<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
OF
LANIER WORLDWIDE, INC.
AT
$3.00 NET PER SHARE
BY
LW ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
RICOH COMPANY, LTD.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON JANUARY 8, 2001, UNLESS THE OFFER IS EXTENDED.
THIS OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER, DATED
AS OF NOVEMBER 29, 2000 (THE "MERGER AGREEMENT"), AMONG LANIER WORLDWIDE, INC.
(THE "COMPANY"), RICOH COMPANY, LTD. ("PARENT"), AND LW ACQUISITION CORP.
("PURCHASER"). THE BOARD OF DIRECTORS OF THE COMPANY BY UNANIMOUS VOTE
(1) DETERMINED THAT THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
THEREBY, INCLUDING THE OFFER AND THE MERGER, ARE, IN THE BELIEF OF THE BOARD OF
DIRECTORS, FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS,
(2) APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY,
INCLUDING THE OFFER AND THE MERGER, AND DECLARED THEIR ADVISABILITY AND
(3) RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER, TENDER
THEIR SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED PARTICIPATING PREFERRED
STOCK PURCHASE RIGHTS) TO PURCHASER AND, AS REQUIRED BY LAW, APPROVE AND ADOPT
THE MERGER AGREEMENT AND THE MERGER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER OF
SHARES OF COMMON STOCK THAT WOULD CONSTITUTE ON THE DATE OF PURCHASE A MAJORITY
OF ALL OUTSTANDING SHARES ON A FULLY-DILUTED BASIS (ASSUMING THE EXERCISE OF ALL
STOCK OPTIONS AND EXCLUDING ANY SHARES HELD BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES), (2) ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER
HAVING EXPIRED OR BEEN TERMINATED, (3) THE OFFER AND MERGER BEING ABLE TO BE
CONSUMMATED UNDER EUROPEAN UNION COUNCIL REGULATION (EEC) NO. 4064/89,
(4) RECEIPT OF REQUIRED ANTI TRUST OR COMPETITION CONSENTS, APPROVALS OR WAIVERS
FROM THE REPUBLIC OF COLOMBIA AND THE REPUBLIC OF POLAND AND (5) THE
CONSUMMATION, ON OR PRIOR TO DECEMBER 31, 2000, OF THE TRANSACTIONS CONTEMPLATED
BY THE VOICE PRODUCTS ASSET PURCHASE AGREEMENT. THE OFFER IS ALSO SUBJECT TO
OTHER TERMS AND CONDITIONS. SEE SECTIONS 15 AND 16 OF THIS OFFER TO PURCHASE.
THE OFFER IS NOT CONDITIONED UPON PARENT OR PURCHASER OBTAINING FINANCING.
THE DEALER MANAGER FOR THE OFFER IS
WASSERSTEIN PERELLA & CO., INC.
31 West 52nd Street
New York, NY 10019
(212) 969-2700 (Call Collect)
<PAGE>
IMPORTANT
If you wish to tender all or any portion of your shares, you must take the
steps set forth in either (i) or (ii) below prior to the Expiration Date (as
defined in Section 1 of this Offer to Purchase):
(i) (a) complete and sign the Letter of Transmittal (or a facsimile thereof)
in accordance with the instructions in the Letter of Transmittal, have
your signature thereon guaranteed if required by Instruction 1 to the
Letter of Transmittal, deliver the Letter of Transmittal (or such
facsimile), or, in the case of a book-entry transfer effected pursuant
to the procedure set forth in Section 2 of this Offer to Purchase, an
Agent's Message, and any other required documents to the Depositary,
and
(b) deliver the certificates for such shares to the Depositary along with
the Letter of Transmittal (or manually signed facsimile), deliver such
shares pursuant to the procedure for book-entry transfer set forth in
Section 2 of this Offer to Purchase, or if your shares are Direct
Registration shares, simply ensure that the Direct Registration Shares
portion of the Letter of Transmittal is properly completed; or
(ii) request your broker, dealer, bank, trust company or other nominee to
effect the transaction for you.
If you have shares registered in the name of a broker, dealer, bank, trust
company or other nominee, you must contact such broker, dealer, bank, trust
company or other nominee if you desire to tender your shares.
A tender of your shares will also constitute a tender of the associated
Participating Preferred Stock Purchase Rights.
If you wish to tender shares and your certificates for shares are not
immediately available or the procedure for book-entry transfer cannot be
completed on a timely basis, or time will not permit all required documents to
reach the Depositary prior to the Expiration Date, your tender may be effected
by following the procedure for guaranteed delivery set forth in Section 2 of
this Offer to Purchase.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to MacKenzie Partners, Inc. ("MacKenzie Partners" or the
"Information Agent") or to Wasserstein Perella & Co., Inc. ("Wasserstein
Perella" or the "Dealer Manager") at their respective addresses and telephone
numbers set forth on the back cover of this Offer to Purchase.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE NO.
--------
<C> <S> <C>
Summary Term Sheet................................................... 1
Introduction......................................................... 6
The Tender Offer..................................................... 9
1. Terms of the Offer.......................................... 9
2. Procedure For Accepting the Offer and Tendering Shares...... 11
3. Withdrawal Rights........................................... 13
4. Acceptance for Payment and Payment for Shares............... 14
5. Certain United States Federal Income Tax Consequences....... 15
6. Price Range of Shares; Dividends............................ 16
7. Certain Information Concerning the Company.................. 17
8. Certain Information Concerning Parent and Purchaser......... 19
9. Source and Amount of Funds.................................. 20
10. Background of the Offer and the Merger; Past Contacts or
Negotiations with the Company............................. 20
11. The Merger Agreement and Certain Other Agreements........... 22
12. Purpose of the Offer and the Merger; Plans for the
Company................................................... 34
13. Certain Effects of the Offer................................ 35
14. Dividends and Distributions................................. 36
15. Certain Conditions of the Offer............................. 36
16. Certain Legal Matters....................................... 38
17. Fees and Expenses........................................... 41
18. Miscellaneous............................................... 42
Schedule I........................................................... I-1
</TABLE>
i
<PAGE>
SUMMARY TERM SHEET
LW Acquisition Corp. is offering to purchase any and all of the outstanding
shares of common stock (including the associated participating preferred stock
purchase rights) of Lanier Worldwide, Inc. for $3.00 net per share in cash. The
following are some of the questions that you, as a stockholder of Lanier
Worldwide, Inc., may have and the answers to those questions. We urge you to
carefully read the remainder of this Offer to Purchase and the Letter of
Transmittal because the information in this summary term sheet is not complete.
Additional important information is contained in the remainder of this Offer to
Purchase and the Letter of Transmittal.
WHO IS OFFERING TO BUY MY SECURITIES?
Our name is LW Acquisition Corp. We are a Delaware corporation and have
carried on no business other than in connection with the merger agreement. We
are an indirect wholly-owned subsidiary of Ricoh Company, Ltd., a Japanese
corporation. See the "Introduction" and Section 8 of this Offer to Purchase.
WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
We are offering to purchase any and all of the outstanding shares of common
stock (including the associated participating preferred stock purchase rights)
of Lanier Worldwide, Inc. All references in this Offer to Purchase to "rights"
shall include all benefits that rightholders may have under Lanier
Worldwide, Inc.'s Stockholder Protection Rights Agreement and, unless the
context otherwise requires, all references to shares in this Offer to Purchase
shall include the rights associated therewith. The rights are not evidenced by
separate rights certificates and a holder of shares is not required to complete
any additional documentation or action in respect of the tender of any rights to
which such stockholder may be entitled. See the "Introduction" and Section 1 of
this Offer to Purchase.
HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT, AND WILL I HAVE
TO PAY ANY FEES OR COMMISSIONS?
We are offering to pay $3.00 per share, net to you, in cash. If you are the
record owner of your shares and you tender your shares to us in the offer, you
will not have to pay brokerage fees or similar expenses. If you own your shares
through a broker or other nominee, and your broker tenders your shares on your
behalf, your broker or nominee may charge you a fee for doing so. You should
consult your broker or nominee to determine whether any charges will apply. See
the "Introduction."
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Ricoh Company, Ltd. will provide us with sufficient funds from its own
resources to purchase all shares validly tendered and not withdrawn in the offer
and to provide funding for the merger, which is expected to follow the
successful completion of the offer. The offer is not conditioned upon any
financing arrangements. See Section 9 of this Offer to Purchase.
IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not believe our financial condition is relevant to your decision
whether to tender your shares in the offer because the form of payment consists
solely of cash, which will be paid from cash that we have on hand. The offer is
not subject to any financing condition. See Section 9 of this Offer to Purchase.
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<PAGE>
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, New York City time, on
January 8, 2001 to tender your shares in the offer. If you cannot deliver
everything that is required in order to make a valid tender by that time, you
may be able to use a guaranteed delivery procedure, which is described later in
this Offer to Purchase. See Section 1 and Section 2 of this Offer to Purchase.
CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
Subject to the terms of the merger agreement, we can extend the offer to buy
your shares under certain circumstances. We have agreed in the merger agreement
that we may extend (and re-extend) the offer without Lanier Worldwide, Inc.'s
consent in the following circumstances:
- if any of the conditions to the offer have not been satisfied or waived,
we may extend (and re-extend) the offer until such time as they are
satisfied or waived; provided, that we have committed to extend the offer
if less than a majority of the outstanding shares of Lanier Worldwide,
Inc., determined on a fully-diluted basis, have been tendered at the
initial expiration date of the tender offer and such condition could
reasonably be expected to be satisfied within 20 business days of such
expiration date; and provided further, that we have committed to extend
the offer if certain conditions relating to governmental approvals have
not been satisfied at the initial expiration date of the offer but could
reasonably be expected to be satisfied on or before March 31, 2001; and
- on one or more occasions (all such occasions aggregating not more than
twenty (20) business days) beyond the latest expiration date that would
otherwise be permitted if, on the expiration date, the number of shares
tendered (and not withdrawn), together with the shares already owned by
Ricoh Company, Ltd., represents less than 90% of the outstanding shares
on a fully-diluted basis; and
- we may, in addition, extend the offer for any period required by any
rule, regulation, interpretation or position of the SEC or its staff or
as required by applicable law. See Section 15 of this Offer to Purchase.
We may also elect to provide a "subsequent offering period" for the offer. A
subsequent offering period, if one is provided, will be an additional period of
time beginning after we have purchased shares tendered during the offer, during
which stockholders may tender their shares and receive the offer consideration.
We do not currently intend to provide a subsequent offering period, although we
reserve the right to do so. See Section 1 of this Offer to Purchase.
HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform Mellon Investor Services, L.L.C.
(which is the depositary for the offer) of that fact and will make a public
announcement of the extension, not later than 9:00 a.m., New York City time, on
the next business day after the day on which the offer was scheduled to expire.
See Section 1 of this Offer to Purchase.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
We are not obligated to purchase any shares which are validly tendered,
unless the number of shares of common stock validly tendered and not properly
withdrawn before the expiration date of the offer represents a majority of the
outstanding shares of Lanier Worldwide, Inc., determined on a fully-diluted
basis (assuming the exercise of all stock options and excluding shares held by
Lanier Worldwide, Inc. or any of its subsidiaries). This minimum number of
shares represents approximately 53% of presently outstanding shares. In
addition,
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<PAGE>
- We are not obligated to purchase shares which are validly tendered if
there is a material adverse change in Lanier Worldwide, Inc. or its
business or any event occurs which has a material adverse effect on the
offer.
- We are not obligated to purchase shares which are validly tendered if the
applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 has not expired or been waived.
- We are not obligated to purchase shares which are validly tendered if the
offer and the merger cannot be consummated under European Union Council
Regulation (EEC) 4064/89.
- We are not obligated to purchase shares which are validly tendered if we
do not receive the antitrust or competition consents required by the
relevant governmental entities in The Republic of Colombia and The
Republic of Poland.
- We are not obligated to purchase shares which are validly tendered if, on
or prior to December 31, 2000, the sale of Lanier Worldwide, Inc.'s voice
products business, as contemplated by the Voice Products Asset Purchase
Agreement, has not been consummated.
The offer is also subject to a number of other conditions. We can waive any
of the conditions to the offer without the consent of Lanier Worldwide, Inc.,
except that we cannot waive or decrease the minimum condition without the
consent of Lanier Worldwide, Inc. See Section 15 of this Offer to Purchase.
HOW DO I TENDER MY SHARES?
To tender shares, you must deliver the certificates representing your
shares, together with a completed letter of transmittal, to Mellon Investor
Services, L.L.C., the depositary for the offer, prior to the time that the
tender offer expires. If your shares are held in street name, the shares can be
tendered by your nominee through The Depository Trust Company. If your shares
are Direct Registration Shares, simply ensure that the Direct Registration
Shares portion of the Letter of Transmittal is properly completed. If you cannot
get any document or instrument that is required to be delivered to the
depositary by the expiration of the tender offer, you may get some extra time to
do so by having a broker, a bank or other fiduciary which is a member of the
Securities Transfer Agents Medallion Program or other eligible institution
guarantee that the missing items will be received by the depositary within three
New York Stock Exchange trading days after the date of the execution of the
notice of guaranteed delivery. For the tender to be valid, however, the
depositary must receive the missing items within that three trading day period.
See Section 2 of this Offer to Purchase.
If you are an employee of Lanier Worldwide, Inc. with a 401(k) account
vested in shares of Lanier Worldwide, Inc. common stock, you will direct
T. Rowe Price Trust Company, the trustee of the Save to Accumulate Retirement $
(STAR$) Plan, as to whether or not to tender the shares allocated to your
account.
HOW DO I TENDER MY DIRECT REGISTRATION SHARES?
You may tender all or part of the shares that you hold as Direct
Registration Shares by following the instructions and completing the appropriate
provisions of the Letter of Transmittal and delivering it to the depositary in
accordance with those instructions.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw shares at any time until the offer has expired and, if we
have not agreed by February 5, 2001 to accept your shares for payment, you can
withdraw them at any time after such time until we accept shares for payment.
This right to withdraw will not apply to shares tendered during any
3
<PAGE>
subsequent offering period discussed in Section 1 of this Offer to Purchase
unless such shares are not immediately accepted for payment. See Section 3 of
this Offer to Purchase.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the depositary while you
still have the right to withdraw the shares. See Section 3 of this Offer to
Purchase.
WHAT DOES LANIER WORLDWIDE, INC.'S BOARD OF DIRECTORS THINK OF THE OFFER?
We are making the offer pursuant to the merger agreement, which has been
unanimously approved by the board of directors of Lanier Worldwide, Inc. The
board of directors of Lanier Worldwide, Inc. by unanimous vote (1) determined
that the offer, the merger and the merger agreement are, in the belief of the
board of directors, fair to and in the best interests of, Lanier
Worldwide, Inc.'s stockholders, (2) approved the merger agreement and the
transactions contemplated thereby, including the offer and the merger, and
declared their advisability and (3) recommends that its stockholders accept the
offer and tender their shares pursuant thereto and, as required by applicable
law, approve and adopt the merger agreement and the merger. See the
"Introduction."
HAVE ANY STOCKHOLDERS PREVIOUSLY AGREED TO TENDER THEIR SHARES?
Yes. Harris Corporation, the former parent company of, and current owner of
approximately 10% of the outstanding shares of, Lanier Worldwide, Inc., has
entered into a Voting and Tender Agreement with us, pursuant to which it has
agreed to tender all of its shares in the offer. Harris Corporation will receive
the same per share consideration as you will receive for each share of Lanier
Worldwide, Inc. it tenders in the offer. Harris Corporation has also agreed
that, in the event of any vote of the stockholders of the Company, it shall vote
its shares in the same proportion as the other shares voted at such meeting.
WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE LANIER WORLDWIDE, INC.
SHARES ARE NOT TENDERED IN THE OFFER?
Yes. If we accept for payment and pay for a majority of the outstanding
shares of Lanier Worldwide, Inc., LW Acquisition Corp. will be merged with and
into Lanier Worldwide, Inc. At the time of the merger, all remaining
stockholders of Lanier Worldwide, Inc. (other than us and stockholders properly
exercising dissenters' rights) will have their shares converted into the right
to receive $3.00 net per share (or any higher price that may be paid for each
share pursuant to the offer) in cash. See the "Introduction" and Section 11 of
this Offer to Purchase.
IF A MAJORITY OF THE SHARES ARE TENDERED AND ACCEPTED FOR PAYMENT, WILL LANIER
WORLDWIDE, INC. CONTINUE AS A PUBLIC COMPANY?
No. Following the purchase of shares in the tender offer we expect to
consummate the merger, and following the merger Lanier Worldwide, Inc. no longer
will be publicly owned. Even if for some reason the merger does not take place,
if we purchase all the tendered shares, there may be so few remaining
stockholders and publicly held shares that Lanier Worldwide, Inc. common stock
will no longer be eligible to be traded on the New York Stock Exchange or on any
other securities exchange, there may not be an active public trading market, or
possibly, any public trading market, for Lanier Worldwide, Inc. stock, and
Lanier Worldwide, Inc. may cease making filings with the SEC or otherwise cease
being required to comply with SEC rules relating to publicly held companies. See
Section 13 of this Offer to Purchase.
4
<PAGE>
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
At the time of the merger described above, stockholders not tendering in the
offer will have their shares converted into the right to receive the same amount
of cash per share that they would have received had they tendered their shares
in the offer, subject to dissenters' rights properly exercised under Delaware
law. Therefore, the only difference to you between tendering your shares and not
tendering your shares is that you will be paid earlier and will not have
dissenters' rights if you tender your shares. However, if for some reason the
merger does not take place, the number of stockholders of Lanier
Worldwide, Inc. and the number of shares of Lanier Worldwide, Inc. which are
still in the hands of the public may be so small that there no longer will be an
active public trading market, or, possibly, there may not be any public trading
market, for Lanier Worldwide, Inc. common stock. Also, as described above,
Lanier Worldwide, Inc. may cease making filings with the SEC or otherwise being
required to comply with the SEC rules relating to publicly held companies. See
the "Introduction" and Section 13 of this Offer to Purchase.
WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On November 29, 2000, the last completed trading day before we announced the
tender offer and the possible subsequent merger, the closing price of Lanier
Worldwide, Inc. common stock reported on the New York Stock Exchange was $0.56
per share. On December 7, 2000, the last trading day before we commenced the
tender offer, the closing price of Lanier Worldwide, Inc. common stock reported
on the New York Stock Exchange was $2.875 per share. We advise you to obtain a
recent quotation for shares of Lanier Worldwide, Inc. common stock in deciding
whether to tender your shares. See Section 6 of this Offer to Purchase.
WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call MacKenzie Partners, Inc. at (800) 322-2885 (toll free) or
Wasserstein Perella & Co., Inc. at (212) 969-2700 (call collect). MacKenzie
Partners, Inc. is acting as the information agent and Wasserstein Perella &
Co., Inc. is acting as the dealer manager for our tender offer. See the back
cover of this Offer to Purchase.
5
<PAGE>
INTRODUCTION
LW Acquisition Corp., a Delaware corporation ("Purchaser") and an indirect
wholly-owned subsidiary of Ricoh Company, Ltd., a Japanese corporation
("Parent"), hereby offers to purchase any and all issued and outstanding shares
(the "Shares") of common stock, par value $0.01 per share (the "Common Stock"),
of Lanier Worldwide, Inc., a Delaware corporation (the "Company"), including the
associated rights to purchase shares of Company Participating Preferred Stock,
$.01 par value (the "Rights"), issued pursuant to the Stockholder Protection
Rights Agreement (the "Rights Agreement"), dated as of November 5, 1999, between
the Company and Mellon Investor Services, L.L.C., formerly ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, at a price of $3.00 per Share,
net to the selling stockholder in cash, without interest thereon (the "Offer
Price"), upon the terms and subject to the conditions set forth in this Offer to
Purchase and in the related Letter of Transmittal (which, together with any
amendments or supplements hereto or thereto, collectively constitute the
"Offer"). All references herein to Rights shall include all benefits that may
inure to holders of the Rights pursuant to the Rights Agreement and, unless the
context otherwise requires, all references to Shares herein shall include the
Rights. The Rights are not evidenced by separate rights certificates and no
additional action or documentation is required for a holder of Shares to tender
Rights to which such holder may be entitled.
Stockholders of record who hold Shares registered in their own name and
tender their Shares directly to the Depositary (as defined below) will not be
obligated to pay brokerage fees, commissions, solicitation fees or, subject to
Instruction 6 of the Letter of Transmittal, stock transfer taxes, if any, on the
purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold
their Shares through a bank or broker should check with such institution as to
whether they will be charged any service fees. However, any tendering
stockholder or other payee who fails to complete and sign the Substitute
Form W-9 that is included in the Letter of Transmittal may be subject to a
required federal backup withholding tax of 31% of the gross proceeds payable to
such stockholder or other payee pursuant to the Offer. See Section 2 of this
Offer to Purchase. Purchaser will pay all charges and expenses of Wasserstein
Perella, as dealer manager, MacKenzie Partners, as information agent, and Mellon
Investor Services, L.L.C., as depositary (the "Depositary"), incurred in
connection with the Offer. See Section 17 of this Offer to Purchase.
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not properly withdrawn prior to the expiration date of the Offer
that number of Shares that would constitute on the date of purchase a majority
of all outstanding Shares on a fully-diluted basis (assuming the exercise of all
stock options and excluding any Shares held by the Company or any of its
subsidiaries) (the "Minimum Condition"), (ii) any applicable waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and
the regulations thereunder (the "HSR Act") having expired or been terminated,
(iii) the Offer and Merger being able to be consummated under European Union
Council Regulation (EEC) No. 4064/89, (iv) receipt of required antitrust or
competition consents, approvals or waivers from The Republic of Colombia and The
Republic of Poland and (v) the consummation, on or before December 31, 2000, of
the transactions contemplated by the Voice Products Asset Purchase Agreement (as
defined below). The Offer is also subject to other terms and conditions. See
Sections 15 and 16 of this Offer to Purchase.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of November 29, 2000 (the "Merger Agreement"), among Parent, Purchaser, and
the Company. The Merger Agreement provides, among other things, that, upon the
terms and subject to the conditions therein, as soon as practicable after the
consummation of the Offer, Purchaser will be merged with and into the Company
(in which event the separate corporate existence of Purchaser shall cease and
the Company shall be the "Surviving Corporation") (the "Merger"). At the
effective time of the Merger (the "Effective Time"), each outstanding Share will
be converted into and represent the right to receive the Offer Price, without
interest, except for (i) Shares held in the Company's treasury immediately
before the Effective
6
<PAGE>
Time, and each Share held by Parent, Purchaser, or any of their respective
direct or indirect wholly-owned subsidiaries immediately before the Effective
Time (all of which will be canceled) and (ii) Shares with respect to which
dissenters' rights are properly exercised ("Dissenting Shares") under the
General Corporation Law of the State of Delaware, as amended (the "DGCL"). See
Section 11 of this Offer to Purchase.
The Board of Directors of the Company (the "Board") by unanimous vote
(i) determined that the Merger Agreement and the transactions contemplated
thereby, including the Offer and the Merger, are, in the belief of the Board,
fair to and in the best interests of the Company's stockholders, (ii) approved
the Merger Agreement and the transactions contemplated thereby, including the
Offer and the Merger, and declared their advisability and (iii) recommends that
the Company's stockholders accept the Offer, tender their Shares pursuant
thereto and, as required by law, approve and adopt the Merger Agreement and the
Merger.
The Board has received the written opinion of The Robinson-Humphrey Company,
LLC stating that the proposed consideration to be received pursuant to the Offer
and the Merger by the Company's stockholders is fair to the holders of Shares
from a financial point of view. A copy of the written opinion of The
Robinson-Humphrey Company, LLC, which sets forth the assumptions made,
procedures followed, matters considered and limitations on the reviews
undertaken, is included as ANNEX B to the Company's Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Company 14D-9") filed with the Securities and
Exchange Commission (the "SEC") in connection with the Offer, a copy of which is
being furnished to stockholders concurrently with this Offer to Purchase.
Stockholders are urged to read the full text of such opinion carefully.
The Company has represented to Parent that, as of November 20, 2000, there
were 84,768,152 Shares outstanding and there were options to acquire 5,145,252
Shares. Neither Parent, Purchaser nor any person listed on Schedule I hereto
beneficially owns any Shares. See Section 8 of this Offer to Purchase.
The Merger Agreement provides that, as soon as practicable after the
Effective Time, the Company shall pay in respect of each outstanding option to
purchase Shares an amount equal to the number of Shares subject to such option,
whether or not vested or exercisable, multiplied by the excess, if any, of the
Offer Price over the exercise price per Share of such option, and to each holder
of restricted stock and performance share awards, an amount equal to the product
of the Offer Price and the number of Shares subject to such stock or award.
Except for the Company's Chief Executive Officer, members of the Board do not
hold restricted stock and, except for the Company's Chief Executive Officer and
Chief Operating Officer, members of the Board do not hold performance share
awards. Members of the Board will collectively receive in respect of options to
purchase Shares held by them an aggregate of approximately $227,895. Two
directors of the Company are entitled to receive payments of $250,000 in cash,
in the aggregate, under the Directors Deferred Compensation Plan. In the absence
of the Merger and the transactions contemplated thereby, such payments to these
directors would be made in Shares.
The Merger Agreement provides that upon the purchase of and payment for any
Shares pursuant to the Offer, and from time to time thereafter, Parent shall be
entitled to designate the number of directors, rounded up to the next whole
number, on the Board that equals the product of (i) the total number of
directors on the Board (giving effect to any additional directors elected by
Purchaser) and (ii) the percentage that the number of Shares beneficially owned
by Parent and Purchaser following the Offer bears to the total number of
outstanding Shares, and the Company will upon request by Parent either increase
the size of the Board (and if necessary amend the Company's by-laws to permit
such an increase) or secure the resignation of such number of directors as is
necessary to enable Purchaser's designees to be elected to the Board and shall
cause Parent's designees to be so elected. See Section 11 of this Offer to
Purchase. The designation of directors by Parent is subject to compliance with
the
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requirements of Section 14(f) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
Following the election or appointment of Parent's designees as specified in
the foregoing paragraph and prior to the Effective Time of the Merger, any
amendment of the Merger Agreement requiring action by the Board, any termination
of the Merger Agreement by the Company and any enforcement of or any waiver of
compliance with any of the agreements or conditions contained in the Merger
Agreement for the benefit of the Company will require the approval of the
directors of the Company then in office who are not designees of Parent.
The information contained herein concerning or attributed to the Company and
its officers and directors has been supplied by the Company, and all other
information contained herein has been supplied by Parent and Purchaser. Although
neither the Company nor Parent or Purchaser have any knowledge that would
indicate that any statements contained herein based on the information provided
by the other are untrue, neither the Company nor Parent or Purchaser take any
responsibility for the accuracy or completeness of any information provided by
the other or for any failure by the other to disclose events that may have
occurred and may affect the significance or accuracy of such information but
which are unknown to the Company or Parent and Purchaser, respectively.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND YOU SHOULD READ THEM IN THEIR ENTIRETY BEFORE MAKING
ANY DECISION WITH RESPECT TO THE OFFER.
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THE TENDER OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for all Shares which are
validly tendered and not withdrawn on or prior to the Expiration Date (as
defined below), as soon as practicable after the Expiration Date. The term
"Expiration Date" means 12:00 midnight, New York City time, on January 8, 2001,
unless and until Purchaser (subject to the terms and conditions 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 Purchaser, shall expire prior to the purchase
of any Shares by Purchaser.
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, pay for any Shares tendered pursuant to the Offer, and may
postpone the acceptance for payment or, subject to the restriction referred to
above, payment for any Shares tendered pursuant to the Offer, and may terminate
or amend the Offer (whether or not any Shares have theretofore been purchased or
paid for pursuant to the Offer) and not accept for payment any Shares, if the
Minimum Condition and the other conditions set forth in Section 15 of this Offer
to Purchase (collectively, the "Offer Conditions") are not satisfied. Subject to
the provisions of the Merger Agreement, Purchaser expressly reserves the right
to waive, in whole or in part at any time or from time to time, any such
condition, to increase the price per Share payable in the Offer, to extend the
Offer or provide for a subsequent offering period or to make any other changes
in the terms and conditions of the Offer; PROVIDED THAT, unless previously
approved by the Company, no change may be made that decreases the Offer Price,
changes the form of consideration payable in the Offer, reduces the maximum
number of Shares to be purchased in the Offer, imposes conditions to the Offer
in addition to the Offer Conditions, or waives or decreases the Minimum
Condition.
If all Offer Conditions are not satisfied on the initial expiration date of
the Offer, Purchaser may extend (and re-extend) the Offer to provide additional
time to satisfy such conditions. Purchaser has agreed to extend the Offer if, on
the Expiration Date, the Minimum Condition is not satisfied or waived and such
condition could reasonably be expected to be satisfied within twenty
(20) business days following the initial scheduled expiration of the Offer.
Purchaser may also extend the Expiration Date on one or more occasions (all such
occasions aggregating not more than twenty (20) business days) beyond the latest
expiration date that would otherwise be permitted if, on the Expiration Date,
the number of Shares tendered (and not withdrawn), together with the Shares then
owned by Parent, represents less than 90% of the outstanding Shares on a
fully-diluted basis. In addition, Purchaser has agreed to extend the Offer if,
on any scheduled expiration date of the Offer, the following conditions have not
been satisfied, but could reasonably be expected to be satisfied on or before
March 31, 2001: (i) the applicable waiting period under the HSR Act shall not
have expired or been terminated, (ii) the Offer and the Merger cannot be
consummated under the European Union Council Regulation (EEC) No. 4064/89 or
(iii) the Company and/or Parent shall not have received the antitrust or
competition consents, approvals or waivers required by the relevant governmental
entities in The Republic of Colombia and The Republic of Poland.
The rights reserved by Purchaser in the preceding paragraph are in addition
to Purchaser's rights pursuant to Section 15 of this Offer to Purchase.
In addition, the Merger Agreement provides that Purchaser has the right, but
is not required, to extend the Offer for a subsequent offering period of up to
an additional twenty (20) business days
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pursuant to Rule 14d-11 of the Exchange Act (a "Subsequent Offering Period"),
subject to certain conditions set forth in such rule.
A Subsequent Offering Period is an additional period of time from three
(3) business days up to twenty (20) business days, beginning after Purchaser
purchases Shares tendered in the Offer, during which stockholders may tender,
but not withdraw, their Shares and receive the Offer Price. If Purchaser decides
to provide for a Subsequent Offering Period, and such Subsequent Offering Period
is for a period of time which is less than twenty (20) business days, the
Purchaser may extend (and re-extend) such Subsequent Offering Period up to an
aggregate of twenty (20) business days.
Pursuant to Rule 14d-7 under the Exchange Act, no withdrawal rights apply to
Shares tendered during a Subsequent Offering Period and no withdrawal rights
apply during the Subsequent Offering Period with respect to Shares tendered in
the Offer and accepted for payment. During a Subsequent Offering Period,
Purchaser will promptly purchase and pay for any Shares tendered at the same
price paid in the Offer.
Any extension, delay, termination or amendment of the Offer will be followed
as promptly as practicable by public announcement thereof, such announcement in
the case of an extension to be issued 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 14e-l(d) under
the Exchange Act. Subject to applicable law (including Rules 14d-4(d) and
14d-6(c) under the Exchange Act, which require that any material change in the
information published, sent or given to stockholders in connection with the
Offer be promptly disseminated to stockholders in a manner reasonably designed
to inform stockholders of such change), and without limiting the manner in which
Purchaser may choose to make any public announcement, Purchaser shall have no
obligation to publish, advertise or otherwise communicate any such public
announcement other than by making a release to the Dow Jones News Service.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, Purchaser will disseminate additional tender offer materials (including
by public announcement as set forth above) and extend the Offer to the extent
required by Rules 14d-4(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, other than a change in price, percentage of securities sought or
inclusion of or change to a dealer's soliciting fee, will depend upon the facts
and circumstances, including the materiality, of the changes. In the SEC's view,
an offer should remain open for a minimum of five (5) business days from the
date the material change is first published, sent or given to stockholders, and,
if material changes are made with respect to information that approaches the
significance of price and share levels, a minimum of ten (10) business days may
be required to allow for adequate dissemination and investor response. With
respect to a change in price or, subject to certain limitations, a change in the
percentage of securities sought or inclusion of or change to a dealer's
soliciting fee, a minimum ten (10) business day period from the date of such
change is generally required to allow for adequate dissemination to
stockholders. Accordingly, if, prior to the Expiration Date, Purchaser decreases
the number of Shares being sought or increases or decreases the consideration
offered pursuant to the Offer, and if the Offer is scheduled to expire at any
time earlier than the tenth (10th) business day from the date that notice of
such increase or decrease is first published, sent or given to stockholders, the
Offer will be extended at least until the expiration of such tenth (10th)
business day. For purposes of the Offer, a "business day" means any day other
than a Saturday, Sunday or a U.S. federal holiday and consists of the time
period from 12:01 a.m. through 12:00 midnight, New York City time.
In connection with the Offer, the Company has provided Purchaser with the
names and addresses of all record holders of Shares and security position
listings of Shares held in stock depositaries. This Offer to Purchase, the
related Letter of Transmittal and other relevant materials will be mailed to
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registered holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the stockholder list of the Company 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. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES.
VALID TENDERS. Except as set forth below, in order for Shares to be validly
tendered pursuant to the Offer, the Letter of Transmittal (or a manually signed
facsimile thereof), properly completed and duly executed, together with any
required signature guarantees, or an Agent's Message (as defined below) in
connection with a book-entry transfer of Shares, and any other documents
required by the Letter of Transmittal, must be received by the Depositary at one
of its addresses set forth on the back cover of this Offer to Purchase on or
prior to the Expiration Date, and either (i) certificates representing tendered
Shares must be received by the Depositary, or such Shares must be tendered
pursuant to the procedure for book-entry transfer set forth below (and
confirmation of receipt of such delivery must be received by the Depositary), in
each case on or prior to the Expiration Date, or (ii) the guaranteed delivery
procedures set forth below must be complied with. No alternative, conditional or
contingent tenders will be accepted.
Employees of the Company who have 401(k) accounts vested in shares of Common
Stock should direct T. Rowe Price Trust Company, the trustee of the Save to
Accumulate Retirement $ (STAR$) Plan, as to whether or not to tender the Shares
allocated to their accounts.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (i) if such Letter of Transmittal is signed by the registered holder
of the Shares tendered therewith, unless such holder has completed either the
box entitled "Special Delivery Instructions" or the box entitled "Special
Payment Instructions" in the Letter of Transmittal, or (ii) if Shares are
tendered for the account of a firm that is a member in good standing of the
Security Transfer Agent's Medallion Program, the New York Stock Exchange
Medallion Signature Program or the Stock Exchange Medallion Program (each being
referred to as an "Eligible Institution"). In all other cases, all signatures on
a Letter of Transmittal must be guaranteed by an Eligible Institution. See
"Instruction 1" of the Letter of Transmittal.
If a certificate representing Shares is registered in the name of a person
other than the signatory of the Letter of Transmittal (or a manually signed
facsimile thereof), or if payment is to be made, or Shares not accepted for
payment or not tendered are to be registered in the name of a person other than
the registered holder, the certificate must be endorsed or accompanied by an
appropriate stock power, in either case signed exactly as the name(s) of the
registered holder(s) appears on the certificate, with the signature(s) on the
certificate or stock power guaranteed by an Eligible Institution. If the Letter
of Transmittal or stock powers are signed or any certificate is endorsed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and, unless waived by Purchaser, proper
evidence satisfactory to Purchaser of their authority to so act must be
submitted. See "Instruction 5" of the Letter of Transmittal.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company ("DTC") for purposes of the Offer
within two (2) business days after the date of this Offer to Purchase, and any
financial institution that is a participant in DTC's system may make book-entry
delivery of the Shares by causing DTC to transfer such Shares into the
Depositary's account in accordance with DTC's procedure for such transfer.
However, although delivery of Shares may be effected through book-entry transfer
at DTC, a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), with any required signature guarantees, or
an Agent's Message and any other required documents, must, in any case, be
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<PAGE>
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
guaranteed delivery procedures described below must be complied with. The term
"Agent's Message" means a message transmitted through electronic means by DTC
to, and received by, the Depositary and forming a part of a book-entry
confirmation, which states that DTC has received an express acknowledgment from
the participant in DTC tendering the Shares that such participant has received,
and agrees to be bound by, the terms of the Letter of Transmittal. DELIVERY OF
DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates representing 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 Shares may nevertheless
be tendered, PROVIDED that all of the following conditions are satisfied:
(a) such tender is made by or through an Eligible Institution;
(b) the Depositary receives, prior to the Expiration Date, a properly
completed and duly executed Notice of Guaranteed Delivery, substantially
in the form provided by Purchaser; and
(c) in the case of a guarantee of Shares, the certificates therefor (or a
confirmation of a book- entry transfer of such Shares into the
Depositary's account at DTC), together with a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof)
with any required signature guarantees (or, in connection with a
book-entry transfer, an Agent's Message) and any other documents required
by the Letter of Transmittal 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, or may be
transmitted by 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.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, 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.
DIRECT REGISTRATION SHARES. Holders of Direct Registration Shares will
receive all documents furnished to stockholders generally in connection with the
Offer. A stockholder who wishes to tender Direct Registration Shares may use the
Letter of Transmittal to tender such Shares by completing the box entitled
"Direct Registration Shares." Each holder of Direct Registration Shares may
tender all, some or none of such stockholder's Direct Registration Shares. Any
Direct Registration Shares tendered but not purchased will be credited back to
such stockholder's Direct Registration Shares account.
HOLDERS OF DIRECT REGISTRATION SHARES ARE URGED TO READ THE OFFER TO
PURCHASE, THE LETTER OF TRANSMITTAL AND RELATED MATERIALS CAREFULLY.
BACKUP FEDERAL INCOME TAX WITHHOLDING. To prevent backup federal income tax
withholding equal to 31% of the gross payments received pursuant to the Offer,
each tendering stockholder must provide the Depositary with such stockholder's
correct taxpayer identification number (social security number or employer
identification number) and certify that such stockholder is not
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<PAGE>
subject to backup federal income tax withholding by completing the Substitute
Form W-9 included in the Letter of Transmittal. Stockholders other than "U.S.
Holders" (as defined in "Certain United States Federal Income Tax Consequences")
must submit a properly completed IRS Form W-8 BEN, certifying Non-United States
status, in order to avoid backup withholding. Such forms may be obtained from
the Depositary. For a discussion of the material federal income tax consequences
to tendering Shares in the Offer, see "Certain United States Federal Income Tax
Consequences." See "Important Tax Information" in the Letter of Transmittal.
DETERMINATION OF VALIDITY. All questions as to the form of documents and the
validity, eligibility (including time of receipt) and acceptance for payment of
any tendered Shares will be determined by Purchaser in its sole discretion, and
its determination shall be final and binding on all persons. Purchaser reserves
the absolute right to reject any or all tenders of any Shares that it determines
are not in appropriate form or the acceptance for payment of or payment for
which may, in the opinion of Purchaser's counsel, be unlawful. Purchaser also
reserves the absolute right to waive any defect or irregularity in any tender
with respect to any particular Shares or any particular stockholder, and
Purchaser's interpretation of the terms and conditions of the Offer will be
final and binding on all persons. No tender of Shares will be deemed to have
been validly made until all defects or irregularities relating thereto have been
expressly waived or cured to the satisfaction of Purchaser. None of Purchaser,
Parent, the Depositary, the Dealer Manager, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in tenders, nor shall any of them incur any liability for failure
to give any such notification.
OTHER REQUIREMENTS. By executing the Letter of Transmittal as set forth
above, a tendering stockholder irrevocably appoints designees of Purchaser as
such stockholder's proxy, in the manner set forth in the Letter of Transmittal,
with full power of substitution, to the full extent of such stockholder's rights
with respect to the Shares tendered by such stockholder and accepted for payment
by Purchaser (and any and all other Shares or other securities or rights issued
or issuable in respect of such Shares on or after the date of this Offer to
Purchase), effective if, when and to the extent that Purchaser accepts such
Shares for payment pursuant to the Offer. Upon such acceptance for payment, all
prior proxies given by such stockholder with respect to such Shares or other
securities accepted for payment will, without further action, be revoked, and no
subsequent proxies may be given by such stockholder nor any subsequent written
consents executed (and, if given or executed, will not be deemed effective).
Such designees of Purchaser will, with respect to such Shares and other
securities or rights issuable in respect thereof, be empowered to exercise all
voting and other rights of such stockholder as it, in its sole discretion, may
deem proper in respect of any annual, special or adjourned meeting of the
Company's stockholders, action by written consent in lieu of any such meeting or
otherwise. Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, Purchaser must be able to exercise full voting
rights with respect to the Shares accepted by Purchaser for payment immediately
upon such acceptance.
Purchaser's acceptance for payment of Shares tendered pursuant to any of the
procedures described above will constitute a binding agreement between the
tendering stockholder and Purchaser upon the terms and subject to the conditions
of the Offer.
3. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer will be irrevocable, except
that Shares tendered may be withdrawn at any time prior to the Expiration Date,
and, unless previously accepted for payment by Purchaser pursuant to the Offer,
may also be withdrawn on or after February 5, 2001.
For a withdrawal of Shares tendered to be effective, a written, telegraphic,
telex or facsimile transmission notice of withdrawal must be timely received by
the Depositary at one of its addresses set forth on the back cover of this Offer
to Purchase. Any notice of withdrawal must specify the name of
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the person who tendered the Shares to be withdrawn, the number of Shares to be
withdrawn and the name(s) in which the certificate(s) representing such Shares
are registered, if different from that of the person who tendered such Shares.
If certificates for Shares to be withdrawn have been delivered or otherwise
identified to the Depositary, the name of the registered holder and the serial
numbers shown on the particular certificates evidencing such Shares to be
withdrawn must also be furnished to the Depositary prior to the physical release
of the Shares to be withdrawn. The signature(s) on the notice of withdrawal must
be guaranteed by an Eligible Institution (except in the case of Shares tendered
by an Eligible Institution). If Shares have been tendered pursuant to the
procedures for book-entry transfer set forth in Section 2 of this Offer to
Purchase any notice of withdrawal must specify the name and number of the
account at DTC to be credited with such withdrawn Shares and must otherwise
comply with DTC's procedures.
If Purchaser extends the Offer, is delayed in its acceptance for payment of
any Shares tendered, or is unable to accept for payment or pay for Shares
tendered pursuant to the Offer, for any reason whatsoever, then, without
prejudice to Purchaser's rights set forth herein, the Depositary may,
nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares
may not be withdrawn except to the extent that the tendering stockholder is
entitled to and duly exercises withdrawal rights as described in this Section.
Any such delay will be accompanied by an extension of the Offer to the extent
required by law.
Withdrawals of tenders of Shares may not be rescinded, and Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following the
procedures described in Section 2 of this Offer to Purchase at any time prior to
the Expiration Date or during a Subsequent Offering Period.
No withdrawal rights will apply to Shares tendered into a Subsequent
Offering Period and no withdrawal rights apply during the Subsequent Offering
Period with respect to Shares tendered in the Offer and accepted for payment.
See Section 1 of this Offer to Purchase.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
and its determination will be final and binding on all persons. None of Parent,
Purchaser, the Depositary, the Dealer Manager, 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, nor shall any of them incur any
liability for failure to give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any extension or
amendment), Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn as soon
as practicable after the Expiration Date. Purchaser expressly reserves the right
to delay acceptance for payment of, or payment for, Shares in order to comply in
whole or in part with any applicable law. If Purchaser desires to delay payment
for Shares accepted for payment pursuant to the Offer, and such delay would
otherwise be in contravention of Rule 14e-l(c) of the Exchange Act, Purchaser
will extend the Offer. See Section 1 of this Offer to Purchase.
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
representing such Shares (or a timely confirmation of a book-entry transfer of
such Shares into the Depositary's account at DTC, as described in Section 2 of
this Offer to Purchase), or, in the case of Direct Registration Shares, a Letter
of Transmittal including properly completed portions for Direct Registration
Shares, (ii) a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof) with any required signature guarantees (or,
in connection with a book-entry transfer, an Agent's Message) and (iii) any
other documents required by the Letter of Transmittal.
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For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares tendered prior to the Expiration Date
when, as and if Purchaser gives oral or written notice to the Depositary, as
agent for the tendering stockholders, of Purchaser's acceptance for payment of
such Shares. Payment for Shares so accepted for payment will be made by the
deposit of the purchase price therefor with the Depositary, which will act as
agent for the tendering stockholders for the purpose of receiving such payment
from Purchaser and transmitting such payment to tendering stockholders. If, for
any reason whatsoever, acceptance for payment of any Shares tendered pursuant to
the Offer is delayed, or Purchaser is unable to accept for payment Shares
tendered pursuant to the Offer, then, without prejudice to Purchaser's rights
under the Offer (but subject to compliance with Rule 14e-l(c) under the Exchange
Act, which requires that Purchaser pay the Offer Price or return the tendered
Shares promptly after any termination or withdrawal of the Offer), the
Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares,
and such Shares may not be withdrawn except to the extent that the tendering
stockholders are entitled to withdrawal rights as described in Section 3 of this
Offer to Purchase. Under no circumstances will interest be paid on the purchase
price by reason of any delay in making such payments.
Purchaser will immediately accept for payment and promptly pay for all
Shares validly tendered during any Subsequent Offering Period. See Section 1 of
this Offer to Purchase. The procedures for tendering Shares and guaranteed
delivery set forth in Section 2 of this Offer to Purchase will apply during any
Subsequent Offering Period.
If any tendered Shares are not accepted for payment and paid for,
certificates representing such Shares will be returned (or, in the case of
Shares delivered by book-entry transfer with DTC as permitted by Section 2, such
Shares will be credited to an account maintained with DTC) without expense to
the tendering stockholder as promptly as practicable following the expiration or
termination of the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration to
be paid for Shares pursuant to the Offer, Purchaser will pay such increased
consideration for all Shares accepted for payment or paid for pursuant to the
Offer, whether or not such Shares have been tendered, accepted for payment or
paid for prior to such increase in the consideration.
Purchaser reserves the right to transfer or assign in whole or in part to
one or more affiliates of Purchaser the right of Purchaser to purchase 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 stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
5. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.
The receipt of cash for Shares pursuant to the Offer (or in the Merger) will
be a taxable transaction for United States federal income tax purposes (and may
also be a taxable transaction under applicable state, local or other tax laws).
In general, a stockholder will recognize gain or loss for such purposes equal to
the difference between the amount of cash received and such stockholder's
adjusted tax basis in the Shares. Gain or loss must be determined separately for
each block of Shares (i.e., Shares acquired at the same cost in a single
transaction) sold pursuant to the Offer or converted to cash in the Merger. Such
gain or loss will be capital gain or loss if the Shares are a capital asset in
the hands of the stockholder and will be long term capital gain or loss if the
Shares were held for more than one year on the date of sale (in the case of the
Offer) or the effective time of the Merger (in the case of the Merger). The
receipt of cash for Shares pursuant to the exercise of dissenters' rights, if
any, will generally be taxed in the same manner as described above.
Under the United States federal income tax backup withholding rules, unless
an exemption applies under the applicable law and regulations, 31% of the gross
proceeds payable to a holder or other payee
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pursuant to the Offer must be withheld by the Depositary and remitted to the
United States Treasury, unless the stockholder or other payee provides such
person's taxpayer identification number (employer identification number or
social security number) to the Depositary and certifies under penalties of
perjury that such number is correct. Therefore, each tendering stockholder
should complete and sign the Substitute Form W-9 included as part of the Letter
of Transmittal so as to provide the information and certification necessary to
avoid backup withholding. Certain stockholders (including among others all
corporations and certain foreign individuals) are not subject to these backup
withholding and reporting requirements. In order for a foreign individual to
qualify as an exempt recipient, such an individual must submit a completed IRS
Form W-8 BEN which is signed by the individual under penalties of perjury,
attesting to the individual's exempt status. Backup withholding is not an
additional tax; any amounts so withheld may be credited against the U.S. federal
income tax liability of the beneficial owner subject to the withholding. A copy
of the IRS forms may be obtained from the Depositary. See the Section entitled
"The Tender Offer--Procedure for Accepting the Offer and Tendering
Shares--Backup Federal Income Withholding," of this Offer to Purchase.
The foregoing discussion may not be applicable to a stockholder who acquired
Shares pursuant to the exercise of employee stock options or otherwise as
compensation, including pursuant to the Company's Save to Accumulate Retirement
$ (STAR$) Plan, to a stockholder who is related to Purchaser for purposes of
Section 302 of the Internal Revenue Code or to a stockholder who is not a U.S.
Holder or who is otherwise subject to special tax treatment under the Internal
Revenue Code (for example, brokers, dealers in securities, banks, insurance
companies, tax-exempt organizations and financial institutions). For these
purposes, a "U.S. Holder" is a holder of Shares who or which is (i) an
individual who is a citizen or resident of the United States for United States
federal income tax purposes, (ii) a corporation or other entity taxable as a
corporation created or organized under the laws of the United States or any
state thereof (including the District of Columbia), (iii) an estate the income
of which is subject to United States federal income tax regardless of its source
or (iv) a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust. In
addition, the foregoing discussion does not address the tax treatment of holders
of unexercised options to acquire Shares.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND IS BASED UPON PRESENT LAW. STOCKHOLDERS ARE
URGED TO CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE SPECIFIC TAX
CONSEQUENCES OF THE OFFER AND THE MERGER TO THEM, INCLUDING THE APPLICATION AND
EFFECT OF THE ALTERNATIVE MINIMUM TAX, AND STATE, LOCAL OR NON-UNITED STATES
INCOME AND OTHER TAX LAWS.
6. PRICE RANGE OF SHARES; DIVIDENDS.
The Company's Common Stock is listed and traded on the New York Stock
Exchange ("NYSE") under the symbol "LR." The following table sets forth, for the
periods indicated, the high and low sales prices for the Common Stock on the
NYSE as reported by published financial sources.
<TABLE>
<CAPTION>
HIGH LOW
------------------------ --------
<S> <C> <C>
FISCAL 2000
Second Quarter (November 5 -- December 31, 1999)............ $ 4.8750 $2.6250
Third Quarter (January 1, 2000 -- March 31, 2000)........... $ 4.1875 $1.6250
Fourth Quarter (April 1, 2000 -- June 30, 2000)............. $ 2.4375 $1.0000
FISCAL 2001
First Quarter (July 1, 2000 -- September 30, 2000).......... $ 1.3125 $0.4375
Second Quarter (October 1, 2000 -- December 7, 2000)........ $ 2.8750 $0.4375
</TABLE>
16
<PAGE>
The Company has not paid any cash dividends on its Common Stock since it was
spun off from Harris Corporation on November 5, 1999. In addition, the Merger
Agreement prohibits the Company from declaring or paying any cash dividends
prior to the earlier of the termination of the Merger Agreement or the Effective
Time.
The Rights trade together with the Common Stock. On November 29, 2000, the
last full trading day prior to the public announcement of the execution of the
Merger Agreement, the closing price per Share reported on the NYSE was $0.56. On
December 7, 2000, the last full trading day before the commencement of the
Offer, the closing price per Share reported on the NYSE was $2.875.
STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
7. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or is based upon
reports and other documents on file with the SEC or otherwise publicly
available. Although neither Purchaser nor Parent have any knowledge that would
indicate that any statements contained herein based upon such reports and
documents are untrue, neither Purchaser nor Parent takes any responsibility for
the accuracy or completeness of the information contained in such reports and
other documents or for any failure by the Company to disclose events that may
have occurred and may affect the significance or accuracy of any such
information but that are unknown to Purchaser or Parent.
GENERAL. The Company is a Delaware corporation with its principal executive
offices located at 2300 Parklake Drive, N.E., Atlanta, Georgia 30345 and its
telephone number is (770) 496-9500.
The Company is a worldwide independent supplier of copiers, facsimiles and
other related automated office imaging equipment. With over 1,600 sales and
service locations in more than 100 countries, the Company markets these products
and related services, parts and supplies to customers both on a direct sales
basis and through a worldwide network of independent dealers. The Company
provides customers with a wide array of customized document management solutions
including black and white digital and analog copiers, color copiers, facsimile
systems, multi-function devices, printers, computer based health care
information management systems, associated parts and supplies, and a variety of
related outsourcing services. The Company sources substantially all of these
products from a variety of manufacturers, including Parent.
FINANCIAL INFORMATION. Certain financial information is hereby incorporated
by reference to the audited financial statements set forth in the Company's
Form 10-K for the fiscal year ended June 30, 2000 and the unaudited financial
statements set forth in the Company's Form 10-Q for the fiscal quarter ended
September 29, 2000. The reports may be inspected at, and copies may be obtained
from, the same places and in the same manner set forth under the section
entitled "Available Information" below.
OTHER FINANCIAL INFORMATION. During the due diligence process, which is
described in Section 10 of this Offer to Purchase, the Company provided Parent
with certain business and financial information which we believe is not publicly
available, including certain projections of the Company's future operating
performance. The Company informed us that these projections were not prepared
with a view to public disclosure, nor were they prepared in compliance with
published guidelines of the SEC or the guidelines established by the American
Institute of Certified Public Accountants regarding projections. A summary of
these projections is included in this Offer to Purchase only because the Company
provided the projections to us.
The projections contain forward-looking statements, do not purport to
present results of operations in accordance with generally accepted accounting
principles and have not been audited or examined by
17
<PAGE>
the Company's independent auditors. The summary of projected financial data set
forth below is presented for the limited purpose of giving the stockholders of
the Company access to financial data prepared by the Company's management that
were made available to Parent in connection with its due diligence
investigation. The projections exclude the operating results of the Company's
dictation product line and applications surrounding speech-to-text processing
(the "Voice Products Business"), which is being sold pursuant to the Voice
Products Asset Purchase Agreement.
<TABLE>
<CAPTION>
2001E 2002E 2003E 2004E
-------- -------- -------- --------
(IN MILLIONS)
<S> <C> <C> <C> <C>
Net revenue.................................... $1,293.0 $1,415.0 $1,555.0 $1,730.0
Gross margin %................................. 35.8% 35.0% 34.3% 33.8%
EBITDA......................................... $ 219.8 $ 238.5 $ 261.0 $ 283.0
Net income..................................... $ 31.9 $ 50.7 $ 66.9 $ 88.3
</TABLE>
THE FOREGOING FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN RISKS AND
UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THE
PROJECTIONS. THE COMPANY HAS ADVISED PARENT AND PURCHASER THAT ITS INTERNAL
FINANCIAL FORECASTS (UPON WHICH THE PROJECTIONS PROVIDED TO PARENT WERE BASED IN
PART) ARE, IN GENERAL, PREPARED SOLELY FOR INTERNAL USE AND CAPITAL BUDGETING
AND OTHER MANAGEMENT DECISIONS, AND ARE SUBJECTIVE IN MANY RESPECTS AND THUS
SUSCEPTIBLE TO INTERPRETATIONS AND PERIODIC REVISION BASED ON ACTUAL EXPERIENCE
AND BUSINESS DEVELOPMENTS. THE PROJECTIONS ALSO REFLECT NUMEROUS ASSUMPTIONS
(NOT ALL OF WHICH WERE PROVIDED TO PARENT), ALL MADE BY MANAGEMENT OF THE
COMPANY, WITH RESPECT TO INDUSTRY PERFORMANCE, GENERAL BUSINESS, ECONOMIC,
MARKET AND FINANCIAL CONDITIONS AND OTHER MATTERS, INCLUDING EFFECTIVE TAX RATES
CONSISTENT WITH HISTORICAL LEVELS FOR THE COMPANY, ALL OF WHICH ARE DIFFICULT TO
PREDICT, MANY OF WHICH ARE BEYOND THE COMPANY'S CONTROL AND NONE OF WHICH WERE
SUBJECT TO APPROVAL BY PARENT OR PURCHASER. ACCORDINGLY, WE CANNOT ASSURE YOU
THAT THE ASSUMPTIONS MADE IN PREPARING THE PROJECTIONS WILL PROVE ACCURATE, AND
ACTUAL RESULTS MAY BE MATERIALLY GREATER OR LESS THAN THOSE CONTAINED IN THE
PROJECTIONS. THESE PROJECTIONS DO NOT GIVE EFFECT TO THE OFFER OR THE POTENTIAL
COMBINED OPERATIONS OF PARENT AND THE COMPANY OR ANY CHANGES WHICH MAY BE MADE
TO THE COMPANY'S OPERATIONS OR STRATEGY AFTER THE CONSUMMATION OF THE OFFER. THE
INCLUSION OF THE PROJECTIONS SHOULD NOT BE REGARDED AS AN INDICATION THAT ANY OF
PARENT, PURCHASER OR THE COMPANY OR THEIR RESPECTIVE AFFILIATES OR
REPRESENTATIVES CONSIDERED OR CONSIDER THE PROJECTIONS TO BE A RELIABLE
PREDICTION OF FUTURE EVENTS, AND THE PROJECTIONS SHOULD NOT BE RELIED UPON AS
SUCH. NONE OF PARENT, PURCHASER OR ANY OF THEIR RESPECTIVE AFFILIATES ASSUMES
ANY RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF
THE PROJECTIONS. NONE OF PARENT, PURCHASER OR THE COMPANY OR ANY OF THEIR
RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE, OR MAKES, ANY REPRESENTATION
TO ANY PERSON REGARDING THE INFORMATION CONTAINED IN THE PROJECTIONS AND NONE OF
THEM INTENDS TO UPDATE OR OTHERWISE REVISE THE PROJECTIONS TO REFLECT
CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO REFLECT THE OCCURRENCE OF
FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS UNDERLYING
THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
COMMERCIAL ARRANGEMENTS WITH THE COMPANY. The Company and Parent have
entered into a Sales Agreement, dated as of July 1, 1999, whereby the Company
has the non-exclusive right to distribute, throughout North America, Central
America, Europe and Australia, certain products and equipment manufactured by
Parent, including facsimile equipment, copiers and digital multifunction
products (the "Sales Agreement"). During the fiscal year ended June 30, 2000,
Parent was the Company's largest supplier, and the Company remitted payments of
over $238 million, or approximately 50% of the Company's total payments to all
major suppliers, to Parent during the most recent fiscal year. A copy of the
Sales Agreement is filed as Exhibit (e)(9) to the Company 14D-9 and is
incorporated herein by reference.
AVAILABLE INFORMATION. The Shares are registered under the Exchange Act.
Accordingly, the Company is subject to the informational filing requirements of
the Exchange Act and, in accordance therewith, is obligated to file periodic
reports, proxy statements and other information with
18
<PAGE>
the SEC relating to its business, financial condition and other matters.
Information, as of particular dates, concerning the Company's directors and
officers, their remuneration, stock options granted to them, the principal
holders of the Company's securities and any material interest of such persons in
transactions with the Company is required to be disclosed in such proxy
statements and distributed to the Company's stockholders and filed with the SEC.
Such reports, proxy statements and other information are available for
inspection at the public reference facilities at the SEC's principal office at
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the
regional offices of the SEC located at 7 World Trade Center, Suite 1300, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. The SEC maintains a site on the World Wide Web, and the reports, proxy
statements and other information filed by the Company with the SEC may be
accessed electronically on the World Wide Web at http://www.sec.gov. Copies of
such material may also be obtained by mail, upon payment of the SEC's customary
fees, from the SEC's principal office at 450 Fifth Street, N.W., Washington,
D.C. 20549.
8. CERTAIN INFORMATION CONCERNING PARENT AND PURCHASER.
GENERAL. Parent is a Japanese corporation with its principal offices located
at 15-5, Minami-Aoyama 1-Chome, Minato-ku, Tokyo 107-8544, Japan. The telephone
number of Parent is (81) 3-3479-3111. Parent is a Japanese corporation engaged
principally in the business of manufacturing and marketing copiers and related
supplies, communications and information systems, optical equipment, electronic
devices and computer peripherals, such as printers and optical storage devices.
Parent is a public company listed on the Tokyo Stock Exchange. Its Shares also
trade on the Amsterdam Stock Exchange, the Frankfurt Stock Exchange and the
Paris Stock Exchange.
Purchaser is a Delaware corporation with its principal offices located at 5
Dedrick Place, West Caldwell, New Jersey 07006. The telephone number of
Purchaser is (973) 882-2000. Purchaser has not carried on any activities other
than in connection with the Merger Agreement. Purchaser is an indirect
wholly-owned subsidiary of Parent.
The name, citizenship, business address, business phone number, principal
occupation or employment and five-year employment history for each of the
directors and executive officers of Parent and Purchaser are set forth in
Schedule I hereto.
Neither Parent or Purchaser nor, to the best knowledge of Parent or
Purchaser, any of the persons listed in Schedule I to this Offer to Purchase or
any associate or majority-owned subsidiary of Parent or Purchaser or any of the
persons so listed (1) beneficially owns or has any right to acquire, directly or
indirectly, any Shares, or (2) has effected any transaction in the Shares during
the past sixty (60) days.
Except as provided in the Merger Agreement, or as otherwise described in
this Offer to Purchase, neither Parent or Purchaser nor, to the best knowledge
of Parent and Purchaser, any of the persons listed in Schedule I to this Offer
to Purchase, has any contract, arrangement, understanding or relationship with
any other person with respect to any securities of the Company, including, but
not limited to, any contract, arrangement, understanding or relationship
concerning the transfer or voting of such securities, finder's fees, 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, neither Parent or Purchaser
nor, to the best knowledge of Parent and Purchaser, any of the persons listed on
Schedule I hereto, has had any business relationship or transaction with the
Company or any of its executive officers, directors or affiliates that is
required to be reported under the rules and regulations of the SEC applicable to
the Offer. Except as set forth in this Offer to Purchase, there have been no
contacts, negotiations or transactions between Parent or any of its subsidiaries
or, to the best knowledge of Parent, any of the persons listed in Schedule I to
this Offer to Purchase, on the one hand, and the Company or its affiliates, on
the other hand, concerning a merger, consolidation or acquisition, tender offer
or other acquisition of securities, an election of directors or a sale or other
transfer of a material amount of
19
<PAGE>
assets. None of Parent, Purchaser or any of the persons listed in Schedule I
hereto have, during the past five (5) years, been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors). None of
Parent, Purchaser or any of the persons listed in Schedule I have, during the
past five (5) years, been a party to any judicial or administrative proceeding
(except for matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining the person from future
violations of, or prohibiting activities subject to federal or state securities
laws, or a finding of any violation of federal or state securities laws.
9. SOURCE AND AMOUNT OF FUNDS.
Purchaser estimates that the total amount of funds required to purchase all
Shares validly tendered pursuant to the Offer, to consummate the Merger and to
pay all related fees and expenses will be approximately U.S. $275 million. Such
amount assumes the purchase of all Shares underlying options that were
outstanding as of November 29, 2000 and that have exercise prices of less than
$3.00 per Share. See the "Introduction" and Section 17 of this Offer to
Purchase. The funds required by Purchaser to pay the aggregate purchase price to
be paid pursuant to the Offer and the Merger are expected to be provided to
Purchaser in the form of capital contributions or advances made by Parent.
Parent plans to provide the funds for such capital contributions or advances
from its available cash. The Offer is not conditioned upon any financing being
received.
10. BACKGROUND OF THE OFFER AND THE MERGER; PAST CONTACTS OR NEGOTIATIONS WITH
THE COMPANY.
Parent periodically reviews its competitive position in its industry and the
strategic alternatives that might be available to it, including transactions
with potential strategic partners in the United States. On June 16, 2000, the
Company expressed an interest in a strategic transaction with Parent and
inquired whether Parent would be interested in making an offer to acquire the
Company. Parent and the Company subsequently negotiated and on June 22, 2000
executed a customary confidentiality agreement.
On June 30, 2000, Parent's representatives visited the Company at the
Company's offices in Atlanta, Georgia, where the two sides discussed the
strategic fit of the two companies.
On July 21, 2000, Parent retained Wasserstein Perella and its affiliate
Nomura Corporate Advisors Co., Ltd. as its financial advisors. Parent
subsequently retained Paul, Weiss, Rifkind, Wharton & Garrison ("PWRWG") and
KPMG as its legal and accounting advisors, respectively, for the possible
transaction.
Parent's representatives traveled to Atlanta to meet the key managers of the
Company for a second time on July 24, 2000.
On August 4, 2000, Parent submitted a due diligence request to the Company.
Between August 9 and August 11, 2000, Parent and its financial, legal and
accounting advisors conducted due diligence on the Company and its businesses in
Atlanta, including meetings with Wesley E. Cantrell, the Company's Chairman and
CEO, C. Lance Herrin, the Company's President and COO, James MacLennan, the
Company's Executive Vice President and CFO, and the Company's financial advisor,
The Robinson-Humphrey Company, LLC.
On August 28, 2000, the parties commenced negotiations over the financial,
structural and legal terms of a potential acquisition of the Company by Parent,
including the terms and conditions of a definitive merger agreement. The
negotiations continued through September and included a meeting at Parent's
headquarters in Japan on September 18, 2000. At this meeting, representatives of
Parent and the Company further explored the financial terms of the proposed
acquisition and also discussed Parent's requirement that the Company divest
itself of its Voice Products Business prior to any acquisition of the Company by
Parent. It was decided at this meeting that discussions between the parties'
legal and financial advisors should continue.
20
<PAGE>
The Company subsequently facilitated an initial meeting on September 26,
2000 in Orlando, Florida between representatives of Parent, the Company and
Harris Corporation ("Harris"), the former parent company and current 10%
stockholder of the Company. The Company's and Parent's financial and legal
advisors and the Parent's accounting advisors were also present at the meeting.
At this meeting Parent conducted due diligence on the November 1999 spin-off of
the Company from Harris and discussed amending the Tax Disaffiliation Agreement
(the "Tax Agreement"), dated November 5, 1999, between the Company and Harris to
permit an acquisition of the Company by Parent. Parent and Harris also had an
initial discussion of the terms of an agreement pursuant to which Harris would
agree to tender its shares of the Company's Common Stock in the tender offer
should Parent and the Company enter into a definitive Merger Agreement. On
September 29, 2000, Parent's legal and accounting advisors conducted additional
due diligence at the headquarters of Harris in Melbourne, Florida on the
spin-off of the Company from Harris.
Parent and the Company continued to negotiate the structure and terms of the
transaction through October and early November. During this time, Parent also
negotiated with Harris the terms of letter agreements necessitated by provisions
of the Tax Agreement to permit Parent to acquire the Company. Parent and Harris
also agreed in principle upon the terms of a voting and tender agreement in
which, among other things, Harris agreed to tender its shares in the Offer and
Harris further agreed to vote its shares at any meeting of the Company's
stockholders in the same proportion as the other stockholders of the Company.
On November 9, 2000, meetings were held at the PWRWG offices in New York.
Representatives of Parent and the Company and their respective advisors were in
attendance. At that meeting, Parent proposed acquiring all of the shares of the
Company at a price of $3.00 per share in cash. This proposal was contingent
upon, among other things, the Company reaching an agreement to sell the Voice
Products Business on terms and conditions satisfactory to Parent and the
negotiation of a mutually satisfactory definitive merger agreement.
On November 10, 2000, meetings were held at the Wasserstein Perella offices
in New York. Representatives of Parent and the Company and their financial
advisors were in attendance. The parties further discussed the matters discussed
at the November 9 meeting.
On the evening of November 12, 2000, representatives from the Company and
Parent agreed in principle to Parent's November 9 proposal, pending a
satisfactory agreement for the Company to dispose of the Voice Products Business
and the receipt of official approval from the boards of directors of both Parent
and the Company. On the basis of this understanding, the parties continued to
negotiate the terms of the proposed transaction through mid-November. During
this time, the Company updated Parent regularly on the status of its efforts to
sell the Voice Products Business.
On November 27, 2000, the Company informed Parent that it had reached a
preliminary agreement to sell the Voice Products Business to a wholly-owned
subsidiary of Platinum Equity, LLC ("Platinum"). Between November 27, 2000 and
November 29, 2000, the Company and its legal advisors negotiated definitive
agreements with Platinum and its legal advisors for the sale of the Voice
Products Business. The Company regularly updated Parent and its advisors as to
the status of the potential transaction with Platinum, as well as the terms and
provisions of the drafts of the definitive agreements relating to such
transaction.
On November 27, 2000, the Board unanimously approved the Merger Agreement,
the Voice Products Asset Purchase Agreement and the transactions contemplated by
such agreements.
The Merger Agreement providing for the acquisition of all shares of the
Company in a tender offer at a price of $3.00 net per share in cash and the
other transactions contemplated by the Merger Agreement and related agreements
were unanimously approved by Parent's board of directors on November 28, 2000.
21
<PAGE>
On November 29, 2000, the Company informed Parent that the terms of the sale
of the Voice Products Business to Platinum had been finalized and definitive
documentation would be executed immediately prior to execution of the definitive
merger agreement between Parent and the Company. Following execution by the
Company and Platinum of the Voice Products Business definitive agreements
(collectively, the "Voice Products Asset Purchase Agreement"), the Merger
Agreement and the letter agreements with Harris related to the Tax Agreement
were executed.
On December 8, 2000, in accordance with the Merger Agreement, Parent and
Purchaser commenced the Offer.
11. THE MERGER AGREEMENT AND CERTAIN OTHER AGREEMENTS.
THE MERGER AGREEMENT
The following summary of certain provisions of the Merger Agreement is
qualified in its entirety by reference to the complete text of the Merger
Agreement, a copy of which has been filed as Exhibit (d)(1) to the Schedule TO
referred to in Section 18 of this Offer to Purchase and is incorporated herein
by reference. The following summary may not contain all of the information
important to you. The Merger Agreement may be examined and copies may be
obtained from the SEC in the same manner as set forth in Section 7 of this Offer
to Purchase. Capitalized terms used in the following summary and not otherwise
defined in this Offer to Purchase have the meanings set forth in the Merger
Agreement.
THE OFFER. The Merger Agreement provides that the Purchaser will commence
the Offer as promptly as practicable, but in any event within ten (10) business
days, following the execution of the Merger Agreement. The obligation of
Purchaser to accept for payment and pay for Shares tendered pursuant to the
Offer is subject to the satisfaction or waiver of the Minimum Condition and the
other Offer Conditions. For a description of the Offer Conditions, see
Section 15 of this Offer to Purchase.
Under the terms of the Merger Agreement, Purchaser expressly reserves the
right to waive, in whole or in part at any time or from time to time, any such
condition, to increase the price per Share payable in the Offer, to extend the
Offer or provide for a Subsequent Offering Period or to make any other changes
in the terms and conditions of the Offer, except that the Merger Agreement
provides that, unless previously approved by the Company in writing, no change
may be made that decreases the Offer Price, changes the form of consideration
payable in the Offer, reduces the maximum number of Shares to be purchased in
the Offer, imposes conditions to the Offer in addition to the Offer Conditions,
amends any term or condition of the Offer in a manner adverse to holders of
Shares, or waives or decreases below 50% the Minimum Condition.
If all Offer Conditions are not satisfied on the initial expiration date of
the Offer, Purchaser may extend (and re-extend) the Offer to provide additional
time to satisfy such conditions. Purchaser has agreed to extend the Offer if, on
the Expiration Date, the Minimum Condition to Offer is not satisfied or waived
and such condition could reasonably be expected to be satisfied within twenty
(20) business days following the initial scheduled expiration date of the Offer.
Purchaser may also extend the Expiration Date on one or more occasions (all such
occasions aggregating not more than twenty (20) business days) beyond the latest
expiration date that would otherwise be permitted if, on the Expiration Date,
the number of Shares tendered (and not withdrawn), together with the Shares then
owned by Parent, represents less than 90% of the outstanding Shares on a
fully-diluted basis. In addition, Purchaser has agreed to extend the Offer if,
on any scheduled expiration date of the Offer, the following conditions have not
been satisfied, but could reasonably be expected to be satisfied on or before
March 31, 2001: (i) the applicable waiting period under the HSR Act shall not
have expired or been terminated, (ii) the Offer and the Merger cannot be
consummated under the European Union Council Regulation (EEC) No. 4064/89 or
(iii) the Company and/or Parent shall not have received the
22
<PAGE>
antitrust or competition consents, approvals or waivers required by the relevant
Governmental Entities in The Republic of Colombia and The Republic of Poland.
In addition, the Merger Agreement provides that Purchaser has the right to
extend the Offer for a Subsequent Offering Period of up to an additional twenty
(20) business days pursuant to Rule 14d-11 of the Exchange Act.
DIRECTORS. The Merger Agreement provides that upon the purchase by Purchaser
of Shares pursuant to the Offer, and from time to time thereafter, Parent may
designate up to such number of directors, rounded up to the next whole number on
the Board, that equals the product of (i) the total number of directors on the
Board (giving effect to the election of any additional directors elected by
Purchaser) and (ii) the percentage that the number of Shares owned by Parent and
Purchaser following the Offer bears to the total number of outstanding Shares,
and the Company shall upon request by Parent, promptly either increase the size
of the Board (and shall, if necessary, amend the Company's by-laws to permit
such an increase) or secure the resignation of such number of directors as is
necessary to enable Parent's designees to be elected to the Board and shall
cause Parent's designees to be so elected. Following the election or appointment
of Parent's designees to the Board, however, the Board shall retain at least two
directors who were directors on the date of the Merger Agreement (the
"Continuing Directors"). The Company's obligations to appoint Parent's designees
to the Board shall be subject to Section 14(f) of the Exchange Act, and
Rule 14f-1 promulgated thereunder.
Following the election or appointment of Parent's designees as specified in
the foregoing paragraph and prior to the Effective Time, any amendment of the
Merger Agreement requiring action by the Board, any termination of the Merger
Agreement by the Company, any enforcement of or any waiver of compliance with
any of the agreements or conditions contained in the Merger Agreement for the
benefit of the Company and any amendment of the certificate of incorporation or
by-laws of the Company will require the approval of the Continuing Directors.
THE MERGER. The Merger Agreement provides that, following the consummation
of the Offer and subject to the terms and conditions of the Merger Agreement,
Purchaser will be merged with and into the Company at the Effective Time. As a
result of the Merger, the separate corporate existence of Purchaser will cease,
and the Company will continue as the Surviving Corporation and an indirect
wholly-owned subsidiary of Parent.
CONDITIONS TO THE MERGER. Pursuant to the Merger Agreement, the respective
obligations of Parent, Purchaser and the Company to effect the Merger are
subject to the satisfaction or waiver of the following conditions:
(i) Purchaser shall have accepted and purchased Shares validly tendered and not
withdrawn pursuant to the Offer, (ii) the Merger and the Merger Agreement shall
have been adopted by the requisite vote of the stockholders of the Company, if
and to the extent the approval of the Merger by the holders of Shares is
required by the DGCL, (iii) no provision of any applicable law or regulation and
no judgment, injunction, order or decree of a court or governmental agency or
authority of competent jurisdiction shall have the effect of making the Merger
illegal or shall otherwise restrain or prohibit the consummation of the Merger,
and (iv) all consents, authorizations, orders and approvals of (or filings or
registrations with) any Governmental Authority required in connection with the
execution, delivery and performance of the Merger Agreement shall have been
obtained or made, except for filings in connection with the Merger and any other
documents required to be filed after the Effective Time and except where the
failure to have obtained or made any such consent, authorization, order,
approval, filing or registration would not make the Merger illegal.
CONVERSION OF SHARES. At the Effective Time and without any action on the
part of Parent, Purchaser, the Company or the holder of any of the following
securities (i) each Share issued and outstanding immediately prior to the
Effective Time (excluding any Shares to be canceled as set forth below and any
Shares that are held by stockholders properly exercising dissenters' rights
under the DGCL) shall immediately cease to be outstanding and shall
automatically be canceled and retired
23
<PAGE>
and shall cease to exist and be converted into the right to receive the Offer
Price (the "Merger Consideration") in cash payable to the holder thereof,
without interest, upon surrender of the certificate representing such Share; and
(ii) each Share held by the Company or any subsidiary of the Company as treasury
stock immediately before the Effective Time, and each Share held by Parent,
Purchaser, any other direct or indirect wholly-owned subsidiary of Parent
immediately before the Effective Time, shall cease to be outstanding, and be
canceled and retired without payment of any consideration therefor and cease to
exist. Each issued and outstanding share of common stock of Purchaser will be
converted into and exchanged for one fully paid and non-assessable share of
common stock of the Surviving Corporation.
If, during the period between the date of the Merger Agreement and the
Effective Time, the outstanding Shares shall have been changed into a different
number of Shares or a different class, by reason of any stock dividend,
subdivision, reclassification, recapitalization, split, combination or exchange
of Shares, the Merger Consideration shall be correspondingly adjusted.
TREATMENT OF OPTIONS AND OTHER EQUITY-BASED AWARDS. The Merger Agreement
provides that immediately prior to the Effective Time the Company shall
terminate its Stock Incentive Plan (the "Company Option Plan") without prejudice
to the rights of holders of options (the "Options") or restricted stock awards
and performance share awards (collectively, the "Stock Awards") awarded under
the Company Option Plan or otherwise. The Company shall pay, as soon as
practicable following the Effective Time, in respect of each Option, whether or
not then exercisable, an amount equal to the excess, if any, of the Merger
Consideration over the exercise price of such Option, multiplied by the number
of Shares subject to such Option, and, in respect of each Stock Award, an amount
equal to the product of the Merger Consideration multiplied by the number of
Shares subject to such Stock Award. Pursuant to the Company's Employee Stock
Purchase Plan (the "Stock Purchase Plan"), the Company shall accelerate the
Exercise Date (as defined in the Stock Purchase Plan) for the current Purchase
Period (as defined in the Stock Purchase Plan) to the date of the Merger
Agreement and shall immediately thereafter terminate the Stock Purchase Plan. In
addition, on or prior to the Effective Time, the Company shall amend the Stock
Purchase Plan to allow for the transferability of Shares acquired thereunder in
connection with the transactions contemplated under the Merger Agreement.
STOCKHOLDERS' MEETING. If approval by the Company's stockholders is required
by applicable law to consummate the Merger, the Company shall, as soon as
practicable following the consummation of the Offer: (i) duly call, give notice
of, convene and hold an annual or special meeting of its stockholders (the
"Stockholders' Meeting") for the purpose of considering and taking action upon
the Merger Agreement; (ii) prepare and file with the SEC a proxy statement or
information statement (together with any supplement or amendment thereto, the
"Proxy Statement") relating to the Stockholders' Meeting in accordance with the
Exchange Act and include in the Proxy Statement the recommendation of the Board
that stockholders of the Company vote in favor of the approval and adoption of
the Merger Agreement and the transactions contemplated thereby; (iii) use its
reasonable best efforts to solicit from stockholders of the Company proxies in
favor of the Merger and shall take all such action in its judgment necessary or
appropriate to secure the vote of stockholders required by the DGCL to effect
the Merger; (iv) use its reasonable best efforts to obtain and furnish the
information required to be included by it in the Proxy Statement and, after
consultation with Parent, respond promptly to any comments made by the SEC with
respect the Proxy Statement and any preliminary version thereof and cause the
Proxy Statement to be mailed to its stockholders at the earliest practicable
time following the consummation of the Offer in accordance with SEC rules and
regulations; and (v) use all reasonable efforts to take all other actions proper
or advisable to consummate and make effective the transactions contemplated by
the Merger Agreement. At the Stockholders' Meeting, Parent and Purchaser have
agreed to vote all Shares owned by them to approve the Merger Agreement and the
transactions contemplated thereby.
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REPRESENTATIONS AND WARRANTIES. Pursuant to the Merger Agreement, the
Company has made customary representations and warranties to Parent and
Purchaser with respect to, among other things: its corporate existence and
power; its subsidiaries; its articles of incorporation and bylaws;
capitalization; authority relative to the Merger Agreement; material contracts;
non-contravention; government authorization; compliance with law; SEC filings;
financial statements; absence of certain changes or events; undisclosed
liabilities; litigation; employee benefit plans; employment and labor matters;
Offer documents and Proxy Statement; restrictions on business activities; title
to property; taxes; amendment of the Company's Stockholder Protection Rights
Agreement; Year 2000 matters; environmental matters; intellectual property;
affiliate transactions; insurance; opinion of financial advisor; brokers;
required votes and the Voice Products Business.
Certain representations and warranties in the Merger Agreement made by the
Company are qualified as to "materiality" or "Material Adverse Effect" on the
Company. For purposes of the Merger Agreement and this Offer to Purchase, when
used in connection with the Company or any of its subsidiaries, the term
"Material Adverse Effect" means any change or effect that has been, is, or is
reasonably likely to be, materially adverse to the condition (financial or
otherwise), business, assets, liabilities, or results of operations of the
Company and its subsidiaries taken as a whole, or that adversely affects the
ability of the Company to consummate the transactions contemplated by the Merger
Agreement in any material respect or materially impairs or delays the Company's
ability to perform its obligations thereunder, other than any change or effect
relating in general to the industry in which the Company operates and not
specifically relating to (or having the effect of specifically relating to or
having a materially disproportionate effect (relative to most other industry
participants) on) the Company or the announcement or pendency of the Offer, the
Merger or the transactions contemplated by the Merger Agreement.
Pursuant to the Merger Agreement, Parent and Purchaser have made customary
representations and warranties to the Company with respect to, among other
things: their corporate existence and power; authority relative to the Merger
Agreement; non-contravention; government authorization; and certain information
with respect to Parent and Purchaser contained in the Offer documents. Certain
representations and warranties in the Merger Agreement made by the Parent and
Purchaser are qualified as to "materiality" or "Material Adverse Effect" on the
Parent.
None of the representations and warranties made by Parent, Purchaser or the
Company in the Merger Agreement will survive the Effective Time.
COVENANTS. The Merger Agreement contains various customary covenants of the
parties. A description of these covenants follows.
INTERIM OPERATIONS. The Company covenants and agrees in the Merger
Agreement that, during the period from the date of the Merger Agreement and
continuing until the Effective Time, unless Parent shall otherwise agree in
writing, the Company and its subsidiaries shall, unless expressly authorized to
do otherwise pursuant to paragraphs (a) through (m) below, conduct their
business in the ordinary course consistent with past practice, and shall use
their best efforts to preserve intact their business organizations and
relationship with third parties and to keep available the services of their
present officers and key employees.
Without limiting the foregoing, the Merger Agreement provides that, except
as otherwise approved in writing by Parent or as expressly contemplated by the
Merger Agreement, from the date of the Merger Agreement until the Effective
Time:
a. the Company shall not, and shall not permit any of its subsidiaries to,
adopt or propose any change in its certificate of incorporation or bylaws
(or equivalent organization documents;
b. the Company shall not, and shall not permit any of its subsidiaries to,
acquire or agree to acquire, lease or manage (i) by merging or
consolidating with, or by purchasing a substantial
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portion of the assets of, or by any other manner, any business or any
corporation, partnership, joint venture, association or other business
organization or division thereof or (ii) any assets, other than assets
that are immaterial to the Company and its subsidiaries taken as a whole
and except for purchases in the ordinary course of business consistent
with past practice;
c. the Company shall not, and shall not permit any of its subsidiaries to,
sell, lease, license, mortgage or otherwise encumber or subject to any
lien or other encumbrances or otherwise dispose of any of its properties
or assets, or any stock or other ownership interest in any of its
properties, assets or subsidiaries, other than (i) in the ordinary course
of business consistent with past practice, (ii) pursuant to any
agreements existing as of the date of the Merger Agreement, which
agreements shall not be amended in a manner adverse to the Company or its
Subsidiaries without the prior written consent of Parent, (iii) any liens
or other encumbrances for taxes not yet due and payable or being
contested in good faith by appropriate proceedings for which adequate
reserves have been provided in the consolidated balance sheet of the
Company at June 30, 2000 and (iv) such mechanics and similar liens or
other encumbrances, if any, as do not materially detract from the value
of any of such properties, assets, stock or other ownership interests or
materially interfere with the present use of any of such properties or
assets;
d. the Company shall not, and shall not permit any of its subsidiaries to,
declare, set aside or pay any dividends or make any distributions on
Shares of capital stock, other than dividends or distributions by any
wholly-owned subsidiary of the Company to the Company or another
wholly-owned subsidiary;
e. the Company shall not, and shall not permit any of its subsidiaries to,
(i) issue, deliver or sell, or authorize or propose the issuance,
delivery or sale of, any capital stock of the Company or any of its
subsidiaries, or any security convertible into or exercisable for either
of the foregoing, other than the issuance of Shares pursuant to the
Company Employee Stock Purchase Plan in the ordinary course of business
in accordance with its terms or upon the exercise of Options outstanding
on the date of the Merger Agreement, (ii) split, combine or reclassify
any capital stock of the Company or any of its subsidiaries or issue or
authorize the issuance of any other securities in respect of, in lieu of
or in substitution for Shares of capital stock of the Company or any of
its subsidiaries or (iii) except as required by the Merger Agreement,
repurchase, redeem or otherwise acquire any Shares of capital stock of
the Company or any of its subsidiaries or any other securities thereof or
any rights, warrants or options to acquire any such Shares or other
securities;
f. except as otherwise expressly permitted under the Merger Agreement, the
Company and its subsidiaries shall not make any commitment or enter into,
or amend, modify or terminate, any contract or agreement material to the
Company and its subsidiaries taken as a whole except in the ordinary
course of business consistent with past practice;
g. except for borrowings under existing credit facilities in place as of
the date of the Merger Agreement and that are made in the ordinary course
of business consistent with past practices as contemplated by the Merger
Agreement the Company shall not, and shall not permit any of its
subsidiaries to, (i) incur any indebtedness for borrowed money or
guarantee any such indebtedness of another Person, issue or sell any debt
securities or warrants or other rights to acquire any debt securities of
the Company or any of its subsidiaries, guarantee any debt securities of
another Person, enter into any "keep well" or other agreement to maintain
any financial statement condition of another Person or enter into any
arrangement having the economic effect of any of the foregoing, except
for borrowings under its line of credit for working capital purposes and
the endorsement of checks in the ordinary course of business; or
(ii) make any loans, advances or capital contributions to, or investments
in, any other Person,
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other than to the Company or any direct or indirect wholly-owned
subsidiary of the Company and other than travel and entertainment
advances to employees in the ordinary course of business consistent with
past practice;
h. the Company shall not, and shall not permit any of its subsidiaries to,
(i) increase the compensation payable or to become payable to its
officers, directors or key employees, (ii) grant any severance or
termination pay to officers, directors or key employees, (iii) enter into
any employment, severance or consulting agreement with any current or
former director, officer or other key employee of the Company or any of
its subsidiaries or (iv) establish, adopt, enter into or amend any
collective bargaining, bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, deferred compensation,
employment termination, severance or other plan, agreement, trust, fund,
policy or arrangement for the benefit of any current or former director,
officer or employee;
i. except as disclosed in the Company SEC reports filed prior to
November 29, 2000 and except as may be required as a result of a change
in law or in generally accepted accounting principles or a change in
order to comply with SEC requirements, the Company shall not, and shall
not permit any of its subsidiaries to, change any of its accounting
policies or its procedures (including procedures with respect to the
payment of accounts payable and collection of accounts receivable);
j. the Company shall not, and shall not permit any of its subsidiaries to,
enter into or make any contract or commitment (including in respect of
capital expenditures), or series of related contracts or commitments,
involving payments in excess of $500,000;
k. the Company shall, and the Company shall ensure that each of its
subsidiaries shall, use its reasonable best efforts to keep or cause to
be kept its insurance policies (or substantial equivalents) duly in force
until the Effective Time and shall give Parent notice of any material
change in its insurance policies;
l. the Company shall not amend, consent to the amendment of, or waive any
of the following agreements between the Company and Harris Corporation:
(i) the Employee Benefits Compensation and Allocation Agreement,
(ii) the Intellectual Property Agreement, (iii) the Registration Rights
Agreement, (iv) the Tax Disaffiliation Agreement, or (v) the Ancillary
Workers Compensation Agreement, each of which is dated as of November 5,
1999 or (vi) the Agreement and Plan of Distribution, dated October 22,
1999;
m. the Company shall not amend, consent to the amendment of, or waive any
provision of the Voice Asset Purchase Agreement, the documents attached
thereto as Exhibits A through E, or any other document or agreement
entered into in connection with the sale of the Voice Products Business;
n. the Company shall not, and shall not permit any of its subsidiaries to
agree or commit to do any of the foregoing; and
o. the Company shall not, and shall not permit any of its subsidiaries to,
(i) take any action that would make any representation and warranty of
the Company herein inaccurate in any material respect at, or as of any
time prior to, the Effective Time or (ii) omit to take any action
necessary to prevent any such representation or warranty from being
inaccurate in any material respect at such time.
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NO SOLICITATION. In the Merger Agreement, the Company has agreed that from
the date of the Merger Agreement until the termination of the Merger Agreement,
the Company shall not, and shall cause its subsidiaries and the officers,
directors, employees, investment bankers, attorneys, accountants and other
agents and advisors of the Company and its subsidiaries not to, directly or
indirectly (i) take any action to solicit, initiate or encourage any Acquisition
Proposal, (ii) except as described below, engage in negotiations with, or
disclose any nonpublic information relating to the Company or any of its
subsidiaries or afford access to the properties, books or records of the Company
or any of its subsidiaries to, any Person that the Company has reason to believe
may be considering making, or has made, an Acquisition Proposal or has agreed to
endorse any Acquisition Proposal (other than this Agreement) or (iii) grant any
waiver or release under any standstill or similar agreement with respect to any
securities of the Company. The Merger Agreement provides that the Company shall
promptly notify Parent after receipt of any Acquisition Proposal or any
indication that any Person is considering making an Acquisition Proposal or any
request for nonpublic information relating to the Company or any of its
subsidiaries or for access to the properties, books or records of the Company or
any of its subsidiaries by any Person that may be considering making, or has
made, an Acquisition Proposal, or that the Company intends to engage in
negotiations with, or to provide information to, any such Person. The Merger
Agreement provides that the Company shall promptly provide Parent with the
identity of such Person and a detailed description and summary of such
Acquisition Proposal and, if permitted under the terms of such Acquisition
Proposal, a copy of such Acquisition Proposal. The Merger Agreement also
provides that the Company shall keep Parent fully informed on a current basis of
the status and material details of any such Acquisition Proposal, indication or
request. The Company has agreed that it shall, and shall cause its subsidiaries
and the officers, directors, employees, investment bankers, attorneys,
accountants and other agents and advisors of the Company and its Subsidiaries
to, immediately cease and cause to be terminated, any existing solicitation,
activity, discussions or negotiations with any parties conducted heretofore by
the Company or any such Person with respect to any Acquisition Proposal.
The Merger Agreement provides, however, that the Board may (i) furnish
non-public information to, or enter into discussions with, any Person in
connection with an unsolicited bona-fide written Acquisition Proposal by such
Person to the Company or its stockholders, if the Board (acting by a majority of
the entire Board) determines in good faith that such Acquisition Proposal, if
accepted, would or would be reasonably likely to constitute a Superior Proposal;
PROVIDED that prior to furnishing any such information or entering into any such
discussions, the Company shall enter into a confidentiality agreement on terms
substantially similar to those entered into with Parent, and if the Company
furnishes or otherwise makes available information in accordance with this
clause (i), the Company shall concurrently furnish or make available the same
information to Parent if it has not already done so, (ii) following discussions
or negotiations permitted under clause (i) above, enter into a definitive
agreement providing for the implementation of a Superior Proposal if the
Company, following the approval of the Board (acting by a majority of the entire
Board), elects to terminate the Merger Agreement pursuant to the terms of the
Merger Agreement or (iii) to the extent required, complying with Rule 14d-9 and
Rule 14e-2 promulgated under the Exchange Act, disclose to its stockholders a
position with respect to an Acquisition Proposal.
The Company also agreed in the Merger Agreement that the Board shall not
withdraw or modify or propose to withdraw or modify, in any manner adverse to
Parent, its approval or recommendation of the Offer, the Merger or the Merger
Agreement, or approve or recommend, or propose to approve or recommend, an
Acquisition Proposal, except in connection with a Superior Proposal and then
only upon or after termination of the Merger Agreement pursuant to the terms of
the Merger Agreement. Notwithstanding anything to the contrary contained in this
Offer to Purchase or the Merger Agreement, (i) the Company shall be permitted to
make a statement in accordance with Rule 14e-2(a)(1) (to the extent recommending
rejection of an Acquisition Proposal), (2) or (3), and
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(ii) the Company's Board of Directors shall be permitted to engage in
confidential deliberations regarding the subject matter of the Offer, the Merger
and the Merger Agreement.
For purposes of the Merger Agreement, "ACQUISITION PROPOSAL" means any offer
or proposal for, or any indication of interest in, (i) a merger, share exchange
or business combination or similar transaction, (ii) any sale, lease, exchange,
transfer or other disposition of twenty percent (20%) or more of the assets of
the Company and its subsidiaries taken as a whole, in a single transaction or
series of transactions (whether or not related), or (iii) any tender offer or
exchange offer for fifteen percent (15%) or more of the outstanding Shares of
capital stock of the Company or the acquisition of a substantial portion of the
assets of the Company or any of its Subsidiaries, other than the transactions
contemplated by this Agreement.
For the purposes of the Merger Agreement, "SUPERIOR PROPOSAL" means a bona
fide written Acquisition Proposal on terms which the Board (acting by a majority
of the entire board) determines in its good faith judgment (after consultation
with the Company Financial Advisor or another nationally recognized independent
financial advisor) and after taking into account all legal, financial,
regulatory and other material aspects of the Acquisition Proposal, the Person
making the proposal, and other relevant considerations, to be more favorable
from a financial point of view to the Company's stockholders than the Merger
Agreement, the conditions to the consummation of which are all reasonably
capable of being satisfied reasonably promptly, and for which the Board of
Directors of the Company (acting by a majority of the entire board) determines
in its good faith judgment (after such consultation) that financing for such
transaction, to the extent required, is then committed or reasonably available.
EMPLOYEE BENEFITS. Parent has agreed in the Merger Agreement that for a
period of one year from and after the Effective Time the employees of the
Surviving Corporation will continue to be provided with benefits under employee
benefit plans that are no less favorable in the aggregate to the employees as
are provided to similarly situated employees of Parent. The Company has agreed
in the Merger Agreement to terminate all employee benefit plans prior to the
consummation of the Offer that by their terms are not terminable after the
consummation of the Offer.
INDEMNIFICATION. The Merger Agreement provides that all rights to
indemnification existing in favor of the present or former directors, officers
and employees of the Company or any of its subsidiaries (or any person who
served at the Company's or any of its subsidiaries' request as an officer,
director or agent) (collectively, the "Indemnified Parties") as provided in the
Company's certificate of incorporation or by-laws or the certificate or articles
of incorporation, by-laws or similar organization documents of any of the
subsidiaries of the Company, and the indemnification agreements with such
persons as in effect on November 29, 2000, with respect to matters occurring
prior to the Effective Time of the Merger will survive the Merger and will
continue in full force without modification to the maximum extent allowed by
applicable law. The Merger Agreement provides that the certificate of
incorporation of the Surviving Corporation shall contain provisions with respect
to indemnification and advancement of expenses to such Indemnified Parties
identical to those set forth in the certificate of incorporation of the Company.
Additionally, the Merger Agreement provides that for at least six (6) years from
and after the Effective Time, the Surviving Corporation shall indemnify, defend
and hold harmless to the fullest extent permitted by applicable law the present
and former officers and directors of the Company and its subsidiaries against
all losses, claims, damages and liability in respect of acts or omissions
occurring at or prior to the Effective Time. The Merger Agreement also provides
that for at least six (6) years after the Effective Time, the Surviving
Corporation will provide officers' and directors' liability insurance in respect
of acts or omissions occurring prior to the Effective Time covering each person
currently covered by the Company's directors' and officers' liability insurance
with terms no less favorable than those of the policy in effect on the date of
the Merger Agreement, subject to certain premium caps.
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TERMINATION. The Merger Agreement may be terminated at any time prior to the
Effective Time, notwithstanding approval thereof by the stockholders of the
Company:
a. by mutual written consent of the Company and Parent;
b. by either the Company or Parent, if the Offer has not been consummated
on or before March 31, 2001 (provided that the right to terminate this
Agreement under this clause (b) shall not be available to any party whose
failure to fulfill any of its obligations under the Merger Agreement
results in or materially contributes to the failure to consummate the
Offer by such date);
c. by either the Company or Parent, if there shall be any applicable law,
rule or regulation that makes consummation of the Offer or the Merger
illegal or otherwise prohibited or if any judgment, injunction, order or
decree of a court or governmental agency or authority of competent
jurisdiction shall restrain or prohibit the consummation of the Offer or
the Merger (which the Company, Parent and Purchaser shall use reasonable
efforts to lift), and such judgment, injunction, order or decree shall
become final and nonappealable;
d. by either the Company or Parent, if (i) there has been a breach by the
other party of any representation or warranty contained in the Merger
Agreement which would have a material adverse effect on Parent or the
Company, as the case may be, or (ii) there has been a material breach of
any of the covenants or agreements set forth in the Merger Agreement on
the part of the other party, in each case which breach is not curable or,
if curable, is not cured within fifteen (15) days after written notice of
such breach is given by the terminating party to the other party;
e. by Parent, if, prior to acceptance for payment of the Shares under the
Offer (i) the Board shall have failed to recommend, or shall have
withdrawn or modified in a manner adverse to Parent, its approval or
recommendation of the Merger Agreement, the Offer or the Merger or shall
have recommended, or entered into, or publicly announced its intention to
enter into, an agreement or an agreement in principle with respect to a
Superior Proposal (or shall have resolved to do any of the foregoing),
(ii) the Company shall have breached any of its obligations described
above under the heading "No Solicitation" in this Offer to Purchase in
any material respect, or (iii) the Board shall exempt any other Person
from the provisions of Section 203 of the DGCL;
f. by Parent, if, prior to the acceptance for payment of the Shares under
the Offer any Person or "group" (as defined in Section 13(d)(3) of the
Exchange Act), other than Parent or any of its affiliates, shall have
acquired beneficial ownership of more than fifteen percent (15%) of the
Shares or more than fifteen percent (15%) of the book value or fair
market value of the assets of the Company and its subsidiaries taken as
whole, or the right to acquire ownership of such Shares or assets;
g. by the Company, if the Board shall concurrently approve, and the Company
shall concurrently enter into, a definitive agreement providing for the
implementation of a Superior Proposal; PROVIDED, HOWEVER, that (i) the
Company is not and has not been in breach of its obligations described
above under the heading "No Solicitation" in this Offer to Purchase with
respect to such Superior Proposal in any material respect, (ii) the Board
authorizes the Company, subject to complying with the terms of the Merger
Agreement, to enter into a binding written agreement concerning a
transaction that constitutes a Superior Proposal and the Company notifies
Parent in writing that it intends to enter into such an agreement,
attaching the most current version of such agreement to such notice,
(iii) during the five (5) business day period after the Company's notice,
(A) the Company shall have offered to negotiate with (and, if accepted,
negotiate with), and shall have caused its respective financial and legal
advisors to have offered to negotiate with (and if accepted, negotiate
with), Parent to attempt to make such commercially reasonable adjustments
in the terms and conditions of the Merger
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Agreement as will enable the Company to proceed with the Merger Agreement
and (B) the Board shall have concluded, after considering the results of
such negotiations and the revised proposal made by Parent, if any, that
the Superior Proposal giving rise to the Company's notice continues to be
a Superior Proposal, (iv) such termination is within three (3) business
days following the five (5) business day period referred to above and
(v) no termination pursuant to the termination provisions under the
Merger shall be effective unless the Company shall simultaneously make
the payment described below under the heading "Fees and Expenses" in this
Offer to Purchase;
h. by Parent or the Company if as the result of the failure of any of the
conditions to the consummation of the Offer, the Offer shall have
terminated or expired in accordance with its terms without Purchaser
having purchased any Shares pursuant to the Offer; PROVIDED, HOWEVER,
that the right to terminate this Agreement pursuant to this clause (h)
shall not be available to any party whose failure to fulfill any of its
obligations under the Merger Agreement results in or materially
contributes to the failure of any such condition; or
i. by Parent, if on or prior to December 31, 2000, the transactions
contemplated by the Asset Purchase Agreement for the Voice Products
Business shall not have been consummated in accordance with the terms and
provisions of such agreement.
FEES AND EXPENSES. Except as otherwise set forth in the Merger Agreement,
all fees and expenses incurred in connection with the Merger Agreement and the
transactions contemplated thereby will be paid by the party incurring such
expenses, whether or not the Merger is consummated.
The Company has agreed to pay Parent a fee of $10,000,000 (the "Termination
Fee") plus the amount of the actual out-of-pocket expenses (up to a maximum of
$2,000,000) incurred by Parent and Purchaser in connection with the Merger
Agreement and the transactions contemplated thereby if the Merger Agreement is
terminated pursuant to clauses (e), (f) or (g) above or if, subsequent to the
date of the Merger Agreement, an Acquisition Proposal shall have been made to
the Company or any of its Subsidiaries or stockholders or any person shall have
announced an intention (whether or not conditional) to make an Acquisition
Proposal and thereafter the Merger Agreement is terminated as a result of the
Minimum Condition not being satisfied and within 12 months of such termination
an Acquisition Proposal is entered into or consummated by the Company.
THE VOTING AND TENDER AGREEMENT
The following is a summary of certain provisions of the Voting and Tender
Agreement. This summary is not a complete description of the terms and
conditions of the Voting and Tender Agreement and is qualified in its entirety
by reference to the full text of the Voting and Tender Agreement filed as an
exhibit to the Schedule TO referred to in Section 18 of this Offer to Purchase
and is incorporated herein by reference. Capitalized terms not otherwise defined
shall have the meaning set forth in the Voting and Tender Agreement. The Voting
and Tender Agreement may be examined, and copies obtained, as discussed in
Section 7 of this Offer to Purchase.
As a condition to the willingness of Parent and the Purchaser to enter into
the Merger Agreement, Parent and the Purchaser requested that Harris enter into
the Voting and Tender Agreement with respect to the 8,785,958 Shares owned by
Harris (which constitute approximately 10.4% of the Shares outstanding as of
November 20, 2000 (the "Subject Shares")).
Pursuant to the Voting and Tender Agreement, Harris agrees to validly tender
the Subject Shares within ten (10) business days following the commencement of
the Offer (or, if later, five (5) business days following its receipt of the
applicable Offer Documents).
The Voting and Tender Agreement provides that Harris shall not, subject to
applicable law, withdraw the tender of the Subject Shares, except if Parent or
Purchaser (a) amend the Offer without Harris's consent to reduce the price per
Share below $3.00 net to the seller in cash, to reduce the number of Shares
subject to the Offer, to change the form of consideration payable in the Offer,
or to
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modify or amend any term or condition in a manner adverse to the stockholders of
the Company, (b) Harris is prohibited by a governmental authority from tendering
the Subject Shares, or (c) the Company's Board of Directors has not recommended
to the stockholders of the Company, or has withdrawn its recommendation, that
the stockholders tender their Shares pursuant to the Offer and approve the
Merger Agreement and the subsequent Merger. In addition, the Voting and Tender
Agreement provides that Harris shall not transfer, sell, give, assign,
hypothecate, pledge, encumber, grant a security interest in, or otherwise
dispose or transfer (whether by operation of law or by agreement or otherwise)
any of the Subject Shares or any right, title, or interest therein or thereto or
enter into any contract, option or other agreement with respect to any of the
foregoing.
REPRESENTATIONS AND WARRANTIES. Harris made customary representations and
warranties to Parent and Purchaser including a representation and warranty
relating to Harris' title to the Subject Shares. Parent and Purchaser made
customary representations and warranties to Harris.
AGREEMENT TO VOTE. Harris agreed that, at any meeting of the stockholders of
the Company and in any action by consent of the stockholders of the Company,
Harris will vote the Subject Shares in a manner consistent with Section 2.01(b)
of the Registration Rights Agreement, which agreement provides that Harris will
vote the Subject Shares proportionally to the votes of all of the other voting
Shares.
COVENANTS. The Voting and Tender Agreement contains various covenants of
Harris, including the following:
(a) Harris will not enter into any agreement or grant a proxy or power of
attorney with respect to the Subject Shares that is inconsistent with the
Voting and Tender Agreement.
(b) Harris shall not by any action or omission cause any security interests,
liens, claims, pledges, charges, encumbrances, options, rights of first
refusal, agreements or limitations on its voting rights to attach to the
Subject Shares.
(c) Harris shall not and shall not authorize or permit any of its
Subsidiaries, controlled Affiliates, officers, directors, partners,
employees, agents or representatives (including without limitation any
investment bankers, financial advisors, attorneys or accountants) to,
directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiate with, or provide any information to any Person
or group (other than Parent) concerning any Acquisition Proposal, or make
a public announcement in support of any Acquisition Proposal or that
encourages stockholders of the Company not to support the Offer and the
Merger.
(d) Harris shall immediately advise Parent in writing of any Acquisition
Proposal that it receives and provide Parent with any such proposal, if
the proposal is in writing, or with a written summary of any oral
proposal.
(e) Harris waives any rights of appraisal or rights to dissent from the
Merger that it may have under the provisions of the DGCL or otherwise.
TERMINATION. The Voting and Tender Agreement will terminate upon the
earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement
in accordance with its terms, (iii) the termination of the Voting and Tender
Agreement at the written election of Harris in the event that Harris is entitled
to decline or withdraw tender of the Subject Shares under the agreement, and
(iv) by written notice given by Harris to Parent if the Offer has not been
effected by the 120th day following November 29, 2000.
EMPLOYMENT AGREEMENTS
In connection with the transactions contemplated by the Merger Agreement, on
November 29, 2000, Wesley E. Cantrell, Chairman and Chief Executive Officer of
the Company, and C. Lance Herrin, President and Chief Operating Officer of the
Company, each entered into executive employment
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agreements with the Company which are contingent upon the consummation of the
Merger and become effective immediately thereafter.
Mr. Cantrell's agreement provides for a six-month term of employment
commencing upon the Effective Time, and provides for a base salary of
$1,000,000. Upon expiration of Mr. Cantrell's term of employment, he is entitled
to receive a termination payment of $2.8 million and continued welfare benefits
for a period of two years. In the event his employment is terminated by the
Company without Cause (as such term is defined in the agreement) or by
Mr. Cantrell for Good Reason (as such term is defined in the agreement) prior to
the expiration of his employment term, Mr. Cantrell will be entitled to receive
the base salary that would have been due for the remainder of the term had his
employment not been terminated as well as the termination payment of
$2.8 million. This agreement contains non-compete and non-solicitation
provisions. A copy of this agreement is filed as Exhibit (e)(3) to the Company
14D-9 and is incorporated herein by reference.
Mr. Herrin's agreement provides for a two-year term of employment commencing
upon the Effective Time, which automatically renews for successive one-year
periods unless either party gives notice of its intention to discontinue
employment and provides for a base salary of $425,000. In addition Mr. Herrin
will be eligible to receive the following bonus payments: (i) an annual bonus of
up to $350,000; (ii) a long term incentive bonus of up to $120,000 payable
annually; and (iii) a retention bonus of $200,000 payable upon each of the first
and second anniversaries of the Effective Time if Mr. Herrin is still employed
with the Company at such times. Upon expiration of Mr. Herrin's term of
employment, he is entitled to receive a termination payment of $1.7 million and
continued welfare benefits for a period of two years. In the event his
employment is terminated by the Company without Cause (as such term is defined
in the agreement) or by Mr. Herrin for Good Reason (as such term is defined in
the agreement) prior to the expiration of his employment term, Mr. Herrin will
be entitled to receive the remaining unpaid retention bonuses that would have
been due for the remainder of the term had his employment not been terminated as
well as the termination payment of $1.7 million. This agreement contains
non-compete and non-solicitation provisions. A copy of this agreement is filed
as Exhibit (e)(4) to the Company 14D-9 and is incorporated herein by reference.
AGREEMENTS WITH HARRIS CORPORATION
On October 22, 1999, Harris and the Company (which was, at that time, a
wholly-owned subsidiary of Harris) entered into an Agreement and Plan of
Distribution (the "Distribution Agreement") in connection with the distribution
(the "Distribution") of approximately 90% of the Company's Common Stock to the
stockholders of Harris in a spin-off transaction. Harris and the Company also
entered into the Tax Agreement in connection with the Distribution. The
Distribution subsequently occurred on November 8, 1999.
The following is a summary of the principal provisions of certain letter
agreements entered into by the Company and/or Parent with Harris. This summary
is not a complete description of the terms and conditions of the letter
agreements and is qualified in its entirety by reference to the full text of the
letter agreements filed as exhibits to the Schedule TO and are incorporated
herein by reference. The letter agreements may be examined, and copies obtained,
as discussed in Section 7 of this Offer to Purchase.
As required by the Distribution Agreement, Parent and Harris have executed a
letter agreement obligating Parent to cause the Surviving Corporation to assume
certain tax-related liabilities, obligations and expenses of the Company under
the Distribution Agreement.
Parent, Harris and the Company have also entered into a letter agreement
providing (i) that Harris would waive the provisions of Section 2.04(b) of the
Tax Agreement, as such section related to the Company's negotiation of the
Merger Agreement and the consummation of the Merger by the Company, and (ii)
that the negotiation of the Merger Agreement and the transactions contemplated
thereby (including the Voting and Tender Agreement) would not be deemed
impermissible Harris Tainting Acts (as such term is defined in the Tax
Agreement).
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12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY.
PURPOSE OF THE OFFER AND THE MERGER. The purpose of the Offer and the Merger
is for Parent to acquire the entire equity interest in the Company. Through the
Offer, Purchaser intends to acquire control of, and a majority equity interest
in, the Company. Following the completion of the Offer, Parent intends to
acquire any outstanding Shares not owned by Purchaser by consummating the
Merger.
The Merger Agreement provides for a merger of the Purchaser with and into
the Company (with the Company being the surviving corporation).
Under the DGCL, if the Purchaser is merged into the Company, the approval of
the Board and, unless the Merger is consummated pursuant to Section 253 of the
DGCL described below, the affirmative vote of a majority of the holders of
outstanding Shares, are required to adopt the Merger Agreement. The Board has
unanimously approved the transactions contemplated by the Merger Agreement,
including the Offer and the Merger, and, unless the Merger is consummated
pursuant to the short form merger provisions of the DGCL described below, the
only remaining required corporate action necessary to consummate the Merger of
the Purchaser into the Company would be the adoption of the Merger Agreement by
the affirmative vote of the holders of a majority of the then outstanding
Shares. If the Minimum Condition is satisfied, Purchaser will have sufficient
voting power to cause the adoption of the Merger Agreement by the requisite vote
of stockholders of the Company without the affirmative vote of any other
stockholder.
Under Section 253 of the DGCL relating to the merger of a parent with its
subsidiary, if Purchaser acquires at least 90% of the outstanding Shares
pursuant to the Offer or otherwise, Purchaser will be able to effect the merger
of Purchaser into the Company without a vote of the Company's stockholders.
However, if Purchaser does not acquire at least 90% of the Shares pursuant to
the Offer or otherwise, a longer period of time may be required to effect the
Merger, because a vote of the Company's stockholders would be required under the
DGCL.
PLANS FOR THE COMPANY. Except as otherwise set forth in this Offer to
Purchase, it is expected that, initially following the Merger, the business and
operations of the Company will be continued by the Surviving Corporation
substantially as they are currently being conducted. The directors of Purchaser
will be the initial directors of the Surviving Corporation, and the executive
officers of the Purchaser will be the initial executive officers of the
Surviving Corporation.
Parent intends to conduct a detailed review of the Company and its assets,
corporate structure, capitalization, operations, policies, management and
personnel. After such review, Parent will determine what actions or changes, if
any, would be desirable in light of the circumstances which then exist,
including steps to integrate the operations of the Surviving Corporation and the
operations of Parent. In parallel, Parent plans to give consideration to any
potential avenues that may be open for further strengthening the Company's
marketing and financial position, including through possible alliances, or
partnership or joint venture arrangements with third parties.
Except as described in this Offer to Purchase, neither Parent nor Purchaser
has any present plans or proposals that would relate to or result in (i) any
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries, (ii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries, (iii) any change in the Board of Directors or management of the
Company, (iv) any material change in the Company's capitalization or dividend
policy or (v) any other material change in the Company's corporate structure or
business.
Parent and Purchaser intend to cause the Company to make an application for
termination of registration of the Shares as soon as possible after consummation
of the Offer if the Shares are then
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eligible for such termination. In such event, following the consummation of the
Merger, there will be no publicly traded Shares outstanding. See Section 13 of
this Offer to Purchase.
APPRAISAL RIGHTS. The holders of Shares do not have appraisal rights as a
result of the Offer. However, if the Merger is consummated, holders of Shares at
the Effective Time will have certain rights pursuant to the provisions of
Section 262 of the DGCL to dissent from the Merger and demand appraisal of their
Shares. Under Section 262, dissenting stockholders who comply with the
applicable statutory procedures will be entitled to receive a judicial
determination of the fair value of their Shares (exclusive of any element of
value arising from the accomplishment or expectation of the Merger) and to
receive payment of such fair value in cash, together with a fair rate of
interest, if any. Any such judicial determination of the fair value of Shares
could be based upon factors other than, or in addition to, the price per Share
to be paid in the Merger or the market value of the Shares. The value so
determined could be more or less than the price per Share to be paid in the
Merger.
The foregoing summary of Section 262 does not purport to be complete and is
qualified in its entirety by reference to Section 262. FAILURE TO FOLLOW THE
STEPS REQUIRED BY SECTION 262 OF THE DGCL FOR PERFECTING APPRAISAL RIGHTS MAY
RESULT IN THE LOSS OF SUCH RIGHTS.
13. CERTAIN EFFECTS OF THE OFFER.
EFFECT ON THE 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. Consequently, depending upon the number of
Shares purchased and the number of remaining holders of Shares, the purchase of
Shares pursuant to the Offer may adversely affect the liquidity and market value
of the remaining Shares held by the public. Purchaser cannot predict whether the
reduction in the number of Shares that might otherwise trade publicly would have
an adverse or beneficial effect on the market price for, or marketability of,
the Shares or whether it would cause future market prices to be greater or less
than the Offer Price.
STOCK QUOTATIONS. The Shares are currently listed and traded on the NYSE,
which constitutes the principal trading market for the Shares. Depending upon
the aggregate market value and the number of Shares not purchased pursuant to
the Offer, the Shares may no longer meet the standards for continued listing on
the NYSE. According to its published guidelines, the NYSE would give
consideration to delisting the Shares if, among other things, the number of
publicly held Shares falls below 600,000, the number of holders of round lots of
Shares falls below 400 (or below 1,200 if the average monthly trading volume is
below 100,000 for the last twelve months) or the aggregate market value of such
publicly held Shares falls below $8,000,000. Shares held by officers or
directors of the Company or their immediate families, or by any beneficial owner
of more than 10% or more of the Shares, ordinarily will not be considered as
being publicly held for this purpose.
If, as a result of the purchase of Shares pursuant to the Offer, the Shares
no longer meet the requirements for continued listing on the NYSE, the market
for the Shares could be adversely affected. In the event the Shares are no
longer eligible for listing on the NYSE, quotations might still be available
from other sources. The extent of the public market for the Shares and the
availability of such quotations would, however, depend upon the number of
holders of such Shares at such time, the interest in maintaining a market in
such Shares on the part of securities firms, the possible termination of
registration of such Shares under the Exchange Act as described below and other
factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application of the
Company to the SEC if such Shares are not listed on a national securities
exchange and there are fewer than 300 holders of record of the Shares. The
termination of the registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company to
its stockholders and to the SEC,
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and would make certain of the provisions of the Exchange Act, such as the
short-swing profit recovery provisions of Section 16(b) and the requirement of
furnishing a proxy statement in connection with stockholders meetings and the
related requirement of an annual report to stockholders, and the requirements of
Rule 13e-3 with respect to going private transactions, no longer applicable with
respect to the Shares or to the Company. Furthermore, if registration of the
Shares under the Exchange Act were terminated, the ability of "affiliates" of
the Company and persons holding "restricted securities" of the Company to
dispose of such securities pursuant to Rule 144 promulgated under the Securities
Act of 1933, as amended, may be impaired or, with respect to certain persons,
eliminated. If the Shares were no longer registered under the Exchange Act, the
Shares would no longer be eligible for NYSE listing. Parent and Purchaser intend
to cause the Company to make an application for termination of registration of
the Shares as soon as possible after consummation of the Offer if the Shares are
then eligible for such termination.
MARGIN SECURITIES. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on such Shares as collateral. Depending on factors
similar to those described above regarding listing and market quotations, it is
possible the Shares would no longer constitute "margin securities" for purposes
of the Federal Reserve Board's margin regulations 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."
14. DIVIDENDS AND DISTRIBUTIONS.
As discussed in Section 11 of this Offer to Purchase, pursuant to the Merger
Agreement, without the prior approval of Parent or as otherwise contemplated in
the Merger Agreement, the Company has agreed not to (i) declare, set aside pay
any dividend or make any other distributions of the Company on Shares of capital
stock, other than dividends or distributions by any wholly-owned subsidiary of
the Company to the Company or another wholly-owned subsidiary, (ii) split,
combine or reclassify any capital stock of the Company or any of its
subsidiaries, or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for Shares of capital stock of the
Company or any of its subsidiaries, or (iii) except as required by the Merger
Agreement, repurchase, redeem or otherwise acquire any Shares of capital stock
of the Company or any of its subsidiaries or any other securities thereof or any
rights, warrants or options to acquire any such Shares or other securities.
15. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, Purchaser will not be
required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-l(c) promulgated under the Exchange
Act, pay for, and (subject to any such rules or regulations) may postpone the
acceptance for payment of or the payment for any tendered Shares if:
(1) the Minimum Condition has not been satisfied;
(2) any applicable waiting period under the HSR Act has not expired or been
terminated;
(3) the Offer and the Merger cannot be consummated under European Union
Council Regulation (EEC) No. 4064/89; or
(4) the Company and/or Parent shall not have received the antitrust or
competition consents, approvals or waivers required by the relevant
governmental entities in The Republic of Colombia and in The Republic of
Poland.
Furthermore, notwithstanding any other term or provision of the Offer,
Parent and Purchaser shall not be required to accept for payment or purchase any
Shares, may postpone the acceptance for
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payment of Shares tendered, and may terminate the Offer at any time prior to the
Expiration Date if any of the following conditions exist:
(1) there shall be instituted or pending any action or proceeding by any
government or governmental authority or agency, domestic or foreign,
before any court or governmental authority or agency, domestic or
foreign, (i) challenging or seeking to make illegal, to delay
materially or otherwise directly or indirectly to restrain or
prohibit the making of the Offer, the acceptance for payment of or
payment for some or all of the Shares by Parent or the consummation
of the Merger, (ii) seeking to obtain material damages or otherwise
directly or indirectly relating to the transactions contemplated by
the Offer or the Merger, (iii) seeking to restrain or prohibit
Parent's ownership or operation (or that of its respective
subsidiaries or affiliates) of all or any material portion of the
business or assets of the Company and its subsidiaries, taken as a
whole, or of Parent and its subsidiaries, taken as a whole, or to
compel Parent or any of its subsidiaries or affiliates to dispose of
or hold separate all or any material portion of the business or
assets of the Company and its subsidiaries, taken as a whole, or of
Parent and its subsidiaries, taken as a whole, (iv) seeking to impose
or confirm material limitations on the ability of Parent, Purchaser
or any of Parent's other subsidiaries or affiliates effectively to
exercise full rights of ownership of the Shares, including the right
to vote any Shares acquired or owned by Parent, Purchaser or any of
Parent's other subsidiaries or affiliates on all matters properly
presented to the Company's stockholders or (v) seeking to require
divestiture by Parent, Purchaser or any of Parent's other
subsidiaries or affiliates of any Shares; or
(2) there shall have been any action taken, or any statute, rule,
regulation, injunction, order or decree proposed, enacted, enforced,
promulgated, issued or deemed applicable to the Offer or the Merger,
by any court, government or governmental authority or agency,
domestic or foreign, other than the application of the waiting period
provisions of the HSR Act to the Offer or the Merger, or the European
Union Council Regulation (EEC) No. 4064/89, is reasonably likely,
directly or indirectly, to result in any of the consequences referred
to in these clauses (1) through (5) ; or
(3) there has been any event, occurrence or development or state of
circumstances or facts which, individually or in the aggregate, has a
material adverse effect on the Company; or
(4) the Board shall have failed to recommend, or shall have withdrawn or
modified in a manner adverse to Parent its approval or recommendation
of, the Merger Agreement, the Offer or the Merger, or shall have
recommended, or entered into, or publicly announced its intention to
enter into, an agreement or an agreement in principle with respect to
a Superior Proposal (or shall have resolved to do any of the
foregoing); or
(5) (i) any of the representations and warranties made by the Company in
the Merger Agreement shall not be true and correct in all material
respects when made, or shall thereafter have ceased to be true and
correct in all material respects as of such latter date (other than
the representations and warranties made as of a specified date) or
(ii) any of the representations and warranties made by the Company in
the Merger Agreement shall not have been true and correct when made,
or shall thereafter have ceased to be true and correct as if made as
of such latter date (other than representations and warranties made
as of a specified date), in each case without giving effect to any
materiality standard contained in such representation or warranty,
except to the extent that any such failure to be true and correct,
individually and in the aggregate with all other such failures, would
not have a material adverse effect on the Company, or (iii) the
Company shall not in all material respects have performed each
obligation and agreement
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and complied with each covenant to be performed and complied with by
it under the Merger Agreement, which, in each case, shall not have
been waived or to the extent curable, cured within fifteen (15) days
after written notice of such breach is given by Parent or Purchaser;
or
(6) there shall have occurred any general suspension of trading in, or
limitation on prices for, securities on the New York Stock Exchange
or in the over-the-counter market in the United States or Japan
(other than any suspension or limitation on trading in any particular
security as a result of a computerized trading limit or any intrading
suspension due to "circuit breakers"), any declaration of a banking
moratorium by federal or New York authorities or general suspension
of payments in respect of lenders that regularly participate in the
U.S. market in loans to large corporations, any material limitation
by any federal, state or local government or any court,
administrative or regulatory agency or commission or other
governmental authority or agency in the United States that materially
affects the extension of credit generally by lenders that regularly
participate in the U.S. market in loans to large corporations, any
commencement of a war involving the United States or any commencement
of armed hostilities or other national or international calamity
involving the United States that has a material adverse effect on
bank syndication for financial markets in the United States or, in
the case of any of the foregoing occurrences existing on or at the
time of the commencement of the Offer, a material acceleration or
worsening thereof, or;
(7) the Merger Agreement shall have been terminated in accordance with
its terms.
The foregoing conditions are for the sole benefit of Parent and Purchaser
and may, subject to the terms of the Merger Agreement, be waived by Parent and
Purchaser in whole or in part at any time and from time to time in their
discretion. The failure by Parent or Purchaser at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right, the waiver
of any such right with respect to particular facts and circumstances shall not
be deemed a waiver with respect to any other facts and circumstances, and each
such right shall be deemed an ongoing right that may be asserted at any time and
from time to time prior to the Effective Time.
16. CERTAIN LEGAL MATTERS.
GENERAL. Except as described in this Section 16, based on a review of
publicly available filings by the Company with the SEC and other publicly
available information concerning the Company, Purchaser is not aware of any
license or regulatory permit that appears to be material to the business of the
Company and that might be adversely affected by Purchaser's acquisition of
Shares pursuant to the Offer, or of any approval or other action by any
governmental, administrative or regulatory agency or authority, domestic or
foreign, that would be required for the acquisition or ownership of Shares by
Purchaser pursuant to the Offer. Should any such approval or other action be
required, it is presently contemplated that such approval or action would be
sought, except as described below under "--State Takeover Laws." While Purchaser
does not currently intend to delay acceptance for payment of Shares tendered
pursuant to the Offer pending the outcome of any such matter, there can be no
assurance that any such approval or other action, if required, would be obtained
without substantial conditions or that adverse consequences would not result to
the Company's business or that certain parts of the Company's business would not
have to be disposed of in the event that such approvals were not obtained or
such other actions were not taken 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, Purchaser may decline to accept for payment or pay for any
Shares tendered. See Section 15 of this Offer to Purchase.
STATE TAKEOVER LAWS. The Company is incorporated under the laws of the State
of Delaware. As a Delaware corporation, the Company is subject to Section 203 of
the DGCL. In general,
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Section 203 would prevent an "interested stockholder" (generally defined as a
person beneficially owning 15% or more of a corporation's voting stock) from
engaging in a "business combination" (defined to include mergers and certain
other actions with a Delaware corporation) for three years following the date
such person became an interested stockholder unless: (1) before such person
became an interested stockholder, the board of directors of the corporation
approved the transaction in which the interested stockholder became an
interested stockholder or approved the business combination, (2) upon
consummation of the transaction which resulted in the interested stockholder
becoming an interested stockholder, the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding for purposes of determining the number of
shares of outstanding stock held by directors who are also officers and by
employee stock plans that do not allow plan participants to determine
confidentially whether to tender shares), or (3) following the transaction in
which such person became an interested stockholder, the business combination is
(x) approved by the board of directors of the corporation and (y) authorized at
a meeting of the stockholders by the affirmative vote of the holders of at least
66 2/3% of the outstanding voting stock of the corporation not owned by the
interested stockholder. In accordance with the provisions of Section 203, the
Board has unanimously approved the Merger Agreement and, therefore, the
restrictions of Section 203 are inapplicable to the Merger and the transactions
contemplated under the Merger Agreement.
The Company and certain of its subsidiaries conduct business in a number of
states throughout the United States, some of which have adopted laws and
regulations applicable to offers to acquire Shares of corporations that are
incorporated or have substantial assets, stockholders and/or a principal place
of business in such states. In EDGAR V. MITE CORP., the Supreme Court of the
United States held that the Illinois Business Takeover Statute, which involved
state securities laws that made the takeover of certain corporations more
difficult, imposed a substantial burden on interstate commerce and was therefore
unconstitutional. In CTS CORP. V. DYNAMICS CORP. OF AMERICA, however, the
Supreme Court of the United States held that a state may, as a matter of
corporate law and, in particular, those laws concerning corporate governance,
constitutionally disqualify a potential acquiror from voting on the affairs of a
target corporation without prior approval of the remaining stockholders,
provided that such laws were applicable only under certain conditions, in
particular, that the corporation has a substantial number of stockholders in and
is incorporated under the laws of such state. Subsequently, in TLX ACQUISITION
CORP. V. TELEX CORP., a federal district court in Oklahoma ruled that certain
Oklahoma statutes were unconstitutional insofar as they applied to corporations
incorporated outside Oklahoma in that they would subject such corporations to
inconsistent regulations. Similarly, in TYSON FOODS, INC. V. MCREYNOLDS, a
federal district court in Tennessee ruled that four Tennessee takeover statutes
were unconstitutional as applied to corporations incorporated outside Tennessee.
This decision was affirmed by the United States Court of Appeals for the Sixth
Circuit.
Neither Parent nor Purchaser has determined whether any other state takeover
laws and regulations will by their terms apply to the Offer or the Merger, and,
except as set forth above, neither Parent nor Purchaser has presently sought to
comply with any state takeover statute or regulation. Parent and Purchaser
reserve the right to challenge the applicability or validity of any state law or
regulation purporting to apply to the Offer or the Merger, and neither anything
in this Offer to Purchase nor any action taken in connection herewith is
intended as a waiver of such right. In the event it is asserted that one or more
state takeover statutes is applicable to the Offer or the Merger and an
appropriate court does not determine that such statute is inapplicable or
invalid as applied to the Offer or the Merger, Parent or Purchaser might be
required to file certain information with, or to receive approval from, the
relevant state authorities, and Purchaser might be unable to accept for payment
or pay for Shares tendered pursuant to the Offer, or be delayed in consummating
the Offer.
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ANTITRUST IN THE UNITED STATES. Under the HSR Act and the rules that have
been promulgated thereunder by the Federal Trade Commission (the "FTC"), 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 FTC and certain waiting period requirements have
been satisfied. The purchase of Shares pursuant to the Offer is subject to such
requirements.
Pursuant to the requirements of the HSR Act, Parent filed a Notification and
Report Form with respect to the Offer and Merger with the Antitrust Division and
the FTC on November 30, 2000. As a result, the waiting period applicable to the
purchase of Shares pursuant to the Offer is scheduled to expire at 11:59 p.m.,
New York City time, fifteen (15) days after such filing. However, prior to such
time, the Antitrust Division or the FTC may extend the waiting period by
requesting additional information or documentary material relevant to the Offer
from Parent. If such a request is made, the waiting period will be extended
until 11:59 p.m., New York City time, on the tenth day after substantial
compliance by Parent with such request. Thereafter, such waiting period can be
extended only by court order.
A request has been made pursuant to the HSR Act for early termination of the
waiting period applicable to the Offer. There can be no assurance, however, that
the applicable 15-day HSR Act waiting period will be terminated early. Shares
will not be accepted for payment or paid for pursuant to the Offer until the
expiration or early termination of the applicable waiting period under the HSR
Act. See Section 15. Any extension of the waiting period will not give rise to
any withdrawal rights not otherwise provided for by applicable law. See
Section 3 of this Offer to Purchase. If Purchaser's acquisition of Shares is
delayed pursuant to a request by the Antitrust Division or the FTC for
additional information or documentary material pursuant to the HSR Act, the
Offer will be extended in certain circumstances. See Section 1 of this Offer to
Purchase.
The Antitrust Division and the FTC scrutinize the legality under the
antitrust laws of transactions such as the acquisition of Shares by Purchaser
pursuant to the Offer. At any time before or after the consummation of any such
transactions, the Antitrust Division or the FTC could take such action under the
antitrust laws of the United States as it deems necessary or desirable in the
public interest, including seeking to enjoin the purchase of Shares pursuant to
the Offer or seeking divestiture of the Shares so acquired or divestiture of
substantial assets of Parent or the Company. Private parties (including
individual States) may also bring legal actions under the antitrust laws of the
United States. Purchaser does not believe that the consummation of the Offer
will result in a violation of any applicable antitrust laws. However, there can
be no assurance that a challenge to the Offer on antitrust grounds will not be
made, or if such a challenge is made, what the result will be. See Section 15 of
this Offer to Purchase for certain conditions to the Offer, including conditions
with respect to certain governmental actions and Section 11 of this Offer to
Purchase for certain termination rights.
EUROPEAN ANTITRUST APPROVAL. Parent initially notified the Commission of the
European Union of the Offer in an informational meeting held on November 30,
2000. Parent and the Company jointly expect to formally notify the Commission of
the European Union of the Offer on or about December 12, 2000 pursuant to the
European Union Council Regulation (EEC) No. 4064/89. Purchaser will be barred
from consummating the Offer until the acquisition of a controlling interest in
the Company by Parent has been declared compatible with the European Union
common market by the Commission of the European Union or the Commission of the
European Union has failed to make a decision within one month of the
notification. The receipt of approval by the Commission of the European Union or
the expiration of the one month period is a condition to the Offer. See
Section 1 and Section 15 of this Offer to Purchase.
The one month period begins to run one business day after notification has
been received by the Commission of the European Union, unless the Commission of
the European Union finds that the notification is materially incomplete in any
respect, in which case the one month period begins to run
40
<PAGE>
after the defect has been cured. The Offer may be consummated after the one
month period has ended, unless the Commission of the European Union determines
the acquisition of a controlling interest in the Company by Parent may not be
compatible with the European common market or in a substantial part of it, in
which case it would commence an in-depth investigation. If the Commission of the
European Union determines to commence an in-depth investigation, it must render
a decision on the merits of a transaction within four months of making such
determination.
A transaction would be declared incompatible with the common market by the
Commission of the European Union if it would create or strengthen a dominant
position as a result of which effective competition would be significantly
impeded in the common market or in a substantial part of it. Based upon an
examination of the information available to the Parent and Purchaser relating to
the businesses in which the Parent, the Company and their respective
subsidiaries are engaged, the Parent and Purchaser believe that the transactions
contemplated by the Merger Agreement will not create or strengthen a dominant
position. However, there can be no assurance that a challenge to the Offer on
European Union antitrust grounds will not be made or, if such a challenge is
made, what the result would be. See Section 15 of this Offer to Purchase for
certain conditions to the Offer.
REPUBLIC OF COLOMBIA ANTITRUST APPROVAL. Parent and Purchaser jointly expect
to notify the Superintendence of Industry and Commerce (the "SIC") of the Offer
on or about December 11, 2000. Pursuant to Colombian law, the SIC must indicate
whether it objects to the Offer within thirty (30) business days following the
filing referred to in the preceding sentence. The thirty (30) business day term
will be suspended, however, upon a request for additional information by the
SIC. If the SIC does not object to the Offer within the thirty (30) business day
term (excluding the days during which such term has been suspended pursuant to a
request by the SIC for additional information), the Offer shall be deemed to be
approved. The receipt of approval from the SIC or the expiration of the thirty
(30) business day period is a condition to the Offer. See Section 1 and
Section 15 to this Offer to Purchase.
REPUBLIC OF POLAND ANTITRUST APPROVAL. Parent and the Company jointly expect
to notify the President of the Office for Protection of Competition and
Consumers (the "Office") of the Offer on or about December 15, 2000, pursuant to
the Counteracting Monopolistic Practices Act. The assessment of a notification
may last up to two (2) months, but there are exceptions for the acquisition of
shares in publicly listed companies, for which the examination period may last
up to two (2) weeks. Following the examination of the notification, the Office
may either (i) inform Parent and the Company that it has no objection with
regard to the Offer, (ii) issue a decision prohibiting the Offer, or
(iii) propose conditions which the parties must fulfill in order to obtain
clearance. The receipt of approval from the Office is a condition to the Offer.
See Section 1 and Section 15 to this Offer to Purchase.
OTHER FILINGS. Purchaser and the Company each conduct operations in a number
of other foreign countries and there is a possibility that filings may have to
be made with other foreign governments under their merger notification statutes.
The filing requirements of various nations are being analyzed by the parties
and, where necessary, such filings will be made.
17. FEES AND EXPENSES.
Wasserstein Perella is acting as the Dealer Manager in connection with the
Offer. Wasserstein Perella will receive reasonable and customary compensation
for its services relating to the Offer and will be reimbursed for certain
out-of-pocket expenses including reasonable expenses of counsel and other
advisors. Parent and Purchaser have agreed to indemnify Wasserstein Perella and
certain related persons against certain liabilities and expenses in connection
with its engagement, including certain liabilities under the federal securities
laws. Wasserstein Perella and its affiliates may actively trade the
41
<PAGE>
equity securities of the Company for their own account and for the account of
customers and, accordingly, may at any time hold a long or short position in
such securities.
Parent and Purchaser have retained MacKenzie Partners, Inc. to be the
Information Agent and Mellon Investor Services, L.L.C. to be the Depositary in
connection with the Offer. The Information Agent may contact holders of Shares
by mail, telephone, telecopy, telegraph and personal interview and may request
banks, brokers, dealers and other nominees to forward materials relating to the
Offer to beneficial owners of Shares.
The Information Agent and the Depositary each will receive reasonable and
customary compensation for their respective services in connection with the
Offer, will be reimbursed for reasonable out-of-pocket expenses, and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under federal securities laws.
None of Parent or Purchaser will pay any fees or commissions to any broker
or dealer or to any other person (other than to the Dealer Manager, the
Depositary and the Information Agent) in connection with the solicitation of
tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks and
trust companies will, upon request, be reimbursed by Purchaser for customary
mailing and handling expenses incurred by them in forwarding offering materials
to their customers.
18. MISCELLANEOUS.
The Offer is being made to all holders of Shares. Purchaser is not aware of
any jurisdiction where the making of the Offer is prohibited by administrative
or judicial action pursuant to any valid state statute. If Purchaser becomes
aware of any valid state statute prohibiting the making of the Offer or the
acceptance of Shares pursuant thereto, Purchaser will make a good faith effort
to comply with any such state statute or seek to have such statute declared
inapplicable to the Offer. If, after such good faith effort, Purchaser cannot
comply with any such state statute, the Offer will not be made to (nor will
tenders be accepted from or on behalf of) the holders of Shares in such state.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to be
made on behalf of 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 MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR PURCHASER NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE RELATED LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Parent and Purchaser have filed with the SEC a Tender Offer Statement on
Schedule TO, together with all exhibits thereto, pursuant to Rule 14d-3 of the
General Rules and Regulations under the Exchange Act, furnishing certain
additional information with respect to the Offer. In addition, the Company has
filed a Solicitation/Recommendation Statement on Schedule 14D-9, together with
all exhibits thereto, pursuant to Rule 14d-9 of the Exchange Act Rules setting
forth its recommendation with respect to the Offer and the reasons for such
recommendations and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, may be inspected and
copies may be obtained from the offices of the SEC in the manner set forth in
Section 7 of this Offer to Purchase (except that they will not be available at
the regional offices of the SEC).
LW Acquisition Corp.
December 8, 2000
42
<PAGE>
SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF
PARENT AND PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. Set forth in the table below are
the names, current principal occupations or employment and material
occupations, positions, offices or employments for the past five years of
each member of Board of Directors and each executive officer of Parent. The
principal address of Ricoh Company, Ltd. and, unless indicated below, the
current business address for each individual listed below is c/o 15-5,
Minami-Aoyama 1-Chome, Minato-ku, Tokyo 107-8544, Japan. Telephone:
(81) 3-3479-3111. Each such person is a citizen of Japan.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL
NAME AGE POSITIONS HELD DURING THE PAST FIVE YEARS
---- -------------------- -------------------------------------------------------
<S> <C> <C>
Hiroshi Hamada................. 67 Chairman & CEO, Representative Director from April 1996 to
Present; President, Representative Director from April
1983 to April 1996.
Masamitsu Sakurai.............. 58 President & COO, Representative Director from June 2000 to
Present; President, Representative Director from April
1996 to June 2000; Managing Director and General Manager
of Research and Development Group from January 1995 to
April 1996.
Haruo Kamimoto................. 62 Executive Managing Director, Executive Vice President, in
charge of Domestic & International Sales, SCM
Reengineering and "The Man" project etc. from June 2000 to
Present; Executive Managing Director in charge of
Domestic & International Sales from April 1998 to June
2000; Executive Managing Director & General Manager of
Imaging System Products Group from June 1994 to April
1998.
Tatsuo Hirakawa................ 63 Executive Managing Director & Executive Vice President, in
charge of Corporate Planning, Investors Relations,
Finance & Accounting and Personnel etc. from June 2000 to
Present; Executive Managing Director, in charge of
Finance & Accounting and Personnel & General Affairs from
September 1995 to March 1998 Executive Managing Director,
General Manager of Finance & Accounting Division from
September 1995 to March 1998.
Naoto Shibata.................. 61 Executive Managing Director & Executive Vice President, in
charge of Marketing in Europe and Middle East from June
2000 to Present; Managing Director from June 1996 to June
2000; Chairman of Ricoh Europe B.V., from April 1997 to
Present; Chairman of Gestetner Holdings plc, 66 Chiltern
Street, London, U.K. from September 1995 to Present.
</TABLE>
I-1
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL
NAME AGE POSITIONS HELD DURING THE PAST FIVE YEARS
---- -------------------- -------------------------------------------------------
<S> <C> <C>
Koichi Endo.................... 56 Executive Managing Director & Executive Vice President, in
charge of Production Business, Information Technology and
Solution, General Manager of Production Group, 1-3-6
Nakamagome, Ota-ku, Tokyo, Japan from June 2000 to
Present; Managing Director, General Manager of Production
Business Group from April 1998 to June 2000; Managing
Director, Deputy General Manager of Production Business
Group from June 1997 to April 1998; Director, Deputy
General Manager of Production Business Group from April
1993 to June 1997.
Masaaki Iida................... 60 Managing Director & Executive Vice President, in charge of
Environment, General Manager of Corporate Citizenship
Promotion Office from June 2000 to Present; Managing
Director, General Manager of Chemical Products Group, 16-1
Honda-machi, Numazu, Japan from June 1998 to June 2000
Director, General Manager of Chemical Products Group from
June 1994 to June 1998.
Masami Takeiri................. 62 Managing Director & Executive Vice President, in charge of
International Marketing Strategy, General Manager of
International Marketing Group from June 2000 to Present;
Managing Director, General Manager of International
Marketing Group from June 1998 to June 2000; Director,
General Manager of International Marketing Group from June
1994 to June 1998.
Makoto Hashimoto............... 55 Managing Director & Executive Vice President, Company
President of Personal MultiMedia Products Company, 3-2-3
Shin-Yokohama, Kohoku-ku, Yokohama-shi, Kanagawa-kon,
Japan from October 2000 to Present; Managing Director &
Executive Vice President, General manager of Imaging
System Business Group, 1-3-6 Nakamagome, Ota-ku, Tokyo,
Japan from June 2000 to September 2000; Managing Director,
General manager of Imaging System Business Group from
April 1998 to June 2000; Director, General Manager of
Image Processing Products Group from April 1997 to April
1998; Director, General Managing of Image Processing
System Group from January 1996 to April 1997; Director,
General Managing of Image System Business Group from
January 1995 to January 1996.
Masayuki Matsumoto............. 55 Managing Director & Executive Vice President, in charge of
Domestic Sales from June 2000 to Present; Managing
Director, General Manager of Marketing Group from June
1998 to June 2000; Director, Deputy General Manager of
Marketing Group from January 1996 to June 1998; Director,
Deputy General Manager of Marketing Group and (General)
Manager of Tokyo Branch, 6-14-6 Ginza, Chuo-ku, Tokyo,
Japan from January 1995 to January 1996.
Josei Ito...................... 71 Director from June 2000 to Present; Chairman and
Representative Director of Nippon Life Insurance Company,
1-1-1 Yuraku-cho, Chiyoda-ku, Tokyo, Japan from July 1989
to April 1997.
</TABLE>
I-2
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL
NAME AGE POSITIONS HELD DURING THE PAST FIVE YEARS
---- -------------------- -------------------------------------------------------
<S> <C> <C>
Nobuo Mii...................... 69 Director from June 2000 to Present; Managing Partner of
IGNITE Group, 255 Shoreline Drive, Suite 510, Redwood
City, CA, USA from October 1997 to Present; Corporate Vice
President of IBM Corporation from June 1990 to October
1997.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER. Set forth below is the name,
current principal occupation or employment and material occupations,
positions, offices or employment for the past five years of each member of
the board of directors and each executive officer of Purchaser. The
principal address of Purchaser and, unless indicated below, the current
business address for each individual listed below is LW Acquisition Corp., 5
Dedrick Place, West Caldwell, New Jersey 07006. Telephone: (973) 882-2000.
Each such person is a citizen of Japan.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND MATERIAL
NAME AGE POSITIONS HELD DURING THE PAST FIVE YEARS
---- -------------------- -------------------------------------------------------
<S> <C> <C>
Masami Takeiri................. 62 President and Director of Purchaser; Managing Director &
Executive Vice President, General Manager of International
Marketing Group of Ricoh Company, Ltd. from June 2000 to
Present; Managing Director, General Manager of
International Marketing Group of Ricoh Company, Ltd. from
June 1998 to June 2000; Director, General Manager of
International Marketing Group of Ricoh Company, Ltd. from
June 1994 to June 1998.
Yukio Mizutani................. 61 Director, Secretary and Treasurer of Purchaser; Associate
Director, Deputy General Manager of International
Marketing Group of Ricoh Company, Ltd. from June 1999 to
Present; Deputy General Manager of International Marketing
Group of Ricoh Company, Ltd. from April 1988 to June 1999;
(General) Manager of Marketing Group, International
Marketing Office of Ricoh Company, Ltd. from January 1996
to April 1998, Deputy General Manager of International
Marketing Group of Ricoh Company, Ltd. from October 1995
to January 1996.
</TABLE>
I-3
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. Letters of Transmittal and certificates for Shares should be sent or
delivered by each stockholder of the Company or his broker, dealer, commercial
bank, trust company or other nominee to the Depositary at one of its addresses
set forth below:
THE DEPOSITARY FOR THE OFFER IS
MELLON INVESTOR SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND: BY OVERNIGHT:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 07606 13th Floor Mail Stop--Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
BY FACSIMILE:
(FOR ELIGIBLE INSTITUTIONS
ONLY)
(201) 296-4293
CONFIRM BY TELEPHONE (CALL COLLECT):
(201) 296-4860
</TABLE>
------------------------
Any questions or requests for assistance may be directed to the Information
Agent at its address and telephone numbers set forth below. Requests for
additional copies of this Offer to Purchase and the Letter of Transmittal may be
directed to the Information Agent or the Depositary. Stockholders may also
contact their brokers, dealers, commercial banks, trust companies or other
nominees for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS
[LOGO]
156 Fifth Avenue
New York, New York 10010
Call Collect: (212) 929-5500
Call Toll Free: (800) 322-2885
THE DEALER MANAGER FOR THE OFFER IS
WASSERSTEIN PERELLA & CO., INC.
31 West 52nd Street
New York, NY 10019
(212) 969-2700 (Call Collect)
