Shares (or a timely Book-Entry Confirmation (as defined below) with respect
thereto), (ii) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in the
case of a book-entry transfer, an Agent's Message (as defined below), and (iii)
any other documents required by the Letter of Transmittal. The per Share
consideration paid to any shareholder pursuant to the Offer will be the highest
per Share consideration paid to any other shareholder pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Payment
for Shares accepted for payment pursuant to the Offer will be made by deposit of
the purchase price therefor with the Depositary, which will act as agent for
tendering shareholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering shareholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE TO BE PAID BY THE PURCHASER FOR THE
SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
If the Purchaser is delayed in its acceptance for payment of, or payment
for, Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer (including such rights as are set forth in Sections 1 and 14) (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 tendering shareholders are
entitled to exercise, and duly exercise, withdrawal rights as described in
Section 4.
6
<PAGE> 7
If any tendered Shares are not purchased pursuant to the Offer for any
reason, certificates for any such Shares will be returned, without expense to
the tendering shareholder (or, in the case of Shares delivered by book-entry
transfer of such Shares into the Depositary's account at the Book-Entry Transfer
Facility (as defined below) pursuant to the procedures set forth in Section 3,
such Shares will be credited to an account maintained at the Book-Entry Transfer
Facility), as promptly as practicable after the expiration or termination of the
Offer.
The Purchaser reserves the right to transfer or assign, in whole or in
part, to Dover Technologies or to one or more direct or indirect wholly owned
subsidiaries of Dover Technologies, the right to purchase Shares tendered
pursuant to the Offer, but any such transfer or assignment will not relieve the
Purchaser of its obligations under the Offer and will in no way prejudice the
rights of tendering shareholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES.
Valid Tender. For Shares to be validly tendered pursuant to the Offer,
either (i) a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), together with any required signature guarantees, or in the
case of a book-entry transfer, an Agent's Message, and any other required
documents, must be received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase prior to the Expiration Date and
either certificates for tendered Shares must be received by the Depositary at
one of such addresses or such Shares must be delivered pursuant to the
procedures for book-entry transfer set forth below (and a Book-Entry
Confirmation received by the Depositary), in each case, prior to the Expiration
Date or (ii) the tendering shareholder must comply with the guaranteed delivery
procedures set forth below.
The Depositary will establish an account with respect to the Shares at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Offer within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of Shares by causing the
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account in accordance with the Book-Entry Transfer Facility's procedure for such
transfer. However, although delivery of Shares may be effected through
book-entry transfer into the Depositary's account at the Book-Entry Transfer
Facility, the Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees, or an Agent's
Message, and any other required documents must, in any case, be transmitted to,
and received by, the Depositary at one of its addresses set forth on the back
cover of this Offer to Purchase prior to the Expiration Date, or the tendering
shareholder must comply with the guaranteed delivery procedures described below.
The confirmation of a book-entry transfer of Shares into the Depositary's
account at the Book-Entry Transfer Facility as described above is referred to
herein as a "Book-Entry Confirmation." DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY
TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by the 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 of Transmittal and that the
Purchaser may enforce such agreement against the participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal (i) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
the Book Entry Transfer Facility's systems whose name appears on a security
position listing as
7
<PAGE> 8
the owner of the Shares) of Shares tendered therewith and such registered holder
has not completed either the box entitled "Special Delivery Instructions" or the
box entitled "Special Payment Instructions" on the Letter of Transmittal or (ii)
if 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 Agent's Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each, an "Eligible Institution" and,
collectively, "Eligible Institutions"). In all other cases, all signatures on
Letters of Transmittal must be guaranteed by an Eligible Institution. See
Instructions 1 and 5 to the Letter of Transmittal. If the certificates for
Shares are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made, or certificates for Shares
not tendered or not accepted for payment are to be returned, to a person other
than the registered holder of the certificates surrendered, then the tendered
certificates for such Shares must be endorsed or accompanied by appropriate
stock powers, in either case, signed exactly as the name or names of the
registered holders or owners appear on the certificates, with the signatures on
the certificates or stock powers guaranteed as aforesaid. See Instructions 1 and
5 to the Letter of Transmittal.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates for Shares are not immediately
available or the procedures for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such shareholder's tender may be
effected if all the following conditions are met:
(i) such 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 the Purchaser, is received
by the Depositary, as provided below, prior to the Expiration Date; and
(iii) the certificates for (or a Book-Entry Confirmation with respect
to) such Shares, together with a properly completed and duly executed
Letter of Transmittal (or 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 are received by the Depositary within
three trading days after the date of execution of such Notice of Guaranteed
Delivery. A "trading day" is any day on which the New York Stock Exchange
is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (i) certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares, (ii) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and (iii) any other documents required by the Letter of Transmittal.
Accordingly, tendering shareholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE TO BE PAID BY THE PURCHASER FOR THE
SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering shareholder and
the Purchaser upon the terms and subject to the conditions of the Offer.
Appointment. By executing the Letter of Transmittal as set forth above, the
tendering shareholder will irrevocably appoint designees of the Purchaser, and
each of them, as such shareholder's attorneys-in-fact and proxies in the manner
set forth in the Letter of Transmittal, each with full power of substitution, to
the full extent of such shareholder's rights with respect to the Shares tendered
by such shareholder and accepted for payment by the Purchaser and with respect
to any and all other Shares or other securities or rights issued or issuable in
respect of such Shares. All such proxies will be considered coupled with an
interest in the tendered
8
<PAGE> 9
Shares. Such appointment will be effective when, and only to the extent that,
the Purchaser accepts for payment Shares tendered by such shareholder as
provided herein. Upon such appointment, all prior powers of attorney, proxies
and consents given by such shareholder with respect to such Shares or other
securities or rights will, without further action, be revoked and no subsequent
powers of attorney, proxies, consents or revocations may be given by such
shareholder (and, if given, will not be deemed effective). The designees of the
Purchaser will thereby be empowered to exercise all voting and other rights with
respect to such Shares and other securities or rights, including, without
limitation, in respect of any annual, special or adjourned meeting of the
Company's shareholders, actions by written consent in lieu of any such meeting
or otherwise, as they in their sole discretion deem proper. The Purchaser
reserves the right to require that, in order for Shares to be deemed validly
tendered, immediately upon the Purchaser's acceptance for payment of such
Shares, the Purchaser must be able to exercise full voting, consent and other
rights with respect to such Shares and other related securities or rights,
including voting at any meeting of shareholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser, in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders of any Shares determined by it not to be in proper form or
the acceptance for payment of, or payment for which may, in the opinion of the
Purchaser's counsel, be unlawful. The Purchaser also reserves the absolute
right, in its sole discretion, subject to the provisions of the Merger
Agreement, to waive any of the conditions of the Offer or any defect or
irregularity in the tender of any Shares of any particular shareholder, whether
or not similar defects or irregularities are waived in the case of other
shareholders. No tender of Shares will be deemed to have been validly made until
all defects or irregularities relating thereto have been cured or waived. None
of the Purchaser, Dover Technologies, Dover Corporation, the Depositary, the
Information Agent, or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
Backup Withholding. In order to avoid "backup withholding" of U.S. federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such shareholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such shareholder is not subject to backup withholding. If a
shareholder does not provide such shareholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service may impose a
penalty on such shareholder and payment of cash to such shareholder pursuant to
the Offer may be subject to backup withholding of 31%. All shareholders
surrendering Shares pursuant to the Offer should complete and sign the main
signature form and the Substitute Form W-9 included as part of the Letter of
Transmittal to provide the information and certification necessary to avoid
backup withholding (unless an applicable exemption exists and is proved in a
manner satisfactory to the Purchaser and the Depositary). Certain shareholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Foreign shareholders, if
exempt, 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.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after November 17, 1997.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
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<PAGE> 10
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been delivered 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 and otherwise comply
with such Book-Entry Transfer Facility's procedures. Withdrawals of tenders of
Shares may not be rescinded, and any Shares properly withdrawn will thereafter
be deemed not validly tendered for purposes of the Offer. However, withdrawn
Shares may be retendered by again following one of the procedures described in
Section 3 any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser, in its sole
discretion, which determination will be final and binding. None of the
Purchaser, Dover Technologies, Dover Corporation, the Depositary, the
Information Agent, or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notification.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for U.S. federal income tax purposes and also may be a
taxable transaction under state, local or foreign tax laws. In general, a
shareholder who tenders Shares in the Offer or receives cash in exchange for
Shares in the Merger will recognize gain or loss for federal income tax purposes
equal to the difference, if any, between the amount of cash received and the
shareholder's tax basis in the Shares sold. Gain or loss will be determined
separately for each block of Shares (i.e., Shares acquired at the same time and
price) exchanged pursuant to the Offer or the Merger. Such gain or loss
generally will be capital gain or loss if the Shares disposed of were held as
capital assets by the shareholder, and will be long-term capital gain or loss if
the Shares disposed of were held for more than one year at the date of sale.
A shareholder of Shares who perfects such shareholder's dissenter's rights,
if any, under the Corporations Code probably will recognize gain or loss at the
Effective Time in an amount equal to the difference between the "amount
realized" and such shareholder's adjusted tax basis of such Shares. For this
purpose, although there is no authority to this effect directly on point, the
amount realized generally should equal the trading value per share of the Shares
at the Effective Time. Ordinary interest income and/or capital gain (or capital
loss, assuming that the Shares were held as capital assets) should be recognized
by such shareholder at the time of actual receipt of payment, to the extent that
such payment exceeds (or is less than) the amount realized at the Effective
Time.
The foregoing summary constitutes a general description of certain U.S.
federal income tax consequences of the Offer and the Merger without regard to
the particular facts and circumstances of each shareholder of the Company and is
based on the provisions of the Internal Revenue Code of 1986, as amended,
Treasury Department Regulations issued pursuant thereto and published rulings
and court decisions in effect as of the date hereof, all of which are subject to
change, possibly with retroactive effect. Special tax consequences not described
herein may be applicable to certain shareholders subject to special tax
treatment (including, but not limited to, insurance companies, tax-exempt
organizations, financial institutions or broker dealers, foreign shareholders
and shareholders who have acquired their Shares pursuant to the exercise of
employee stock options or otherwise as compensation). ALL SHAREHOLDERS SHOULD
CONSULT THEIR TAX ADVISORS WITH RESPECT TO SPECIFIC TAX EFFECTS APPLICABLE TO
THEM OF THE OFFER AND THE MERGER, INCLUDING THE APPLICABILITY AND EFFECT OF THE
ALTERNATIVE MINIMUM TAX AND ANY STATE, LOCAL AND FOREIGN TAX LAWS.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES.
The Shares are traded on the American Stock Exchange ("AMEX") under the
symbol "VTC". The following table sets forth, for each of the calendar years
indicated, the high and low reported sales price per Share on the AMEX based on
published financial sources.
10
<PAGE> 11
<TABLE>
<CAPTION>
SALES PRICE
-----------------------
HIGH LOW
---- ---
<S> <C> <C> <C> <C>
1995
First Quarter............................... 2 3/16 1 5/16
Second Quarter.............................. 1 11/16 1 3/16
Third Quarter............................... 3 7/16 1 1/2
Fourth Quarter.............................. 3 2 3/16
1996
First Quarter............................... 2 7/8 1 15/16
Second Quarter.............................. 2 9/16 1 13/16
Third Quarter............................... 2 1 3/8
Fourth Quarter.............................. 1 5/8 1
1997
First Quarter............................... 1 7/16 7/8
Second Quarter.............................. 1 3/4
</TABLE>
On September 2, 1997, the last full trading day prior to the first public
announcement of the Purchaser's intention to commence the Offer, the last
reported sales price of the Shares on the AMEX was $1 3/8 per Share.
SHAREHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
The Company has advised the Purchaser that the Company has never declared
or paid any cash dividends on its capital stock.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; STOCK LISTING; EXCHANGE
ACT REGISTRATION; MARGIN REGULATIONS.
Market for the Shares. The purchase of Shares pursuant to the Offer will
reduce the number of holders of Shares and the number of Shares that might
otherwise trade publicly and, depending upon the number of Shares so purchased,
could adversely effect the liquidity and market value of the remaining Shares
held by the public.
Stock Listing. Depending upon the number of Shares purchased pursuant to
the Offer, and 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 for
continued inclusion on the AMEX. According to the AMEX's published guidelines,
AMEX would consider delisting such Shares if, among other things, the number of
public holders of such Shares should fall below 300, the number of publicly held
Shares (exclusive of holdings of officers, directors, their immediate families
and other concentrated holdings of 10% or more ("AMEX Excluded Holdings"))
should fall below 200,000 or the aggregate market value of publicly held Shares
(exclusive of AMEX Excluded Holdings) should fall below $1,000,000. If as a
result of the purchase of the Shares pursuant to the Offer or otherwise, the
Shares no longer meet the requirements of the AMEX for continued listing and the
Shares are no longer listed, the market for the Shares could be adversely
affected.
In the event the Shares should no longer be listed or traded on the AMEX,
it is possible that the Shares would continue to trade in the over-the-counter
market and that price quotations might still be available from other sources.
The extent of the public market for the Shares and availability of such
quotations would, however, depend upon the number of holders of 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 Company has advised that as of July 30, 1997, there were approximately
3,107 holders of record of Shares including 2,171 shareholders holding Shares in
"street names". According to information provided by the Company, as of July 30,
1997, there were 9,856,572 Shares outstanding. If, as a result of the purchase
of Shares pursuant to the Offer or otherwise, the Company does not meet the
requirements for continued inclusion in the AMEX and the Shares are no longer
included in the AMEX, as the case may be, the market for Shares could be
adversely affected.
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<PAGE> 12
Exchange Act Registration. The Shares currently are registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially reduce the information required to be furnished by the
Company to its shareholders 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
pursuant to Section 14(a) in connection with shareholders' meetings and the
related requirement of furnishing an annual report to shareholders and the
requirements of Rule 13e-3 under the Exchange Act with respect to "going
private" transactions, no longer applicable to the Company. Furthermore, the
ability of "affiliates" of the Company and persons holding "restricted
securities" of the Company to dispose of such securities pursuant to Rule 144 or
Rule 144A promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), may be impaired or eliminated. If registration of the Shares
under the Exchange Act were terminated, the Shares would no longer be "margin
securities" or be eligible for continued listing on any stock exchange. The
Purchaser may seek to cause the Company to apply for termination of registration
of the Shares under the Exchange Act as soon after the completion of the Offer
as the requirements for such termination are met.
If registration of the Shares is not terminated prior to the Merger, then
the Shares will be delisted from the AMEX and the registration of the Shares
under the Exchange Act will be terminated following the consummation of the
Merger.
Margin Regulations. The Shares presently are "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which status has the effect, among other things of
allowing brokers to extend credit on the collateral of such securities.
Depending upon factors similar to those described above regarding listing and
market quotations, it is possible that, following the Offer, the Shares would no
longer constitute "margin securities" for the purposes of the margin regulations
of the Federal Reserve Board and therefore could no longer be used as collateral
for loans made by brokers.
If registration of the Shares under the Exchange Act were terminated, the
Shares would no longer be "margin securities."
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
General. The information concerning the Company contained in this Offer to
Purchase, including that set forth below under the caption "Selected 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. Neither Dover Technologies, Dover Corporation nor the
Purchaser assumes responsibility for the accuracy or completeness of the
information concerning the Company contained in such documents and records or
for any failure by the Company to disclose events which may have occurred or may
affect the significance or accuracy of any such information but which are
unknown to Dover Technologies or the Purchaser.
According to the Company's 10-K, for the year ended December 31, 1996 the
Company is engaged in designing, engineering, manufacturing and marketing
state-of-the-art thermal processing systems for soldering surface mount devices
to printed circuit boards and cleaning of the finished assembly. The Company's
customers are captive and contract manufacturers of medium to high reliability
printed circuit boards. The Company produces several lines of solder reflow
ovens used primarily in the final step of attachment of surface mounted devices
to printed circuit boards. Using similar technology, the Company has also
produced systems for attaching hybrid circuits to ceramic substrates and for
curing epoxies and adhesives used in bonding applications by the electronic
industries. The Company is a Massachusetts corporation with its principal
executive offices at 1 Forbes Road, Newmarket, New Hampshire 03857. The
telephone number of the Company at such offices is (603) 659-6550.
Selected Financial Information. Set forth below is certain selected
consolidated financial information with respect to the Company, excerpted or
derived from the Company's 1996 Annual Report to Shareholders
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and its Quarterly Reports on Form 10-Q for the six months ended June 29, 1996
and June 29, 1997, all filed with the Commission pursuant to the Exchange Act.
More comprehensive financial information is included in such reports and in
other documents filed by the Company with the Commission. The following summary
is qualified in its entirety by reference to such reports and other documents
and all of the financial information (including any related notes) contained
therein. Such reports and other documents may be inspected and copies may be
obtained from the Commission in the manner set forth below.
VITRONICS CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEARS ENDED
------------------- ------------------------------------------
JUNE 29, JUNE 29, DECEMBER 31, DECEMBER 31, DECEMBER 31,
1997 1996 1996 1995 1994
-------- -------- ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales................................ $ 10,703 $ 12,066 $ 22,708 $ 23,525 $ 17,346
Operating income (loss).................. 589 856 1,236 2,334 798
Net income (loss)........................ 365 518 802 2,775 602
Net income (loss) per share (primary).... 0.04 0.05 0.08 0.30 0.08
Net income (loss) per share (fully
diluted)............................... 0.04 0.05 0.08 0.27 0.07
BALANCE SHEET DATA (AT END OF PERIOD):
Working capital.......................... $ 5,941 $ 5,977 $ 5,585 $ 5,505 $ 2,676
Total assets............................. 10,085 9,763 9,763 10,246 6,052
Total liabilities........................ 3,579 3,588 3,588 4,342 4,324
Shareholders' equity..................... 6,506 6,175 6,175 5,904 1,728
</TABLE>
Available Information. The Company is subject to the informational filing
requirements of the Exchange Act and, in accordance therewith, is obligated to
file 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, options granted to them, the principal holders of the Company's
securities and any material interests of such persons in transactions with the
Company is required to be disclosed in proxy statements distributed to the
Company's shareholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection at the
public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located at
Seven World Trade Center, Suite 1300, New York, NY 10048 and Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such
information should be obtainable by mail, upon payment of the Commission's
customary charges, by writing to the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also maintains a website at
http://www.sec.gov that contains reports, proxy statements and other
information. Such material should also be available for inspection at the
offices of the AMEX, located at 86 Trinity Place, 7th Floor, New York, New York
10006-1881.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER, DOVER TECHNOLOGIES AND DOVER
CORPORATION.
General. The Purchaser, a Delaware corporation and a wholly owned
subsidiary of Dover Technologies, was organized for the purpose of acquiring the
Company and has conducted no activities unrelated to such purpose since its
organization. All of the issued and outstanding shares of capital stock of the
Purchaser are owned by Dover Technologies. The principal executive offices of
the Purchaser are located at the principal executive offices of Dover
Technologies. The telephone number of the Purchaser at such offices is (607)
773-2290.
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<PAGE> 14
Dover Technologies is a wholly owned indirect subsidiary of Dover
Corporation located at 280 Park Avenue, New York, NY 10017. Dover Corporation is
a publicly traded company registered with the Commission and listed on the New
York Stock Exchange under the symbol of "DOV". Dover Technologies is a high
technology corporation with subsidiaries in the fields of electronic components,
automated assembly equipment for printed circuit boards, spring probes and test
equipment and fixtures for printed circuit boards, among other things. Dover
Technologies has a subsidiary, Soltec International, B.V. which manufactures
automated soldering equipment for printed circuit boards which will be
complemented by the acquisition of the Company. Dover Technologies is a Delaware
corporation with its principal executive offices at One Marine Midland Plaza,
East Tower, Sixth Floor, Binghamton, New York 13901. Its telephone number at
such address is (607) 773-2290.
Certain Information. The name, citizenship, business address, present
principal occupation or employment and five-year employment history of each of
the directors and executive officers of the Purchaser, Dover Technologies and
Dover Corporation are set forth in Schedule I hereto.
Except as set forth in this Offer to Purchase, neither the Purchaser, Dover
Technologies or Dover Corporation, nor, to the best of their knowledge, any of
the persons listed on Schedule I, nor any associate or majority-owned subsidiary
of any of the foregoing, beneficially owns or has a right to acquire any Shares,
and neither the Purchaser, Dover Technologies, Dover Corporation nor, to the
best of their knowledge, any of the persons or entities referred to above, nor
any of the respective executive officers, directors or subsidiaries of any of
the foregoing, has effected any transaction in Shares during the past 60 days.
Except as set forth in this Offer to Purchase, neither the Purchaser, Dover
Technologies, Dover Corporation, nor, to the best of their knowledge, any of the
persons listed on Schedule I, 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 the Purchaser, Dover
Technologies, Dover Corporation, or any of their respective affiliates, nor, to
the best of their knowledge, any of the persons listed on Schedule I, has had,
since January 1, 1994, 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. Except as set forth in this
Offer to Purchase, since January 1, 1994, there have been no contacts,
negotiations or transactions between the Purchaser, Dover Technologies, Dover
Corporation, any of their respective affiliates or, to the best of their
knowledge, any of the persons listed on Schedule I, 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.
Available Information. Dover Corporation is subject to the informational
filing requirements of the Exchange Act and in accordance therewith, is
obligated to file reports, proxy statements and other information with the
Commission relating to its business, financial conditions and other matters.
Information as of particular dates concerning Dover Corporation's directors and
officers, their renumeration, options granted to them, the principal holders of
Dover Corporation's securities and any material interests of such persons in
transactions with Dover Corporation is required to be disclosed in proxy
statements distributed to Dover Corporation's shareholders and filed with the
Commission. Such reports, proxy statements and other information should be
available for inspection from the offices of the Commission in the same manner
set forth with respect to information concerning the Company in Section 8. Such
material should also be available for inspection at the offices of the New York
Stock Exchange, Inc., located at 20 Broad Street, New York, NY 10005.
10. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by the Purchaser to purchase all of the
Shares pursuant to the Offer and the Merger, and to pay related fees and
expenses is expected to be approximately $20 million.
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<PAGE> 15
Dover Corporation, Dover Technologies and the Purchaser anticipate that the
funds required in connection with the transactions contemplated by the Merger
Agreement would be obtained from funds currently available from internal cash
flow.
11. BACKGROUND OF THE OFFER; PURPOSE OF THE OFFER AND THE MERGER; THE MERGER
AGREEMENT AND CERTAIN OTHER AGREEMENTS.
The following description was prepared by Dover Technologies and the
Company. Information about the Company was provided by the Company and neither
the Purchaser nor Dover Technologies takes any responsibility for the accuracy
or completeness of any information regarding meetings or discussions in which
Dover Technologies or its representatives did not participate.
Background of the Offer. Dover Technologies believes that there is a
significant opportunity in the market for soldering equipment through the
consolidation of efforts of the Company and Dover Technologies' existing
subsidiary, Soltec International, B. V., located in Holland. The Company has a
long history and reputation in the world as one of the leaders in reflow
soldering equipment. Soltec International, B.V. is the world's second largest
supplier of wave soldering equipment. Dover Technologies believes common
ownership will accelerate the growth of both company's product lines and produce
economies in manufacturing and distribution, resulting in increased operating
income for both companies.
On April 5, 1995, John E. Pomeroy, President and Chief Executive Officer of
Dover Technologies, met with Ronald Lawler, then President of the Company, and
Chairman of the Board James Manfield at the Company's headquarters in Newmarket,
New Hampshire for the purpose of discussing a possible business combination of
the Company and Soltec International, B.V. During the following five months
there were several discussions with the representatives of Scott-Macon, Ltd.,
investment bankers for the Company.
On September 7, 1995, Ronald Lawler and Jim Manfield met with John Pomeroy
and Michiel van Schaik, Managing Director of Soltec International, B.V., in
Holland to discuss some type of business combination of the Company and Soltec
International, B.V. In the following months there were discussions with the
representatives of Scott-Macon, Ltd. regarding some type of business combination
of the Company and Soltec International, B.V. and a visit by Michiel van Schaik
to the Company at its headquarters in Newmarket, New Hampshire to continue the
review of a potential business combination. During the ensuing months Michiel
van Schaik met with Company Board member David Steadman at the airport in
Amsterdam to discuss the potential transaction.
Michiel van Schaik was present at a Company Board of Directors meeting on
February 9, 1996 and discussed ways of consolidating the Company and Soltec
International, B.V.
After that Board meeting, Michiel van Schaik prepared a plan of
consolidation and presented it at the March 13, 1996 meeting of the Board of
Directors of the Company in Boston, Massachusetts. At that time, Al Scott of
Scott-Macon, Ltd. was to respond to Dover Technologies with a proposed structure
of a transaction.
The Company responded with a proposal regarding an exchange of shares which
Dover Technologies found unacceptable. At a meeting on May 14, 1996 between John
Pomeroy, Robert A. Livingston, Vice President of Dover Technologies, Robert A.
Tyre, Vice President Corporate Development of Dover Corporation and James
Manfield of the Company at Scott-Macon, Ltd. in New York City, Dover
Technologies came to the conclusion that the parties could not agree on
valuation and the discussion of a potential business combination was terminated.
On or about July 1, 1997 Al Scott from Scott-Macon, Ltd. contacted John
Pomeroy regarding the potential sale of the Company. From July 1, 1997 to July
28, 1997 John Pomeroy, Robert A. Livingston and Al Scott participated in several
phone discussions regarding the potential sale of the Company. On July 28, 1997
John Pomeroy met with James Manfield and Thomas Nash, Vice President Sales and
Marketing of the Company at Company headquarters in Newmarket, New Hampshire
regarding an update on current business conditions and an overall review of the
business as a potential acquisition candidate. After July 28, 1997 there were
again several telephone conversations with John Pomeroy, Robert Livingston,
Edgar Masinter from
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<PAGE> 16
Beacon Group Capital Services, LLC (investment bankers representing Dover
Technologies) and representatives from Scott-Macon, Ltd. regarding a possible
acquisition of the Company.
On Sunday, August 3, 1997, Michiel van Schaik met with James Manfield at
the Heathrow Airport to discuss more details of the potential acquisition of
Company. On Monday, August 4, 1997 Dover Technologies faxed an expression of
interest to the Company expressing interest in pursuing the purchase of the
outstanding shares of the Company, subject to a satisfactory due diligence
review.
On August 7, 1997, the Board of Directors of Dover Corporation held a
meeting to consider the proposed terms of the transaction. At such meeting,
after a full discussion, the Board of Directors of Dover Corporation authorized
Dover Technologies to pursue a possible transaction.
Between Tuesday, August 12, 1997 and Monday, August 18, 1997, Edgar
Masinter, John Pomeroy, Robert Livingston and Zenas Colt of Scott-Macon, Ltd.,
participated in discussions regarding the value of the Company.
On Monday, August 18, 1997 Michiel van Schaik and his operations team
arrived at the Company headquarters in Newmarket, New Hampshire to begin a
review of the business and continued such review through Thursday, August 21,
1997. On August 18, 1997 and August 20, 1997, environmental review and testing
was performed on site by Eder Associates, on behalf of Dover Technologies. On
August 19, 1997 and August 20, 1997, Robert A. Livingston and his due diligence
team arrived on site in Newmarket, New Hampshire at the Company to conduct the
legal and financial due diligence in connection with the acquisition. As a
result of the due diligence review, Dover Technologies proposed to acquire the
Company's outstanding Shares at $1.90 per Share, subject to the negotiation,
execution and delivery of a definitive Agreement and Plan of Merger.
At a meeting of the Board of Directors of the Company held on September 3,
1997, the Board of Directors of the Company unanimously approved the Merger
Agreement, the Offer and the Merger and determined that the terms of the Offer
and the Merger are fair to, and in the best interests of, the Company's
shareholders, and unanimously recommended that shareholders of the Company
accept the Offer and tender their Shares. On September 3, 1997, Scott-Macon
Securities, Inc., an affiliate of Scott-Macon, Ltd., delivered to the Company's
Board of Directors its written opinion to the effect that the consideration to
be received by the public shareholders of the Company in the Offer and the
Merger is fair to such shareholders from a financial point of view as of the
date of such meeting. The opinion of Scott-Macon Securities, Inc. is set forth
in full as an exhibit to the Company's Schedule 14D-9 which is being mailed to
shareholders of the Company. Shareholders of the Company are urged to read that
opinion in its entirety.
Following the approval of the respective Boards of Directors, on September
3, 1997, Dover Technologies, the Purchaser and the Company executed and
delivered the Merger Agreement.
On September 9, 1997, the Purchaser and Dover Technologies commenced the
Offer.
Purpose of the Offer and the Merger. The purpose of the Offer, the Merger
and the Merger Agreement is to enable Dover Technologies to acquire control of,
and the entire equity interest in, the Company. The Offer is being made pursuant
to the Merger Agreement and is intended to increase the likelihood that the
Merger will be effected. The purpose of the Merger is to acquire all outstanding
Shares not purchased pursuant to the Offer. The transaction is structured as a
merger in order to ensure the acquisition by Dover Technologies and its
affiliates, including the Purchaser, of all the outstanding Shares. Upon
consummation of the Merger, the Company will become (or will be merged into) a
wholly owned subsidiary of Dover Technologies.
If the Merger is consummated, Dover Technologies' common equity interest in
the Company would increase to 100% and Dover Technologies would be entitled to
all benefits resulting from that interest. These benefits include complete
management with regard to the future conduct of the Company's business and any
increase in its value. Similarly, Dover Technologies will also bear the risk of
any losses incurred in the operation of the Company and any decrease in the
value of the Company.
Shareholders of the Company who sell their Shares in the Offer will cease
to have any equity interest in the Company and to participate in its earnings
and any future growth. If the Merger is consummated, the
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<PAGE> 17
shareholders will no longer have an equity interest in the Company and instead
will have only the right to receive cash consideration pursuant to the Merger
Agreement or to exercise statutory dissenters' rights under Massachusetts law.
See Section 12. Similarly, the shareholders of the Company will not bear the
risk of any decrease in the value of the Company after selling their Shares in
the Offer or the subsequent Merger.
The primary benefits of the Offer and the Merger to the shareholders of the
Company are that such shareholders are being afforded an opportunity to sell all
of their Shares for cash at a price which represents a premium of approximately
38% over the closing market price of the Shares on the last full trading day
prior to the initial public announcement of the Offer, and a more substantial
premium over recent historical trading prices.
Merger Agreement. The following is a summary of certain provisions of the
Merger Agreement. The summary is qualified in its entirety by reference to the
Merger Agreement which is incorporated herein by reference and a copy of which
has been filed with the Commission as an exhibit to the Schedule 14D-1. The
Merger Agreement may be examined and copies may be obtained at the places and in
the manner set forth in Section 9 of this Offer to Purchase.
THE OFFER. The Merger Agreement provides that the Purchaser will commence
the Offer and that, upon the terms and subject to the prior satisfaction or
waiver of the conditions of the Offer, the Purchaser will purchase all Shares
validly tendered pursuant to the Offer. The Merger Agreement provides that,
without the written consent of the Company, the Purchaser will not decrease the
Offer Price, decrease the number of Shares sought in the Offer, amend or waive
the Minimum Condition, or amend any condition of the Offer in a manner adverse
to the holders of Shares, except that if on the initial scheduled expiration
date of the Offer all conditions to the Offer shall not have been satisfied or
waived, the Purchaser may, from time to time, in its sole discretion, extend the
expiration date for one or more periods not to exceed thirty business days in
the aggregate or as may reasonably be necessary to comply with any legal or
regulatory requirements. The Merger Agreement provides that if, immediately
prior to the expiration date of the Offer, as it may be extended, the Shares
tendered and not withdrawn pursuant to the Offer equal more than 75% of the
outstanding Shares but less than 90%, the Purchaser may extend the Offer for a
period not to exceed 20 business days. Notwithstanding the foregoing, the Merger
Agreement provides that the Offer may not be extended beyond the date of
termination of the Merger Agreement pursuant to the terms thereof.
THE MERGER. Following the consummation of the Offer, the Merger Agreement
provides that, subject to the terms and conditions thereof, at the election of
Dover Technologies and in accordance with Massachusetts law, the Company may be
merged with and into the Purchaser and, as a result of the Merger, the separate
corporate existence of the Company shall cease and the Purchaser shall continue
as the surviving corporation (sometimes referred to as the "Purchaser Surviving
Corporation" or the "Surviving Corporation"). In the event that Dover
Technologies does not so elect, then at the Effective Time the Purchaser will be
merged with and into the Company and, as a result of the Merger, the separate
corporate existence of the Purchaser will cease and the Company will continue as
the surviving corporation (sometimes referred to as the "Company Surviving
Corporation" or the "Surviving Corporation").
The respective obligations of Dover Technologies and the Purchaser, on the
one hand, and the Company, on the other hand, to effect the Merger are subject
to the satisfaction on or prior to the Closing Date (as defined in the Merger
Agreement) of each of the following conditions, any and all of which may be
waived, in whole or in part, jointly by Dover Technologies and the Company to
the extent permitted by applicable law: (i) the Merger Agreement shall have been
approved and adopted by the requisite vote of the holders of Shares, if required
by applicable law, in order to consummate the Merger; (ii) no statute, rule or
regulation shall have been enacted or promulgated by any governmental authority
which prohibits the consummation of the Merger, and there shall be no order or
injunction of a court of competent jurisdiction in effect precluding the
consummation of the Merger; (iii) Dover Technologies, the Purchaser or their
affiliates shall have purchased Shares pursuant to the Offer, unless such
failure to purchase is a result of a breach of Dover Technologies' and the
Purchaser's obligations under the Merger Agreement; and (iv) the applicable
waiting period under the HSR Act shall have expired or been terminated.
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<PAGE> 18
In addition, the obligations of Dover Technologies and the Purchaser to
consummate the Merger are further subject to the fulfillment of the condition
(which may be waived by Dover Technologies and the Purchaser) that the Company
comply with its obligations regarding the Company's or any of its Subsidiaries'
outstanding options, stock option plans and any other plan, program or
arrangement providing for the issuance or grant of any other interest in respect
of the capital stock of the Company or any of its Subsidiaries, as more fully
described below.
At the Effective Time of the Merger (i) each issued and outstanding Share
(other than Shares that are owned by the Company as treasury stock, any Shares
owned by Dover Technologies, the Purchaser or any other wholly owned Subsidiary
of Dover Technologies, or any Shares which are held by shareholders exercising
dissenters' rights under Massachusetts law) will be converted into the right to
receive the price per share paid pursuant to the Offer and (ii) each issued and
outstanding share of the common stock, par value $.01 per share, of the
Purchaser will be converted into one share of common stock of the Company
Surviving Corporation or shall remain outstanding and constitute shares of the
Purchaser Surviving Corporation, as the case may be, and shall constitute the
only outstanding shares of capital stock of the Surviving Corporation.
THE COMPANY'S BOARD OF DIRECTORS. The Merger Agreement provides that
promptly after the purchase by the Purchaser of at least a majority of the
outstanding Shares, Dover Technologies shall be entitled to designate such
number of directors, rounded up to the next whole number, on the Company's Board
of Directors as is equal to the product of the total number of directors on the
Company's Board of Directors (giving effect to the directors designated by Dover
Technologies) multiplied by the percentage that the number of Shares so accepted
for payment bears to the total number of Shares then outstanding. The Company
will, upon request of the Purchaser, promptly use its best reasonable efforts,
including amending its By-laws if necessary, either to increase the size of the
Company's Board of Directors or secure the resignations of such number of its
incumbent directors, or both, as is necessary to enable Dover Technologies'
designees to be elected to the Company's Board of Directors. The Company's
obligation to appoint Dover Technologies' designees to the Company's Board of
Directors is subject to compliance with Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder.
Following the election or appointment of the Purchaser's designees pursuant
to the Merger Agreement and prior to the earlier to occur of (i) the Effective
Time or (ii) November 21, 1997, any amendment or termination of the Merger
Agreement, grant by the Company of any extension for the performance or waiver
of the obligations or other acts of the Purchaser or Dover Technologies, waiver
of the Company's rights hereunder, or action with respect to the Company's
employee benefit plans or option agreements, shall require the concurrence of a
majority of the Company's directors then in office who are directors on the date
hereof, or are directors (other than directors designated by the Purchaser in
accordance with this Section) designated by such directors to fill any vacancy
("Current Directors"). In addition, following the election or appointment of the
Purchaser's designees pursuant to this Section and prior to the earlier to occur
of (i) the Effective Time or (ii) November 21, 1997, none of Dover Technologies,
the Purchaser or such designee shall cause the Company to take any action or
fail to take any action that would cause or result in any obligation of the
Company under the Merger Agreement or any condition therein not being satisfied
without the concurrence of a majority of the Company's directors then in office
who are Current Directors. Prior to the earlier to occur of (i) the Effective
Time or (ii) November 21, 1997, neither the Purchaser nor its designees shall
remove any Current Director, except for cause, and the Purchaser agrees to cause
its designees to vote for the election of any designee of the Current Directors
to fill a vacancy created by any Current Director ceasing to be a director.
SHAREHOLDERS' MEETING. Pursuant to the Merger Agreement, the Company will,
if required by applicable law in order to consummate the Merger, duly call, give
notice of, convene and hold a special meeting of its shareholders as promptly as
practicable following the acceptance for payment and purchase of Shares by the
Purchaser pursuant to the Offer for the purpose of considering and taking action
upon the approval of the Merger and the adoption of the Merger Agreement. The
Merger Agreement provides that the Company will, if required by applicable law
in order to consummate the Merger, prepare and file with the Commission a
preliminary proxy or information statement (the "Proxy Statement") relating to
the Merger and the Merger Agreement and use its best efforts (i) to obtain and
furnish the information required to be included by the
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<PAGE> 19
Commission in the Proxy Statement and, after consultation with Dover
Technologies, to respond promptly to any comments made by the Commission with
respect to the preliminary Proxy Statement and cause a definitive Proxy
Statement to be mailed to its shareholders, provided that no amendment or
supplement to the Proxy Statement will be made by the Company without
consultation with Dover Technologies and its counsel and (ii) to obtain the
necessary approvals of the Merger and the Merger Agreement by its shareholders.
If the Purchaser acquires at least two-thirds of the outstanding Shares, the
Purchaser will have sufficient voting power to approve the Merger, even if no
other shareholder votes in favor of the Merger. The Company has agreed to
include in the Proxy Statement the recommendation of the Company's Board of
Directors that shareholders of the Company vote in favor of the approval of the
Merger and the adoption of the Merger Agreement. Dover Technologies has agreed
that it will vote, or cause to be voted, all of the Shares then owned by it, the
Purchaser or any of its other Subsidiaries and affiliates in favor of the
approval of the Merger and the adoption of the Merger Agreement.
The Merger Agreement provides that Dover Technologies, the Purchaser and
the Company will, at the request of Dover Technologies and subject to the terms
of the Merger Agreement, take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after such acquisition, with
or without a meeting of shareholders of the Company, in accordance with
Massachusetts law.
OPTIONS. Pursuant to the Merger Agreement, at the Effective Time, each
holder of then outstanding options (collectively, the "Options") to purchase
Shares granted by the Company, whether or not then exercisable, will be entitled
to receive, and will receive, in settlement of each Option an amount in cash
equal to the difference between the Offer Price and the per Share exercise price
of such Option. Prior to the Effective Time, the Company shall use all
commercially reasonable efforts to obtain all necessary consents or releases
from holders of outstanding Options, to the extent required by the terms of the
plans or agreements governing such Options, as the case may be, or pursuant to
the terms of any Option granted thereunder. Except as may be otherwise agreed to
by Dover Technologies or the Purchaser and the Company, the Company shall take
all action necessary to ensure that: (i) the Company's 1995 Key Employees Stock
Option Plan, (the "Stock Option Plan") shall have been terminated as of the
Effective Time and the provisions in any other plan, program or arrangement
providing for the issuance or grant of any other interest in respect of the
capital stock of the Company or any of its Subsidiaries shall be cancelled as of
the Effective Time, and (ii) following the Effective Time, (a) no participant in
any Stock Option Plan or other plans, programs or arrangements shall have any
right thereunder to acquire equity securities of the Company, the Surviving
Corporation or any Subsidiary thereof (except options to acquire approximately
96,000 Shares of the Company where the exercise price is higher than $1.90 per
Share) and all such plans shall have been terminated, and (b) the Company will
not be bound by any convertible security, option, warrant, right or agreement
which would entitle any person to own any capital stock of the Company, the
Surviving Corporation or any Subsidiary thereof.
INTERIM OPERATIONS; COVENANTS. Pursuant to the Merger Agreement, the
Company has agreed that, except as expressly contemplated or provided by the
Merger Agreement or agreed to in writing by Dover Technologies, prior to the
time the designees of the Purchaser constitute a majority of the Company's Board
of Directors (the "Appointment Date"): (a) the business of the Company and its
Subsidiaries will be conducted only in the ordinary and usual course (other than
actions necessary to consummate the transactions described in the Merger
Agreement) and to the extent consistent therewith, each of the Company and its
Subsidiaries will use its best efforts to preserve its business organization
intact and maintain its existing relations with customers, suppliers, employees,
creditors and business partners subject, however, to any changes to such
relationships necessitated or caused by the announcement of the proposed
transaction contemplated hereby; and (b) the Company will not, directly or
indirectly, (i) issue, sell, transfer or pledge or agree to sell, transfer or
pledge any treasury stock of the Company or any capital stock of any of its
Subsidiaries beneficially owned by it, except upon the exercise of Options or
other rights to purchase shares of Common Stock outstanding on the date of the
Merger Agreement; (ii) amend its Articles of Incorporation or By-laws or similar
organizational documents; or (iii) split, combine or reclassify the outstanding
Shares or any outstanding capital stock of any of the Subsidiaries of the
Company; and (c) neither the Company nor any of its Subsidiaries shall (i)
declare, set aside or pay any dividend or other distribution payable in cash,
stock or
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property with respect to its capital stock; (ii) issue, sell, pledge, dispose of
or encumber any additional shares of, or securities convertible into or
exchangeable for, or options, warrants, calls, commitments or rights of any kind
to acquire, any shares of capital stock of any class of the Company or its
Subsidiaries, other than Shares reserved for issuance on the date of the Merger
Agreement pursuant to the exercise of Options outstanding on the date of the
Merger Agreement; (iii) transfer, lease, license, sell, or dispose of any
assets, or incur any indebtedness or other liability other than in the ordinary
course of business, or mortgage, pledge or encumber any assets or modify any
indebtedness; (iv) redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock; (d) neither the Company nor any of its
Subsidiaries will (i) grant any increase in the compensation payable or to
become payable by the Company or any of its Subsidiaries to any of its executive
officers or adopt any new or amend or otherwise increase or accelerate the
payment or vesting of the amounts payable or to become payable under any
existing bonus, incentive compensation, deferred compensation, severance, profit
sharing, stock option, stock purchase, insurance, pension, retirement or other
employee benefit plan, agreement or arrangement; (ii) enter into any employment
or severance agreement with or, except in accordance with the existing written
policies of the Company, grant any severance or termination pay to any officer,
director or employee of the Company or any of its Subsidiaries; (iii) permit any
insurance policy naming it as a beneficiary or a loss payable payee to be
cancelled or terminated without notice to Dover Technologies; (iv) enter into
any contract or transaction relating to the purchase of assets other than in the
ordinary course of business; (v) change any of the accounting methods used by it
unless required by generally accepted accounting principles ("GAAP"), make any
material tax election, change any material tax election already made, adopt any
material tax accounting method, change any material tax accounting method unless
required by GAAP, enter into any closing agreement, settle any tax claim or
assessment or consent to any tax claim or assessment or any waiver of the
statute of limitations for any such claim or assessment; or (vi) enter into any
agreement with respect to the foregoing or take any action with the intent of
causing any of the conditions to the Offer set forth in Section 14 not to be
satisfied.
NO SOLICITATION. Pursuant to the Merger Agreement, the Company has agreed
that neither the Company nor any of its Subsidiaries will (and the Company and
its Subsidiaries will cause their respective officers, directors, employees,
representatives and agents, including, but not limited to, investment bankers,
attorneys and accountants, not to), directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with, or provide any
information to, any corporation, partnership, person or other entity or group
(other than Dover Technologies, any of its affiliates or representatives)
concerning any proposal or offer to acquire all or a substantial part of the
business and properties of the Company or any of its Subsidiaries or any capital
stock of the Company or any of its Subsidiaries, whether by merger, tender
offer, exchange offer, sale of assets or similar transactions involving the
Company or any Subsidiary, division or operating or principal business unit of
the Company (an "Acquisition Proposal"), except that the Merger Agreement does
not prohibit the Company and the Company's Board of Directors from (i) taking
and disclosing to the Company's shareholders a position with respect to a tender
or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated
under the Exchange Act, or (ii) making such disclosure to the Company's
shareholders as, in the good faith judgment of the Board, after receiving advice
from outside counsel, is required under applicable law, provided that, except as
permitted under the terms of the Merger Agreement, neither the Company's Board
of Directors nor any committee thereof shall approve or recommend, or propose to
approve or recommend, any Acquisition Proposal, or enter into any agreement with
respect to any Acquisition Proposal or withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Dover Technologies or the Purchaser,
the approval or recommendation of the Company's Board of Directors, or any such
committee thereof, of the Offer, the Merger Agreement or the Merger. The Company
also agreed to immediately cease any existing activities, discussions or
negotiations with any parties conducted prior to the date of the Merger
Agreement with respect to any of the foregoing.
The Merger Agreement provides that, notwithstanding the foregoing, the
Company, prior to the acceptance of Shares pursuant to the Offer constituting
the Minimum Condition, may furnish information concerning its business,
properties or assets to any corporation, partnership, person or other entity or
group pursuant to appropriate confidentiality agreements, and may negotiate and
participate in discussions and negotiations with such entity or group concerning
an Acquisition Proposal if (i) such entity or group has, on an unsolicited
basis, submitted a bona fide written proposal to the Company relating to any
such transaction
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<PAGE> 21
which the Company's Board of Directors determines in good faith, after receiving
advice from Scott-Macon Securities, Inc. or a nationally recognized investment
banking firm, represents a superior transaction to the Offer and the Merger and
which the Company's Board of Directors determines in good faith can be fully
financed and (ii) in the opinion of the Company's Board of Directors, only after
receipt of advice from outside legal counsel, the failure to provide such
information or access or to engage in such discussions or negotiations could
reasonably be expected to cause the Company's Board of Directors to violate its
fiduciary duties to the Company's shareholders under applicable law (an
Acquisition Proposal which satisfies clauses (i) and (ii) above is referred to
in the Merger Agreement as a "Superior Proposal"). The Company will, within one
business day following receipt of a Superior Proposal, notify Dover Technologies
of the receipt of the same. The Company will promptly provide to Dover
Technologies any material non-public information regarding the Company provided
to any other party which was not previously provided to Dover Technologies. At
any time after two business days following notification to Dover Technologies of
its intent to do so (which notification shall include the identity of the bidder
and a complete summary of the material terms and conditions of the proposal) and
if permitted to do so pursuant to the terms of the Merger Agreement, the
Company's Board of Directors may withdraw or modify its approval or
recommendation of the Offer.
In the event of a Superior Proposal which (i) is to be paid entirely in
cash and (ii) is not subject to any financing condition or contingency, the
Company may enter into an agreement with respect to such Superior Proposal no
sooner than four days after giving Dover Technologies written notice of its
intention to enter into such agreement; provided that the Purchaser or Dover
Technologies has not, prior to the expiration of such four-day period, advised
the Company of its intention to raise the Offer Price to match such Superior
Proposal. Upon expiration of such four-day period without such action by the
Purchaser or Dover Technologies, the Company may enter into an agreement with
respect to such Superior Proposal (with the bidder and on terms no less
favorable than those specified in such notification), provided it shall
concurrently with entering into such agreement pay or cause to be paid to Dover
Technologies an amount equal to the greater of $750,000 or an amount equal to
the actual, reasonable and reasonably documented out-of-pocket fees and expenses
incurred by Dover Technologies and the Purchaser in connection with the Offer,
the Merger, the Merger Agreement, and the consummation of the transactions
contemplated under the Merger Agreement, provided that in no event shall the
Company be obligated to pay any such fees and expenses in excess of $1 Million.
INDEMNIFICATION. Pursuant to the Merger Agreement, for six years after the
Effective Time, the Surviving Corporation (or any successor to the Surviving
Corporation) and Dover Technologies shall jointly indemnify, defend and hold
harmless the present and former officers and directors of the Company and its
Subsidiaries, and persons who become any of the foregoing prior to the Effective
Time, with respect to matters occurring at or prior to the Effective Time to the
full extent permissible under applicable Massachusetts law, the terms of the
Company's Articles of Incorporation or the By-laws, as in effect as of the date
of the Merger Agreement.
REPRESENTATIONS AND WARRANTIES. Pursuant to the Merger Agreement, the
Company has made customary representations and warranties to Dover Technologies
and the Purchaser with respect to, among other things, its organization,
capitalization, financial statements, public filings, conduct of business,
employee benefit plans, intellectual property, employment matters, compliance
with laws, tax matters, litigation, environmental matters, vote required to
approve the Merger Agreement, undisclosed liabilities, information in the Proxy
Statement and the absence of any material adverse effect on the Company since
December 31, 1996.
TERMINATION; FEES. The Merger Agreement may be terminated and the
transactions contemplated therein abandoned at any time prior to the Effective
Time, whether before or after approval of the shareholders of the Company, (a)
by mutual written consent of Dover Technologies and the Company, (b) by either
the Company or Dover Technologies (i) if (x) the Offer shall have expired
without any Shares being purchased therein or (y) the Purchaser shall not have
accepted for payment all Shares tendered pursuant to the Offer by November 17,
1997, provided, that such right to terminate will not be available to any party
whose failure to fulfill any obligation under the Merger Agreement was the cause
of, or resulted in, the failure of Dover Technologies or the Purchaser to
purchase the Shares on or before such date; or (ii) if any
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<PAGE> 22
governmental entity shall have issued an order, decree or ruling or taken any
other action (which order, decree, ruling or other action the parties will use
their reasonable efforts to lift), in each case permanently restraining,
enjoining or otherwise prohibiting the acceptance for payment of, or payment
for, Shares pursuant to the Offer or the Merger and such order, decree, ruling
or other action shall have become final and non-appealable, (c) by the Company
(i) if Dover Technologies, the Purchaser or any of their affiliates shall have
failed to commence the Offer on or prior to five business days following the
date of the initial public announcement of the Offer; provided, that the Company
may not terminate the Merger Agreement pursuant to this clause (c)(i) if the
Company is at such time in breach of its obligations under the Merger Agreement
such as to cause a material adverse effect on the Company and its Subsidiaries,
taken as a whole; (ii) if Dover Technologies or the Purchaser shall have
breached in any material respect any of their respective representations,
warranties, covenants or other agreements contained in the Merger Agreement,
which breach cannot be or has not been cured, in all material respects, within
30 days after the giving of written notice to Dover Technologies or the
Purchaser, as applicable; (iii) in connection with entering into a definitive
agreement in accordance with the Merger Agreement, provided it has complied with
all provisions thereof, including the notice provisions therein, and that it
makes simultaneous payment of an amount equal to the greater of $750,000 or an
amount equal to the actual, reasonable and reasonably documented out-of-pocket
fees and expenses incurred by Dover Technologies and the Purchaser in connection
with the Offer, the Merger, the Merger Agreement, the consummation of the
transactions contemplated under the Merger Agreement, provided that in no event
shall the Company be obligated to pay any such fees and expenses in excess of $1
Million, or (d) by Dover Technologies (i) if, due to an occurrence, not
involving a breach by Dover Technologies or the Purchaser of their obligations
under the Merger Agreement, which makes it impossible to satisfy any of the
conditions to the Offer set forth in Section 14, Dover Technologies, the
Purchaser, or any of their affiliates shall have failed to commence the Offer on
or prior to five business days following the date of the initial public
announcement of the Offer; (ii) if prior to the purchase of Shares pursuant to
the Offer, the Company has breached any representation, warranty, covenant or
other agreement contained in the Merger Agreement which (x) would give rise to
the failure of a condition described in clauses (f) and (g) of Section 14 and
(y) cannot be or has not been cured, in all material respects, within 30 days
after the giving of written notice to the Company; or (iii) upon the occurrence
of any event set forth in clause (e) of Section 14.
In accordance with the Merger Agreement, if (x) Dover Technologies
terminates the Merger Agreement pursuant to clause (d)(iii) of the immediately
preceding paragraph, (y) the Company terminates the Merger Agreement pursuant to
clause (c)(iii) of the immediately preceding paragraph, or (z) either the
Company or Dover Technologies terminates the Merger Agreement pursuant to clause
(b)(i) of the immediately preceding paragraph and prior thereto there shall have
been publicly announced another Acquisition Proposal or an event set forth in
clause (h) of Section 14 shall have occurred, the Company has agreed to pay to
Dover Technologies an amount equal to the greater of $750,000 or an amount equal
to Dover Technologies' actual, reasonable and reasonably documented
out-of-pocket fees and expenses incurred by Dover Technologies and the Purchaser
in connection with the Offer, the Merger, the Merger Agreement, the consummation
of the Transactions, provided that in no event shall the Company be obligated to
pay such fees and expenses in excess of $1 Million. The Merger Agreement also
provides that if the Company terminates the Merger Agreement (i) pursuant to
clause (b)(i) of the immediately preceding paragraph or (ii) pursuant to clause
(c)(i) or (c)(ii) of the immediately preceding paragraph, then Dover
Technologies shall pay to the Company an amount equal to the Company's
reasonable legal fees and expenses incurred as of the date of such termination
with respect to the Merger Agreement and the transactions contemplated therein.
12. PLANS FOR THE COMPANY; OTHER MATTERS.
Plans for the Company. Dover Technologies is conducting a detailed review
of the Company and its assets, corporate structure, dividend policy,
capitalization, operations, properties, policies, management and personnel and
will consider, subject to the terms of the Merger Agreement, what, if any,
changes would be desirable in light of the circumstances which exist upon
completion of the Offer. Such changes could include changes in the Company's
business, corporate structure, articles of incorporation, by-laws,
capitalization, Board of Directors, management or dividend policy, although,
except as disclosed in this Offer to Purchase, Dover Technologies has no current
plans with respect to any of such matters. The Merger Agreement provides
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that, promptly after the purchase by the Purchaser of at least a majority of the
outstanding Shares, Dover Technologies has the right to designate such number of
directors, rounded up to the next whole number, on the Company's Board of
Directors as is equal to the product of the total number of directors on the
Company's Board of Directors (giving effect to the directors designated by Dover
Technologies) multiplied by the percentage that the number of Shares so accepted
for payment bears to the total number of Shares then outstanding. See Section
11. The Merger Agreement provides that the directors and officers of the
Purchaser at the Effective Time of the Merger will, from and after the Effective
Time, be the directors and officers, respectively, of the Surviving Corporation.
For purposes of assuring a smooth transition of ownership and blending the
operations of the Company with those of Dover Technologies' subsidiary Soltec
International, B.V. ("Soltec"), Dover Technologies has entered into an
employment agreement with James J. Manfield, Jr. effective upon the Merger
whereby Mr. Manfield will be employed by the Company or its successor for a
period of two (2) years to assist in the transition at an annual salary of
$157,500. While employed, he will be eligible to participate in the benefit
plans offered by the Company and will also be eligible to participate in the
Company's employee bonus plan to be paid in 1998 and will receive a bonus of
$50,000 in January, 1999 conditioned upon his not undertaking any activity which
hinders, impedes or imparts ill will to Dover Technologies' program to combine
Soltec and the Company.
Except as disclosed in this Offer to Purchase, neither Dover Technologies
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.
Other Matters
SHAREHOLDER APPROVAL. Under the Corporations Code, the approval of the
Board of Directors of the Company and the affirmative vote of the holders of
two-thirds of the outstanding Shares are required to adopt and approve the
Merger Agreement and the transactions contemplated thereby. The Company has
represented in the Merger Agreement that the Board of Directors of the Company
has unanimously approved the Merger Agreement, the Offer and the Merger and the
transactions contemplated thereby in satisfaction of the requirement under the
Corporations Code. Therefore, unless the Merger is consummated pursuant to the
short-form merger provisions under the Corporations Code described below (in
which case no further corporate action by the shareholders of the Company will
be required to complete the Merger), the only remaining required corporate
action of the Company will be the approval of the Merger Agreement and the
transactions contemplated thereby by the affirmative vote of the holders of
two-thirds of the Shares. The Merger Agreement provides that Dover Technologies
will vote, or cause to be voted, all of the Shares then owned by Dover
Technologies, the Purchaser or any of Dover Technologies' other subsidiaries,
among others, in favor of the approval of the Merger and the approval and
adoption of the Merger Agreement. In the event that Dover Technologies, the
Purchaser and Dover Technologies' other subsidiaries acquire in the aggregate at
least two-thirds of the Shares, the vote of no other shareholder of the Company
will be required to approve the Merger and the Merger Agreement.
SHORT-FORM MERGER. Section 82 of the Corporations Code provides that, if a
corporation owns at least 90% of the outstanding shares of each class of another
corporation, the corporation holding such stock may merge such other corporation
into itself without any action or vote on the part of the shareholders by vote
of its directors (a "short-form merger"). In the event that Dover Technologies,
the Purchaser and any other subsidiaries of Dover Technologies acquire in the
aggregate at least 90% of the Shares, pursuant to the Offer or otherwise, then,
at the election of Dover Technologies, a short-form merger could be effected
without any approval of the shareholders of the Company by a vote of the Board
of Directors of the Company, subject to compliance with the provisions of
Section 82 of the Corporations Code. Even if Dover Technologies, the Purchaser
and the other subsidiaries of Dover Technologies do not own 90% of the
outstanding Shares following consummation of the Offer, Dover Technologies and
the Purchaser could seek to purchase additional shares in the open market or
otherwise in order to reach the 90% threshold and employ a short-form
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merger. The per share consideration paid for any Shares so acquired may be
greater or less than that paid in the Offer. Dover Technologies does presently
intend to effect a merger, whether or not it acquires 90% or more of the Shares.
MASSACHUSETTS BUSINESS COMBINATION STATUTE. In general, Chapter 110F (the
"Massachusetts Business Combination Statute") of the Massachusetts General Laws,
Title XV Regulation of Trade ("Regulation of Trade Laws") prohibits any person
who is an "interested shareholder," including an owner of 5% or more of the
outstanding voting stock of a corporation, from engaging in certain "business
combinations" (including the Merger) with certain corporations for a period of
three years following the time at which such person became an interested
stockholder, unless (a) prior to such date the board of directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder, (b) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 90% of the
voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding, those shares owned by (1) persons who are directors and also
officers and (2) employee stock plan in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or (c) on or subsequent to such
date the business combination is approved by the board of directors and
authorized at an annual or special meeting of the stockholders, and not by
written consent, by the affirmative vote of at least two-thirds of the
outstanding voting stock which is not owned by the interested stockholder. The
requirements of the Massachusetts Business Combination Statute do not apply
under a number of circumstances including if (i) the corporation fails to
satisfy the "Massachusetts nexus" of having a principal executive office or
substantial assets in Massachusetts and either 10% or more of its shareholders
residing in Massachusetts or 10% or more of its shares owned by Massachusetts
residents, (ii) the corporation's original articles of organization contain a
provision expressly electing not to be governed by this statute or (iii) if the
corporation adopts a by-law within 90 days after the effective date of this
statute expressly electing not to be governed thereby. According to publicly
available information, the Company's original Articles of Organization and
By-Laws do not contain such provisions but the Company has indicated that it
does not meet the requirements of the "Massachusetts nexus" test. Accordingly,
the requirements of the Massachusetts Business Combination Statute do not apply
to the Company.
The Company has represented in the Merger Agreement that its Board of
Directors has unanimously approved this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, and such approval
constitutes approval of the Offer, the Merger Agreement and the transactions
contemplated thereby, including the Merger, for purposes of Chapter 110F of the
Regulation of Trade Laws, such that the provisions of Section 1 of Chapter 110F
of the Regulation of Trade Laws in addition to being inapplicable because of the
"Massachusetts nexus" test described above will also not apply to the Offer and
such transactions because of such board approval.
MASSACHUSETTS CONTROL SHARE ACQUISITION STATUTE. Massachusetts has also
enacted a control share acquisition statute (Chapter 110D of the Regulation of
Trade Laws) that provides, in general, that shares of a widely held
Massachusetts corporation acquired in a control share acquisition (as defined in
the statute) will not have voting rights unless, among other things, voting
rights for such shares are approved by a vote of the shareholders of the
corporation, not including those holding such shares. Excluded from the
definition of "control share acquisition," is, among other things, an
acquisition by merger or tender offer pursuant to a merger agreement to which
the Massachusetts corporation is a party. Since the Company is a party to the
Merger Agreement and since the Company does not meet the "Massachusetts nexus"
test, described above, the Massachusetts control share acquisition statute is
inapplicable to the acquisition of Shares in the Offer or the Merger.
DISSENTERS' RIGHTS. Shareholders do not have dissenters' rights as a result
of the Offer. However, if the Merger is consummated, shareholders of the Company
who did not vote in favor of the Merger may have certain rights under
Massachusetts law to dissent and demand appraisal of, and payment in cash of the
fair value of, their Shares (the "Dissenting Shares"). Such rights, if the
statutory procedures were complied with, could lead to a judicial determination
of the fair value (excluding any element of value arising from the
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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, the Merger will have to comply with other applicable
procedural and substantive requirements of Massachusetts law, including any
duties to minority stockholders imposed upon a controlling or, if applicable,
majority stockholder.
THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING SHAREHOLDERS DOES NOT
PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE FOLLOWED BY
SHAREHOLDERS DESIRING TO EXERCISE ANY AVAILABLE DISSENTERS' RIGHTS. THE
PRESERVATION AND EXERCISE OF DISSENTERS' RIGHTS REQUIRE STRICT ADHERENCE TO THE
APPLICABLE PROVISIONS OF THE CORPORATIONS CODE.
The foregoing description of the Corporations Code and the Regulation of
Trade Laws, including the descriptions of the merger provisions, the
Massachusetts Business Combination Statute, the control share acquisition
statute and dissenters' rights, is not necessarily complete and is qualified in
its entirety by reference to the Corporations Code and the Regulation of Trade
Laws.
RULE 13E-3. The Merger would have to comply with any applicable Federal law
operative at the time. Rule 13e-3 under the Exchange Act is applicable to
certain "going private" transactions; however, the Purchaser believes that Rule
13e-3 will not be applicable to the Merger. If Rule 13e-3 were applicable to the
Merger, it would require, 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 shareholders in
such a transaction, be filed with the Commission and disclosed to minority
shareholders prior to consummation of the transaction.
13. DIVIDENDS AND DISTRIBUTIONS.
As described above, the Merger Agreement provides that, prior to the time
the designees of Dover Technologies have been elected to, and constitute a
majority of, the Board of Directors of the Company, without the prior written
consent of Dover Technologies, (i) the Company will not, directly or indirectly,
(A) except upon exercise of warrants or options or other rights to purchase
shares of Common Stock outstanding on the date of the Merger Agreement, issue,
sell, transfer or pledge or agree to sell, transfer or pledge any treasury stock
of the Company or any capital stock of any of its subsidiaries beneficially
owned by it; (B) amend its Articles of Organization, as amended, or by-laws or
similar organizational documents; or (C) split, combine or reclassify the
outstanding Shares or any outstanding capital stock of any of the subsidiaries
of the Company; and (ii) neither the Company nor any of its subsidiaries will
(A) declare, set aside or pay any dividend or other distribution payable in
cash, stock or property with respect to its capital stock; (B) issue, sell,
pledge, dispose of or encumber any additional shares of, or securities
convertible into or exchangeable for, or options, warrants, calls, commitments
or rights of any kind to acquire, any shares of capital stock of any class of
the Company or its subsidiaries, other than Shares reserved for issuance on the
date of the Merger Agreement pursuant to the exercise of warrants or options
outstanding on such date; (C) transfer, lease, license, sell or dispose of any
assets, or incur any indebtedness or other liability other than in the ordinary
course of business, or mortgage, pledge or encumber any assets or modify any
indebtedness; or (D) redeem, purchase or otherwise acquire, directly or
indirectly, any of its capital stock.
14. CONDITIONS OF 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), the Purchaser shall not be required to accept for payment or,
subject to any applicable rules and regulations of the Commission, including
Rule 14e-l(c) under the Exchange Act (relating to the Purchaser's obligation to
pay for or return tendered Shares promptly after termination or
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withdrawal of the Offer), pay for, and may delay the acceptance for payment of
or, subject to the restriction referred to above, the payment for, any tendered
Shares, and may terminate or amend the Offer as to any Shares not then paid for,
if (i) any applicable waiting period under the HSR Act has not expired or
terminated, (ii) the Minimum Condition has not been satisfied, or (iii) at any
time on or after the date of the Merger Agreement and before the time of
acceptance for payment for any such Shares, any of the following events shall
occur or shall be determined by the Purchaser, in its judgment reasonably
exercised, to have occurred:
(a) there shall be threatened or pending any suit, action or proceeding by
any court, arbitral tribunal, administrative agency or commission or other
governmental or other regulatory authority or agency (a "Governmental Entity")
against the Purchaser, Dover Technologies, the Company or any subsidiary of the
Company (i) seeking to prohibit or impose any material limitations on Dover
Technologies' or the Purchaser's ownership or operation (or that of any of their
respective subsidiaries or affiliates) of all or a material portion of their or
the Company's businesses or assets, or to compel Dover Technologies or the
Purchaser or their respective subsidiaries and affiliates to dispose of or hold
separate any material portion of the business or assets of the Company or Dover
Technologies and their respective subsidiaries, in each case taken as a whole,
(ii) challenging the acquisition by Dover Technologies or the Purchaser of any
Shares under the Offer, seeking to restrain or prohibit the making or
consummation of the Offer or the Merger or the performance of any of the other
transactions contemplated by the Merger Agreement, or seeking to obtain from the
Company, Dover Technologies or the Purchaser any damages that are material in
relation to the Company and its subsidiaries taken as a whole, (iii) seeking to
impose material limitations on the ability of the Purchaser, or render the
Purchaser unable, to accept for payment, pay for or purchase some or all of the
Shares pursuant to the Offer and the Merger, (iv) seeking to impose material
limitations on the ability of Purchaser or Dover Technologies effectively to
exercise full rights of ownership of the Shares, including, without limitation,
the right to vote the Shares purchased by it on all matters properly presented
to the Company's shareholders, or (v) which otherwise is reasonably likely to be
materially adverse to the Company and its subsidiaries, taken as a whole;
(b) there shall be any statute, rule, regulation, judgment, order or
injunction enacted, entered, enforced, promulgated, or deemed applicable,
pursuant to an authoritative interpretation by or on behalf of a Government
Entity, to the Offer or the Merger, or any other action shall be taken by any
Governmental Entity, other than the application to the Offer or the Merger of
applicable waiting periods under HSR Act, that is reasonably likely to result,
directly or indirectly, in any of the consequences referred to in clauses (i)
through (v) of paragraph (a) above;
(c) there shall have occurred (i) any general suspension of trading in, or
limitation on prices for, securities on the New York Stock Exchange or the
American Stock Exchange for a period in excess of 24 hours (excluding
suspensions or limitations resulting solely from physical damage or interference
with such exchanges not related to market conditions), (ii) any decline in
either the Dow Jones Industrial Average or the Standard & Poor's Index of 400
Industrial Companies or in the New York Stock Exchange Composite Index in excess
of 15% measured from the close of business on the trading day next preceding the
date of the Merger Agreement, (iii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States (whether or not
mandatory), (iv) a commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the United
States, (v) any limitation (whether or not mandatory) by any United States
governmental authority on the extension of credit generally by banks or other
financial institutions, (vi) a change in general financial, bank or capital
market conditions which materially and adversely affects the ability of
financial institutions in the United States to extend credit or syndicate loans
or (vii) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(d) there shall have occurred any events after the date of the Merger
Agreement which, either individually or in the aggregate, would be materially
adverse to the Company and its subsidiaries, taken as a whole;
26
<PAGE> 27
(e) the Board of Directors of the Company or any committee thereof shall
have withdrawn or modified in a manner adverse to Dover Technologies or the
Purchaser its approval or recommendation of the Offer, the Merger or the Merger
Agreement, or approved or recommended any Acquisition Proposal (as defined in
the Merger Agreement);
(f) the representations and warranties of the Company set forth in the
Merger Agreement shall not be true and correct, in each case (i) as of the date
referred to in any representation or warranty which addresses matters as of a
particular date, or (ii) as to all other representations and warranties, as of
the date of the Merger Agreement and as of the scheduled expiration of the
Offer, unless the inaccuracies (without giving effect to any materiality or
material adverse effect qualifications or materiality exceptions contained
therein) under such representations and warranties, taking all the inaccuracies
under all the representations and warranties together in their entirety, would
not, individually or in the aggregate, be materially adverse to the Company and
its Subsidiaries, taken as a whole;
(g) the Company shall have failed to perform any obligation or to comply
with any agreement or covenant to be performed or complied with by it under the
Merger Agreement other than any failure which would not, either individually or
in the aggregate, be materially adverse to the Company and its Subsidiaries,
taken as a whole;
(h) any person acquires beneficial ownership (as defined in Rule 13d-3
promulgated under the Exchange Act), of at least 25% of the outstanding Common
Stock of the Company; or
(i) the Merger Agreement shall have been terminated in accordance with its
terms.
The foregoing conditions are for the sole benefit of Dover Technologies and
the Purchaser, may be asserted by Dover Technologies or the Purchaser regardless
of the circumstances giving rise to such condition (including any action or
inaction by Dover Technologies or the Purchaser not in violation of the Merger
Agreement) and may be waived by Dover Technologies or the Purchaser in whole or
in part at any time and from time to time in the sole discretion of Dover
Technologies or the Purchaser, subject in each case to the terms of the Merger
Agreement. The failure by Dover Technologies or the Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
15. CERTAIN LEGAL MATTERS.
Except as described in this Section 15, based on information provided by
the Company, none of the Company, Purchaser or Dover Technologies is aware of
any license or regulatory permit that appears to be material to the business of
the Company and its subsidiaries, taken as a whole, that might be adversely
affected by the Purchaser's acquisition of Shares (and the indirect acquisition
of the stock of the Company's subsidiaries) as contemplated herein or of any
approval or other action by a domestic or foreign governmental, administrative
or regulatory agency or authority that would be required for the acquisition and
ownership of the Shares (and the indirect acquisition of the stock of the
Company's subsidiaries) by the Purchaser as contemplated herein. Should any such
approval or other action be required, the Purchaser and Dover Technologies
presently contemplate that such approval or other action will be sought, except
as described below under "State Takeover Laws." While, except as otherwise
described in this Offer to Purchase, the Purchaser does not presently intend to
delay the acceptance for payment of or payment for Shares tendered pursuant to
the Offer pending the outcome of any such matter, there can be no assurance that
any such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that failure to obtain any such
approval or other action might not result in consequences adverse to the
Company's business or that certain parts of the Company's business might not
have to be disposed of or other substantial conditions complied with in the
event that such approvals were not obtained or such other actions were not taken
or in order to obtain any such approval or other action. If certain types of
adverse action are taken with respect to the matters discussed below, the
Purchaser could decline to accept for payment or pay for any Shares tendered.
See Section 14 for certain conditions to the Offer, including conditions with
respect to governmental actions.
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<PAGE> 28
State Takeover Laws. The Company is incorporated under the laws of the
Commonwealth of Massachusetts. In general, Section 3 of Chapter 110C of the
Regulation of Trade Laws prohibits any offeror from making a takeover bid if he
and his associates and affiliates are directly or indirectly the beneficial
owners of 5% or more of the issued and outstanding equity securities of any
class of the target company, any of which were purchased within one (1) year
before the proposed takeover bid, and the offeror, before making any such
purchase, failed to publicly announce his intention to gain control of the
target company, or otherwise failed to make fair, full, and effective disclosure
of such intention to the persons from whom he acquired such securities. Section
1 of Chapter 110C of the Regulation of Trade Laws defines a takeover bid and
indicates it does not include any takeover bid to which the target company
consents, by action of its Board of Directors, if such Board of Directors has
recommended acceptance thereof to shareholders and the terms thereof, including
any inducements to officers or directors which are not made available to all
shareholders have been furnished to the shareholders. The Company has
represented that its Board of Directors has unanimously approved the Merger
Agreement and the transactions contemplated hereby, including the Offer and the
Merger, and such approval constitutes approval of the Offer, the Merger
Agreement and the transactions contemplated thereby, including the Merger, for
purposes of Section 1 and Section 3 of Chapter 110C of the Regulation of Trade
Laws, such that the provisions of Section 1 and the restrictions contained in
Section 3 of the Regulation of Trade Laws will not apply to the Offer and such
transactions. A number of other states have adopted laws and regulations
applicable to attempts to acquire securities of corporations which are
incorporated, or have substantial assets, shareholders, principal executive
offices or principal places of business, or whose business operations otherwise
have substantial economic effects in such states. In Edgar v. MITE Corp., the
Supreme Court of the United States invalidated on constitutional grounds the
Illinois Business Takeover statute, 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 the prior approval of the remaining
shareholders. The state law before the Supreme Court was by its terms applicable
only to corporations that had a substantial number of shareholders in the state
and were incorporated there.
The Company is headquartered in New Hampshire. Pursuant to Section 421-A of
the New Hampshire Annotated Statutes, Title XXXVIII Securities ("New Hampshire
Securities Law") no offeror shall make a takeover bid unless as soon as
practical on the date of commencement of the takeover bid he files with the
Secretary of State and the target company a registration statement containing
the information required by Section 421-A:4 of the New Hampshire Securities Law
and publicly discloses the material terms of the offer. Under Section 421-A:2 of
the New Hampshire Securities Law a takeover bid is defined to mean the
acquisition of, offer to acquire, or request or invitation for tenders of an
equity security of a corporation organized under the laws of New Hampshire or
having its principal place of business within New Hampshire or having its
principal executive office within New Hampshire or which is the parent of a
subsidiary incorporated under New Hampshire Law if after acquisition thereof the
offeror would directly or indirectly be a record or beneficial owner of more
than 5% of any class of the issued and outstanding equity securities of such
corporation. It is the Purchaser's current understanding that (i) less than 10%
of its shareholders reside in New Hampshire, (ii) less than 10% of its shares
are owned by New Hampshire residents and (iii) there are less than ten thousand
shareholders who are residents in New Hampshire. Consequently, this New
Hampshire statute may not be applicable to this transaction. If it is applicable
the Purchaser will comply with such statute.
The Company and certain of its subsidiaries conduct business in a number of
other states throughout the United States, some of which have enacted takeover
laws and regulations. Neither Dover Technologies nor the Purchaser knows whether
any or all of these other takeover laws and regulations will by their terms
apply to the Offer, and, except as set forth above with respect to Sections 1
and 3 of Chapter 110C of the Regulation of Trade Laws and the New Hampshire
Securities Law, neither Dover Technologies nor the Purchaser has currently
complied with any other state takeover statute or regulation. The Purchaser
reserves the right to challenge the applicability or validity of any state law
purportedly applicable to the Offer and nothing in this Offer to Purchase or any
action taken in connection with the Offer is intended as a waiver of such right.
If it is
28
<PAGE> 29
asserted that any state takeover statute is applicable to the Offer and an
appropriate court does not determine that it is inapplicable or invalid as
applied to the Offer, the Purchaser might be required to file certain
information with, or to receive approvals from, the relevant state authorities,
and the Purchaser might be unable to accept for payment or pay for Shares
tendered pursuant to the Offer, or may be delayed in consummating the Offer. In
such case, the Purchaser may not be obligated to accept for payment or pay for
any Shares tendered pursuant to the Offer. See Section 14.
Antitrust. The Offer and the Merger 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 (the "FTC") and certain waiting period requirements have been
satisfied.
Dover Technologies and the Company expect to file soon their Notification
and Report Forms with respect to the Offer under the HSR Act. The waiting period
under the HSR Act with respect to the Offer will expire at 11:59 p.m., New York
City time, on the fifteenth day after the date Dover Technologies' form is filed
unless early termination of the waiting period is granted. However, the
Antitrust Division or the FTC may extend the waiting period by requesting
additional information or documentary material from Dover Technologies or the
Company. If such a request is made, such waiting period will expire at 11:59
p.m., New York City time, on the tenth day after substantial compliance by Dover
Technologies 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 Dover Technologies. In practice, complying with a request for
additional information or material can take a significant amount of time. In
addition, if the Antitrust Division or the FTC raises substantive issues in
connection with a proposed transaction, the parties frequently engage in
negotiations with the relevant governmental agency concerning possible means of
addressing those issues and may agree to delay consummation of the transaction
while such negotiations continue. 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.
As discussed below, the HSR Act requirements with respect to the Merger
will not apply if certain conditions are met. In particular, the Merger may not
be consummated until thirty days after receipt by the Antitrust Division and the
FTC of the Notification and Report Forms of both Dover Technologies and the
Company unless the Purchaser acquires 50% or more of the outstanding Shares
pursuant to the Offer (which would be the case if the Minimum Condition were
satisfied) or the thirty-day period is earlier terminated by the Antitrust
Division and the FTC. Within such thirty-day period, the Antitrust Division or
the FTC may request additional information or documentary materials from Dover
Technologies and/or the Company. The Merger may not be consummated until twenty
days after such requests are substantially complied with by both Dover
Technologies and the Company. Thereafter, the waiting periods may be extended
only by court order or with the consent of Dover Technologies 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 and the Merger. 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 or otherwise or seeking divestiture of Shares acquired by the
Purchaser or divestiture of substantial assets of Dover Technologies or its
subsidiaries. Private parties, as well as state governments, 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 Dover Technologies and the Company are engaged, Dover Technologies 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 litigation and certain governmental actions.
Other. Based upon Purchaser's examination of publicly available information
concerning the Company, it appears that the Company and its subsidiaries own
assets and conduct business in a number of foreign
29
<PAGE> 30
countries. In connection with the acquisition of Shares pursuant to the Offer,
the laws of certain of these foreign countries may require the filing of
information with, or the obtaining of the approval of, governmental authorities
therein. After commencement of the Offer, Purchaser will seek further
information regarding the applicability of any such laws and currently intends
to take such action as they may require, but no assurance can be given that such
approvals will be obtained. If any action is taken prior to completion of the
Offer by any such government or governmental authority, Purchaser may not be
obligated to accept for payment or pay for any tendered Shares.
16. FEES AND EXPENSES.
Dover Technologies has engaged Beacon Group Capital Services, LLC to act as
financial advisor to Dover Technologies in connection with the proposed
acquisition of the Company. Dover Technologies has agreed to pay Beacon Group
Capital Services, LLC an advisory fee of $350,000.00 in connection with the
transactions contemplated by the Merger Agreement. Dover Technologies has also
agreed to reimburse Beacon Group Capital Services, LLC for all reasonable
out-of-pocket expenses incurred in connection with its role as financial
advisor, for the Offer and the Merger, including reasonable attorneys' fees and
disbursements, and to indemnify Beacon Group Capital Services, LLC against
certain liabilities in connection with the Offer, including certain liabilities
under federal securities laws.
The Purchaser has retained Morrow & Co., Inc. to act as the Information
Agent and The Bank of New York to act as the Depositary in connection with the
Offer. Such firms each will receive reasonable and customary compensation for
their services. The Purchaser has also agreed to reimburse each such firm for
certain reasonable out-of-pocket expenses and to indemnify each such firm
against certain liabilities in connection with their services, including certain
liabilities under federal securities laws.
The Purchaser will not pay any fees or commissions to any broker or dealer
or other person (other than the Information Agent) for making solicitations or
recommendations in connection with the Offer. Brokers, dealers, banks and trust
companies will be reimbursed by the Purchaser for customary mailing and handling
expenses incurred by them in forwarding material to their customers.
17. MISCELLANEOUS.
The Offer is being made to all holders of Shares other than the Company.
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
the laws of such jurisdiction. If the Purchaser becomes aware of any
jurisdiction in which the making of the Offer would not be in compliance with
applicable law, the Purchaser will make a good faith effort to comply with any
such law. If, after such good faith effort, 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 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 the Purchaser by one or more registered brokers or dealers licensed
under the laws of such jurisdiction.
No person has been authorized to give any information or to make any
representation on behalf of Dover Technologies, Dover Corporation or the
Purchaser not contained herein or in the Letter of Transmittal and, if given or
made, such information or representation must not be relied upon as having been
authorized.
The Purchaser, Dover Technologies and Dover Corporation 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. The
Schedule 14D-1 and any amendments thereto, including exhibits, may be examined
and copies may be obtained from the offices of the Commission and the American
Stock Exchange, Inc. in the manner set forth in Section 9 of this Offer to
Purchase (except that they will not be available at the regional offices of the
Commission).
DTI INTERMEDIATE, INC.
SEPTEMBER 9, 1997
30
<PAGE> 31
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF DOVER CORPORATION, DOVER TECHNOLOGIES AND THE PURCHASER
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 Dover Corporation, Dover Technologies and DTI Intermediate, Inc. Each such
person is a citizen of the United States of America (except that Messrs. Benson
and Fleming are citizens of the United Kingdom and Mr. Ormsby is a citizen of
Canada) and, unless otherwise indicated, the business address of each such
person is c/o Dover Technologies International, Inc., One Marine Midland Plaza,
Sixth Floor, East Tower, Binghamton, New York 13901. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to employment
with the respective company. Unless otherwise indicated, each such person has
held his or her present occupation as set forth below, or has been an executive
officer at the respective company, or the organization indicated, for the past
five years. Directors are identified by an asterisk.
DOVER CORPORATION
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------ -------------------------------------------------------------
<S> <C>
David H. Benson*.............. Non-Executive Director and formerly Vice Chairman of
Kleinwort-Benson Group Plc; Chairman, Kleinwort Charter
Investment Trust Plc. (financial management); Director of The
Rouse Company (real estate development); Director of Harrow
Corporation (industrial manufacturing); Non-Executive
Director of British Gas Plc. and Marshall Cavendish Ltd.;
Trustee of The Charities Official Investment Fund and The
Pilot Funds (financial management).
Lewis E. Burns................ Vice President of Dover Corporation; Director and President
of Dover Industries, Inc.; Director of Dover Technologies.
Magalen O. Bryant*............ Director of Carlisle Companies Incorporated and O'Sullivan
Corp. (industrial manufacturing).
Jean-Pierre M. Ergas*......... Executive Vice President, Europe, Alcan Aluminum, Ltd.
(aluminum manufacturer); previously Chairman and Chief
Executive Officer of American National Can Company (beverage
can manufacturer); Director of ABC Rail Products Corporation
(rail equipment manufacturer) and Brockway Standard Holdings
Corporation (container manufacturer).
Roderick J. Fleming*.......... Director, Robert Fleming Holdings Ltd. (financial
management); previously International Portfolio Director
(through November 1991), Director Capital Markets (through
July 1993), and Director of Corporate Finance UK (through
April 1994) at Robert Fleming; Director of Aurora Exploration
and Development Corporation Ltd. (natural resources); Updown
Investment Company Ltd. (financial management); and West Rand
Consolidated Mines Limited (natural resources).
John F. Fort*................. Director of Tyco International Ltd. (fire protection systems
and industrial products) and formerly Chairman (through
January 1993) and Chief Executive Officer (through July
1992); Director Roper Industries (industrial products).
Rudolf J. Herrmann............ Vice President of Dover Corporation; Director and President
of Dover Resources, Inc.; Director of Dover Technologies.
</TABLE>
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<PAGE> 32
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------ -------------------------------------------------------------
<S> <C>
James L. Koley*............... Chairman, Koley, Jessen, Daubman & Rupiper, P.C (law firm);
Chairman of the Board of Directors of Arts-Way Manufacturing
Co., Inc. (agricultural manufacturing).
John F. McNiff*............... Vice President-Finance of Dover Corporation, Director, The
Allen Group (telecommunications products); and The Haven Fund
(financial management); Director of Dover Technologies.
Anthony J. Ormsby*............ Private investor; Director of Dover Technologies.
John E. Pomeroy............... Vice President of Dover Corporation; Director and President
of Dover Technologies.
Thomas L. Reece*.............. President (since May 1993) and Chief Executive Officer (since
May 1994) of Dover Corporation; prior thereto Vice President
of Dover Corporation and President of Dover Resources, Inc.;
Director of Dover Technologies.
Gary L. Roubos*............... Chairman of the Board of Dover Corporation; previsouly Chief
Executive Officer (through May 1994) and President (through
May 1993) of Dover Corporation for more than five years;
Director of Bell & Howell Company (information managment);
Omnicom Group, Inc. (advertising); and The Treasurers Fund
(financial management); Director of Dover Technologies.
Jerry W. Yochum............... Vice President of Dover Corporation; Director and President
of Dover Diversified, Inc.
DOVER TECHNOLOGIES INTERNATIONAL, INC.
Lewis E. Burns*............... See Dover Corporation above.
Rudolf J. Herrmann*........... See Dover Corporation above.
Robert G. Kuhbach*............ Vice President and General Counsel to Dover Corporation.
Robert A. Livingston.......... Vice President, Chief Financial Officer, Secretary and
Treasurer of Dover Technologies; Assistant Secretary of Dover
Corporation.
John F. McNiff*............... See Dover Corporation above.
Anthony J. Ormsby*............ See Dover Corporation above.
John E. Pomeroy*.............. See Dover Corporation above.
Thomas L. Reece*.............. See Dover Corporation above.
Gary L. Roubos*............... See Dover Corporation above.
DTI INTERMEDIATE, INC.
Robert A. Livingston*......... See Dover Technologies above.
John E. Pomeroy*.............. See Dover Corporation above.
</TABLE>
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<PAGE> 33
Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, certificates for Shares and
any other required documents should be sent or delivered by each shareholder of
the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depositary, at one of the addresses set forth below:
The Depositary for the Offer is:
THE BANK OF NEW YORK
<TABLE>
<S> <C>
By Mail: By Hand/Overnight Delivery:
Tender & Exchange Department Tender & Exchange Department
P.O. Box 11248 101 Barclay Street
Church Street Station Receive and Deliver Window
New York, New York 10286-1248 New York, New York 10286
</TABLE>
By Facsimile Transmission:
(For Eligible Institutions Only)
(212) 815-6213
Confirm Receipt of Facsimile by Telephone:
(800) 507-9357
Questions and requests for assistance or additional copies of this Offer to
Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and the
Guidelines for Certification of Taxpayer Identification on Substitute Form W-9
may be directed to the Information Agent at its respective location and
telephone number set forth below. Shareholders may also contact their broker,
dealer, commercial bank or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
Morrow & Co., Inc.
909 Third Avenue, 20th Floor
New York, New York 10022
(212) 754-8000
Toll Free: (800) 566-9061
Banks and Brokerage Firms please call:
(800) 662-5200
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
PURSUANT TO OFFER TO PURCHASE
DATED SEPTEMBER 9, 1997
BY
DTI INTERMEDIATE, INC.
A WHOLLY OWNED SUBSIDIARY OF
DOVER TECHNOLOGIES INTERNATIONAL, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DOVER CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, OCTOBER 6, 1997, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
BY MAIL: FACSIMILE TRANSMISSION: BY HAND OR OVERNIGHT COURIER:
Tender & Exchange Department (for Eligible Institutions Only) Tender & Exchange Department
P.O. Box 11248 (212) 815-6213 101 Barclay Street
Church Street Station Receive and Deliver Window
New York, New York 10286-1248 New York, New York 10286
</TABLE>
CONFIRM RECEIPT OF FACSIMILE BY TELEPHONE:
(800) 507-9357
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TO A NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE> 2
This Letter of Transmittal is to be completed by shareholders of Vitronics
Corporation either if certificates ("Share Certificates") evidencing shares of
common stock, par value $0.01 per share (the "Shares"), are to be forwarded
herewith or if delivery of Shares is to be made by book-entry transfer to an
account maintained by The Bank of New York (the "Depositary") at The Depository
Trust Company (a "Book-Entry Transfer Facility") pursuant to the book-entry
transfer procedure described in "The Offer-Procedure for Tendering Shares" of
the Offer to Purchase (as defined below). DELIVERY OF DOCUMENTS TO A BOOK-ENTRY
TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER FACILITY'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Purchaser (as defined in the Offer to Purchase) reserves the right to
require that it receive such certificates prior to accepting Shares for payment.
Payment for Shares tendered and purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of, among other things, such
certificates, if such certificates have been distributed to holders of Shares.
Shareholders whose Share Certificates are not immediately available or who
cannot deliver their Share Certificates and all other documents required hereby
to the Depositary prior to the Expiration Date (as defined in "The Offer --
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 do so pursuant to the guaranteed delivery procedure
described in "The Offer -- Procedure for Tendering Shares" of the Offer to
Purchase. See Instruction below.
[ ] 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 of Tendering Institution:
- --------------------------------------------------------------------------------
Check Box of Applicable Book-Entry Transfer Facility and provide Account
Number and Transaction Code Number:
[ ] The Depository Trust Company
Account Number
- --------------------------------------------------------------------------------
Transaction Code Number
- --------------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY (PLEASE INCLUDE A
PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY) 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 and provide Account Number and Transaction Code Number:
[ ] The Depository Trust Company
Account Number
- --------------------------------------------------------------------------------
Transaction Code Number
- --------------------------------------------------------------------------------
<PAGE> 3
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE CERTIFICATE(S) TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
------------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)* CERTIFICATE(S) TENDERED**
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
Total Shares
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares being
delivered to the Depositary are being tendered. See Instruction 4.
- --------------------------------------------------------------------------------
<PAGE> 4
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL CAREFULLY.
LADIES AND GENTLEMEN:
The undersigned hereby tenders to DTI Intermediate, Inc., a Delaware
corporation, a wholly owned subsidiary of Dover Technologies International,
Inc., a Delaware corporation, an indirect wholly owned subsidiary of Dover
Corporation, a Delaware corporation, the above-described shares of common stock,
par value $0.01 per share (the "Shares"), of Vitronics Corporation, a
Massachusetts (the "Company"), pursuant to Purchaser's offer to purchase all
outstanding Shares, at a price of $1.90 per Share, net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated September 9, 1997 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which, together with the Offer
to Purchase, each as amended or supplemented from time to time, constitute the
"Offer").
The undersigned understands that Purchaser reserves the right to transfer
or assign, in whole at any time, or in part from time to time, to a subsidiary
of Purchaser, 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
Purchaser of its obligations under the Offer and will in no way prejudice the
rights of tendering shareholders to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby, and irrevocably appoints the Depositary the true and
lawful agent and attorney-in-fact of the undersigned with respect to such
Shares, with full power of substitution (such power of attorney being deemed to
be an irrevocable power coupled with an interest), to (a) deliver certificates
for such Shares (individually, a "Share Certificate"), or transfer ownership of
such Shares on the account books maintained by a Book-Entry Transfer Facility,
together, in either case, with all accompanying evidence of transfer and
authenticity to, or upon the order of Purchaser, (b) present such Shares for
transfer on the books of the Company and (c) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Shares, all in accordance
with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned irrevocably
appoints John E. Pomeroy and Robert A. Livingston as proxies of the undersigned,
each with full power of substitution, to the full extent of the undersigned's
rights with respect to the Shares tendered by the undersigned and accepted for
payment by Purchaser. All such proxies shall be considered coupled with an
interest in the tendered Shares. This appointment will be effective if, when,
and only to the extent that, Purchaser accepts such Shares for payment pursuant
to the Offer. Upon such acceptance for payment, all prior proxies given by the
undersigned with respect to such Shares, Distributions and other securities
will, without further action, be revoked, and no subsequent proxies may be
given. The individuals named above as proxies will, with respect to the Shares,
be empowered to exercise all voting and other rights of the undersigned as they
in their sole discretion may deem proper at any annual, special, adjourned or
postponed meeting of the Company's shareholders, by written consent or
otherwise, and Purchaser reserves the right to require that, in order for Shares
to be deemed validly tendered, immediately upon Purchaser's acceptance for
payment of such Shares Purchaser must be able to exercise full voting rights
with respect to such Shares.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby, that the undersigned own(s) the Shares tendered hereby within
the meaning of Rule 14e-4 promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), that such tender of Shares complies with Rule
14e-4 under the Exchange Act, and that when such Shares are accepted for payment
by Purchaser, Purchaser will acquire good, marketable and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances,
and that none of such Shares will be subject to any adverse claim. The
undersigned, upon request, shall execute and deliver all additional documents
deemed by the Depositary or Purchaser to be necessary or desirable to complete
the sale, assignment and transfer of the Shares tendered hereby.
<PAGE> 5
No authority herein conferred or agreed to be conferred 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, personal representatives, successors and assigns of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in "The Offer -- Procedure Tendering Shares" of the
Offer to Purchase and in the Instructions hereto will constitute the
undersigned's acceptance of the terms and conditions of the Offer. Purchaser's
acceptance for payment of Shares tendered pursuant to the Offer will constitute
a binding agreement between the undersigned and Purchaser upon the terms and
subject to the conditions of the Offer. The undersigned recognizes that under
certain circumstances set forth in the Offer to Purchase, 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 of all Shares
purchased, and return all Share Certificates evidencing Shares not purchased or
not tendered, in the name(s) of the registered holder(s) appearing above under
"Description of Shares Tendered". Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions", please mail the check for the
purchase price of all Shares purchased and all Share Certificates evidencing
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 Tendered". In the event that the boxes entitled
"Special Payment Instructions" and "Special Delivery Instructions" are both
completed, please issue the check for the purchase price of all Shares purchased
and return all Share Certificates evidencing Shares not purchased or not
tendered in the name(s) of, and mail such check and Share Certificates to, the
person(s) so indicated. Unless otherwise indicated herein in the box entitled
"Special Payment Instructions", please credit any Shares tendered hereby and
delivered by book-entry transfer, but which are not purchased, by crediting the
account at the Book-Entry Transfer Facility designated above. The undersigned
recognizes that Purchaser has no obligation, pursuant to the Special Payment
Instructions, to transfer any Shares from the name of the registered holder(s)
thereof if Purchaser does not accept for payment any of the Shares tendered
hereby.
<PAGE> 6
------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) OF THIS
LETTER OF TRANSMITTAL)
To be completed ONLY if Share Certificates not tendered or not
purchased and/or the check for the purchase price of Shares purchased are
to be issued in the name of someone other than the undersigned, or if
Shares delivered by book-entry transfer which are not purchased are to be
returned by credit to an account maintained at a Book-Entry Transfer
Facility other than that designated above.
Issue: [ ] Check [ ] Certificate(s) to:
Name
----------------------------------------------------
(PLEASE PRINT)
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
[ ] Credit unpurchased Shares delivered by book-entry transfer to the
Book-Entry Transfer Facility account set forth below:
Check appropriate Box:
[ ] The Depository Trust Company
------------------------------------------------------------
(ACCOUNT NUMBER)
============================================================
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) OF THIS
LETTER OF TRANSMITTAL)
To be completed ONLY if Share Certificates not tendered or not
purchased and/or the check for the purchase price of Shares purchased are
to be sent to someone other than the undersigned, or to the undersigned at
an address other than that shown above.
Mail: [ ] Check [ ] Certificate(s) to:
Name
----------------------------------------------------
(PLEASE PRINT)
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE ZIP CODE)
------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
------------------------------------------------------------
<PAGE> 7
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(SIGNATURE(S) OF STOCKHOLDER(S))
Dated:
- --------------------------- , 1997
(Must be signed by registered holder(s) exactly as name(s) appear(s) on Share
Certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith.
If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, please provide the following information. See
Instruction 5 of this Letter of Transmittal.)
Name(s) ------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (Full Title)
----------------------------------------------------------------
Address-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Daytime Area Code and Telephone Number ( )
------------------------------------------
Tax Identification or Social Security Number
----------------------------------------------
(COMPLETE SUBSTITUTION FORM W-9 ON REVERSE)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED -- SEE INSTRUCTIONS 1 AND 5 OF THIS LETTER OF TRANSMITTAL)
Authorized Signature
----------------------------------------------------------------
Name --------------------------------------------------------------------------
(PLEASE PRINT)
Title---------------------------------------------------------------------------
Name of Firm
---------------------------------------------------------------------
Address-------------------------------------------------------------------------
(ZIP CODE)
Area Code and Telephone Number ( )
------------------------------------------------
Dated:
- --------------------------- , 1997
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a firm which is a
bank, broker, dealer, credit union, savings association, or other entity that is
a member in good standing of the Securities Transfer Agent's Medallion Program
(each, an "Eligible Institution"). No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this 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) has completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on the reverse
hereof, or (b) if such Shares are tendered for the account of an Eligible
Institution. See Instruction 5. If a Share Certificate is registered in the name
of a person other than the signer of this Letter of Transmittal, or if payment
is to be made, or a Share Certificate not accepted for payment or not tendered
is to be returned, to a person other than the registered holder(s), then the
Share Certificate must be endorsed or accompanied by appropriate stock powers,
in either case signed exactly as the name(s) of the registered holder(s)
appear(s) on the Share Certificate, with the signature(s) on such Share
Certificate or stock powers guaranteed as described above. See Instruction 5.
2. Delivery of Letter of Transmittal and Share Certificates. This Letter
of Transmittal is to be used either if Share Certificates are to be forwarded
herewith or if Shares are to be delivered by book-entry transfer pursuant to the
procedure set forth in "The Offer -- Procedure for Tendering Shares" in the
Offer to Purchase. Share Certificates evidencing all tendered Shares, or
confirmation of a book-entry transfer of such Shares, if such procedure is
available, into the Depositary's account at one of the Book-Entry Transfer
Facilities pursuant to the procedures set forth in "The Offer -- Procedure for
Tendering Shares" in the Offer to Purchase, together with a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or, in the case of a book-entry transfer, an Agent's
Message, as defined below) and any other documents required by this Letter of
Transmittal, must be received by the Depositary at one of its addresses set
forth on the reverse hereof prior to the Expiration Date (as defined in "The
Offer -- Terms of the Offer" of the Offer to Purchase). If Share Certificates
are forwarded to the Depositary in multiple deliveries, a properly completed and
duly executed Letter of Transmittal must accompany each such delivery.
Shareholders whose Share Certificates are not immediately available, who cannot
deliver their Share Certificates and all other required documents to the
Depositary 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 procedure described in "The
Offer -- Procedure for Tendering Shares" in the Offer to Purchase. Pursuant to
such procedure: (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 Purchaser herewith, must be
received by the Depositary prior to the Expiration Date; and (iii) in the case
of a guarantee of Shares, the Share Certificates, in proper form for transfer,
or a confirmation of a book-entry transfer of such Shares, if such procedure is
available, into the Depositary's account at one of the Book-Entry Transfer
Facilities, together with a properly completed and duly executed Letter of
Transmittal (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 documents required by this Letter of Transmittal, must be received by
the Depositary within three New York Stock Exchange, Inc. trading days after the
date of execution of the Notice of Guaranteed Delivery, all as described in "The
Offer -- Procedure for Tendering Shares" in the Offer to Purchase. 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 acknowledgement 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 this Letter of Transmittal and that the Purchaser may
enforce such agreement against the participant.
<PAGE> 9
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES
AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER, AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY.
IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. By execution of this Letter of Transmittal
(or a facsimile hereof), all tendering shareholders 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 Tendered" is inadequate, the Share Certificate numbers, the number of
Shares evidenced by such Share Certificates and the number of Shares tendered
should be listed on a separate schedule and attached hereto.
4. Partial Tenders. (Not applicable to shareholders who tender by
book-entry transfer.) If fewer than all the Shares evidenced by any Share
Certificate delivered to the Depositary herewith are to be tendered hereby, fill
in the number of Shares which are to be tendered in the box entitled "Number of
Shares Tendered". In such cases, new Share Certificate(s) evidencing the
remainder of the Shares that were evidenced by the Share 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", as soon as practicable after the expiration or termination of the
Offer. All Shares evidenced by Share Certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5. Signatures of Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the Share Certificates evidencing such Shares without alteration,
enlargement or any other change whatsoever.
If any Share tendered hereby is owned of record by two or more persons, all
such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the name of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate stock
powers are required, unless payment is to be made to, or Share Certificates
evidencing 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 Share
Certificate(s) evidencing the Shares tendered hereby must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appear(s) on such Share Certificate(s).
Signatures on such Share 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 holder(s) of the Shares tendered hereby, the Share Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Share Certificate(s). Signatures on such
Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Share Certificate(s) or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of such person's authority so to act must be
submitted.
<PAGE> 10
6. Stock Transfer Taxes. Except as otherwise provided in this Instruction
6, Purchaser will pay all stock transfer taxes with respect to the sale and
transfer of any Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price of any Shares purchased is to be made to, or Share
Certificate(s) evidencing Shares not tendered or not purchased are to be issued
in the name of, a person other than the registered holder(s), 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 Purchaser of the payment of such taxes, or exemption
therefrom, is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATE(S) EVIDENCING THE
SHARES TENDERED HEREBY.
7. Special Payment and Delivery Instructions. If a check for the purchase
price of any Shares tendered hereby is to be issued, or Share Certificate(s)
evidencing Shares not tendered or not purchased are to be issued, in the name of
a person other than the person(s) signing this Letter of Transmittal or if such
check or any such Share Certificate is to be sent to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal but at an address other than that shown in the box
entitled "Description of Shares Tendered", the appropriate boxes on this Letter
of Transmittal must be completed. Shares tendered hereby by book-entry transfer
may request that Shares not purchased be credited to such account maintained at
a Book-Entry Transfer Facility as such shareholder may designate in the box
entitled "Special Payment Instructions" on the reverse hereof. 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 on the
reverse hereof as the account from which such Shares were delivered.
8. Requests for Assistance or Additional Copies. Requests for assistance
may be directed to the Information Agent at its address or telephone number 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 Information Agent or from brokers, dealers, commercial banks
or trust companies.
9. Substitute Form W-9. Each tendering shareholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN") 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
such shareholder is not subject to backup withholding of federal income tax. If
a tendering shareholder has been notified by the Internal Revenue Service that
such shareholder is subject to backup withholding, such shareholder must cross
out item (2) of the Certification box of the Substitute Form W-9, unless such
shareholder has since been notified by the Internal Revenue Service that such
shareholder is no longer subject to backup withholding. Failure to provide the
information on the Substitute Form W-9 may subject the tendering shareholder to
31% federal income tax withholding on the payment of the purchase price of all
Shares purchased from such shareholder. If the tendering shareholder has not
been issued a TIN and has applied for one or intends to apply for one in the
near future, such shareholder should write "Applied For" in the space provided
for the TIN in Part I of the Substitute Form W-9, and sign and date the
Substitute Form W-9. If "Applied For" is written in Part I and the Depositary is
not provided with a TIN within sixty (60) days, the Depositary will withhold 31%
on all payments of the purchase price to such shareholder 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 shareholder should
promptly notify the Depositary. The shareholder 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.
<PAGE> 11
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED, WITH ANY REQUIRED SIGNATURE GUARANTEES, OR AN
AGENT'S MESSAGE (TOGETHER WITH SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY
TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A PROPERLY COMPLETED AND DULY
EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY PRIOR
TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under the federal income tax law, a shareholder whose tendered Shares are
accepted for payment is required by law to provide the Depositary (as payer)
with such shareholder's correct TIN on Substitute Form W-9 below. If such
shareholder is an individual, the TIN is such shareholder's social security
number. If the Depositary is not provided with the correct TIN, the shareholder
may be subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such shareholder with respect to Shares
purchased pursuant to the Offer may be subject to backup withholding of 31%.
Certain shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, such individual must submit a statement, signed under penalties of
perjury, attesting to such individual's exempt status. Forms of such statements
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 with respect to a shareholder, the Depositary
is required to withhold 31% of any payments made to such shareholder. Backup
withholding is not an additional tax. Rather, the tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
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 that are made to a shareholder
with respect to Shares purchased pursuant to the Offer, the shareholder is
required to notify the Depositary of such shareholder's correct TIN by
completing the form below certifying (a) that the TIN provided on Substitute
Form W-9 is correct (or that such shareholder is awaiting a TIN), and (b) that
(i) such shareholder has not been notified by the Internal Revenue Service that
such shareholder is not subject to backup withholding as a result of a failure
to report all interest or dividends or (ii) the Internal Revenue Service has
notified such shareholder that such shareholder is no longer subject to backup
withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance on
which number to report. If the tendering shareholder has not been issued a TIN
and has applied for a number or intends to apply for a number in the near
future, the shareholder should write "Applied For" in the space provided for the
TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For" is
written in Part I and the Depositary is not provided with a TIN within 60 days,
the Depositary will withhold 31% of all payments of the purchase price to such
shareholder until a TIN is provided to the Depositary.
<PAGE> 12
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------------------
PAYER'S NAME: THE BANK OF NEW YORK
- ----------------------------------------------------------------------------------------------------
PART 1 -- PLEASE PROVIDE YOUR TIN IN THE Social Security Number
BOX AT THE RIGHT AND CERTIFY BY SIGNING or Employer
AND DATING BELOW. Identification Number
----------------------------
------------------------------------------------------------------------
PART 2 -- CERTIFICATES -- Under penalties of perjury, I 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
SUBSTITUTE
FORM W-9 (2) I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
DEPARTMENT OF THE Revenue Service (the "IRS") that I am subject to backup withholding
TREASURY as a result of a failure to report all interest or dividends, or (c)
INTERNAL REVENUE SERVICE the IRS has notified me that I am no longer subject to backup
withholding.
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION CERTIFICATION INSTRUCTIONS -- You must cross out item (2) above if
NUMBER ("TIN") you have been notified by the IRS that you are currently subject to
backup withholding because of under-reporting 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
withholding, do not cross out such item (2).
------------------------------------------------------------------------
SIGNATURE
---------------------------------- PART 3 --
DATE
----------------------------------------- Awaiting TIN [ ]
NAME
-----------------------------------------
ADDRESS
--------------------------------------
-----------------------------------------
(City, State and Zip Code)
---------------------------------------------------------------------------------------------------
</TABLE>
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.
Questions and requests for assistance or additional copies
of the Offer to Purchase, Letter of Transmittal and
other tender offer materials may be directed to the
Information Agent as set forth below:
MORROW & CO., INC
909 Third Avenue
20th Floor,
New York, New York 10022
(212) 754-8000
Toll Free: (800) 566-9061
Banks and Brokerage Firms please call:
(800) 662-5200
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
BY
DTI INTERMEDIATE, INC.
A WHOLLY OWNED SUBSIDIARY OF
DOVER TECHNOLOGIES INTERNATIONAL, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DOVER CORPORATION
AT
$1.90 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, OCTOBER 6, 1997, UNLESS THE OFFER IS EXTENDED.
September 9, 1997
To Brokers, Dealers, Banks, Trust
Companies and Other Nominees:
We have been engaged by DTI Intermediate, Inc., a Delaware corporation (the
"Purchaser") and a wholly owned subsidiary of Dover Technologies International,
Inc., a Delaware corporation ("Dover Technologies"), an indirect wholly owned
subsidiary of Dover Corporation, a Delaware corporation, ("Dover") to act as
Information Agent in connection with the Purchaser's offer to purchase all of
the outstanding shares of Common Stock, par value $.01 per share (the "Common
Stock" or "Shares"), of Vitronics Corporation, a Massachusetts corporation (the
"Company"), at $1.90 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the
Purchaser's Offer to Purchase dated September 9, 1997 (the "Offer to Purchase")
and in the related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"). Please furnish copies
of the enclosed materials to those of your clients for whom you hold Shares
registered in your name or in the name of your nominee.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated September 9, 1997;
2. Letter of Transmittal to be used by shareholders of the Company in
accepting the Offer;
3. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with
space provided for obtaining such clients' instructions with regard to the
Offer;
4. Notice of Guaranteed Delivery; and
5. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
<PAGE> 2
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not withdrawn prior to the expiration of the Offer, that number of
shares which represents at least sixty-six and two-thirds percent (66 2/3%) of
the Shares outstanding on a fully diluted basis, and (ii) the other conditions
set forth in the Offer to Purchase. As used herein, "fully diluted basis" takes
into account issued and outstanding Shares and Shares subject to issuance under
outstanding stock options.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will accept for payment and will pay promptly after
the Expiration Date (as defined in the Offer to Purchase) for all Shares validly
tendered prior to the Expiration Date and not properly withdrawn as, if and when
the Purchaser gives oral or written notice to the Depositary of the Purchaser's
acceptance of such Shares. Payment for Shares accepted for payment pursuant to
the Offer will be made only after timely receipt by the Depositary of (i)
certificates for such Shares (or a timely Book-Entry Confirmation (as defined in
the Offer to Purchase) with respect thereto), (ii) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message (as defined in the Offer to Purchase), and (iii) any other documents
required by the Letter of Transmittal.
If holders of Shares wish to tender their Shares, but it is impracticable
for them to deliver their certificates on or prior to the Expiration Date or to
comply with the book-entry transfer procedures on a timely basis, a tender may
be effected by following the guaranteed delivery procedures specified in Section
3 of the Offer to Purchase.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS
PROMPTLY. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, OCTOBER 6, 1997, UNLESS EXTENDED.
Neither the Purchaser, Dover Technologies nor Dover will pay any fees or
commissions to any broker or dealer or other person (other than the Information
Agent 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
materials to their customers. The Purchaser will pay all stock transfer taxes
applicable to its purchase of Shares pursuant to the Offer, subject to
Instruction 6 of the Letter of Transmittal.
Additional copies of the enclosed materials may be obtained by contacting
the Information Agent at its location and telephone number as set forth on the
back cover of the enclosed Offer to Purchase.
Very truly yours,
MORROW & CO., INC.
909 Third Avenue
20th Floor
New York, New York 10022
(212) 754-8000
Toll Free: (800) 566-9061
Banks and Brokerage Firms please call:
(800) 662-5200
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, DOVER TECHNOLOGIES, DOVER, THE
DEPOSITARY, OR THE INFORMATION AGENT OR AUTHORIZE YOU OR ANY OTHER PERSON TO
GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH
RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE LETTER OF
TRANSMITTAL.
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
BY
DTI INTERMEDIATE, INC.
A WHOLLY OWNED SUBSIDIARY OF
DOVER TECHNOLOGIES INTERNATIONAL, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
DOVER CORPORATION
AT
$1.90 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, OCTOBER 6, 1997, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated September 9,
1997 (the "Offer to Purchase") and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to the Offer by DTI Intermediate, Inc., a Delaware corporation
(the "Purchaser"), which is a wholly owned subsidiary of Dover Technologies
International, Inc., a Delaware corporation ("Dover Technologies"), an indirect
wholly owned subsidiary of Dover Corporation, a Delaware corporation, ("Dover")
to purchase for cash all of the outstanding shares of Common Stock, par value
$.01 per share (the "Common Stock" or "Shares"), of Vitronics Corporation, a
Massachusetts corporation (the "Company"). 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 LETTER OF
TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED TO
TENDER SHARES HELD BY US FOR YOUR ACCOUNT.
Accordingly, we request your instructions as to whether you wish to tender
any of 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 $1.90 per Share, net to the seller in cash,
without interest thereon.
2. The Offer is being made for all outstanding Shares.
3. THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
OFFER AND DETERMINED THAT THE TERMS OF THE OFFER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE COMPANY'S SHAREHOLDERS, AND UNANIMOUSLY RECOMMENDS
THAT SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
4. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Monday, October 6, 1997, unless the Offer is extended.
5. The Offer is conditioned upon, among other things, (i) there being
validly tendered and not withdrawn prior to the expiration of the Offer,
that number of shares which represents at least sixty-six
<PAGE> 2
and two-thirds percent (66 2/3%) of the Shares outstanding on a fully
diluted basis and (ii) the other conditions set forth in the Offer to
Purchase. As used herein, "fully diluted basis" takes into account issued
and outstanding Shares and Shares subject to issuance under outstanding
stock options.
6. Any stock transfer taxes applicable to a sale of Shares to the
Purchaser pursuant to the Offer will be borne by the Purchaser, except as
otherwise provided in Instruction 6 of the Letter of Transmittal.
Your instructions to us should be forwarded promptly to permit us to submit
a tender on your behalf prior to the expiration of the Offer. If you wish to
have us tender any or all of the Shares held by us for your account, please so
instruct us by completing, executing and returning to us the instruction form
set forth on the reverse side of this letter. An envelope to return your
instructions to us is enclosed. If you authorize the tender of your Shares, all
such Shares will be tendered unless otherwise specified on the reverse side of
this letter. Your instructions should be forwarded to us in ample time to permit
us to submit a tender on your behalf prior to the expiration of the Offer.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, the holders of Shares residing in any jurisdiction in which the
making or acceptance of the Offer would not be in compliance with the laws of
such jurisdiction.
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
The undersigned acknowledge(s) receipt of your letter, the enclosed Offer
to Purchase dated September 9, 1997 and the related Letter of Transmittal in
connection with the offer by DTI Intermediate, Inc., a Delaware corporation and
a wholly owned subsidiary of Dover Technologies International, Inc., a Delaware
corporation and an indirect wholly owned subsidiary of Dover Corporation, a
Delaware corporation, to purchase all of the outstanding shares of common stock,
par value $.01 per share (the "Common Stock" or "Shares"), of Vitronics
Corporation, a Massachusetts corporation.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in such Offer to Purchase and related Letter of
Transmittal.
Dated: , 1997
NUMBER OF SHARES TO BE TENDERED*
______________ SHARES
I (we) understand that if I (we) sign this instruction form without
indicating a lesser number of Shares in the space above, all Shares held by you
for my (our) account will be tendered.
--------------------------------------
Signature(s)
--------------------------------------
--------------------------------------
Print Name(s)
--------------------------------------
--------------------------------------
Print Address(es)
--------------------------------------
Area Code and Telephone Number
--------------------------------------
Tax ID or Social Security Number
- ---------------
* Unless otherwise indicated, it will be assumed that all Shares held by your
firm for my (our) account are to be tendered.
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
As set forth in Section 3 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates for shares of Common Stock, par value $.01 per
share (the "Common Stock" or the "Shares") of Vitronics Corporation, a
Massachusetts corporation (the "Company"), are not immediately available, or if
the procedure for book-entry transfer cannot be completed on a timely basis or
time will not permit all required documents to reach the Depositary at the
address set forth below prior to the Expiration Date (as defined in the Offer to
Purchase). This form may be delivered by hand to the Depositary or transmitted
by telegram, facsimile transmission or mail to the Depositary and must include a
guarantee by an Eligible Institution (as defined in the Offer to Purchase). See
Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
THE BANK OF NEW YORK
<TABLE>
<S> <C>
By Mail: By Hand/Overnight Delivery:
Tender & Exchange Department Tender & Exchange Department
P.O. Box 11248 101 Barclay Street
Church Street Station Receive and Deliver Window
New York, New York 10286-1248 New York, New York 10286
</TABLE>
By Facsimile Transmission:
(For Eligible Institutions Only)
(212) 815-6213
Confirm Receipt of Facsimile by Telephone:
(800) 507-9357
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TO A NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION
UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE
APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE> 2
LADIES AND GENTLEMEN:
The undersigned hereby tenders to DTI Intermediate, Inc., a Delaware
corporation (the "Purchaser") and a wholly owned subsidiary of Dover
Technologies International, Inc., a Delaware corporation, an indirect wholly
owned subsidiary of Dover Corporation, a Delaware corporation, upon the terms
and subject to the conditions set forth in the Purchaser's Offer to Purchase
dated September 9, 1997 (the "Offer to Purchase"), and the related Letter of
Transmittal, receipt of which is hereby acknowledged, the number of Shares (as
such term is defined in the Offer to Purchase) set forth below, all pursuant to
the guaranteed delivery procedures set forth in Section 3 of the Offer to
Purchase.
<TABLE>
<S> <C>
Number of Shares:
- --------------------------------
Name(s) of Record Holder(s):
Certificate Nos. (if available): ---------------------------------------------
- ---------------------------------------------
---------------------------------------------
Please Print
- ---------------------------------------------
Address(es):
---------------------------------------
Zip Code
(Check box if Shares will be tendered by
book-entry transfer)
[ ] The Depository Trust Company Area Code and Tel. No.:
---------------------------------------------
Account Number:
----------------------------------- ---------------------------------------------
---------------------------------------------
Signature(s)
Dated:
---------------------------------------,
1997 Dated:
---------------------------------------, 1997
</TABLE>
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agent's Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, hereby guarantees to deliver to the
Depositary either the certificates representing the Shares tendered hereby, in
proper form for transfer, or a Book-Entry Confirmation with respect to such
Shares, in any such case together with a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees, or an Agent's Message, and any other required documents within three
trading days (as defined in the Offer to Purchase) after the date hereof.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver such Letter of Transmittal and such
certificates for Shares, or such Book-Entry Confirmation, to the Depositary
within the time period shown herein. Failure to do so could result in a
financial loss to such Eligible Institution. All capitalized terms used herein
have the meanings set forth in the Offer to Purchase.
<TABLE>
<S> <C>
Name of Firm: ---------------------------- ---------------------------------------------
Authorized Signature
Address: Name:
----------------------------------- -------------------------------------
Please Print
Title:
- --------------------------------------------- ---------------------------------------
Zip Code
Area Code and
Tel. No.: Dated:
----------------------------------- ---------------------------------------, 1997
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE.
CERTIFICATES FOR SHARES SHOULD BE SENT WITH
YOUR LETTER OF TRANSMITTAL.
<PAGE> 1
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER. -- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the number
to give the payer.
<TABLE>
<CAPTION>
------------------------------------------------------------
GIVE THE TAXPAYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF -
------------------------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife (joint account) The actual owner of
the account or, if
joint funds, either
person(1)
4. Custodian account of a minor (Uniform The minor(2)
Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if the
minor is the only
contributor, the
minor(1)
6. Account in the name of guardian or The ward, minor, or
committee for a designated ward, incompetent person(3)
minor, or incompetent person
7. a. The usual revocable savings trust The grantor-
account (grantor is also trustee) trustee(1)
b. So-called trust account that is not The actual owner(1)
a legal or valid trust under State
law
8. Sole proprietorship account The owner(4)
<CAPTION>
------------------------------------------------------------
GIVE THE TAXPAYER
IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF -
------------------------------------------------------------
<S> <C>
9. A valid trust, estate or pension trust The Legal entity (Do
not furnish the
identifying number of
the personal
representative or
trustee unless the
legal entity itself
is not designated in
the account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or educational The organization
organization account
12. Partnership account held in the name The partnership
of the business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of The public entity
Agriculture in the name of a public
entity (such as a State or local
government, school district, or
prison) that receives agricultural
program payments
</TABLE>
============================================================
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you do not have a taxpayer identification number or you do not know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency, or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Payments of interest 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 Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER. FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. -- Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file a tax return. Payers must generally withhold 31%
of taxable interest, dividend, and certain other payments to a payee who does
not furnish a taxpayer identification number to a payer. Certain penalties may
also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. -- If you
fail to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. -- If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will generally be treated as
being due to negligence and will be subject to a penalty of 20% on any portion
of an underpayment attributable to that failure.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. -- if you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. -- Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE
<PAGE> 1
DOVER TECHNOLOGIES INTERNATIONAL INC. AND VITRONICS
CORPORATION ANNOUNCE OFFER FOR ACQUISITION OF VITRONICS
CONTACT: ROBERT A. LIVINGSTON, VICE PRESIDENT & CFO
DOVER TECHNOLOGIES (607) 773-2290
September 3, 1997
Binghamton, NY... Dover Technologies International, Inc., a subsidiary of Dover
Corporation (NYSE:DOV), and Vitronics Corporation (AMEX:VTC) announced that they
have today entered into an Agreement and Plan of Merger pursuant to which Dover
will acquire Vitronics. Dover's subsidiary DTI Intermediate, Inc. will within
five business days commence a tender offer for all of the approximately
9,856,572 outstanding shares of Vitronics Corporation at $1.90 per share in
cash. The tender offer will expire at midnight EST time on October 6, 1997
unless extended. The Information Agent for the tender offer is Morrow & Co.,
Inc. of New York City.
Following consummation of the tender offer, DTI Intermediate Inc. and Vitronics
will merge and the surviving company will become a wholly owned subsidiary of
Dover Technologies. Vitronics shareholders who do not tender their shares will
receive $1.90 per share in cash for their shares in the merger.
The Board of Directors of Vitronics has unanimously approved the transaction and
recommended
<PAGE> 2
that Vitronics shareholders tender their shares pursuant to the tender offer.
Vitronics' financial advisor, Scott-Macon Securities Inc., has delivered its
opinion to Vitronics' Board of Directors that the $1.90 per share consideration
in the tender offer and the merger is fair to Vitronics shareholders from a
financial point of view.
The tender offer is subject to certain conditions, including that a minimum of
66 2/3% of the Vitronics shares shall have been tendered and not withdrawn as of
the expiration of the tender offer period and clearance under the
Hart-Scott-Rodino Anti-trust Improvements Act of 1976.
Mr. James J. Manfield, Jr., Chairman, President and CEO of Vitronics said, "We
are excited by the opportunity to be supported by Dover's resources and being
associated with such leaders in printed circuit assembly as Dover's Universal,
DEK and Soltec subsidiaries."
Mr. John Pomeroy, President and CEO of Dover Technologies, said, "We are
delighted with the prospect of acquiring Vitronics and excited with the
opportunity to add Vitronics' technology and products to our current leadership
positions in printed circuit assembly equipment."
Vitronics is a supplier of state-of-the-art thermal processing and associated
equipment, with an established reputation as an innovator and leader in the
surface mount industry. Vitronics' equipment is primarily aimed at the
electronics industry and has achieved considerable technical recognition in the
production of printed circuit boards.
<PAGE> 1
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares (as defined below). The Offer (as defined below) is made solely
by the Offer to Purchase dated September 9, 1997 ("Offer to Purchase") and the
related Letter of Transmittal and is being made to all holders of Shares. The
offer is not being made to (nor will tenders be accepted from or on behalf of)
holders of Shares in any jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the laws of such jurisdiction
or any administrative or judicial action pursuant thereto. In any jurisdiction
where securities, blue sky or others laws require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of DTI
Intermediate, Inc. by one or more registered brokers or dealers licensed under
the laws of such jurisdiction.
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
VITRONICS CORPORATION
AT
$1.90 NET PER SHARE
BY
DTI INTERMEDIATE, INC.
a wholly owned subsidiary of
DOVER TECHNOLOGIES INTERNATIONAL, INC.
an indirect wholly owned subsidiary of
DOVER CORPORATION
DTI Intermediate, Inc. a Delaware corporation (the "Purchaser") and a
wholly owned subsidiary of Dover Technologies International, Inc., a Delaware
corporation ("Dover"), an indirect wholly owned subsidiary of Dover Corporation,
a Delaware corporation, is offering to purchase all of the issued and
outstanding shares (the "Shares") of common stock, par value $.01 per share (the
"Common Stock"), of Vitronics Corporation, a Massachusetts corporation (the
"Company") for $1.90 per Share (the "Offer Price"), net to the seller in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase
and in the related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer").
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, OCTOBER 6, 1997, UNLESS THE OFFER IS EXTENDED.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of
September 3, 1997 (the "Merger Agreement"), by and among Dover, the Purchaser
and the Company pursuant to which, as soon as practicable after the completion
of the Offer and satisfaction or waiver, if permissible, of all conditions to
the Merger (as defined below), (i) at the election of Dover, the Company may be
merged with and into the Purchaser and the separate corporate existence of the
Company will thereupon cease, or (ii) at the election of Dover, the Purchaser
may be merged with and into the Company and the separate
<PAGE> 2
corporate existence of the Purchaser will cease. The merger, as effected
pursuant to the immediately preceding sentence, is referred to herein as the
"Merger", and such of the Purchaser or the Company as is the surviving
corporation of the Merger is sometimes herein referred to as the "Surviving
Corporation". At the effective time of the Merger (the "Effective Time"), each
share of Common Stock then outstanding (other than Shares held by Dover or the
Purchaser and Shares held by stockholders who perfect their dissenters' rights
under Massachusetts law) will be cancelled and extinguished and converted into
the right to receive the Offer Price or any higher price per Share paid in the
Offer, in cash payable to the holder thereof without interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE
MERGER, AND DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO,
AND IN THE BEST INTERESTS OF, THE HOLDERS OF THE COMMON STOCK, AND UNANIMOUSLY
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER, THAT NUMBER OF SHARES OF
COMMON STOCK WHICH REPRESENTS AT LEAST SIXTY-SIX AND TWO-THIRDS PERCENT
(66 2/3%) OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS (THE "MINIMUM
CONDITION"). As used herein "fully diluted basis" takes into account the
conversion or exercise of all outstanding options.
For purposes of the Offer, the Purchaser will be deemed to have
accepted for payment, and thereby purchased, Shares properly tendered to the
Purchaser and not withdrawn as, if and when the Purchaser gives oral or written
notice to The Bank of New York (the "Depositary") of the Purchaser's acceptance
for payment of such Shares. Upon the terms and subject to the conditions of the
Offer, payment for Shares accepted for payment pursuant to the Offer will be
made by deposit of the purchase price therefor with the Depositary, which will
act as agent for tendered stockholders for the purpose of receiving payment from
the Purchaser and transmitting payment to tendering stockholders. In all cases,
payment for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of (i) certificates for such Shares (or a
timely Book-Entry Confirmation (as defined in the Offer to Purchase) with
respect thereto), (ii) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in the
case of a book-entry transfer, an Agent's Message (as defined in the Offer to
Purchase) and (iii) any other documents required by the Letter of Transmittal.
The per Share consideration paid to any holder of Common Stock pursuant to the
Offer will be the highest per Share consideration paid to any other holder of
such Shares pursuant to the Offer. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID
ON THE PURCHASE PRICE TO BE PAID BY THE PURCHASER FOR THE SHARES, REGARDLESS OF
ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
Except as otherwise provided in below, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date (as
defined in the Offer to Purchase) and, unless theretofore accepted for payment
and paid for by the Purchaser pursuant to the Offer, may also be withdrawn at
any time after November 17, 1997.
<PAGE> 3
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of the Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution (as defined in Section 3 of the Offer to Purchase), the signatures
on the notice of withdrawal must be guaranteed by an Eligible Institution. If
Shares have been delivered pursuant to the procedures for book-entry transfer as
set forth in Section 3 of the Offer to Purchase, any notice of withdrawal must
also specify the name and number of the account at the appropriate Book-Entry
Transfer Facility (as defined in the Offer to Purchase) to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's
procedures. Withdrawals of tenders of Shares may not be rescinded, and any
Shares properly withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. However, withdrawn Shares may be retendered by again
following one of the procedures described in Section 3 of the Offer to Purchase
any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt)
of notices of withdrawal will be determined by the Purchaser, in its sole
discretion, which determination will be final and binding. None of the
Purchaser, Dover, 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.
Subject to the terms of the Merger Agreement, the Purchaser expressly
reserves the right, under certain circumstances, 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.
The information required to be disclosed by paragraph (e)(1)(vii) of
Rule 14d-6 under the Securities Exchange Act of 1934, as amended, is contained
in the Offer to Purchase and is incorporated herein by reference.
The Company has provided the Purchaser with the Company's stockholder
lists and security position listings for the purpose of disseminating the Offer
to holders of Shares. The Offer to Purchase, the related Letter of Transmittal
and other relevant documents will be mailed by the Purchaser to record holders
of Shares, and will be furnished by the Purchaser to brokers, dealers, banks,
trust companies and similar person whose names, or the names of whose nominees,
appear on the stockholder lists, or, if applicable, who are listed as
participants in a clearing agent's security position listing, for subsequent
transmittal to beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION AND SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
Questions and requests for assistance or additional copies of the
Offer to Purchase, Letter of Transmittal and other tender offer documents may be
directed to the Information Agent, at the address and
<PAGE> 4
telephone numbers set forth below, and copies will be furnished at the
Purchaser's expense. The Purchaser will not pay any fees or commissions to any
broker or dealer or other person (other than the Information Agent) for
soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue
20th Floor
New York, New York 10022
(212) 754-8000
Banks and Brokerage Firms please call:
(800) 662-5200
Call Toll Free: (800) 566-9061
September 9, 1997
<PAGE> 1
AGREEMENT AND PLAN OF MERGER
by and among
DOVER TECHNOLOGIES INTERNATIONAL, INC.,
DTI INTERMEDIATE, INC.
and
VITRONICS CORPORATION
dated as of
September 3, 1997
<PAGE> 2
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
THE OFFER AND MERGER
Section 1.1 The Offer.................................................... 1
Section 1.2 Company Actions.............................................. 5
Section 1.3 Directors.................................................... 7
Section 1.4 The Merger................................................... 9
Section 1.5 Effective Time............................................... 10
Section 1.6 Closing...................................................... 11
Section 1.7 Directors and Officers of the
Surviving Corporation................................... 11
Section 1.8 Shareholders' Meeting........................................ 11
Section 1.9 Merger Without Meeting of Shareholders....................... 13
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Capital Stock.................................. 13
Section 2.2 Exchange of Certificates..................................... 14
Section 2.3 Dissenters' Rights........................................... 16
Section 2.4 Options ..................................................... 17
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
Section 3.1 Organization................................................. 18
Section 3.2 Capitalization............................................... 19
Section 3.3 Authorization; Validity of Agreement;
Company Action.......................................... 21
Section 3.4 Consents and Approvals; No Violations........................ 21
Section 3.5 SEC Reports and Financial Statements......................... 22
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 3.6 Absence of Certain Changes................................... 23
Section 3.7 No Undisclosed Liabilities................................... 24
Section 3.8 Litigation................................................... 24
Section 3.9 Employee Benefit Plans....................................... 24
Section 3.10 Tax Matters; Government Benefits............................. 27
Section 3.11 Intellectual Property........................................ 31
Section 3.12 Employment Matters........................................... 32
Section 3.13 Compliance with Laws......................................... 32
Section 3.14 Vote Required................................................ 33
Section 3.15 Environmental Laws........................................... 33
Section 3.16 Information in Proxy Statement............................... 35
Section 3.17 Opinion of Financial Advisor................................. 36
Section 3.18 Brokers or Finders........................................... 36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE PURCHASER
Section 4.1 Organization................................................. 37
Section 4.2 Authorization; Validity of Agreement;
Necessary Action........................................ 37
Section 4.3 Consents and Approvals; No Violations........................ 38
Section 4.4 Information in Proxy Statement............................... 38
Section 4.5 Financing.................................................... 39
ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the Company............................ 39
Section 5.2 Access; Confidentiality...................................... 41
Section 5.3 Consents and Approvals....................................... 42
Section 5.4 No Solicitation.............................................. 43
Section 5.5 Additional Agreements........................................ 46
Section 5.6 Publicity.................................................... 46
Section 5.7 Notification of Certain Matters.............................. 47
Section 5.8 Directors' and Officers'
Indemnification......................................... 47
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 5.9 Purchaser Compliance......................................... 48
ARTICLE VI
CONDITIONS TO THE MERGER
Section 6.1 Conditions to Each Party's Obligation
to Effect the Merger.................................... 48
Section 6.2 Condition to Parent's and the
Purchaser's Obligations to Effect
the Merger.............................................. 49
ARTICLE VII
TERMINATION
Section 7.1 Termination.................................................. 49
Section 7.2 Effect of Termination........................................ 51
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Fees and Expenses............................................ 52
Section 8.2 Amendment and Modification................................... 53
Section 8.3 Non-survival of Representations and
Warranties.............................................. 54
Section 8.4 Notices...................................................... 54
Section 8.5 Interpretation............................................... 55
Section 8.6 Counterparts................................................. 55
Section 8.7 Entire Agreement; No Third Party
Beneficiaries........................................... 56
Section 8.8 Severability................................................. 56
Section 8.9 Governing Law................................................ 56
Section 8.10 Assignment................................................... 56
ANNEX A Conditions of the Offer.......................................... A-1
</TABLE>
iii
<PAGE> 5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter referred to as this
"Agreement"), dated as of September 3, 1997, by and among Dover Technologies
International, Inc., a Delaware corporation ("Parent"), DTI Intermediate, Inc.,
a Delaware corporation and a wholly owned subsidiary of Parent (the
"Purchaser"), and Vitronics Corporation, a Massachusetts corporation (the
"Company").
WHEREAS, the Board of Directors of each of Parent, the
Purchaser and the Company has approved, and deems it advisable and in the best
interests of its respective shareholders to consummate, the acquisition of the
Company by Parent upon the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements set forth herein,
the parties hereto agree as follows:
ARTICLE I
THE OFFER AND MERGER
Section 1.1 The Offer.
(a) As promptly as practicable (but in no event later than
five business days after the public announcement of the execution hereof), the
Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (the
"Offer") for all of the outstanding shares (the "Shares") of common stock, $.01
par value per share (the "Common Stock"), of the Company at a price of $1.90 per
Share, net to the seller in cash (such price, or any such higher price per Share
as may be paid in the Offer, being referred to herein as the "Offer Price"),
subject to (i) there being validly
1
<PAGE> 6
tendered and not withdrawn prior to the expiration of the Offer, that number of
Shares which represents at least sixty-six and two-thirds percent (66 2/3%) of
the Shares outstanding on a fully diluted basis (the "Minimum Condition") and
(ii) the other conditions set forth in Annex A hereto, and shall consummate the
Offer in accordance with its terms. As used herein, "fully diluted basis" takes
into account issued and outstanding Shares and Shares subject to issuance under
outstanding stock options and warrants. The obligations of the Purchaser to
accept for payment and to pay for any Shares validly tendered on or prior to the
expiration of the Offer and not withdrawn shall be subject only to the Minimum
Condition and the other conditions set forth in Annex A hereto. The Offer shall
be made by means of an offer to purchase (the "Offer to Purchase") containing
the terms set forth in this Agreement, the Minimum Condition and the other
conditions set forth in Annex A hereto. The Purchaser shall not decrease the
Offer Price or decrease the number of Shares sought, or amend any other
condition of the Offer in any manner adverse to the holders of the Shares
without the written consent of the Company; provided, however, that if on the
initial scheduled expiration date of the Offer, which shall be twenty business
days after the date the Offer is commenced, all conditions to the Offer shall
not have been satisfied or waived, the Purchaser may, from time to time, in its
sole discretion, extend the expiration date for one or more periods totaling not
more than thirty business days. Notwithstanding the foregoing, the Purchaser may
extend the initial expiration date or any extension thereof, as the Purchaser
reasonably deems necessary to comply with any legal or regulatory requirements,
including but not limited to, the termination or expiration of any applicable
waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"). The Purchaser shall, on the terms and subject to the
prior satisfaction or waiver of the conditions of the
2
<PAGE> 7
Offer, accept for payment and pay for Shares tendered as soon as it is legally
permitted to do so under applicable law; provided, however, that if, immediately
prior to the initial expiration date of the Offer (as it may be extended), the
Shares tendered and not withdrawn pursuant to the Offer equal more than
seventy-five percent (75%) of the outstanding Shares, but less than 90% of the
outstanding Shares, the Purchaser may extend the Offer for a period not to
exceed twenty business days, notwithstanding that all conditions to the Offer
are satisfied as of such expiration date of the Offer. Notwithstanding the
foregoing, the Offer may not be extended beyond the date of termination of this
Agreement pursuant to Article VII hereof.
(b) As soon as practicable on the date the Offer is commenced,
Parent and the Purchaser shall file with the United States Securities and
Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with
respect to the Offer (together with all amendments and supplements thereto and
including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will
include, as exhibits, the Offer to Purchase and a form of letter of transmittal
and summary advertisement (collectively, together with any amendments and
supplements thereto, the "Offer Documents"). Parent represents and warrants to
the Company that the Offer Documents will comply in all material respects with
the provisions of applicable federal securities laws and, on the date filed with
the SEC and on the date first published, sent or given to the Company's
shareholders, 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
the Purchaser with respect to information furnished by the Company to Parent or
the Purchaser, in writing, expressly for inclusion in the
3
<PAGE> 8
Offer Documents. The Company represents and warrants to Parent and the Purchaser
that the information supplied by the Company to Parent or the Purchaser, in
writing, expressly for inclusion in the Offer Documents and Parent represents
and warrants to the Company that the information supplied by Parent or the
Purchaser to the Company, in writing, expressly for inclusion in the Schedule
14D-9 (as hereinafter defined) will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) Each of Parent and the Purchaser will take all steps
necessary to cause the Offer Documents to be filed with the SEC and to be
disseminated to holders of the Shares, in each case as and to the extent
required by applicable federal securities laws. Each of Parent and the
Purchaser, on the one hand, and the Company, on the other hand, will promptly
correct any information provided by it for use in the Offer Documents if and to
the extent that it shall have become false or misleading in any material respect
and Parent will take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to holders of the
Shares, in each case as and to the extent required by applicable federal
securities laws. The Company and its counsel shall be given the opportunity to
review the Schedule 14D-1 before it is filed with the SEC. In addition, Parent
and the Purchaser will provide the Company and its counsel, in writing, with any
comments, whether written or oral, Parent, the Purchaser or their counsel may
receive from time to time from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments.
4
<PAGE> 9
Section 1.2 Company Actions.
(a) The Company hereby approves of and consents to the Offer
and represents and warrants that its Board of Directors, at a meeting duly
called and held, has (i) unanimously determined that each of this Agreement, the
Offer and the Merger (as defined in Section 1.4 hereof) are fair to and in the
best interests of the shareholders of the Company, (ii) approved this Agreement
and the transactions contemplated hereby, including the Offer and the Merger
(collectively, the "Transactions"), and such approval constitutes approval of
the Offer, this Agreement and the Transactions, including the Merger, for
purposes of Chapter 110F of the Massachusetts General Laws (the "MBCA"), such
that, if applicable to the Company the provisions of the MBCA will not apply to
the Transactions, and (iii) resolved to recommend that the shareholders of the
Company accept the Offer, tender their Shares thereunder to the Purchaser and
approve and adopt this Agreement and the Merger; provided, that such
recommendation may be withdrawn, modified or amended if, in the opinion of the
Board of Directors, only after receipt of advice from outside legal counsel,
failure to withdraw, modify or amend such recommendation would result in the
Board of Directors violating its fiduciary duties to the Company's shareholders
under applicable law. The Company represents and warrants that the actions set
forth in this Section 1.2(a) and all other actions it has taken in connection
herewith are sufficient to render the relevant provisions of the MBCA and
Chapter 110D of the Massachusetts General Laws inapplicable to the Offer and the
Merger.
(b) As soon as practicable on the date the Offer is commenced,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto and
including the exhibits thereto, the "Schedule 14D-9")
5
<PAGE> 10
which shall, subject to the provisions of Section 5.4(b) hereof, contain the
recommendation referred to in clause (iii) of Section 1.2(a) hereof. The Company
represents and warrants to Parent and the Purchaser that the Schedule 14D-9 will
comply in all material respects with the provisions of applicable federal
securities laws and, on the date filed with the SEC and on the date first
published, sent or given to the Company's shareholders, 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
furnished by Parent or the Purchaser, in writing, expressly for inclusion in the
Schedule 14D-9. The Company further agrees to take all steps necessary to cause
the Schedule 14D-9 to be filed with the SEC and to be disseminated to holders of
the Shares, in each case as and to the extent required by applicable federal
securities laws. Each of the Company, on the one hand, and Parent and the
Purchaser, on the other hand, agrees promptly to correct any information
provided by it for use in the Schedule 14D-9 if and to the extent that it shall
have become false and 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 to be disseminated to holders of the Shares, in
each case as and to the extent required by applicable federal securities laws.
Parent and its counsel shall be given the opportunity to review the Schedule
14D-9 before it is filed with the SEC. In addition, the Company agrees to
provide Parent, the Purchaser and their counsel, in writing, with any comments,
whether written or oral, that the Company or its counsel may receive from time
to time from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments or other communications.
6
<PAGE> 11
(c) In connection with the Offer, the Company will promptly
furnish or cause to be furnished to the Purchaser mailing labels, security
position listings and any available listing, or computer file containing the
names and addresses of all record holders of the Shares as of a recent date, and
shall furnish the Purchaser with such additional information (including, but not
limited to, updated lists of holders of the Shares and their addresses, mailing
labels and lists of security positions) and assistance as the Purchaser or its
agents may reasonably request in communicating the Offer to the record and
beneficial holders of the Shares. Except for such steps as are necessary to
disseminate the Offer Documents, Parent and the Purchaser shall hold in
confidence the information contained in any of such labels and lists and the
additional information referred to in the preceding sentence, will use such
information only in connection with the Offer, and, if this Agreement is
terminated, will upon request of the Company deliver or cause to be delivered to
the Company all copies of such information then in its possession or the
possession of its agents or representatives.
Section 1.3 Directors.
(a) Promptly upon the purchase of and payment for Shares by
the Purchaser which represent at least a majority of the outstanding Shares,
Parent shall be entitled to designate such number of directors, rounded up to
the next whole number, on the Board of Directors of the Company as is equal to
the product of the total number of directors on such Board (giving effect to the
directors designated by Parent pursuant to this sentence) multiplied by the
percentage that the number of Shares so accepted for payment bears to the total
number of Shares then outstanding. In furtherance thereof, the Company shall,
upon the request of Parent, use its best reasonable efforts promptly either to
increase the size of its Board of Directors, including amending the Bylaws
7
<PAGE> 12
of the Company if necessary to so increase the size of the Company's Board of
Directors, or secure the resignations of such number of its incumbent directors,
or both, as is necessary to enable Parent's designees to be so elected to the
Company's Board of Directors, and shall take all actions available to the
Company to cause Parent's designees to be so elected. At such time, the Company
shall, if requested by Parent, also cause persons designated by Parent to
constitute at least the same percentage (rounded up to the next whole number) as
is on the Company's Board of Directors of (i) each committee of the Company's
Board of Directors, (ii) each board of directors (or similar body) of each
Subsidiary (as defined in Section 3.1 hereof) of the Company and (iii) each
committee (or similar body) of each such board.
(b) The Company shall promptly take all actions required
pursuant to Section 14(f) of the Exchange Act and Rule 14f-l promulgated
thereunder in order to fulfill its obligations under Section 1.3(a) hereof,
including mailing to shareholders the information required by such Section 14(f)
and Rule 14f-1 as is necessary to enable Parent's designees to be elected to the
Company's Board of Directors. Parent or the Purchaser shall supply the Company
and be solely responsible for any information with respect to either of them and
their nominees, officers, directors and affiliates required by such Section
14(f) and Rule 14f-1. The provisions of this Section 1.3(b) are in addition to
and shall not limit any rights which the Purchaser, Parent or any of their
affiliates may have as a holder or beneficial owner of Shares as a matter of law
with respect to the election of directors or otherwise.
(c) Following the election or appointment of the Purchaser's
designees pursuant to this Section and prior to the earlier to occur of (i) the
Effective Time or (ii) November 21, 1997, any amendment or termination of this
Agreement, grant by the Company of any extension
8
<PAGE> 13
for the performance or waiver of the obligations or other acts of the Purchaser
or Parent, waiver of the Company's rights hereunder, or action with respect to
the Company's employee benefit plans or option agreements, shall require the
concurrence of a majority of the Company's directors then in office who are
directors on the date hereof, or are directors (other than directors designated
by the Purchaser in accordance with this Section) designated by such directors
to fill any vacancy ("Current Directors"). In addition, following the election
or appointment of the Purchaser's designees pursuant to this Section and prior
to the earlier to occur of (i) the Effective Time or (ii) November 21, 1997,
none of Parent, the Purchaser or such designee shall cause the Company to take
any action or fail to take any action that would cause or result in any
obligation of the Company hereunder or any condition herein not being satisfied
without the concurrence of a majority of the Company's directors then in office
who are Current Directors. Prior to the earlier to occur of (i) the Effective
Time or (ii) November 21, 1997, neither the Purchaser nor its designees shall
remove any Current Director, except for cause, and the Purchaser agrees to cause
its designees to vote for the election of any designee of the Current Directors
to fill a vacancy created by any Current Director ceasing to be a director.
Section 1.4 The Merger. Upon the terms and subject to the
conditions of this Agreement, at the Effective Time, the Company and the
Purchaser shall consummate a merger (the "Merger") as set forth below.
(a) At the election of Parent, pursuant to the Merger (i) the
Company shall be merged with and into the Purchaser and the separate corporate
existence of the Company shall thereupon cease, (ii) the Purchaser shall be the
successor or surviving corporation in the Merger (sometimes hereinafter referred
to as the "Purchaser Surviving Corporation" or the "Surviving Corporation")
9
<PAGE> 14
and shall continue to be governed by the laws of the State of Delaware, and
(iii) all the rights, privileges, immunities, powers and franchises of the
Company shall vest in the Purchaser Surviving Corporation and, except as
otherwise provided for in this Agreement, all obligations, duties, debts and
liabilities of the Company shall be the obligations, duties, debts and
liabilities of the Purchaser Surviving Corporation; or
(b) At the election of Parent, pursuant to the Merger (i) the
Purchaser shall be merged with and into the Company and the separate corporate
existence of the Purchaser shall cease, (ii) the Company shall be the successor
or surviving corporation in the Merger (sometimes hereinafter referred to as the
"Company Surviving Corporation" or the "Surviving Corporation") and shall
continue to be governed by the laws of the Commonwealth of Massachusetts, and
(iii) the separate corporate existence of the Company with all its rights,
privileges, immunities, powers and franchises shall continue unaffected by the
Merger, except as set forth in this Section 1.4(b).
(c) The Articles of Incorporation of the Surviving Corporation
shall be the Articles of Incorporation of the Surviving Corporation immediately
prior to the Effective Time, until thereafter amended as provided therein and
under the Delaware or Massachusetts corporation law, as applicable. The Bylaws
of the Surviving Corporation shall be the Bylaws of the Purchaser, as in effect
immediately prior to the Effective Time, until thereafter amended as provided
therein and under the Delaware or Massachusetts corporation law, as applicable.
Section 1.5 Effective Time. Parent, the Purchaser and the
Company will cause a Certificate of Merger to be executed and filed on the
Closing Date (as defined in Section 1.6 hereof) (or on such other date as
10
<PAGE> 15
Parent and the Company may agree) with the Secretary of State of Delaware and
the Secretary of the Commonwealth of Massachusetts as provided by applicable
law. The Merger shall become effective on the date on which the Certificate of
Merger is duly filed with the Secretary of State of the state of incorporation
of the Surviving Corporation or such time as is agreed upon by the parties and
specified in the Certificate of Merger, and such time is hereinafter referred to
as the "Effective Time."
Section 1.6 Closing. The closing of the Merger (the "Closing")
shall take place at 10:00 a.m. on the second business day after satisfaction or
waiver of all of the conditions set forth in Article VI hereof, or such other
date as may be agreed to by the parties in writing (the "Closing Date"), at the
offices of the Company at 1 Forbes Road, Newmarket Industrial Park, Newmarket,
New Hampshire 03857 unless another place is agreed to in writing by the parties
hereto.
Section 1.7 Directors and Officers of the Surviving
Corporation. The directors and officers of the Purchaser at the Effective Time
shall, from and after the Effective Time, be the directors and officers,
respectively, of the Surviving Corporation until their successors shall have
been duly elected or appointed or qualified or until their earlier death,
resignation or removal in accordance with the Articles of Incorporation and the
Bylaws of the Surviving Corporation.
Section 1.8 Shareholders' Meeting.
(a) If required by applicable law in order to consummate the
Merger, the Company, acting through its Board of Directors, shall, in accordance
with applicable law and subject to the fiduciary duties of the Board of
Directors:
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(i) duly call, give notice of, convene and hold a
special meeting of its shareholders (the "Special Meeting") as promptly
as practicable following the acceptance for payment and purchase of
Shares by the Purchaser pursuant to the Offer for the purpose of
considering and taking action upon the approval of the Merger and the
adoption of this Agreement;
(ii) prepare and file with the SEC a preliminary proxy
or information statement relating to the Merger and this Agreement and
use its best efforts (x) to obtain and furnish the information required
to be included by the SEC in the Proxy Statement (as hereinafter
defined) and, after consultation with Parent, to respond promptly to
any comments made by the SEC with respect to the preliminary proxy or
information statement and cause a definitive proxy or information
statement, including any amendment or supplement thereto (the "Proxy
Statement") to be mailed to its shareholders, provided that no
amendment or supplement to the Proxy Statement will be made by the
Company without consultation with Parent and its counsel and (y) to
obtain the necessary approvals of the Merger and this Agreement by its
shareholders; and
(iii) include in the Proxy Statement the recommendation
of the Board of Directors that shareholders of the Company vote in
favor of the approval of the Merger and the adoption of this Agreement.
(b) Parent shall vote, or cause to be voted, all of the Shares
then owned by it, the Purchaser or any of its other Subsidiaries and affiliates
in favor of the approval of the Merger and the approval and adoption of this
Agreement.
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Section 1.9 Merger Without Meeting of Shareholders.
Notwithstanding Section 1.8 hereof, in the event that Parent, the Purchaser and
any other Subsidiaries of Parent shall acquire in the aggregate at least 90% of
the outstanding Shares of the Company, pursuant to the Offer or otherwise, the
parties hereto shall, at the request of Parent and subject to Article VI hereof,
take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after such acquisition, without a meeting of
shareholders of the Company, in accordance with Section 82 of the Massachusetts
Business Corporation Law ("MBCL").
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Capital Stock. As of the Effective
Time, by virtue of the Merger and without any action on the part of the holders
of any Shares or holders of common stock, par value $.01 per share, of the
Purchaser (the "Purchaser Common Stock"):
(a) The Purchaser Common Stock. Each issued and outstanding
share of the Purchaser Common Stock shall be converted into and become one fully
paid and nonassessable share of common stock of the Company Surviving
Corporation or shall remain outstanding and constitute one fully paid and
non-assessable share of the Purchaser Surviving Corporation, as the case may be,
and shall constitute the only outstanding shares of capital stock of the
Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent Owned Stock. All
Shares that are owned by the Company as treasury stock and any Shares owned by
Parent, the Purchaser or any other wholly owned Subsidiary of Parent shall be
canceled and retired and shall cease to exist
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and no consideration shall be delivered in exchange therefor.
(c) Exchange of Shares. Each issued and outstanding Share
(other than Shares to be canceled in accordance with Section 2.1(b) above and
any Shares which are held by shareholders exercising appraisal rights pursuant
to Sections 85-98 of the MBCL ("Dissenting Shareholders")) shall be converted
into the right to receive the Offer Price, payable to the holder thereof,
without interest (the "Merger Consideration"), upon surrender of the certificate
formerly representing such Share in the manner provided in Section 2.2 hereof.
All such Shares, when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such Shares shall cease to have any rights
with respect thereto, except the right to receive the Merger Consideration
therefor upon the surrender of such certificate in accordance with Section 2.2
hereof, without interest, or the right, if any, to receive payment from the
Surviving Corporation of the "fair value" of such Shares as determined in
accordance with the MBCL.
Section 2.2 Exchange of Certificates.
(a) Paying Agent. Parent shall designate a bank or trust
company reasonably acceptable to the Company to act as agent for the holders of
the Shares in connection with the Merger (the "Paying Agent") to receive in
trust the funds to which holders of the Shares shall become entitled pursuant to
Section 2.1(c) above. Such funds shall be invested by the Paying Agent as
directed by Parent or the Surviving Corporation.
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, the Paying Agent shall mail to each holder of record
of a
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certificate or certificates, which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates"), whose Shares were converted
pursuant to Section 2.1 hereof into the right to receive the Merger
Consideration (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 delivery of the Certificates to the Paying Agent and shall be in such
form and have such other provisions as Parent and the Company may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for payment of 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 Parent, together with such letter of transmittal,
duly executed, the holder of such Certificate shall be entitled to receive in
exchange therefor the Merger Consideration for each Share formerly represented
by such Certificate and the Certificate so surrendered shall forthwith be
canceled. If payment of the Merger Consideration is to be made to a person other
than the person in whose name the surrendered Certificate is registered, it
shall be a condition of payment that the Certificate so surrendered shall be
properly endorsed or shall be otherwise in proper form for transfer and that the
person requesting such payment shall have paid any transfer and other taxes
required by reason of the payment of the Merger Consideration to a person other
than the registered holder of the Certificate surrendered or shall have
established to the satisfaction of the Surviving Corporation that such tax
either has been paid or is not applicable. Until surrendered as contemplated by
this Section 2.2, each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive the Merger Consideration
in cash as contemplated by this Section 2.2.
(c) Transfer Books; No Further Ownership Rights in the Shares.
At the Effective Time, the stock
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transfer books of the Company shall be closed and thereafter there shall be no
further registration of transfers of the Shares on the records of the Company.
From and after the Effective Time, the holders of Certificates evidencing
ownership of the Shares outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such Shares, except as otherwise
provided for herein or by applicable law. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article II.
(d) Termination of Fund; No Liability. At any time following
six months after the Effective Time, the Surviving Corporation shall be entitled
to require the Paying Agent to deliver to it any funds (including any interest
received with respect thereto) which had been made available to the Paying Agent
and which had not been disbursed to holders of Certificates, and thereafter such
holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar laws) only as general creditors
thereof with respect to the Merger Consideration payable upon due surrender of
their Certificates, without any interest thereon. Notwithstanding the foregoing,
neither the Surviving Corporation nor the Paying Agent shall be liable to any
holder of a Certificate for Merger Consideration delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
Section 2.3 Dissenters' Rights. If any Dissenting Shareholder
shall demand to be paid the fair value of such holder's Shares, as provided in
Sections 85-98 of the MBCL, the Company shall give Parent notice thereof and
Parent shall have the right to participate in all negotiations and proceedings
with respect to any such demands to the extent permitted by the MBCL. Neither
the
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Company nor the Surviving Corporation shall, except with the prior written
consent of Parent, voluntarily make any payment with respect to, or settle or
offer to settle, any such demand for payment. If any Dissenting Shareholder
shall fail to perfect or shall have effectively withdrawn or lost the right to
dissent, the Shares held by such Dissenting Shareholder shall thereupon be
treated as though such Shares had been converted into the Merger Consideration
pursuant to Section 2.1 hereof.
Section 2.4 Options. At the Effective Time, each holder of a
then outstanding option (collectively, the "Options") to purchase Shares granted
by the Company, whether or not then exercisable, shall in settlement thereof,
receive for each Share subject to such Option an amount (subject to any
applicable withholding tax) in cash equal to the difference between the Offer
Price and the per Share exercise price of such Option to the extent such
difference is a positive number. Prior to the Effective Time, the Company shall
use all commercially reasonable efforts to obtain all necessary consents or
releases from holders of Options, to the extent required by the terms of the
plans or agreements governing such Options, as the case may be, or pursuant to
the terms of any Option granted thereunder, and take all such other lawful
action as may be necessary to give effect to the transactions contemplated by
this Section 2.4 (except for such action that may require the approval of the
Company's shareholders). The Company shall take all action necessary to ensure
that (i) the Company's 1995 Key Employees Stock Option Plan (the "Stock Option
Plan") shall have been terminated as of the Effective Time and the provisions in
any other plan, program or arrangement providing for the issuance or grant of
any other interest in respect of the capital stock of the Company or any
Subsidiary thereof, shall be canceled as of the Effective Time, and (ii)
following the Effective Time, (a) no participant in any Stock Option Plan or
other plans,
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programs or arrangements shall have any right thereunder to acquire equity
securities of the Company, the Surviving Corporation or any Subsidiary thereof
(except options to acquire approximately 96,000 Shares of the Company where the
exercise price is higher than $1.90 per Share) and all such plans shall have
been terminated, and (b) the Company will not be bound by any convertible
security, option, warrant, right or agreement which would entitle any person to
own any capital stock of the Company, the Surviving Corporation or any
Subsidiary thereof.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
Except as disclosed in the schedule attached to this Agreement
setting forth exceptions to the Company's representations and warranties set
forth herein (the "Company Disclosure Schedule"), the Company represents and
warrants to Parent and the Purchaser as set forth below (any matter disclosed in
any Section hereof or in the Company Disclosure Schedule being deemed disclosed
for purposes of all Sections hereof and all Sections of the Company Disclosure
Schedule). The Company Disclosure Schedule will be arranged in sections
corresponding to sections of this Agreement to be modified thereby.
Section 3.1 Organization. (a) Each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization
and has all requisite corporate power and authority and all necessary
governmental approvals to own, lease and operate its properties and to carry on
its business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power, authority, and
governmental approvals would not, individually or in the aggregate, have a
Company Material Adverse Effect (as defined below). As used in this Agreement,
the term "Subsidiary" shall mean
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all corporations or other entities in which the Company or the Parent, as the
case may be, owns a majority of the issued and outstanding capital stock or
similar interests. As used in this Agreement, "Company Material Adverse Effect"
with reference to any events, changes or effects, shall mean that such events,
changes or effects are materially adverse to the Company and its Subsidiaries,
taken as a whole.
(b) The Company and each of its Subsidiaries is duly qualified
or licensed to do business and in good standing in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification or licensing necessary, except where
the failure to be so duly qualified or licensed and in good standing would not
individually or in the aggregate have a Company Material Adverse Effect. The
Company does not own any equity interest in any corporation or other entity
other than its Subsidiaries.
Section 3.2 Capitalization. (a) The authorized capital stock
of the Company consists of 20,000,000 shares of Common Stock, par value $.01 per
share. As of the date hereof, (i) 9,856,572 Shares are issued and outstanding,
(ii) none of the Shares are issued and held in the treasury of the Company and
(iii) 543,400 Shares are reserved for issuance upon the exercise of outstanding
Options. Section 3.2(a) of the Company Disclosure Schedule discloses the number
of shares subject to each outstanding Option and the exercise price thereof. All
the outstanding shares of the Company's capital stock are, and all Shares which
may be issued pursuant to the exercise of outstanding Options will be, when
issued in accordance with the respective terms thereof, duly authorized, validly
issued, fully paid and non-assessable. There are no bonds, debentures, notes or
other indebtedness having general voting rights (or convertible into securities
having such rights)
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("Voting Debt") of the Company or any of its Subsidiaries issued and
outstanding. Except as set forth above and except for the transactions
contemplated by this Agreement, as of the date hereof, (i) there are no shares
of capital stock of the Company authorized, issued or outstanding, (ii) there
are no existing options, warrants, calls, preemptive rights, subscriptions or
other rights, agreements, arrangements or commitments of any character, relating
to the issued or unissued capital stock of the Company or any of its
Subsidiaries, obligating the Company or any of its Subsidiaries to issue,
transfer or sell or cause to be issued, transferred or sold any shares of
capital stock or Voting Debt of, or other equity interest in, the Company or any
of its Subsidiaries or securities convertible into or exchangeable for such
shares or equity interests, or obligating the Company or any of its Subsidiaries
to grant, extend or enter into any such option, warrant, call, subscription or
other right, agreement, arrangement or commitment and (iii) there are no
outstanding contractual obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Shares, or the capital stock of the
Company or of any Subsidiary or affiliate of the Company or to provide funds to
make any investment (in the form of a loan, capital contribution or otherwise)
in any Subsidiary or any other entity.
(b) All of the outstanding shares of capital stock of each of
its Subsidiaries are owned beneficially and of record by the Company or one of
its Subsidiaries, directly or indirectly, and all such shares have been validly
issued and are fully paid and nonassessable and are owned by either the Company
or one of its Subsidiaries free and clear of all liens, charges, claims or
encumbrances ("Encumbrances").
(c) There are no voting trusts or other agreements or
understandings to which the Company or any
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of its Subsidiaries is a party with respect to the voting of the capital stock
of the Company or any of the Subsidiaries.
Section 3.3 Authorization; Validity of Agreement; Company
Action. The Company has full corporate power and authority to execute and
deliver this Agreement and to consummate the Transactions. The execution,
delivery and performance by the Company of this Agreement, and the consummation
by it of the Transactions, have been unanimously approved and duly authorized by
its Board of Directors and no other corporate action on the part of the Company
is necessary to authorize (i) the execution and delivery by the Company of this
Agreement and (ii) the consummation by it of the Transactions, except that
consummation of the Merger may require approval of the Company's shareholders as
contemplated by Section 1.8 hereof. This Agreement has been duly executed and
delivered by the Company and, assuming due and valid authorization, execution
and delivery hereof by Parent and the Purchaser, is a valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization, or other laws affecting creditors'
rights generally or by the availability of equitable remedies generally.
Section 3.4 Consents and Approvals; No Violations. Except for
the filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange Act and the HSR Act,
none of the execution, delivery or performance of this Agreement by the Company,
the consummation of the Transactions or compliance by the Company with any of
the provisions hereof will (i) conflict with or result in any breach of any
provision of the Articles of Incorporation, the Bylaws or similar organizational
documents of the Company or any of its
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Subsidiaries, (ii) require any filing with, or permit, authorization, consent or
approval of, any court, arbitral tribunal, administrative agency or commission
or other governmental or regulatory authority or agency (a "Governmental
Entity"), (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which the
Company or any of its Subsidiaries is a party or by which any of them or any of
their properties or assets may be bound (the "Company Agreements") or (iv)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Company, any of its Subsidiaries or any of their properties or
assets, excluding from the foregoing clauses (ii), (iii) and (iv) such
violations, breaches or defaults which would not, individually or in the
aggregate, have a Company Material Adverse Effect or have a material adverse
effect on the ability of the Company to consummate the Transactions. Section 3.4
of the Company Disclosure Schedule sets forth a list of all third party consents
and approvals required to be obtained in connection with this Agreement under
the Company Agreements prior to the consummation of the Transactions.
Section 3.5 SEC Reports and Financial Statements. The Company
has filed with the SEC, and has heretofore made available to Parent, true and
complete copies of all forms, reports, schedules, statements and other documents
required to be filed by it since January 1, 1994 under the Exchange Act or the
Securities Act of 1933, as amended (the "Securities Act") (as such documents
have been amended since the time of their filing, collectively, the "Company SEC
Documents"). As of their respective dates, the Company SEC Documents,
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including, without limitation, any financial statements or schedules included
therein (a) did not contain any untrue statement of a material fact or omit 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 and (b) complied in all material respects with the
applicable requirements of the Exchange Act and the Securities Act, as the case
may be, and the applicable rules and regulations of the SEC thereunder. None of
the Company's Subsidiaries is required to file any forms, reports or other
documents with the SEC. The financial statements of the Company included in the
Company SEC Documents (the "Financial Statements") have been prepared from, and
are in accordance with, the books and records of the Company and its
consolidated Subsidiaries, comply in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with United States
generally accepted accounting principles ("GAAP") applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto)
and fairly present the consolidated financial position and the consolidated
results of operations and cash flows (and changes in financial position, if any)
of the Company and its consolidated Subsidiaries as of the times and for the
periods referred to therein.
Section 3.6 Absence of Certain Changes. Except as disclosed in
Section 3.6 of the Company Disclosure Schedule or in the Company SEC Documents
filed prior to the date hereof, since December 31, 1996, the Company and its
Subsidiaries have conducted their respective businesses only in the ordinary and
usual course consistent with past practices and (i) there have not occurred any
events or changes (including the incurrence of any liabilities of any nature,
whether or not accrued, contingent or otherwise) having,
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individually or in the aggregate, a Company Material Adverse Effect and (ii) the
Company has not taken any action since December 31, 1996 which is prohibited
under Section 5.1 hereof.
Section 3.7 No Undisclosed Liabilities. Except (a) as
disclosed in the Financial Statements and (b) for liabilities and obligations
(i) incurred in the ordinary course of business and consistent with past
practice since December 31, 1996, (ii) pursuant to the terms of this Agreement,
(iii) as disclosed in Section 3.7 of the Company Disclosure Schedule, or (iv) as
disclosed in Section 3.8 of the Company Disclosure Schedule, neither the Company
nor any of its Subsidiaries has any material liabilities or material obligations
of any nature, whether or not accrued, contingent or otherwise.
Section 3.8 Litigation. Except as disclosed in Section 3.8 of
the Company Disclosure Schedule, as of the date hereof, there are no suits,
claims, actions, proceedings, including, without limitation, arbitration
proceedings or alternative dispute resolution proceedings, or investigations
pending or, to the knowledge of the Company, threatened against the Company or
any of its Subsidiaries before any Governmental Entity that, either individually
or in the aggregate, would be reasonably likely to have a Company Material
Adverse Effect.
Section 3.9 Employee Benefit Plans.
(a) Section 3.9(a) of the Company Disclosure Schedule contains
a true and complete list of each deferred compensation and each incentive
compensation, stock purchase, stock option and other equity compensation plan,
program, agreement or arrangement; each severance or termination pay, medical,
surgical, hospitalization, life insurance and other "welfare" plan,
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fund or program (within the meaning of section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")); each profit-sharing, stock
bonus or other "pension" plan, fund or program (within the meaning of section
3(2) of ERISA); each employment, termination or severance agreement; and each
other employee benefit plan, fund, program, agreement or arrangement, in each
case, that is sponsored, maintained or contributed to or required to be
contributed to by the Company or by any trade or business, whether or not
incorporated (an "ERISA Affiliate"), that together with the Company would be
deemed a "single employer" within the meaning of section 4001(b) of ERISA, or to
which the Company or an ERISA Affiliate is party, whether written or oral, for
the benefit of any employee or former employee of the Company or any Subsidiary
(the "Plans"). Each of the Plans that is subject to section 302 or Title IV of
ERISA or section 412 of the Internal Revenue Code of 1986, as amended (the
"Code") is hereinafter referred to in this Section 3.9 as a "Title IV Plan."
Neither the Company, any Subsidiary nor any ERISA Affiliate has any commitment
or formal plan, whether legally binding or not, to create any additional
employee benefit plan or modify or change any existing Plan that would affect
any employee or former employee of the Company or any Subsidiary.
(b) No liability under Title IV or section 302 of ERISA has
been incurred by the Company or any ERISA Affiliate that has not been satisfied
in full, and no condition exists that presents a material risk to the Company or
any ERISA Affiliate of incurring any such liability, other than liability for
premiums due the Pension Benefit Guaranty Corporation ("PBGC") (which premiums
have been paid when due).
(c) [Reserved.]
(d) With respect to each Title IV Plan, the present value of
accrued benefits under such Plan, based
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upon the actuarial assumptions used for funding purposes in the most recent
actuarial report prepared by such Plan's actuary with respect to such Plan did
not exceed, as of its latest valuation date, the then current value of the
assets of such Plan allocable to such accrued benefits.
(e) No Title IV Plan is a "multiemployer pension plan," as
defined in section 3(37) of ERISA, nor is any Title IV Plan a plan described in
section 4063(a) of ERISA. Neither the Company nor any ERISA Affiliate has made
or suffered a "complete withdrawal" or a "partial withdrawal," as such terms are
respectively defined in sections 4203 and 4205 of ERISA (or any liability
resulting therefrom has been satisfied in full).
(f) Each Plan has been operated and administered in accordance
with its terms and applicable law, including but not limited to ERISA and the
Code.
(g) Each Plan intended to be "qualified" within the meaning of
section 401(a) of the Code has received a favorable determination letter from
the Internal Revenue Service with respect to the qualified status of such Plan
under the Code, including all amendments to the Code effected by the Tax Reform
Act of 1986 and subsequent legislation, and nothing has occurred since the
issuance of such letter which could reasonably be expected to cause the loss of
the tax-qualified status of such Plan and the related trust maintained
thereunder. Each Plan intended to satisfy the requirements of Section 501(c)(9)
has satisfied such requirements.
(h) No Plan provides medical, surgical, hospitalization, death
or similar benefits (whether or not insured) for employees or former employees
of the Company or any Subsidiary for periods extending beyond their retirement
or other termination of service, other
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than (i) coverage mandated by applicable law, (ii) death benefits under any
"pension plan," or (iii) benefits the full cost of which is borne by the current
or former employee (or his or her beneficiary).
(i) Except as disclosed in Section 3.9(i) of the Company
Disclosure Schedule or as set forth in Section 5.10 of this Agreement, the
consummation of the transactions contemplated by this Agreement will not, either
alone or in combination with another event, except as expressly provided in
Section 2.4 of this Agreement, (a) entitle any current or former employee or
officer of the Company or any ERISA Affiliate to severance pay, unemployment
compensation or any other payment, or (b) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee or
officer.
(j) There are no pending, or to the knowledge of Company,
threatened or anticipated claims by or on behalf of any Plan, by any employee or
beneficiary covered under any such Plan, or otherwise involving any such Plan
(other than routine claims for benefits) which could have a material adverse
effect upon the Plans or have a Company Material Adverse Effect.
Section 3.10 Tax Matters; Government Benefits.
(a) Except as disclosed in Section 3.10(a) of the Company
Disclosure Schedule, the Company and each of its Subsidiaries have duly filed
(or there has been filed on its behalf) all Tax Returns (as hereinafter defined)
that are required to be filed and have duly paid or caused to be duly paid in
full or made provision in accordance with GAAP (or there has been paid or
provision has been made on their behalf) for the payment of all Taxes (as
hereinafter defined) shown due on such Tax Returns. All such Tax Returns are
correct and complete in all material respects and accurately reflect all
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liability for Taxes for the periods covered thereby. All Taxes owed and due by
the Company and each of its Subsidiaries for results of operations through
December 31, 1996 (whether or not shown on any Tax Return) have been paid or
have been adequately reflected on the Company's balance sheet as of December 31,
1996 included in the Financial Statements (the "Balance Sheet"). Since December
31, 1996, the Company has not incurred liability for any Taxes other than in the
ordinary course of business. Neither the Company nor any of its Subsidiaries has
received written notice of any claim made by an authority in a jurisdiction
where neither the Company nor any of its Subsidiaries file Tax Returns, that the
Company is or may be subject to taxation by that jurisdiction.
(b) Except as disclosed in Section 3.10(b) of the Company
Disclosure Schedule, there are no liens for Taxes upon any property or assets of
the Company or any of its Subsidiaries except for liens for Taxes not yet due.
(c) The federal income Tax Returns of the Company and its
Subsidiaries have been examined by the Internal Revenue Service (or the
applicable statutes of limitation for the assessment of federal income Taxes for
such periods have expired) for all periods through and including December 31,
1992, and, except as disclosed in Section 3.10(c) of the Company Disclosure
Schedule, no deficiencies were asserted as a result of such examinations that
have not been resolved or fully paid. Neither the Company nor any of its
Subsidiaries has waived any statute of limitations in any jurisdiction in
respect of Taxes or Tax Returns or agreed to any extension of time with respect
to a Tax assessment or deficiency.
(d) The deductibility of compensation paid by the Company or
any of its Subsidiaries prior to the
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Effective Time will not be limited by Section 162(m) of the Code.
(e) No federal, state, local or foreign audits, examinations
or other administrative proceedings have been commenced or, to the Company's
knowledge, are threatened with regard to any Taxes or Tax Returns of the Company
or of any of its Subsidiaries. No written notification has been received by the
Company or by any of its Subsidiaries that such an audit, examination or other
proceeding is pending or threatened with respect to any Taxes due from or with
respect to or attributable to the Company or any of its Subsidiaries or any Tax
Return filed by or with respect to the Company or any of its Subsidiaries. To
the Company's knowledge, there is no dispute or claim concerning any Tax
liability of the Company, or any of its Subsidiaries either claimed or raised by
any taxing authority in writing.
(f) Except as set forth in the Company Disclosure Schedule, no
power of attorney granted by either the Company or any of its Subsidiaries is
currently in force.
(g) Neither the Company nor any of its Subsidiaries is a party
to any agreement, plan, contract or arrangement that could result, separately or
in the aggregate, in a payment of any "excess parachute payments" within the
meaning of section 280G of the Code.
(h) Neither the Company nor any of its Subsidiaries has filed
a consent pursuant to section 341(f) of the Code (or any predecessor provision)
concerning collapsible corporations, or agreed to have section 341(f)(2) of the
Code apply to any disposition of a "subsection (f) asset" (as such term is
defined in section 341(f)(4) of the Code) owned by the Company or any of its
Subsidiaries.
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(i) Neither the Company nor any of its Subsidiaries is a party
to any tax sharing, tax indemnity or other agreement or arrangement with any
entity not included in the Company's consolidated financial statements most
recently filed by the Company with the SEC.
(j) None of the Company or any of its Subsidiaries has been a
member of any affiliated group within the meaning of section 1504(a) of the
Code, or any similar affiliated or consolidated group for tax purposes under
state, local or foreign law (other than a group the common parent of which is
the Company), or has any liability for Taxes of any person (other than the
Company and its Subsidiaries) under Treasury Regulation Section 1.15026 (or any
similar provision of state, local or foreign law), as a transferee or successor,
by contract or otherwise.
(k) As used in this Agreement, the following terms shall have
the following meanings:
(i) "Tax" or "Taxes" shall mean all taxes, charges,
fees, duties, levies, penalties or other assessments imposed by any
federal, state, local or foreign governmental authority, including, but
not limited to, income, gross receipts, excise, property, sales, gain,
use, license, custom duty, unemployment, capital stock, transfer,
franchise, payroll, withholding, social security, minimum estimated,
and other taxes, and shall include interest, penalties or additions
attributable thereto; and
(ii) "Tax Return" shall mean any return, declaration,
report, claim for refund, or information return or statement relating
to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
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Section 3.11 Intellectual Property.
(a) The Company and its Subsidiaries own or have adequate
rights to use the items of Intellectual Property (as defined below and
specifically listed in Section 3.11(a) of the Company Disclosure Schedule)
necessary to conduct the business of the Company and its Subsidiaries as
presently conducted or as currently proposed to be conducted, free and clear of
all Encumbrances (other than Encumbrances which, individually or in the
aggregate, would not have a Company Material Adverse Effect).
(b) The conduct of the Company's and its Subsidiaries'
business and the Intellectual Property owned or used by the Company and its
Subsidiaries, do not infringe any Intellectual Property rights or any other
proprietary right of any person other than infringements which, individually or
in the aggregate, would not have a Company Material Adverse Effect. The Company
and its Subsidiaries have received no notice of any allegations or threats that
the Company's and its Subsidiaries' use of any of the Intellectual Property
infringes upon or is in conflict with any Intellectual Property or proprietary
rights of any third party other than infringements or conflicts which
individually or in the aggregate would not have a Company Material Adverse
Effect.
(c) As used in this Agreement, "Intellectual Property" means
all of the following: (i) U.S. and foreign registered and unregistered
trademarks, trade dress, service marks, logos, trade names, corporate names and
all registrations and applications to register the same (the "Trademarks"); (ii)
issued U.S. and foreign patents and pending patent applications, patent
disclosures, and any and all divisions, continuations, continuations-in-part,
re-issues, reexaminations, and extension thereof, any counterparts claiming
priority therefrom, utility models, patents of
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importation/confirmation, certificates of invention and like statutory rights
(the "Patents"); (iii) U.S. and foreign registered and unregistered copyrights
(including, but not limited to, those in computer software and databases),
rights of publicity and all registrations and applications to register the same
(the "Copyrights"); (iv) all categories of trade secrets as defined in the
Uniform Trade Secrets Act including, but not limited to, business information;
and (v) all licenses and agreements pursuant to which the Company has acquired
rights in or to any Trademarks, Patents, or Copyrights, or licenses and
agreements pursuant to which the Company has licensed or transferred the right
to use any of the foregoing ("Licenses").
Section 3.12 Employment Matters. To the knowledge of the
Company, no key employee disclosed in Section 3.12 of the Company Disclosure
Schedule has any plans to terminate such employee's employment with the Company
or any of its Subsidiaries as a result of the Transactions or otherwise. Neither
the Company nor any of its Subsidiaries has experienced any strikes, collective
labor grievances, other collective bargaining disputes or claims of unfair labor
practices in the last five years. To the Company's knowledge, there is no
organizational effort presently being made or threatened by or on behalf of any
labor union with respect to employees of the Company and its Subsidiaries.
Section 3.13 Compliance with Laws. The Company and its
Subsidiaries are in compliance with, and have not violated any applicable law,
rule or regulation of any United States federal, state, local, or foreign
government or agency thereof which affects the business, properties or assets of
the Company and its Subsidiaries, and no notice, charge, claim, action or
assertion has been received by the Company or any of its Subsidiaries or has
been filed, commenced or, to the Company's knowledge, threatened against the
Company or any of its
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Subsidiaries alleging any such violation, except for any matter otherwise
covered by this sentence which would not have, individually or in the aggregate,
a Company Material Adverse Effect. All licenses, permits and approvals required
under such laws, rules and regulations are in full force and effect except where
the failure to be in full force and effect would not have a Company Material
Adverse Effect.
Section 3.14 Vote Required. The affirmative vote of the
holders of two-thirds of the outstanding Shares in favor of the Merger is the
only vote of the holders of any class or series of the Company's capital stock
which may be necessary to approve this Agreement and the Transactions.
Section 3.15 Environmental Laws.
(a) The Company and its Subsidiaries are in compliance with
all applicable Environmental Laws (as defined below) (which compliance includes,
without limitation, the possession by the Company and its Subsidiaries of all
permits and other governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions thereof),
except where failure to be in compliance, either individually or in the
aggregate, would not have a Company Material Adverse Effect.
(b) There is no Environmental Claim (as defined below) pending
or, to the Company's knowledge, threatened against the Company or any of its
Subsidiaries or, to the Company's knowledge, against any person or entity whose
liability for any Environmental Claim the Company or any of its Subsidiaries has
or may have retained or assumed either contractually or by operation of law
which Environmental Claim would have, either individually or in the aggregate, a
Company Material Adverse Effect.
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(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release or presence of any Hazardous Material (as defined below), which
could form the basis of any Environmental Claim against the Company or any of
its Subsidiaries, or to the Company's knowledge, against any person or entity
whose liability for any Environmental Claim the Company or any of its
Subsidiaries has or may have retained or assumed either contractually or by
operation of law, which Environmental Claim would have, either individually or
in the aggregate, a Company Material Adverse Effect.
(d) The Company and its Subsidiaries have not, and to the
Company's knowledge, no other person has, placed, stored, deposited, discharged,
buried, dumped or disposed of Hazardous Materials or any other wastes produced
by, or resulting from, any business, commercial or industrial activities,
operations or processes, on, beneath or adjacent to any property currently or
formerly owned, operated or leased by the Company or any of its Subsidiaries,
except (x) for inventories of such substances to be used, and wastes generated
therefrom, in the ordinary course of business of the Company and its
Subsidiaries, or (y) which would not, either individually or in the aggregate,
have a Company Material Adverse Effect.
(e) Without in any way limiting the generality of the
foregoing, except as disclosed in Section 3.15(e) of the Company Disclosure
Schedule, none of the properties owned, operated or leased by the Company or any
of its Subsidiaries contain any: underground storage tanks; asbestos;
polychlorinated biphenyls ("PCBs"); underground injection wells; radioactive
materials; or septic tanks or waste disposal pits in which process wastewater or
any Hazardous Materials have been discharged or disposed the existence of which,
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individually or in the aggregate, could reasonably be expected to have a Company
Material Adverse Effect.
(f) The Company has made available to Parent for review copies
of all environmental reports or studies in its possession.
(g) For purposes of this Agreement, (i) "Environmental Laws"
means all federal, state, local and foreign laws and regulations relating to
pollution or protection of human health or the environment, including, without
limitation, laws relating to releases or threatened releases of Hazardous
Materials or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, release, disposal, transport or handling of Hazardous
Materials and all laws and regulations with regard to record keeping,
notification, disclosure and reporting requirements respecting Hazardous
Materials; (ii) "Environmental Claim" means any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, Cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (a) the presence, or Release, of any
Hazardous Materials at any location, whether or not owned, leased or operated by
the Company or any of its Subsidiaries, or (b) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law; (iii)
"Hazardous Materials" means all substances defined as Hazardous Substances,
Oils, Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. Section 300.5, or defined as such by, or
regulated as such under, any Environmental Law.
Section 3.16 Information in Proxy Statement. The Proxy
Statement, if any (or any amendment thereof or
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supplement thereto), will not, at the date mailed to Company shareholders and at
the time of the meeting of Company shareholders to be held in connection with
the Merger, 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, except that no representation is made by the Company with respect to
statements made therein based on information supplied in writing by Parent or
the Purchaser for inclusion in the Proxy Statement. The Proxy Statement will
comply in all material respects with the provisions of the Exchange Act and the
rules and regulations thereunder.
Section 3.17 Opinion of Financial Advisor. The Company has
received the opinion of Scott-Macon Securities, Inc., dated the date hereof, to
the effect that, as of such date, the consideration to be received in the Offer
and the Merger by the Company's shareholders is fair to the Company's
shareholders from a financial point of view, a copy of which opinion has been
delivered to Parent and the Purchaser.
Section 3.18 Brokers or Finders. The Company represents, as to
itself and its Subsidiaries and affiliates, that no agent, broker, investment
banker, financial advisor or other firm or person is or will be entitled to any
brokers' or finder's fee or any other commission or similar fee from the Company
or any of its Subsidiaries in connection with any of the transactions
contemplated by this Agreement except for Scott-Macon, Ltd., whose fees are set
forth in the engagement letter attached as Section 3.18 of the Company
Disclosure Schedule.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE PURCHASER
Parent and the Purchaser represent and warrant to the Company
as set forth below.
Section 4.1 Organization. Parent is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
the Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Delaware.
Section 4.2 Authorization; Validity of Agreement; Necessary
Action. Each of Parent and the Purchaser has full corporate power and authority
to execute and deliver this Agreement and to consummate the Transactions. The
execution, delivery and performance by Parent and the Purchaser of this
Agreement and the consummation of the Transactions have been duly authorized by
the Boards of Directors of Parent and the Purchaser and by Parent as the sole
shareholder of the Purchaser and no other corporate action on the part of Parent
and the Purchaser is necessary to authorize the execution and delivery by Parent
and the Purchaser of this Agreement and the consummation of the Transactions.
This Agreement has been duly executed and delivered by Parent and the Purchaser
and, assuming due and valid authorization, execution and delivery hereof by the
Company, is a valid and binding obligation of each of Parent and the Purchaser
enforceable against each of them in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization, or other laws affecting creditors' rights generally or by the
availability of equitable remedies generally.
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Section 4.3 Consents and Approvals; No Violations. Except for
the filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange Act and the HSR Act,
none of the execution, delivery or performance of this Agreement by Parent or
the Purchaser, the consummation by Parent or the Purchaser of the Transactions
or compliance by Parent or the Purchaser with any of the provisions hereof will
(i) conflict with or result in any breach of any provision of the Articles of
Incorporation or Bylaws of Parent or the Articles of Incorporation or Bylaws of
the Purchaser, (ii) require any filing with, or permit, authorization, consent
or approval of, any Governmental Entity, (iii) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which Parent, or any of its Subsidiaries or the Purchaser is a party or by
which any of them or any of their respective properties or assets may be bound,
or (iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Parent, any of its Subsidiaries or any of their properties or
assets, excluding from the foregoing clauses (ii), (iii) and (iv) such
violations, breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on the ability of Parent and the
Purchaser to consummate the Transactions.
Section 4.4 Information in Proxy Statement. None of the
information supplied by Parent or the Purchaser in writing specifically for
inclusion or incorporation by reference in the Proxy Statement, if any, will, at
the date mailed to shareholders and at the time of the meeting of shareholders
to be held in connection with the Merger, contain any untrue statement
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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.
Section 4.5 Financing. Parent has the funds sufficient to
finance the transactions contemplated herein.
ARTICLE V
COVENANTS
Section 5.1 Interim Operations of the Company. The Company
covenants and agrees that, except (i) as expressly contemplated by this
Agreement or (ii) as agreed in writing by Parent, after the date hereof, and
prior to the time the designees of Parent have been elected to, and shall
constitute a majority of, the Board of Directors of the Company pursuant to
Section 1.3 hereof (the "Appointment Date"):
(a) the business of the Company and its Subsidiaries shall be
conducted only in the ordinary and usual course (other than actions necessary to
consummate the transactions described herein) and, to the extent consistent
therewith, each of the Company and its Subsidiaries shall use its best efforts
to preserve its business organization intact and maintain its existing relations
with customers, suppliers, employees, creditors and business partners subject,
however, to any changes to such relationships necessitated or caused by the
announcement of the proposed transaction contemplated hereby;
(b) the Company will not, directly or indirectly, (i) except
upon exercise of Options or other rights to purchase shares of Common Stock
outstanding on the date hereof, issue, sell, transfer or pledge or agree
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to sell, transfer or pledge any treasury stock of the Company or any capital
stock of any of its Subsidiaries beneficially owned by it, (ii) amend its
Articles of Incorporation or Bylaws or similar organizational documents; or
(iii) split, combine or reclassify the outstanding Shares or any outstanding
capital stock of any of the Subsidiaries of the Company;
(c) neither the Company nor any of its Subsidiaries shall: (i)
declare, set aside or pay any dividend or other distribution payable in cash,
stock or property with respect to its capital stock; (ii) issue, sell, pledge,
dispose of or encumber any additional shares of, or securities convertible into
or exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of capital stock of any class of the Company or its
Subsidiaries, other than Shares reserved for issuance on the date hereof
pursuant to the exercise of Options outstanding on the date hereof; (iii)
transfer, lease, license, sell or dispose of any assets, or incur any
indebtedness or other liability other than in the ordinary course of business,
or mortgage, pledge or encumber any assets or modify any indebtedness; or (iv)
redeem, purchase or otherwise acquire, directly or indirectly, any of its
capital stock;
(d) neither the Company nor any of its Subsidiaries shall: (i)
grant any increase in the compensation payable or to become payable by the
Company or any of its Subsidiaries to any of its executive officers or (ii)(A)
adopt any new, or (B) amend or otherwise increase, or accelerate the payment or
vesting of the amounts payable or to become payable under any existing bonus,
incentive compensation, deferred compensation, severance, profit sharing, stock
option, stock purchase, insurance, pension, retirement or other employee benefit
plan, agreement or arrangement; or (iii) enter into any employment or severance
agreement with or,
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except in accordance with the existing written policies of the Company, grant
any severance or termination pay to any officer, director or employee of the
Company or any of its Subsidiaries;
(e) neither the Company nor any of its Subsidiaries shall
permit any insurance policy naming it as a beneficiary or a loss payable payee
to be canceled or terminated without notice to Parent;
(f) neither the Company nor any of its Subsidiaries shall
enter into any contract or transaction relating to the purchase of assets other
than in the ordinary course of business;
(g) neither the Company nor any of its Subsidiaries shall
change any of the accounting methods used by it unless required by GAAP, neither
the Company nor any of its Subsidiaries shall make any material Tax election,
change any material Tax election already made, adopt any material Tax accounting
method, change any material Tax accounting method unless required by GAAP, enter
into any closing agreement, settle any Tax claim or assessment or consent to any
Tax claim or assessment or any waiver of the statute of limitations for any such
claim or assessment; and
(h) neither the Company nor any of its Subsidiaries will enter
into any agreement with respect to the foregoing or take any action with the
intent of causing any of the conditions to the Offer set forth in Annex A not to
be satisfied.
Section 5.2 Access; Confidentiality. (a) Upon reasonable
notice, the Company shall (and shall cause each of its Subsidiaries to) afford
to the officers, employees, accountants, counsel, financing sources and other
representatives of Parent, access, during normal business hours during the
period prior to
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the Appointment Date, to all its properties, books, contracts, commitments and
records and, during such period, the Company shall (and shall cause each of its
Subsidiaries to) furnish promptly to Parent (x) a copy of each report, schedule,
registration statement and other document filed or received by it during such
period pursuant to the requirements of federal securities laws and (y) all other
information concerning its business, properties and personnel as Parent may
reasonably request, including without limitation, true and complete copies of
each Plan of the Company or of any of its Subsidiaries and any amendments
thereto (or if any Plan is not a written Plan, a description thereof), any
related trust or other funding vehicle, any summary plan description under ERISA
or the Code and the most recent determination letter received from the Internal
Revenue Service with respect to each such Plan intended to qualify under Section
401 of the Code. Access shall include the right to conduct such environmental
studies and tests as Parent, in its reasonable discretion, shall deem
appropriate; provided, however, that such studies and tests must be performed in
such a way as not to disrupt materially the Company's business. After the
Appointment Date, the Company shall provide Parent and such persons as Parent
shall designate with all such information, at such time as Parent shall request.
Unless otherwise required by law and until the Appointment Date, Parent and the
Purchaser will hold any such information which is non-public in confidence.
(b) Following the execution of this Agreement, Parent and the
Company shall cooperate with each other and make all reasonable efforts to
minimize any disruption to the business which may result from the announcement
of the Transactions.
Section 5.3 Consents and Approvals. (a) Each of the Company,
Parent and the Purchaser shall take all reasonable actions necessary to comply
promptly with all
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legal requirements which may be imposed on it with respect to this Agreement and
the Transactions (which actions shall include, without limitation, furnishing
all information required under the HSR Act and in connection with approvals of
or filings with any other Governmental Entity) and will promptly cooperate with
and furnish information to each other in connection with any such requirements
imposed upon any of them or any of their Subsidiaries in connection with this
Agreement and the Transactions. Each of the Company, Parent and the Purchaser
shall, and shall cause its Subsidiaries to, take all reasonable actions
necessary to obtain (and will cooperate with each other in obtaining) any
consent, authorization, order or approval of, or any exemption by, any
Governmental Entity or other public or private third party required to be
obtained or made by Parent, the Purchaser, the Company or any of their
Subsidiaries in connection with the Transactions or the taking of any action
contemplated thereby or by this Agreement.
(b) The Company and Parent shall take all reasonable actions
necessary to file as soon as practicable notifications under the HSR Act and to
respond as promptly as practicable to any inquiries received from the Federal
Trade Commission and the Antitrust Division of the Department of Justice for
additional information or documentation and to respond as promptly as
practicable to all inquiries and requests received from any State Attorney
General or other Governmental Entity in connection with antitrust matters.
Section 5.4 No Solicitation. (a) Neither the Company nor any
of its Subsidiaries shall (and the Company and its Subsidiaries shall cause
their respective officers, directors, employees, representatives and agents,
including, but not limited to, investment bankers, attorneys and accountants,
not to), directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any
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information to, any corporation, partnership, person or other entity or group
(other than Parent or any of its affiliates or representatives) concerning any
proposal or offer to acquire all or a substantial part of the business and
properties of the Company or any of its Subsidiaries or any capital stock of the
Company or any of its Subsidiaries, whether by merger, tender offer, exchange
offer, sale of assets or similar transactions involving the Company or any
Subsidiary, division or operating or principal business unit of the Company (an
"Acquisition Proposal"), except that nothing contained in this Section 5.4 or
any other provision hereof shall prohibit the Company or the Company's Board of
Directors from (i) taking and disclosing to the Company's shareholders a
position with respect to a tender or exchange offer by a third party pursuant to
Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such
disclosure to the Company's shareholders as, in the good faith judgment of the
Board of Directors, after receiving advice from outside counsel, is required
under applicable law; provided that, except as permitted by this Section 5.4,
neither the Board of Directors of the Company nor any committee thereof shall
(x) approve or recommend or propose to approve or recommend any Acquisition
Proposal, (y) enter into any agreement with respect to any Acquisition Proposal,
or (z) withdraw or modify, or propose to withdraw or modify, in a manner adverse
to Parent or the Purchaser, the approval or recommendation by such Board of
Directors or any such committee of the Offer, this Agreement or the Merger. The
Company will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any of the
foregoing.
(b) Notwithstanding the foregoing, prior to the acceptance of
Shares pursuant to the Offer constituting the Minimum Condition, the Company may
furnish information concerning its business, properties
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or assets to any corporation, partnership, person or other entity or group
pursuant to appropriate confidentiality agreements, and may negotiate and
participate in discussions and negotiations with such entity or group concerning
an Acquisition Proposal if (x) such entity or group has on an unsolicited basis
submitted a bona fide written proposal to the Company relating to any such
transaction which the Board of Directors determines in good faith, after
receiving advice from Scott-Macon Securities, Inc. or a nationally recognized
investment banking firm, represents a superior transaction to the Offer and the
Merger and which the Board of Directors determines in good faith can be fully
financed and (y) in the opinion of the Board of Directors of the Company, only
after receipt of advice from outside legal counsel to the Company, the failure
to provide such information or access or to engage in such discussions or
negotiations could reasonably be expected to cause the Board of Directors to
violate its fiduciary duties to the Company's shareholders under applicable law
(an Acquisition Proposal which satisfies clauses (x) and (y) being referred to
herein as a "Superior Proposal"). The Company shall within one business day
following receipt of a Superior Proposal notify Parent of the receipt of the
same. The Company shall promptly provide to Parent any material non-public
information regarding the Company provided to any other party which was not
previously provided to Parent. At any time after two business days following
notification to Parent of the Company's intent to do so (which notification
shall include the identity of the bidder and a complete summary of the material
terms and conditions of the proposal) and if the Company has otherwise complied
with the terms of this Section 5.4(b), the Board of Directors may withdraw or
modify its approval or recommendation of the Offer.
(c) In the event of a Superior Proposal which (i) is to be
paid entirely in cash and (ii) is not subject to any financing condition or
contingency, the
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Company may enter into an agreement with respect to such Superior Proposal no
sooner than four days after giving Parent written notice of its intention to
enter into such agreement; provided that the Purchaser or Parent has not, prior
to the expiration of such four-day period, advised the Company of its intention
to raise the Offer Price to match such Superior Proposal. Upon expiration of
such four-day period without such action by the Purchaser or Parent, the Company
may enter into an agreement with respect to such Superior Proposal (with the
bidder and on terms no less favorable than those specified in such
notification), provided it shall concurrently with entering into such agreement
pay or cause to be paid to Parent the amount specified in Section 8.1(b) hereof.
Section 5.5 Additional Agreements. Subject to the terms and
conditions herein provided, each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations, or to remove any injunctions or other impediments or delays, legal
or otherwise, to achieve the satisfaction of the Minimum Condition and all
conditions set forth in Annex A attached hereto and Article VI hereof, and to
consummate and make effective the Merger and the other transactions contemplated
by this Agreement. In case at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Agreement,
the officers and directors of the Company, Parent and the Purchaser shall use
all reasonable efforts to take, or cause to be taken, all such necessary
actions.
Section 5.6 Publicity. The initial press release with respect
to the execution of this Agreement shall be a joint press release acceptable to
Parent and the Company. Thereafter, so long as this Agreement is in effect,
neither the Company, Parent nor any of their respective affiliates shall issue
or cause the
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publication of any press release or other announcement with respect to the
Merger, this Agreement or the other Transactions without the prior consultation
of the other party, except as such party believes, after receiving the advice of
outside counsel, may be required by law or by any listing agreement with a
national securities exchange or trading market.
Section 5.7 Notification of Certain Matters. The Company shall
give prompt notice to Parent and Parent shall give prompt notice to the Company,
of (i) the occurrence or non-occurrence of any event the occurrence or
non-occurrence of which would cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect at or prior to
the Effective Time and (ii) any material failure of the Company, Parent or the
Purchaser, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section 5.7 shall not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
Section 5.8 Directors' and Officers' Indemnification. For six
years after the Effective Time, the Surviving Corporation (or any successor to
the Surviving Corporation) and Parent shall jointly indemnify, defend and hold
harmless the present and former officers and directors of the Company and its
Subsidiaries, and persons who become any of the foregoing prior to the Effective
Time (each an "Indemnified Party") against all losses, claims, damages,
liabilities, costs, fees and expenses (including reasonable fees and
disbursements of counsel and judgments, fines, losses, claims, liabilities and
amounts paid in settlement (provided that any such settlement is effected with
the written consent of the Parent or the Surviving Corporation which consent
shall not unreasonably be withheld)) arising out of actions or
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omissions occurring at or prior to the Effective Time to the full extent
permissible under applicable Massachusetts law, the terms of the Company's
Articles of Incorporation or the Bylaws, as in effect at the date hereof;
provided that, in the event any claim or claims are asserted or made within such
six-year period, all rights to indemnification in respect of any such claim or
claims shall continue until disposition of any and all such claims.
Section 5.9 Purchaser Compliance. Parent shall cause the
Purchaser to comply with all of its obligations under or related to this
Agreement.
ARTICLE VI
CONDITIONS TO THE MERGER
Section 6.1 Conditions to Each Party's Obligation to Effect
the Merger. The respective obligation of each party to effect the Merger shall
be subject to the satisfaction on or prior to the Closing Date of each of the
following conditions, any and all of which may be waived in whole or in part
jointly by the Company and Parent to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been
approved and adopted by the requisite vote of the holders of the Shares, if
required by applicable law in order to consummate the Merger;
(b) Statutes; Court Orders. No statute, rule or regulation
shall have been enacted or promulgated by any governmental authority which
prohibits the consummation of the Merger; and there shall be no order or
injunction of a court of competent jurisdiction in effect precluding
consummation of the Merger;
48
<PAGE> 53
(c) Purchase of Shares in Offer. Parent, the Purchaser or
their affiliates shall have purchased Shares pursuant to the Offer, except that
this condition shall not apply if Parent, the Purchaser or their affiliates
shall have failed to purchase Shares pursuant to the Offer in breach of their
obligations under this Agreement; and
(d) HSR Approval. The applicable waiting period under the HSR
Act shall have expired or been terminated.
Section 6.2 Condition to Parent's and the Purchaser's
Obligations to Effect the Merger. The obligations of Parent and the Purchaser to
consummate the Merger are further subject to the fulfillment of the condition
that all actions contemplated by Section 2.4 hereof shall have been taken.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and
the Transactions contemplated herein may be abandoned at any time prior to the
Effective Time, whether before or after shareholder approval thereof:
(a) By the mutual written consent of Parent and the Company;
or
(b) By either of the Company or Parent:
(i) if (x) the Offer shall have expired without any
Shares being purchased therein or (y) the Purchaser shall not have
accepted for payment all Shares tendered pursuant to the Offer by
November 17, 1997; provided, however, that the right to terminate this
Agreement under this Section
49
<PAGE> 54
7.1(b)(i) shall not be available to any party whose failure to fulfill
any obligation under this Agreement has been the cause of, or resulted
in, the failure of Parent or the Purchaser, as the case may be, to
purchase the Shares pursuant to the Offer on or prior to such date; or
(ii) if any Governmental Entity shall have issued an
order, decree or ruling or taken any other action (which order, decree,
ruling or other action the parties hereto shall use their reasonable
efforts to lift), which permanently restrains, enjoins or otherwise
prohibits the acceptance for payment of, or payment for, Shares
pursuant to the Offer or the Merger and such order, decree, ruling or
other action shall have become final and non-appealable; or
(c) By the Company:
(i) if Parent, the Purchaser or any of their affiliates
shall have failed to commence the Offer on or prior to five business
days following the date of the initial public announcement of the
Offer; provided, that the Company may not terminate this Agreement
pursuant to this Section 7.1(c)(i) if the Company is at such time in
breach of its obligations under this Agreement such as to cause a
Company Material Adverse Effect; or
(ii) if Parent or the Purchaser shall have breached in
any material respect any of their respective representations,
warranties, covenants or other agreements contained in this Agreement,
which breach cannot be or has not been cured, in all material respects,
within 30 days after the giving of written notice to Parent or the
Purchaser, as applicable; or
50
<PAGE> 55
(iii) in connection with entering into a definitive
agreement in accordance with Section 5.4(c) hereof, provided it has
complied with all provisions thereof, including the notice provisions
therein, and that it makes simultaneous payment of the amount specified
in Section 8.1(b) hereof; or
(d) By Parent:
(i) if, due to an occurrence, not involving a breach by
Parent or the Purchaser of their obligations hereunder, which makes it
impossible to satisfy any of the conditions set forth in Annex A
hereto, Parent, the Purchaser, or any of their affiliates shall have
failed to commence the Offer on or prior to five business days
following the date of the initial public announcement of the Offer;
(ii) if prior to the purchase of Shares pursuant to the
Offer, the Company shall have breached any representation, warranty,
covenant or other agreement contained in this Agreement which (A) would
give rise to the failure of a condition set forth in paragraph (f) or
(g) of Annex A hereto and (B) cannot be or has not been cured, in all
material respects, within 30 days after the giving of written notice to
the Company; or
(iii) upon the occurrence of any event set forth in
paragraph (e) of Annex A hereto.
Section 7.2 Effect of Termination. In the event of the
termination of this Agreement pursuant to its terms, written notice thereof
shall forthwith be given to the other party or parties specifying the provision
hereof pursuant to which such termination is made, and this Agreement shall
forthwith become null and void, and there shall be no liability on the part of
the
51
<PAGE> 56
Purchaser, Parent or the Company except (A) for fraud or for breach of this
Agreement prior to such termination and (B) as set forth in the last sentence of
Section 5.2(a) and Section 8.1 hereof.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Fees and Expenses. (a) Except as contemplated by
this Agreement, including Sections 8.1(b) and (c) hereof, all costs and expenses
incurred in connection with this Agreement and the consummation of the
Transactions shall be paid by the party incurring such expenses. Parent
acknowledges and agrees that the Company has disclosed that it is obligated and
will become further obligated for fees and expenses (including fees and expenses
of Duffy & Sweeney and Roger Barzun, Esq., its counsel, Coopers & Lybrand,
L.L.P., its independent accountants, and Scott-Macon, Ltd., its financial
advisor) incurred by it in connection with the transactions contemplated hereby.
It is understood and agreed that certain of such fees and expenses may be paid
by the Company prior to the execution of this Agreement. Parent agrees to
refrain from taking any action which would prevent or delay the payment of
reasonable fees and expenses by the Company. Further, Parent agrees to take, and
cause the Purchaser to take, all action necessary to cause the Surviving
Corporation to pay promptly any of the foregoing reasonable fees and expenses
incurred, but not paid, by the Company prior to the Effective Time.
(b) If (i) Parent terminates this Agreement pursuant to
Section 7.1(d)(iii) hereof, (ii) the Company terminates this Agreement pursuant
to Section 7.1(c)(iii) hereof, or (iii) either the Company or Parent terminates
this Agreement pursuant to Section 7.1(b)(i) and prior thereto there shall have
been publicly announced another Acquisition Proposal or an event set forth in
paragraph
52
<PAGE> 57
(h) of Annex A shall have occurred, the Company shall pay to Parent, an amount
equal to the greater of $750,000 (the "Termination Fee"), or an amount equal to
Parent's actual, reasonable and reasonably documented out-of-pocket fees and
expenses incurred by Parent and the Purchaser in connection with the Offer, the
Merger, this Agreement, the consummation of the Transactions and the financing
therefor, which shall be payable in same day funds, provided that in no event
shall the Company be obligated to pay any such fees and expenses in excess of
$1,000,000. The Termination Fee or Parent's good faith estimate of its expenses,
as the case may be, shall be paid concurrently with any such termination,
together with delivery of a written acknowledgment by the Company of its
obligation to reimburse Parent for its actual expenses in excess of such
estimated expenses payment.
(c) If the Company terminates this Agreement pursuant to (i)
Section 7.1(b), or (ii) Sections 7.1(c)(i) or 7.1(c)(ii) hereof, then Parent
shall pay to the Company an amount equal to the Company's reasonable legal fees
and expenses incurred, as of the date of such termination, with respect to this
Agreement and the Transactions.
Section 8.2 Amendment and Modification. Subject to applicable
law, this Agreement may be amended, modified and supplemented in any and all
respects, whether before or after any vote of the shareholders of the Company
contemplated hereby, by written agreement of the parties hereto, by action taken
by their respective Boards of Directors (which in the case of the Company shall
include approvals as contemplated in Section 1.2(a)), at any time prior to the
Closing Date with respect to any of the terms contained herein; provided,
however, that after the approval of this Agreement by the shareholders of the
Company, no such amendment, modification or supplement (i) shall reduce the
amount or change the form of the Merger Consideration or (ii) which
53
<PAGE> 58
under applicable law may not be made without shareholder approval may be made
without such approval.
Section 8.3 Non-survival of Representations and Warranties.
None of the representations and warranties in this Agreement or in any schedule,
instrument or other document delivered pursuant to this Agreement shall survive
the Effective Time.
Section 8.4 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, 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 the Purchaser, to:
Dover Technologies International, Inc.
One Marine Midland Plaza
East Tower, Sixth Floor
Binghamton, New York 13901
Attention: Robert A. Livingston
Telephone No.: (607) 773-2290
Telecopy No.: (607) 722-8612
with a copy to:
Coughlin & Gerhart, LLP
One Marine Midland Plaza
East Tower, Eighth Floor
Binghamton, New York 13901
Attention: Robert J. Smith, Esq.
Telephone No.: (607) 723-9511
Telecopy No.: (607) 772-6093
54
<PAGE> 59
(b) and, if to the Company, to:
Vitronics Corporation
1 Forbes Road
Newmarket, New Hampshire 03857
Attention: President
Telephone No.: (603) 659-6550
Telecopy No.: (603) 659-6529
with a copy to:
Duffy & Sweeney
300 Turks Head Building
Providence, Rhode Island 02902
Attention: Michael F. Sweeney, Esq.
Telephone No.: (401) 455-0700
Telecopy No.: (401) 455-0701
Section 8.5 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. Whenever the words "include", "includes" or
"including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation." As used in this Agreement, the term "affiliates"
shall have the meaning set forth in Rule 12b-2 of the Exchange Act.
Section 8.6 Counterparts. This Agreement may be executed
simultaneously in several counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
This Agreement may be executed by the parties and transmitted by facsimile
transmission and if so executed and transmitted this Agreement will be for all
purposes as effective as if the parties had delivered an executed original
Agreement.
55
<PAGE> 60
Section 8.7 Entire Agreement; No Third Party Beneficiaries.
This Agreement (including the documents and the instruments referred to herein
but excluding the Confidentiality Agreement dated August 18, 1997) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof. This Agreement is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
Section 8.8 Severability. Any term or provision of this
Agreement that is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction or other authority declares that any term or
provision hereof is invalid, void or unenforceable, the parties agree that the
court asking such determination shall have the power to reduce the scope,
duration, area or applicability of the term or provision, to delete specific
words or phrases, or to replace any invalid, void or unenforceable term or
provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or
provision.
Section 8.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof.
Section 8.10 Assignment. Neither this Agreement nor any of the
rights, interests or obligations
56
<PAGE> 61
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other parties,
except that the Purchaser may assign, in its sole discretion, any or all of its
rights, interests and obligations hereunder to Parent or to any direct or
indirect wholly owned Subsidiary of Parent. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
Section 8.11 Knowledge of Parent and the Purchaser. Any fact
or circumstance known to Parent or the Purchaser prior to the execution and
delivery of this Agreement shall not, of itself, constitute a breach of any
representation or warranty by the Company. For purposes of this Section, a fact
or circumstance shall be deemed known by Parent or the Purchaser only if it is
known by an executive officer of Parent, regardless of whether such fact or
circumstance is known by any other employee, representative or agent of Parent
or the Purchaser.
Section 8.12 Integration of Exhibits. All schedules and
exhibits (including the Company Disclosure Schedule) attached to this Plan of
Merger are integral parts of this Plan of Merger as if fully set forth herein
and all statements appearing therein shall be deemed disclosed for all purposes
and not only in connection with the specific representation in which they are
explicitly referenced.
57
<PAGE> 62
IN WITNESS WHEREOF, Parent, the Purchaser and the Company have
caused this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
DOVER TECHNOLOGIES
INTERNATIONAL, INC.
By: /s/ John E. Pomeroy
--------------------------
Name: John E. Pomeroy
Title: President
DTI INTERMEDIATE, INC.
By: /s/ John E. Pomeroy
--------------------------
Name: John E. Pomeroy
Title: President
VITRONICS CORPORATION
By: /s/ James J. Manfield, Jr.
--------------------------
Name: James J. Manfield, Jr.
Title: President
58
<PAGE> 63
ANNEX A
CERTAIN CONDITIONS OF 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), the Purchaser
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act
(relating to the Purchaser's obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for, and may delay
the acceptance for payment of or, subject to the restriction referred to above,
the payment for, any tendered Shares, and may terminate or amend the Offer as to
any Shares not then paid for, if (i) any applicable waiting period under the HSR
Act has not expired or terminated, (ii) the Minimum Condition has not been
satisfied, or (iii) at any time on or after the date of the Merger Agreement and
before the time of acceptance for payment for any such Shares, any of the
following events shall occur or shall be determined by the Purchaser, in its
judgment reasonably exercised, to have occurred:
(a) there shall be threatened or pending any suit, action or
proceeding by any Governmental Entity against the Purchaser, Parent, the Company
or any Subsidiary of the Company (i) seeking to prohibit or impose any material
limitations on Parent's or the Purchaser's ownership or operation (or that of
any of their respective Subsidiaries or affiliates) of all or a material portion
of their or the Company's businesses or assets, or to compel Parent or the
Purchaser or their respective Subsidiaries and affiliates to dispose of or hold
separate any material portion of the business or assets of the Company or Parent
and their respective Subsidiaries, in each case taken as a whole, (ii)
A-1
<PAGE> 64
challenging the acquisition by Parent or the Purchaser of any Shares under the
Offer, seeking to restrain or prohibit the making or consummation of the Offer
or the Merger or the performance of any of the other transactions contemplated
by the Merger Agreement, or seeking to obtain from the Company, Parent or the
Purchaser any damages that are material in relation to the Company and its
Subsidiaries taken as a whole, (iii) seeking to impose material limitations on
the ability of the Purchaser, or render the Purchaser unable, to accept for
payment, pay for or purchase some or all of the Shares pursuant to the Offer and
the Merger, (iv) seeking to impose material limitations on the ability of the
Purchaser or Parent effectively to exercise full rights of ownership of the
Shares, including, without limitation, the right to vote the Shares purchased by
it on all matters properly presented to the Company's shareholders, or (v) which
otherwise is reasonably likely to have a Company Material Adverse Effect;
(b) there shall be any statute, rule, regulation, judgment,
order or injunction enacted, entered, enforced, promulgated, or deemed
applicable, pursuant to an authoritative interpretation by or on behalf of a
Government Entity, to the Offer or the Merger, or any other action shall be
taken by any Governmental Entity, other than the application to the Offer or the
Merger of applicable waiting periods under HSR Act, that is reasonably likely to
result, directly or indirectly, in any of the consequences referred to in
clauses (i) through (v) of paragraph (a) above;
(c) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on the New York Stock
Exchange or the American Stock Exchange for a period in excess of 24 hours
(excluding suspensions or limitations resulting solely from physical damage or
interference with such exchanges not related to market conditions), (ii) any
decline in
A-2
<PAGE> 65
either the Dow Jones Industrial Average or the Standard & Poor's Index of 400
Industrial Companies or in the New York Stock Exchange Composite Index in excess
of 15% measured from the close of business on the trading day next preceding the
date of the Merger Agreement, (iii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States (whether or not
mandatory), (iv) a commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the United
States, (v) any limitation (whether or not mandatory) by any United States
governmental authority on the extension of credit generally by banks or other
financial institutions, (vi) a change in general financial, bank or capital
market conditions which materially and adversely affects the ability of
financial institutions in the United States to extend credit or syndicate loans
or (vii) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(d) there shall have occurred any events after the date of the
Merger Agreement which, either individually or in the aggregate, would have a
Company Material Adverse Effect;
(e) the Board of Directors of the Company or any committee
thereof 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 Acquisition Proposal;
(f) the representations and warranties of the Company set
forth in the Merger Agreement shall not be true and correct, in each case (i) as
of the date referred to in any representation or warranty which addresses
matters as of a particular date, or (ii) as to all other representations and
warranties, as of the date
A-3
<PAGE> 66
of the Merger Agreement and as of the scheduled expiration of the Offer, unless
the inaccuracies (without giving effect to any materiality or material adverse
effect qualifications or materiality exceptions contained therein) under such
representations and warranties, taking all the inaccuracies under all such
representations and warranties together in their entirety, would not,
individually or in the aggregate, result in a Company Material Adverse Effect;
(g) the Company shall have failed to perform any obligation or
to comply with any agreement or covenant to be performed or complied with by it
under the Merger Agreement other than any failure which would not have, either
individually or in the aggregate, a Company Material Adverse Effect;
(h) any person acquires beneficial ownership (as defined in
Rule 13d-3 promulgated under the Exchange Act), of at least 25% of the
outstanding Common Stock of the Company;
(i) the Merger Agreement shall have been terminated in
accordance with its terms; or
The foregoing conditions are for the sole benefit of Parent
and the Purchaser, may be asserted by Parent or the Purchaser regardless of the
circumstances giving rise to such condition (including any action or inaction by
Parent or the Purchaser not in violation of the Merger Agreement) and may be
waived by Parent or the Purchaser in whole or in part at any time and from time
to time in the sole discretion of Parent or the Purchaser, subject in each case
to the terms of the Merger Agreement. The failure by Parent or the Purchaser at
any time to exercise any of the foregoing rights shall not be deemed a waiver of
any such right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time.
A-4
<PAGE> 67
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.1 (b)
Subsidiaries:
1. Vitronics Europe Limited - a United Kingdom company
2. Vitronics Foreign Sales Corporation - a Barbados company
<PAGE> 68
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.2 (a)
STOCK OPTIONS OUTSTANDING
<TABLE>
<CAPTION>
VESTING BALANCE AMOUNT
DATE NAME PRICE YEARS 8/26/97 PAID
- ---- ---- ----- ----- ------- ----
1987 PLAN
---------
<S> <C> <C> <C> <C> <C>
Dec-92 CHANASYK, A 0.5625 5 13,000 17,387.50
Dec-92 CHANASYK, A 0.5625 5 10,000 13,375.00
Dec-92 CLAPP, R 0.5625 5 2,000 2,675.00
Dec-92 GIORDANO, L 0.5625 5 400 535.00
Dec-92 HALL, J 0.5625 5 2,000 2,675.00
Dec-92 KEOUGH, A* 0.5625 5 3,000 4,012.50
Dec-92 LABONVILLE, M 0.5625 5 1,000 1,337.50
Dec-92 MCKEEL, D 0.5625 5 1,000 1,337.50
Dec-92 MILLETTE, S 0.5625 5 2,000 2,675.00
Dec-92 PARADIS, F 0.5625 5 800 1,070.00
Dec-92 SULLIVAN, W 0.5625 5 2,000 2,675.00
Dec-92 WAITT, L 0.5625 5 200 267.50
Dec-93 CHANASYK, A 0.8400 5 10,000 10,600.00
Dec-93 GIORDANO, L 0.8400 5 400 424.00
Dec-93 WAITT, L 0.8400 5 800 848.00
Dec-93 DAROIS, J 0.8400 5 1,000 1,060.00
Dec-93 HALL, J 0.8400 5 2,000 2,120.00
Dec-93 SULLIVAN, W 0.8400 5 2,000 2,120.00
Dec-93 MCKEEL, D 0.8400 5 2,000 2,120.00
Dec-93 CLAPP, R 0.8400 5 3,000 3,180.00
Dec-93 LABONVILLE, M 0.8400 5 2,000 2,120.00
Dec-93 MILLETTE, S 0.8400 5 5,000 5,300.00
Dec-93 PARADIS, F 0.8400 5 1,800 1,908.00
Dec-93 HOWARD, S 0.8400 5 2,000 2,120.00
Dec-93 MARTIN, P 0.8400 5 2,500 2,650.00
Dec-94 KEOUGH, A* 1.3125 5 27,000 15,862.50
Dec-94 CHANASYK, A 1.3125 5 10,000 5,875.00
Dec-94 GIORDANO, L 1.3125 5 2,000 1,175.00
Dec-94 WAITT, L 1.3125 5 2,000 1,175.00
Dec-94 DAROIS, J 1.3125 5 1,000 587.50
Dec-94 HALL, J 1.3125 5 2,000 1,175.00
Dec-94 SULLIVAN, W 1.3125 5 1,000 587.50
Dec-94 MCKEEL, D 1.3125 5 2,000 1,175.00
Dec-94 CLAPP, R 1.3125 5 3,000 1,762.50
Dec-94 LABONVILLE, M 1.3125 5 2,000 1,175.00
Dec-94 MILLETTE, S 1.3125 5 2,500 1,468.75
Dec-94 PARADIS, F 1.3125 5 3,000 1,762.50
Dec-94 MARTIN, P 1.3125 5 2,500 1,468.75
Dec-94 BENNETT, D 1.3125 5 2,500 1,468.75
------- ----------
TOTAL 134,400 123,311.25
</TABLE>
* Non-Qualified Option
<PAGE> 69
<TABLE>
<CAPTION>
VESTING BALANCE AMOUNT
DATE NAME PRICE YEARS 8/26/97 PAID
- ---- ---- ----- ----- ------- ----
1995 PLAN
---------
<S> <C> <C> <C> <C> <C>
Dec-95 CHANASYK, A 2.3750 5 30,000 -
Dec-95 GIORDANO, L 2.3750 5 2,000 -
Dec-95 WAITT, L 2.3750 5 2,000 -
Dec-95 DAROIS, J 2.3750 5 1,000 -
Dec-95 HALL, J 2.3750 5 2,000 -
Dec-95 JEKA, D 2.3750 5 1,000 -
Dec-95 GAGNE, M 2.3750 5 2,000 -
Dec-95 SCHAEFFER, R 2.3750 5 1,000 -
Dec-95 SULLIVAN, W 2.3750 5 1,000 -
Dec-95 MCKEEL, D 2.3750 5 2,000 -
Dec-95 PIVARUNAS, J 2.3750 5 1,000 -
Dec-95 CLAPP, R 2.3750 5 2,500 -
Dec-95 LABONVILLE, M 2.3750 5 1,000 -
Dec-95 DAY, B 2.3750 5 5,000 -
Dec-95 MILLETTE, S 2.3750 5 7,500 -
Dec-95 WRIGHT, M 2.3750 5 1,000 -
Dec-95 JOHNSON, P 2.3750 5 1,000 -
Dec-95 RILEY, G 2.3750 5 1,000 -
Dec-95 GILBERT, R 2.3750 5 1,000 -
Dec-95 HENRY, J 2.3750 5 1,000 -
Dec-95 PARADIS, F 2.3750 5 3,000 -
Dec-95 MARTIN, P 2.3750 5 2,000 -
Dec-95 BENNETT, D 2.3750 5 5,000 -
Nov-96 NASH, T 1.0625 5 25,000 20,937.50
Dec-96 CHANASYK, A 1.0300 5 10,000 8,700.00
Dec-96 GIORDANO, L 1.0300 5 2,000 1,740.00
Dec-96 WAITT, L 1.0300 5 2,000 1,740.00
Dec-96 DAROIS, J 1.0300 5 1,000 870.00
Dec-96 HALL, J 1.0300 5 2,000 1,740.00
Dec-96 JEKA, D 1.0300 5 5,000 4,350.00
Dec-96 GAGNE, M 1.0300 5 2,000 1,740.00
Dec-96 SCHAEFFER, R 1.0300 5 1,000 870.00
Dec-96 SULLIVAN, W 1.0300 5 1,000 870.00
Dec-96 MCKEEL, D 1.0300 5 2,000 1,740.00
Dec-96 PIVARUNAS, J 1.0300 5 2,000 1,740.00
Dec-96 CLAPP, R 1.0300 5 2,000 1,740.00
Dec-96 LABONVILLE, M 1.0300 5 1,000 870.00
Dec-96 DAY, B 1.0300 5 5,000 4,350.00
Dec-96 MILLETTE, S 1.0300 5 5,000 4,350.00
Dec-96 WRIGHT, M 1.0300 5 1,000 870.00
Dec-96 JOHNSON, P 1.0300 5 1,000 870.00
Dec-96 RILEY, G 1.0300 5 1,000 870.00
Dec-96 GILBERT, R 1.0300 5 1,000 870.00
Dec-96 HENRY, J 1.0300 5 1,000 870.00
Dec-96 PARADIS, F 1.0300 5 3,000 2,610.00
Dec-96 MARTIN, P 1.0300 5 2,000 1,740.00
</TABLE>
<PAGE> 70
<TABLE>
<CAPTION>
VESTING BALANCE AMOUNT
DATE NAME PRICE YEARS 8/26/97 PAID
- ---- ---- ----- ----- ------- ----
1995 PLAN
---------
<S> <C> <C> <C> <C> <C>
Dec-96 BENNETT, D 1.0300 5 5,000 4,350.00
May-97 LOCKYER, M 0.8400 5 10,000 10,600.00
Aug-97 LOCKYER, M 1.2900 5 5,000 3,050.00
Aug-97 SULLIVAN, D 1.0900 5 25,000 20,250.00
-------- -----------
TOTAL 199,000 105,298.00
-------- -----------
TOTAL QUALIFIED OPTIONS 333,400 228,608.75
</TABLE>
<PAGE> 71
VITRONICS CORPORATION
NONQUALIFIED STOCK OPTION PLANS
<TABLE>
<CAPTION>
VESTING BALANCE AMOUNT
DATE NAME PRICE YEARS 8/26/97 PAID
- ---- ---- ----- ----- ------- ----
<S> <C> <C> <C> <C> <C>
May-92 STEADMAN, D 1.1250 5 10,000 7,750.00
Dec-92 MANFIELD, J 0.5625 5 28,000 37,450.00
Dec-92 MANFIELD, J 0.5625 5 22,000 29,425.00
Dec-92 STEADMAN, D 0.5625 5 20,000 26,750.00
Dec-92 STEADMAN, D 0.5625 5 15,000 20,062.50
Dec-93 MANFIELD, J 0.8400 5 25,000 26,500.00
Dec-94 MANFIELD, J 1.3125 5 50,000 29,375.00
Dec-94 STEADMAN, D 1.3125 5 20,000 11,750.00
Dec-95 KANELY, J 2.3438 5 20,000 -
-------
TOTAL 210,000 189,062.50
------- ----------
TOTAL OPTIONS 543,400 417,671.25
</TABLE>
<PAGE> 72
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.4
1. Loan Agreement with First National Bank of Portsmouth(Bank of New
Hampshire)
2. Miscellaneous office equipment leases and software licenses
3. The Company is reviewing its real estate leases in Newmarket, NH and
Plymouth, England
<PAGE> 73
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.6
None
<PAGE> 74
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.7
None
<PAGE> 75
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.8
Vitronics v. Conceptronics (Docket Number C-91-696L)
Conceptronics v. Vitronics and Manfield et al (Docket Number 97-C-18)
Letters of counsel in response to auditors requests have previously been
provided to Parent during due diligence process.
<PAGE> 76
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.9 (a)
Stock Option Plans:
1983 Stock Option Plan
1983 II Stock Option Plan
1987 Stock Option Plan
1995 Stock Option Plan
(Copies of the above Plans and a copy of the Qualified and Non-Qualified Stock
Option Agreements were previously provided to Parent during the due diligence
process) (See Section 3.2 (a) for a schedule of current stock options
outstanding under all option plans)
Employment Agreements:
James J. Manfield Jr.
Thomas Nash
Daniel J. Sullivan
Steven A. Millette
Michael Lockyer
(copies of the above Employment Agreements were previously provided to
Parent during the due diligence process)
Benefit Management of Maine Health Insurance Plan(Self insured)
Boston Mutual Officers Health Insurance Plan
Dental Plan
Life Insurance Plan
Additional Life Insurance for Officers
Short Term Disability Insurance
Long Term Disability Insurance
Additional Disability Insurance for Officers
Tuition Reimbursement
401K Plan, with 25% matching up to 6%
$70 per year towards purchase of safety shoes
Section 125 pre-tax medical reimbursement and dependent care
Employee Assistance Program
$100,000 Travel Accident Insurance
Employee Stock Purchase Plan
Employee Handbook
(copies of the above employee benefits were previously
provided to Parent during the due diligence process)
<PAGE> 77
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.9 (i)
Employment Agreements:
James J. Manfield Jr.
Thomas Nash
Daniel J. Sullivan
Steven A. Millette
Michael Lockyer
Copies of the above employment agreement were provided to Parent as part of the
due diligence process.
<PAGE> 78
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.10 (a)
The Company is current in its tax filings in those states in which it is
currently registered.
The Company is currently registered for Sales & Use tax in Massachusetts,
Illinois and California.
The Company presently is registered for VAT purposes in England.
The Company presently is registered for income tax purposes in California,
Massachusetts and New Hampshire and England.
The Company presently withholds income taxes for California, Massachusetts,
Connecticut, Maine, Illinois, federal and England.
There may be other locations in which the Company has nexus, and is presently
unaware of this fact.
<PAGE> 79
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.10 (b)
None
<PAGE> 80
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.10 (c)
None
<PAGE> 81
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.10 (f)
The Company has granted Powers of attorney in the ordinary course of business to
various freight forwarders for the purpose of clearing freight through customs
and other freight forwarding functions.
<PAGE> 82
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.11 (a)
Trademarks:
- -----------
VITRONICS
UNITHERM
ENVIROCLEAN
Trademark VITRONICS
Common Law Trademarks:
- ----------------------
IsoTherm
VITROSENSE
Natural Convection/Infrared
Controlled Convection/Infrared
VITRO-FOIL
VITRO-CLEAN
Acro-Therm
RadianTherm
MagnaTherm
Tops
Polar Cooling
SELECTSeries
AutoPurge
BGA Solutions
Patents:
- --------
4,833,301 Multi-Zone Thermal Process System Utilizing Nonfocused Infrared Panel
Emitters
5,103,846 Apparatus for Cleaning Mechanical Devices Using Terpene Compounds
5,573,688 Convection/Infrared Solder Reflow Apparatus
4,565,917 Multi-Zone Thermal Process System Utilizing Nonfocused Infrared Panel
Emitters
4,077,557 Dip Storage, Insertion and Ejection Tool
4,602,238 Infrared Panel Emitter and Method of Producing the Same
4,696,096 Reworking Methods and Apparatus for Surface Mounted Technology
Circuit Boards
4,654,502 Method for Reflow Soldering of Surface Mounted Devices to Printed
Circuit Boards
4,659,906 Infrared Panel Emitter and Method of Producing the Same
Foreign Patents continued on next page
Page 1
<PAGE> 83
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.11 (a)
Canadian Patent 1,234,429 Infrared Panel Emitter and Method of Producing the
Same
Canadian Patent 1,235,529 Multi-Zone Thermal Process System Utilizing
Nonfocused Infrared Panel Emitters
European Patent 0,181,341,B1 Infrared Panel Emitter and Method of Producing the
Same
European Patent 0,169,885,B1 Multi-Zone Thermal Process System Utilizing
Nonfocused Infrared Panel Emitters
Danish Patent 157,589 Multi-Zone Thermal Process System Utilizing Nonfocused
Infrared Panel Emitters
Taiwan Patent 49,283 Apparatus for Cleaning Mechanical Devices Using Terpene
Compounds
Taiwan Patent Rights 22,987 Multi-Zone Thermal Process System Utilizing
Nonfocused Infrared Panel Emitters
Taiwan Patent Rights 22,988 Infrared Panel Emitter and Method of Producing
the Same
Copies of the above referenced Patents and Trademarks were previously provided
to Parent during the due diligence process.
The Company's patents are currently subject to litigation as disclosed in
Section 3.8
Page 2
<PAGE> 84
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.12
Corporate Staff:
James Manfield
Thomas Nash
Steven Millette
Michael Lockyer
Daniel Sullivan
Albert Chanasyk
Lorraine Giordano
Brian Day
Given the absence of future written employment agreements for officers and
managers and the uncertainty generated during the due diligence process, the
Company has no ability to comment on the future plans of individuals.
<PAGE> 85
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.15 (e)
None
<PAGE> 86
VITRONICS CORPORATION
DISCLOSURE SCHEDULE
SECTION 3.18
Scott-Macon Agreement attached as Exhibit 3.18
<PAGE> 87
SCOTT-MACON, LTD.
800 THIRD AVENUE
NEW YORK, N.Y. 10022-7604
212-755-8200
212-755-8255 (FAX)
July 30, 1997
Mr. James J. Manfield, Jr.
Chairman of the Board and
Chief Executive Officer
Vitronics Corporation
4 Forbes Road
Newmarket Industrial Park
Newmarket, New Hampshire 03857
Dear Jim:
This letter will confirm the understanding and agreement between Scott-Macon,
Ltd. ("Scott-Macon") and Vitronics Corporation ("Vitronics") with respect to the
investment banking services to be provided by Scott-Macon to Vitronics and the
fees to be paid to Scott-Macon by Vitronics.
Scott-Macon will provide investment banking services to Vitronics in connection
with a sale or merger of Vitronics with another entity or an acquisition by
Vitronics of another entity. To date, Scott-Macon has discussed with Vitronics
the potential acquisition by or merger with BTU International, Inc., Cookson
Group plc, Conceptronic, Inc. (a subsidiary of Arguss Holdings Inc.), and Soltec
Inc. (a subsidiary of Dover Technology which in turn is a subsidiary of Dover
Corporation). Additional companies that are actively involved in reviewing
Vitronics for a potential purchase or merger will also be included. The four
companies mentioned above, and these additional companies, will be referred to
as a target company ("Target Company").
In the event that prior to the date this letter agreement terminates or is
otherwise extended, Vitronics or any portion thereof is either sold or merged
with any Target Company or Vitronics acquires all or a portion of any Target
Company, Vitronics will pay to Scott-Macon a fee (the "Success Fee") equal to
the total of:
5% of the first $2,000,000 of Transaction Value,
4% of the second $2,000,000 of Transaction Value,
3% of the third $2,000,000 of Transaction Value,
2% of the fourth $2,000,000 of Transaction Value, and
1% of Transaction Value in excess of $8,000,000.
<PAGE> 88
SCOTT-MACON, LTD.
Mr. James J. Manfield, Jr. July 30, 1997
Vitronics Corporation Page Two
As used herein, "Transaction Value" shall be the fair market value of the
consideration paid, namely the amount of cash and/or assets and the value of any
equity and/or debt issued, raised, assumed or forgiven in completing the
transaction, plus any contingent payment used in the transaction when the
contingent payment is paid. Transaction Value shall exclude the value of any
employment agreement entered into by James J. Manfield, Jr. and any other
employment agreements as a result of a transaction. The Success Fee shall be
paid to Scott-Macon by bank wire or certified check at the time of Closing.
Should the Success Fee referred to above be paid to Scott-Macon by Vitronics as
a result of the completion of a partial (at least 40%) merger with or
acquisition of a Target Company, and Vitronics subsequently merges with or
acquires the remaining portion of the Target Company within twenty four months
of the initial partial merger or acquisition, Scott-Macon will be paid an
additional fee calculated by applying the Success Fee outlined above to a new
Transaction Value inclusive of the original and newly acquired portion, but
giving credit for the initial Success Fee paid to Scott-Macon.
Vitronics will pay for all reasonable out-of-pocket expenses incurred by
Scott-Macon in connection with its retention by Vitronics. Normal out-of-pocket
expenses include, but are not limited to, travel, hotel, meals, telephone and
telefax charges, postage, express mail and messenger charges, and copying and
printing charges. Any professionals such as legal or accounting retained by
Vitronics will be paid directly by Vitronics to the firms involved. Scott-Macon
will obtain from Vitronics prior approval on individual expenses which exceed
one thousand dollars ($1,000). In addition, Scott-Macon will obtain from
Vitronics prior approval on all expenses when the cumulative expenses reach
$5,000. Scott-Macon shall submit periodic invoices for reimbursable expenses.
This agreement shall continue for a period of eight months from the signing of
this agreement. However, if an agreement covering a specific transaction is
being actively negotiated at the expiration of the eight-month period, this
agreement will be extended after the expiration of the eight month period until
that transaction is completed or the negotiations cease.
In connection with engagements such as this, it is our firm's policy to receive
indemnification and contribution. Therefore:
1. The Company agrees to indemnify and hold harmless Scott-Macon, its
affiliates and their respective directors, officers, employees,
owners, agents and controlling persons (each an "Indemnified Party")
from and against any and all losses, claims, damages and
liabilities, joint or several, to which any Indemnified Party may
become subject in connection with or arising out of or relating to
the engagement of Scott-Macon under this letter agreement, or any
actions taken or omitted, services performed or matters contemplated
by or in connection with this letter agreement, and to reimburse
each Indemnified Party promptly upon demand for expenses (including
fees and expenses of legal counsel) as they are incurred in
connection with the investigation of, preparation for or defense of
any pending or threatened claim, or any litigation proceeding or
other action in respect thereof, including any amount paid in
settlement of any litigation or other action (commenced or
<PAGE> 89
SCOTT-MACON, LTD.
Mr. James J. Manfield, Jr. July 30, 1997
Vitronics Corporation Page Three
threatened) to which the Company shall have consented in writing
(such consent not to be unreasonably withheld, considering, among
other things, the best interest of the Company), whether or not any
Indemnified Party is a party and whether or not liability resulted;
provided, however, that the Company shall not be liable under the
foregoing indemnity agreement to an Indemnified Party in respect of
any loss, claim, damage or liability to the extent that a court
having competent jurisdiction shall have determined by a final
judgement (not subject to further appeal) that such loss, claim,
damage or liability resulted primarily from the willful misfeasance
or gross negligence of such Indemnified Party.
2. An Indemnified Party shall accept legal counsel of the Company,
provided that such counsel is reasonably satisfactory to the
Indemnified party, to conduct the defense and all related matters in
connection with any such litigation, proceeding or other action. The
Company shall pay the reasonable fees and expenses of such legal
counsel and such counsel shall to the fullest extent consistent with
its professional responsibilities cooperate with the Company and any
legal counsel designated by the Company.
3. In the event that the indemnity provided for in paragraphs 1 and 2
hereof is unavailable or insufficient to hold any Indemnified Party
harmless, then the Company shall contribute to amounts paid or
payable by an Indemnified Party in respect of such Indemnified
Party's losses, claims, damages and liabilities as to which the
indemnity provided for in paragraphs 1 and 2 hereof is unavailable
(i) in such proportion as appropriately reflects the relative
benefits received by the Company, on the one hand, and such
Indemnified Party, on the other hand, in connection with the matters
as to which such losses, claims, damages or liabilities relate, or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as appropriately reflects not
only the relative benefits referred to in clause (i) but also the
relative fault of the Company, on the one hand, and such Indemnified
Party on the other hand as well as any other equitable
considerations. The amount paid or payable by the party in respect
of losses, claims, damages and liabilities referred to above shall
be deemed to include any reasonable legal or other fees and expenses
incurred in defending any litigation, proceeding or other action or
claim. Notwithstanding the provisions hereof, the Indemnified
Parties shall not be required to contribute any amount in excess of
the amount of fees actually received by Scott-Macon during the
previous twelve months under this letter agreement (excluding the
amounts received as reimbursement of expenses incurred by
Scott-Macon).
4. It is understood and agreed that, in connection with Scott-Macon's
engagement by the Company, Scott-Macon or its affiliates may also be
engaged to act for the Company or it's affiliates in one or more
additional capacities, and that the terms of any such additional
engagement may be embodied in one or more separate written
agreements. These Indemnification Provisions shall apply to the
engagement under this letter agreement and to any such additional
engagement and any modification of such additional engagement.
<PAGE> 90
SCOTT-MACON, LTD.
Mr. James J. Manfield, Jr. July 30, 1997
Vitronics Corporation Page Four
5. These Indemnification Provisions shall remain in full force and
effect whether or not any of the transactions contemplated by the
Letter Agreement are consummated and shall survive the expiration of
the period of the Letter Agreement, and shall be in addition to any
liability that the Company might otherwise have to any Indemnified
Party under the Letter Agreement or otherwise.
This agreement may only be modified in writing.
If the foregoing correctly reflects our agreement, will you kindly indicate your
acceptance by signing, dating and returning the enclosed copy of this agreement,
retaining the original for your files.
Very truly yours,
SCOTT-MACON, LTD.
\s\ Robert B. Dimmitt
Managing Director
AGREED TO AND ACCEPTED:
VITRONICS CORPORATION
BY: \s\ James J. Manfield, Jr.
--------------------------
TITLE: Chairman and CEO
--------------------------
DATE: August 11, 1997
--------------------------
<PAGE> 1
September 3, 1997
Mr. James J. Manfield, Jr.
Chairman & CEO
Vitronics Corporation
1 Forbes Road
Newmarket, NH 03857-2099
Dear Jim,
Dover Technologies, effective with a successful conclusion of our tender offer
for Vitronics, guarantees to cause Vitronics, or its successor to honor the
following employment arrangement with you:
TERM: This agreement will be for a period of two years commencing on the date of
merger between Vitronics and DTI Intermediate, Inc.
SALARY: Salary of $157,500/annum. The salary will be paid in accordance with the
policies and procedures of Vitronics. You will be eligible for a salary increase
in early '98 commensurate with increases given to the senior executive team of
Soltec/Vitronics, only if you are still engaged in the transition work of
consolidating Soltec and Vitronics.
BONUS: In January 1998, you will be paid a bonus to be determined in accordance
with past practices of Vitronics, using September 30, 1997 YTD financials to
determine the 15% PTP bonus pool. In January 1999, you will paid a bonus of
$50,000 conditioned upon you not undertaking any activity which hinders, impedes
or imparts ill will to Dover's program to combine Soltec and Vitronics.
EXPENSES AND FRINGE BENEFITS: You shall be reimbursed for business related
expenses in accordance with the applicable Vitronics policies and procedures.
You shall be entitled to participate in any plans maintained by Vitronics
related to retirement, health, disability, life insurance, vacation, and other
benefits in accordance with the policies and practices established by
Vitronics/Soltec. In addition, you will continue to have use of the
company-owned auto.
TAXES: All payments pursuant to above shall be subject to Vitronics/Soltec usual
withholding practices and compliant with existing federal and state requirements
regarding the withholding of taxes.
<PAGE> 2
Mr. James J. Manfield, Jr.
Page 2
September 3, 1997
DUTIES AND RESPONSIBILITIES: You agree to devote substantially your entire
business time and attention to assisting Michiel van Schaik with the transition
work of merging (operationally) Vitronics and Soltec. Such duties will be
commensurate with that normally associated with a senior executive officer. The
period of time for the transition work will be determined by Michiel van Schaik,
but in no event will it be more than 12 months. The conduct of private business
affairs (including outside directorships and part-time consulting arrangements)
and participation in charitable and professional organizations is allowed so
long as such activities do not interfere with your duties and responsibilities
at Vitronics/Soltec.
It is recognized that, upon completion of the transition period, you will be
free to devote your entire time and attention to other interests and pursuits
and your salary and benefits would continue for the remainder of the two-year
period with the following exception:
If prior to the expiration of the two-year period you accept and commence other
full-time employment, the payments of salary would continue, the company auto
would be returned to Vitronics, and health, life, disability benefits would
cease, subject to your rights under COBRA.
In the event of your death prior to the expiration of the above referenced 24
months, any remaining salary payments will be paid to a designee of your choice.
To the extent permitted by law, Vitronics will pay all related legal expenses
associated with the lawsuit by Conceptronics.
Accepted by: /s/ James J. Manfield, Jr. Offered by: /s/ Robert Livingston
------------------------------- ----------------------
James J. Manfield, Jr. Robert Livingston, CFO
Chairman, Vitronics Corporation Dover Technologies
